Cases illustrative of maxim sic utere tuo.

stand the meaning of damnum; the nature of injuria; the extent of right or property involved in tuo and alienum; the proper interpretation of lædas, and the extent of jus.

It will be interesting at once to illustrate our meaning by two examples.

A. and B. are neighbouring landowners. B. digs a well in his own land, in consequence of which part of A.'s land in course of time falls in.

C. and D. are neighbouring landowners on the seashore. D. builds a sea-wall to protect his land from the encroachments of the sea, in consequence of which the sea is driven with more violence on to C.'s foreshore, and after a time swamps his property and damages his crops.

more unlawful

At first sight it would seem that the maxim sic utere tuo would apply to both cases, for both B. and D. have so used their own lands as to cause damage to others. But B. is liable, and D. is not. And yet to dig a well is no than to build a wall on one's own property. right to require D. not to build a wall, whereas A. had a right to require B. not to withdraw the support which his land afforded him. Consequently, under the circumstances, B.'s act was unlawful, because he had not replaced that sup

But C. had no

L. R. I C. P. port which his digging had removed. (See Smith v. Thac564. [post, p. 139.] kerah, and similar cases, with regard to the case of A. and B.; and R. v. Pagham Commissioners with regard to the case of C. and D.)

8 B. & C. 353. [post, p. 119.]

It is clear, therefore, that before we can lay down any accurate propositions of law we have to make many complicated preliminary inquiries. It would be a possible, but an endless, task to make a catalogue of legal rights, and a schedule of legal duties; to enumerate every act of commission and omission which has been held an illegal violation of the legal rights of others, or an illegal breach of legal duties laid on ourselves and to conclude with a digest of legal remedies and penalties which would be consequential.

The subject, however, seems naturally capable of being

studied under three distinct aspects, each of which covers more or less the whole ground, but which are collectively essential to a complete understanding of the Law of Torts. These aspects are first, liability judged of by a series of broad general principles: secondly, liability judged of from the plaintiff's point of view, or, liability for acts or omissions: thirdly, liability judged of from the defendant's point of view, or, liability for consequences.

I. to VI.]

Under the first come the enquiries as to the origin of legal [Chapters rights and duties: the place of commission of a tort: the effect of death, bankruptcy, and marriage of the tortfeasor or the party injured; and the effect of limitation and waiver: as to tortfeasors generally, including the liability for injuries by servants, animals, and inanimate things: as to damage generally and as to breaches of statutory duties.

Under the second come Mens Rea, including Negligence: [Chapters VII. to IX.] Fraud and Malice. Under the third comes the examination of the particularly [Chapters named torts: these are grouped under the three broad heads of injuries to the person: injuries to the reputation: and injuries to property.

It is impossible to draw a distinction between breaches of duties which concern the civil law and those which concern the criminal law; for many breaches of duty redress is exigible both at civil and criminal law, that is, they are both crimes and civil wrongs: and both or either method of redress may be set in motion by the party aggrieved. The civil wrong and its consequences can, however, be pardoned and remitted by the party injured; but the crime and its consequences can only be pardoned and remitted by the Sovereign. The criminal aspect of any breach of duty must, therefore, be at once put on one side.

With regard to torts which are also crimes, a curious point arises. "For 300 years it has been said in various ways by

X. to XII.J

Acts may be well as tor

criminal as

tious.

Where the act

is both crimi.

nal and tor.

tious, civil action can

only be main

554.

But the law is at present unsettled as to

how this rule can be en

judges, many of the greatest eminence, without intimating a doubt, except in one instance, that there is some impediment tained after to the maintenance of an action for a debt arising" from a prosecution. 10 Ch: D. 667. felony (Bramwell, L.J., ex parte Ball, re Shepherd). "No doubt it has long been established as the law of England, that where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felonious wrong, the civil remedy, that is, the right of redress by action is suspended until the party inflicting the injury has been L. R. 7 Q. B. prosecuted" (Cockburn, C.J., Wells v. Abraham). But it has always been a puzzle to judges how to enforce this rule of law. Four ways were considered by Lord Justice Bramwell in the above case, and each one was rejected as an impossible solution of this legal conundrum: they were, (1.) That no cause of action arises at all out of a felony; which is manifestly wrong: (2.) That it does not arise till prosecution; "that would make the cause of action the act of the felon, plus a prosecution," which is also manifestly wrong: (3.) That it arises on the act, but is suspended till prosecution; but insurmountable difficulties attend the carrying out of such a rule chiefly because the suspension would then amount to a defence, and it would have to be set up by plea, contrary to the maxim nemo allegans suam turpitudinem est audiendus. Neither can it be carried into effect by nonsuit at the trial; the judge cannot refuse to try the cause (Wells v. Abraham): (4.) That there is neither defence to, nor suspension of, the claim by, or at the instance of, the felon debtor; but that the Court, of its own motion, or on the suggestion of the Crown, should stay proceedings till public justice is satisfied; nobody ever heard of such a thing:" and how is the Court to find it out? how is the Crown to know of it?

forced.

10 Q. B. D. 412.

Consideration

of the rule,

It cannot be raised by demurrer (Roope v. D'Avigdor). The principle of the rule of law is that it is the duty of the person injured to prosecute for the criminal offence, because the law throws prosecutions on private individuals but it is an extraordinary thing that no means of putting the rule in

force have as yet been devised; although Lord Justice Bramwell hesitated "to say that there was no practical law as alleged by the respondent." Two ways hitherto unnoticed suggest themselves. The Court might possibly stay execu- and practical tion until prosecution: or the question might possibly be suggestions. raised as a point of law under the new rules.

entirely
wrong?

With regard to raising the question by plea it does not Query, is (3) seem quite accurate to say that the defendant is relying on his own turpitude, for that surely is assuming the question which the jury has to try, either at Nisi Prius or at the Old Bailey. His plea would seem rather to take this form: I deny the plaintiff's allegations: but those allegations amount to an accusation of a criminal offence: since he has made those allegations he must submit them first to be tried by a Court of criminal jurisdiction; I am in fact entitled to a verdict of acquittal of the criminal charge. How could the maxim nemo allegans suam turpitudinem est audiendus be applied to such a plea?

We propose now to inquire into the origin and nature of Outline of legal rights and legal duties.

legal rights and duties.

I. There are rights vested in certain determinate persons Rights in rem. which are in rem, that is, which are available against the community at large. Corresponding to them are duties laid on all other members of the community. These duties are always negative; they are forbearances, because the duty is to abstain from hindering the exercise or enjoyment of the rights.

These rights may exist at common law or may be created by statute. The violation of these rights, or the breach of these duties, is a tort.

II. There are rights vested in certain determinate persons Rights in perwhich are in personam, that is, which are available only

sonam.

against a determinate person or determinate persons. Corresponding to them are duties laid on the determinate person or persons against whom the right avails as distinguished from the rest of the community. These duties are positive or negative according to the nature of the right, and are strictly termed obligations.

(a.) These rights and obligations are sometimes acquired and undertaken by mutual consent of the respective parties: a contract is thus brought into existence. The violation of these rights or breaches of these obligations are breaches of contract, and fall within the province of the law of contract.

(B.) These rights and obligations are sometimes acquired and imposed by implication of law; an implied (or quasi) contract is thus brought into existence. The violation of these rights or breaches of these obligations also fall within the province of the law of contract; although in many cases the circumstances under which the law implies the contract, constitute in themselves a tort.

(7.) These rights are sometimes expressly given to determinate persons, and the corresponding duties are expressly laid on determinate persons independently of consent, express or implied. This occurs more generally in local and personal Acts of Parliament. The violation of the rights and breaches of the duties are usually classed under the head of torts. The relation between the parties is sometimes considered as a statutory contract.

(8.) These rights are sometimes acquired as the immediate consequence of duties imposed on determinate persons towards certain other determinate persons by whom they are acquired. The breach of the duty involves the violation of the right, and is a tort.

The duties are imposed by statute, or are the consequence