theft and B may sue him for the value of the watch. If A commits assault and battery upon B, A may be punished by the state and B may sue him for the damages inflicted. All crimes are not torts, however, as for example an attempt to commit suicide is a crime in some states, but there is no tort since no other party suffers. So conversely, all torts are not crimes. Many wrongs to individuals are not of sufficiently great public importance for the state to make them crimes. If A carelessly drives his wagon down the street and as a result injures B, A is guilty of the tort of negligence for which B can recover damages to the extent of his injury. Unless A's negligence is so gross, however, as to amount to a reckless or wanton disregard of the safety of others, it does not constitute a crime.

§ 48. Torts distinguished from breaches of contract. A breach of contract is a violation of an agreement by one of the parties thereto. A tort on the other hand is the violation of a right imposed by law without regard to any agreement or consent. The remedy for a breach of contract is generally an action for damages, but its distinguishing feature is that it is based on a contractual agreement. If A wants to sue B for damages for not delivering his chattel to A, A must prove that B had agreed so to do and had failed to carry out the agreement. But if A wants to sue B for damages for trespass upon A's property it will not be necessary for A to prove any agreement whatever for the law imposes upon everyone the duty to respect the rights of property and the violation of that duty is a tort.

§ 49. Theory of the law of torts.-Originally the law was based upon the maxim that "he that is damaged ought to be recompensed" regardless of whether the party

causing the damage was to blame. The modern tendency, however, is to give the injured party a right to action only where the defendant is in some way culpable. Professor Clark sums up the tendency as follows: "This culpability may be shown by proving that the defendant intended the act which damaged the plaintiff, or that he might have avoided damaging the plaintiff by using the proper amount of care, or that he was engaged in an unlawful act or an extra-hazardous act at the time the plaintiff suffered the injury. The early law gave protection only against the simpler and more direct violations of the plaintiff's rights. The tendency, however, is toward extending the protection to violations which are less direct and more difficult to trace to the defendant; so that the goal of the law of torts is protection against any unjustifiable infringements of one's rights, or, as it is expressed in the maxim, 'there is no wrong without a remedy.'" The various classes of torts will be treated in succeeding chapters.

§ 50. The right to life.-Everyone has a legal right to the security of his person and, stated generally, may treat any interference with his person as a wrong. The right to life is the first and greatest of all rights. No one can lawfully consent to the taking of his life by another, and no one can lawfully destroy his own life. It seems superfluous to say that whoever takes the life of another person is guilty of a legal wrong. But it is stated, for the purpose of indicating certain exceptions, the reasons for which are clear and well settled.

§ 51. When life may be lawfully taken.—The sovereign power may lawfully take the life of a person, by due process of law, as a punishment for crime.

In time of war or under martial law, it is justifiable or excusable to take the life: (1) Of enemies under arms. (2) Of noncombatants, who, by their fault, expose themselves to the dangers of the conflict. (3) Of any persons who are guilty of grave offenses against the rules of war, such as spies, sleeping sentinels, deserters.

Where an alternative exists, as between two lives having equal rights, it being impossible that both should live and it being necessary to make a choice in order to save either, it will be excusable to take one or the other life. 4--Elem. Law.

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Where for self-protection or for the due enforcement of law it becomes necessary to take life, such taking is justifiable.

The unintentional taking of life will be deemed an inevitable accident and not a legal wrong, unless the act which results in such loss of life be for some other reason an unlawful act.

§ 52. Remedies. It is obvious, from the nature of the case, that for an unlawful taking of life there can be no redress in favor of the person whose life is taken. And no preventive remedy is given that is effective. It is true, there is punishment by criminal prosecution, but that is deterrent only. There is also the proceeding by surety of the peace, but one who is not deterred by fear of indictment will have little restraint through a bond. The law does, however, give civil redress for the taking of life, in favor of persons standing in certain relations toward the deceased.

§ 53. Recovery for injuries causing death.-At common law there was no right of action in any one for the death of a human being. It was deemed repugnant to the law to attempt any estimate in a pecuniary way of the value of human life. For loss suffered between the date of an injury and the death, the person injured had a right of action, and any one entitled to his services might sue. But for the loss by the death there was no remedy. To supply this defect in the law, statutes have been passed. In this country they are substantially the same as the English statute known as Lord Campbell's Act. It is provided that whenever the death of a human being is caused by the wrongful act or default of another, the personal representative may maintain an action against the wrongdoer, and the damages recovered shall inure to

certain persons having an interest in the life. While the various statutes do not entirely agree as to who shall be the beneficiaries, it is uniformly the law that unless some one or more persons of the classes named survive the deceased, nothing can be recovered. The beneficiary must have some pecuniary interest in the life of the deceased, or reasonable expectation of benefit, and the damages recovered can not exceed such interest or benefit. The statutes limit the amount recoverable, in some states to $5,000, in others to $10,000.