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has yet been given is that by Mr. Justice Holmes, of the United States Supreme Court: "I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except on cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant." 2

Other definitions which have been given are as follows: "A tort is an act or omission giving rise, in virtue of the Common law jurisdiction of the Court, to a civil remedy which is not an action of contract.'S

“A tort may be said to be a breach of duty fixed by municipal law for which a suit for damages can be maintained." 4

The word 'torts' is used to describe that branch of the law which treats of the redress of injuries which are neither crimes nor arise from the breach of contracts. All acts or omissions of which the law takes cognizance may in general be classed under the three heads of contracts, torts and crimes. Contracts include agreements, and the injuries resulting from their breach; torts include injuries to individuals; and crimes, injuries to the public or state.'

Adding another to this list of definitions; a tort is a violation of those general rights which are secured to the individual by the laws as against all other members of the community, as contradistinguished from those special rights, which arise out of contracts, and only exist against the other parties to said contracts. • 10 Harvard Law Review, 471.

• Bigelow on Torts, p. 3. • Pollock on Torts, p. 4.

* Bouvier Law Dictionary

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SECTION 2. TORTS AND CRIMES DISTINGUISHED.

The fact that torts and criminal law were originally one branch of the law has been already stated and explained. Even today, after the differentiation of the two branches has been completely worked out, the same act often constitutes both a crime and a tort. Briefly stated the difference between a tort and a crime is that the former is a wrong to an individual and the latter a wrong to the public. The former is redressed by compelling the wrongdoer to recompense the injured party for the damages he has suffered; the latter is redressed by the punishment of the criminal." Under the early Common law, where the same act amounted both to a tort and a felony, the tort was held to be merged in the felony, and no civil action was allowed to the injured party. This extreme rule, however, was soon abandoned, or rather modified, it still being held that the civil action was suspended during the criminal prosecution, and that the plaintiff must allege in his pleadings his diligence in the criminal prosecution, and prove such diligence at the trial.” If the plaintiff alleged, an unprosecuted felony as his cause of action, the proceedings in the case were stayed until the offender could be prosecuted. A defendant, • See Vol. I, pp. 16–18.

or they are simply things pro1 "Certain acts or omissions are

hibited under penalty. But made public offences by the where the same wrongful acts common law or by statute, cause damage to private ineither because their inherent

dividuals, they come directly qualities and necessary ten

within the definition of torts, dencies make them prejudicial and are such.” Cooley on to organized society, or because Torts (2nd Ed.), 81. it is believed that the evils

* Higgins vs. Butcher, Yelv., 89. likely to flow from them will be 80 serious that the general

• Crosby vs. Leng, 12 East, 409; good will be subserved by for

Cox vs. Paxton, 17 Ves. Gr., bidding them and penalities

329; Vincent vs. Sprague, 3

U.C.Q. B., 283. are attached to them, which are imposed on public grounds. 10 Roope vs. D'Avigdor, 10 Q. B. These, according to their grade, D., 412. are crimes or misdemeanors,

however, never could set up his own felony as a defense.!1 A tort was never held to be merged in a misdemeanor.

In a few of the States of this country,' the English rule on this point was adopted; but in the great majority of States it never was." In a number of the states, including some of those which at first adopted this principle, the English rule has abolished by express statute.14

Where the same act is both a tort and a crime the party injured has no right to drop the criminal prosecution, or to agree not to testify against the accused, upon satisfaction of his private injury. Such an act would constitute a compounding of a felony, and would be in itself a crime.

SECTION 3. TORTS AND BREACH OF CONTRACT DIs

TINQUISHED.

As shown in the author's definition of a tort, a right of action for tort arises where there has been a violation of a right given by law, while a right of action for breach of contract exists where there has been a violation of some right acquired by contract. These two fields, however, overlap. The same action may constitute a breach of contract and also a tort. In such cases, there is an election of remedies, and the party injured may sue either in tort or contract. The cases where this double remedy exists will be shown in the treatment of the various subdivisions of this subject. A common example of such cases are found in contracts which one party is induced to enter into by deceit.

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A few legal differences in the cases of action of 11 Gibson vs. Minet, 1 H. Bl., 611.

Faherty, 3 Greece, 327; Bank vs. 1 E. G. Alabama, Georgia, Maine, Gare, 15 Mass., 75; Hyatt vs. Pennsylvania

Adams, 16 Mich., 180. 13 Plummer vs. Webb, Ware, 75;

G. Arkansas California, Cross vs. Guthrey, 2 Root, 90,

Georgia, Maine, New York, 1 Am. Dec., 61; Barton vs.

Pennsylvania.

11 E.

tort (ex delictu) and of contract (ex contractu) may here be noted. Joint tort-feasors are generally severally liable and no right of contribution exists among them;" infants who are incapable of contracting are nevertheless generally liable for their torts; io at common law actions of tort will never survive the death

of either party.

SECTION 4. TORTS AND EQUITY. In a few cases a person injured by another has the option of suing for damages on the tort, or of going into equity to seek some special equitable relief, generally an injunction. Such cases will be more conveniently treated under the subject of Equity Jurisprudence than in this place.

SECTION 5. PARTIES IN ACTIONS OF TORT.

As torts are the violation of general rights created by law, it necessarily follows that any person in the community may be the party injured by such a violation of rights, and may therefore be the plaintiff in an action of tort. There are some limitations upon the liability of certain classes of persons for their torts; but such limitations are much narrower than the case of the rules governing liability on contracts.

For the extent of the liability of infants and married women for their torts see the subject of Domestic Relations." Both are generally liable for their torts, with the exception that young infants cannot be held liable for torts in which malice is an element.

A lunatic is also liable for his torts except those involving malice.18 This liability is held to extend 15 In a few cases there can be con- 17 Volume IV, Subject 10.

tribution between joint tort 18 Behrens vs. McKenzie, 23 Iowa, feasors. See contribution un

333; Jewell vs. Colby, 66 N. H., der subject of Equity Juris- 399; Ward vs. Conatser, 4 prudence.

Baxt., 66; Morse vs. Crawford, 10 See subject of Domestic Rela

17 Vt., 499, 44 Am. Dec., 349. 19 Brown Vs. Howe, 9 Gray, 84,

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even to those torts arising from the negligence of the lunatic,'' on the principle that where a loss must be borne by one of two innocent persons, it is more just that it should be borne by the one who occasioned it. 20

The liability of a lunatic for his torts is thus discussed in the case of Avery vs. Wilson:21 “A lunatic is often civilly liable for his torts, as he is not entirely exempt from the general doctrine of the law, that, whenever one person receives an injury directly from the voluntary act of another, that is a trespass, although there was no design to injure. This general rule has been modified by exceptions made by the constructions of the courts in the case of lunacy, and upon this subject there is some conflict of decisions. The current of authority seems to establish the doctrine that a lunatic is not liable for injuries to the sensibilities and reputation of a person, as in such cases malice is an essential ingredient to the tort; as libel, slander, malicious prosecution, and malicious arrest under regular process. A person non compos mentis, is regarded by the law as incapable of a wicked intention to do such injuries. There are other cases of injuries to the person by a lunatic about which there is some conflict of decision, as assaults, batteries, false imprisonments, etc., in which a wrongful intent or culpable negligence are ingredients. In batteries there must always be an intent, express or implied, to do the injury; and legal malice is always presumed when a wrongful act is done intentionally, without just cause or excuse. Express malice is some manifestation of ill-will to a person or an evil design or corrupt motive in doing an act which is injurious to another.

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69 Am. Dec. 276.

20 Williams vs. Hays, 143 N. Y.,

450, 42 Am. St. Rep., 743. 31 20 Fed. Rep., 856.

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