Diversity in torts: common factor.

§ 5. DEFINITION OF TORT

Having in mind what has been said in the preceding sections as constituting the substance of a tort, a definition of the term may now be given. To attempt a definition which would tell its own story on its face would be hopeless. Indeed no definition, helped out however much by explanation, can convey an adequate notion of the meaning of the word; nothing short of careful study of the specific torts of the law will answer, for there is no such thing as a typical tort, an actual tort, that is to say, which contains all the elements entering into the rest. One tort is as perfect as another; and each tort differs from the others in its legal constituents. But they all have this in common, that there must be a breach of duty paramount, or, as we shall now put it, established by municipal law; and they all lead to an action for damages. These facts must furnish our definition. Accordingly a tort may be said to be, a breach of duty established by municipal law for which a suit for damages can be maintained; or, conversely, the infringement of a private right, or a public as a private right, established by municipal law.

This work deals, not with tortious conduct broadly, which may touch subjects as far apart as breach of contract and the impeachment of public officers, nor with prospective and imminent torts, but with torts themselves, in the sense of the definition-actions for damage for breach of the kind of duty

named.

§ 6. PERSONAL RELATION, OR STATUS, ETC.

Special mani

What has gone before relates to the law of torts in what may be called its primary manifestation,-in other words, between citizen and citizen as such. But that festation of does not exhaust the subject; it remains to consider the subject as affected by the fact of a person's standing in some special relation to his fellows, or

duty.

of being subject to some incapacity before the law, or of occupying some special relation to one who is the immediate wrongdoer. Thus a person sought to be held liable for a tort may at the time of the wrong alleged have been holding some post of state, such as a judicial position, or he may have been under some disqualification or incapacity, putting him below the level of a full citizen, as where he was insane or under age, or he may have been an employer of the person immediately guilty. Nothing yet set forth shows what the standing of such persons would be in an action against them for tort. How does the particular situation of a citizen affect the question of his liability?

Executive, legislative, and judicial positions.

In regard to persons holding under the State, executive, legislative, or judicial position, the answer is a simple one; the case is one ordinarily of absolute privilege, and might have been considered under the head of privilege except that it was thought best to confine the subject there to primary relations, or citizen and citizen, in accordance with the treatment of right. No action for damages can be maintained against a person for anything said or done, for example, in the discharge of judicial duty, except it be an action for false imprisonment; no action for fraud, for malice, for trespass (except imprisonment), for conversion, for negligence, or for anything else in consequence of judicial action; and so of things said or done by the executive or of a member of the legislature.

Because, apparently, of the tender regard which the courts have always felt constrained to show towards liberty, actions in certain cases are maintainable against magistrates who have caused the imprisonment of men without just process. This is not the place to consider what is necessary to make a case against a judge on such grounds; to point out the liability is all that is now called for. The subject will be considered in its proper place1.

The ground of the immunity of the executive branch of government2, of legislators, and of judges is plain. The places

1 Chapter ix.

2 Spalding v. Vilas, 161 U. S. 483. See Chatterton v. Secretary of State, 1895, 2 Q. B. 189.

occupied by such persons are the great departments of the State, and the State could not carry on its functions if those set over its departments could be haled before the courts at the suit of every person aggrieved by their action.

fraud, malice,

and negligence.

In regard to competency or capacity, it is to be observed that the breach of duty may be committed by any one having natural capacity 1. The law of tort affords a Capacity: criminal law, strong contrast in this particular both to the law of contracts and to the criminal law. Liability in contract depends, it is true, upon capacity to contract; but want of such capacity may be either natural or artificial (legal). One must be of sound mind and at least twenty-one years of age to bind one's self by contract?. Liability under the criminal law depends also upon the existence of capacity to commit crime; but want of this too may be natural or artificial. A person must be of sound mind and at least seven years of age to be subject to punishment under the criminal law3.

Infants and

insane

persons.

There may be difficulty sometimes in applying the rule of natural capacity, but the difficulty can seldom arise except in cases requiring proof of fraud, malice, or negligence, and then, generally speaking, only in suits against infants. Where the doing of the act creates, of itself, liability, that is, where there is a breach of the absolute duty,-a defence of incapacity would be manifestly contrary to the fact, and could not, it seems, be allowed. The fact that the person was of unsound mind or a child of tender years would not be material. It would be enough that the act was done of the will, uncompelled".

1 The law in regard to married women has been so much changed by statute that no attempt will be made to consider it.

2 Contracts for necessaries make an exception.

3 Kenny, Outlines of Criminal Law, 50.

4 Is a madman liable in damages for the consequences of an act otherwise wrongful which was done, though intentionally, in an uncontrollable frenzy? Or suppose that A threatens to kill B unless B will trespass upon C's land, and B does the act; will it affect the case that B is an infant, insane, or idiotic ? By the Roman, contrary to the English law, a lunatic was not liable for damage done to property, any more than if a tile had fallen and done harm (without any one's fault). Et ideo quærimus, si furiosus damnum dederit, an legis

sense

Cases requiring proof of fraud, malice, or negligence would perhaps create no difficulty where the defendant was a person so unsound of mind as not to be accountable to the criminal law; an action of tort could hardly be maintained. A madman may, indeed, be guilty of fraud or malice in some (cunning, it is well known, is a common trait of the insane), but not in the sense in which it would be necessary to create liability, as e.g. in an action for deceit or for malicious prosecution1. And clearly a madman cannot exercise diligence?. A person sane enough to be accountable to the criminal law would probably be liable for any kind of tort.

Infancy is more likely to give occasion for serious difficulty. An infant of sound mind twenty years of age, or much less, is liable for any tort for which an adult might be sued; an infant of five years could seldom be liable in damages for negligence, and of course would never be sued for torts requiring proof of fraud or malice. But within these extremes there is a region of uncertainty, in which the courts, if called upon to act, must act according to the best light they may have in each particular case; the question of capacity being a question of fact3.

There is a difficulty of another kind touching the liability of infants and of persons of unsound mind, namely, where what would be a tort in other cases, as for example a fraudulent representation, is the inducement to a contract. But the rule in regard to such cases is that there can be no liability in Aquiliæ actio sit? Et Pegasus negavit; quæ enim in eo culpa sit cum suæ mentis non sit? Et hoc est verissimum. Cessabit igitur Aquilia actio quemadmodum...si tegula ceciderit.' Dig. 9, 2, 5, § 2; Lex Aquilia, fr. 5, § 2.

1 Compare Emmens v. Pottle, 16 Q. B. Div. 354, 356, Lord Esher.

2 Whoever is incapable of diligentia cannot be charged with negligentia. Wharton, Negligence, § 87, on the Roman law. See Harvard Law Review, May, 1896, p. 65.

3 The Roman law in regard to damage to property was more precise; it distinguished between children under seven years, and those between seven and fourteen, and children over fourteen. 'Si infans [under seven] damnum dederit, idem erit dicendum [sc. furiosus, supra, p. 30, note], quodsi impubes [between seven and fourteen] id fecerit, Labeo ait, quia furti tenetur teneri et Aquilia et hoc puto [Ulpian] verum, si sit iam iniuriæ capax.' Dig. 9, 2, 5, § 2; Lex Aquilia, fr. 5, § 2. Children over fourteen were liable generally for injuries. Grueber, Lex Aquilia, p. 14. The contention sometimes maintained in regard to English law that infants are liable only for absolute torts like trespass or conversion, and not for torts like deceit, has not found favour.

eum;

tort if to enforce an action of the kind would virtually fix upon the incompetent party liability for breach of contract1. The case is or may be quite different where the tort follows, but is not caused by the contract; to enforce an action for tort in such a case would not be to enforce a contract, as for example to compel an infant to make good the loss of a horse which he has borrowed and then directly abused and killed2.

It should not be supposed to follow that persons under disability can, in virtue of their disability, retain whatever they may have become possessed of by wrongful conduct. The meaning of the law is only that no liability actually or virtually by way of contract can be created against such persons. Infants have been compelled to surrender premises obtained under lease by them, through fraudulent representations that they were of full age, upon the ground that an infant shall not take advantage of his own fraud to keep his ill-gotten booty. He must restore what he has obtained by fraud, if he has it and will not carry out his bargain3. But cases of this kind, not being actions for damage, do not fall within the scope of this book.

Allied to the class of cases of persons under disability, so far as right is concerned, are corporations. These are fictitious persons, and when created by statute have no

Corporations. powers or rights but those conferred by the

statute; and since statutes seldom if ever confer upon corporations all the powers or rights of citizens, it follows that such corporations are more or less under disability. And the fact that a corporation is a fictitious person has been looked upon as a serious obstacle to holding such a body liable (except in the case of a corporation sole) for torts in which mental attitude has or seems to have place in a cause of action, and in very early times for torts of any kind'; which of course

1 Fairhurst v. Liverpool Loan Assoc., 9 Ex. 422, infancy.

2 Burnard v. Haggis, 14 C. B. N. s. 45.

3 Lemprière v. Lange, L. R. 12 Ch. 675.

4 Abrath v. Northeastern Ry. Co., 11 App. Cas. 247, 250, remarks of Lord Bramwell, but not followed in Cornford v. Carlton Bank, 1900, 1 Q. B. 22; s. c. 1899, 1 Q. B. 392. 'The difficulty felt in earlier times was one,' it is said, 'purely of process; not that a corporation was metaphysically incapable of