try to sum up the normal idea of tort somewhat as follows:

Tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways:

(a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.

(b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting. (c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and prevented.

(d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, absolutely or within limits, to avoid or prevent.

A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to negligence.

In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do.

Connected in principle with these special liabilities, but running through the whole subject, and of constant occurrence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment.

This is indication rather than definition: but to have guiding principles indicated is something. We are entitled,

and in a manner bound, not to rush forthwith into a detailed enumeration of the several classes of torts, but to seek first the common principles of liability, and then the common principles of immunity which are known as matter of justification and excuse. There are also special conditions and exceptions belonging only to particular branches, and to be considered, therefore, in the places appropriate to those branches.

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CHAPTER II.

PRINCIPLES OF LIABILITY.

There is no express

Want of generality in early law. authority that I know of for stating as a general proposition of English law that it is a wrong to do wilful harm to one's neighbour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are, in this generality of form or conception, modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence; and a like state of things appears in the fragments of the Twelve Tables (a). Whatever agreements are outside the specified forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase

(a) In Gaius lil. 223, 224, the contrast between the ancient law of fixed penalties and the modern law of damages assessed by judicial authority is clearly shown. The student will remember that,

as regards the stage of development attained, the law of Justinian, and often that of Gaius, is far more modern than the English law of the Year Books.

damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.

General duty not to do harm in modern law. Such is not the modern way of regarding legal duties or remedies. It is not only certain favoured kinds of agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practice observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned—namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others are all alike of a comprehensive nature. As our laws of contract has been generalized by the doctrine of consideration and the action of assumpsit, so has our laws of civil wrongs by the wide and various application of actions on the case (b).

(b) The developed Roman law has either attained or was on the point of attaining a like generality of applica

tion. "Denique aliis pluribus modis admitti injuriam manifestum est": I. iv. 4, 1.

Acts in breach of specific legal duty. The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without further comment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed; at any rate a court of law cannot admit discussion on that point; and the defaulter must take

Acts in breach of specific legal duty. Supporting the doctrine of the text vide, Miller v. Woodhead, 104 N. Y. 471; 11 N. E. Rep. 57; Guest v. Reynolds, 68 Ill. 478; Gramlich v. Wurst, 86 Pa. St. 74; Railroad Co. v. Schwindling, 101 Pa. St. 258; Galligan v. Manufacturing Co., 143 Mass. 527; 10 N. E. Rep. 171; Gillespie v. McGowan, 100 Pa. St. 144; Lamb v. Stone, 11 Pick. 526; Rice v. Coolidge, 121 Mass. 393; Randlette v. Judkins, 77 Me. 114; Adams v. Marshall, 138 Mass. 228; Wilson v. Dubois, 35 Minn. 471; 29 N. W. Rep. 68; Lilly v. Boyd, 72 Ga. 83.

Illustrating the creating of legal duty by statute, vide, Willy v. Mulledy, 78 N. Y. 310; Commissioners v. Duckett, 20 Md. 468; Hover v. Barkhoof, 44 N. Y. 113; Heeney v. Sprague, 11 R. I. 454; Baxter v. Doe, 142 Mass. 558; 8 N. E. Rep. 415; Dudley v. Mayhew, 3 N. Y. 9; Grant v. Power Co., 14 R. I. 380; Boot v. Pratt, 33 Minn. 323.

There are numerous statutes enacting legal duties the violation of which is a tort. Among such statutes are those requiring railroad companies to fence their tracks, to use the best approved appliances for the protection of life and property, etc. See Keyer v. Chicago, etc., Co., 56 Mich. 559; 33 N. W. Rep. 867; Hayes v. Michigan Cent. R. R. Co., 111 U. S. 228; Wilson v. Rochester, etc., R. R. Co., 16 Barb. 167; Patterson v. Detroit, etc., R. R. Co., 56 Mich. 172; Houston, etc. R. R. Co. v. Terry, 42 Tex. 451; Reynolds v. Hindman, 32 Ia. 146; Bartlett, etc., Co. v. Roach, 68 Ill. 174; Titcomb v. Fitchburg R. R. Co., 12 Allen, 254.