:

Liability of owner not in occupation? It does not appear to have been ever decided how far, if at all, au owner of property not in possession can be subject to the kind of duties we have been considering. We have seen that in certain conditions he may be liable for nuisance (a). But, since the ground of these special duties regarding safe condition and repair is the relation created by the occupier's express or tacit "invitation," it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suffered is, as between owner and occupier, a breach of the owner's obligation.

(a) See p. 531, above. Campbell, pp. 26, 27. [Tucker v. Illinois Cent. R. Co., 42 La. An. 114; 7 So. Rep. 124; Wilkinson

v. Detroit Steel & Spring Works, 73 Mich. 405; 41 N. W. Rep. 490; O'Connor v. Andrews, 81 Tex. 28; 16 8. W. Rep. 628.]

644

CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT.

Original theory of forms of action. The original theory of the common law seems to have been that there were a certain number of definite and mutually exclusive causes of action, expressed in appropriate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given case was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the general issue. If this theory had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict adherence to the requirements of such a theory could be kept up only at the price of intolerable inconvenience. Hence, not only new remedies were introduced, but relaxations of the older definitions were allowed. The number of cases in which there was a substantial grievance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points, and became obscured. Thus different forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical convenience, simply took the place of the older, as an alternative which in practice was always or almost always preferred: but in other cases one or another remedy might be better according to the circumstances. Hence, different remedies for similar or identical causes of action

remained in use after the freedom of choice had been established with more or less difficulty.

On the debatable ground thus created between those states of fact which clearly give rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and indeterminate than those of the earlier system, because less reducible to the test of fixed forms.

Actions on the case. The great instrument of transformation was the introduction of actions on the case by the Statute of Westminster (a). Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. It may be asked in this connexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of cestui que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of pleading could have got over. The theory of a system of equitable rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a common lawyer to meddle with, was not the cause but the consequence of the Court of Chancery's final triumph.

The history of the Roman legis actiones may in a general way be compared with that of common law pleading in its earlier stages; and it may be found that the praetorian

(a) 13 Edw. I., c. 24.

actions have not less in common with our actions on the case than with the remedies peculiar to courts of equity, which our text-writers have habitually likened to them.

Causes of action: modern classification of them as founded on contract or tort. Forms of action are now abolished in England. But the forms of action were only the marks and appointed trappings of causes of action; and to maintain an action there must still be some cause of action known to the law. Where there is an apparent alternative, we are no longer bound to choose at our peril, and at the very outset, on which ground we will proceed, but we must have at least one definite ground. The question, therefore, whether any cause of action is raised by given facts is as important as ever it was. The question whether there be more than one is not as a rule material in questions between the same parties. But it may be (and has been) material under exceptional conditions: and where the suggested distinct causes of action affect different parties it may still be of capital importance.

In modern English practice, personal (b) causes of action cognizable by the superior courts of common law (and now by the High Court in the jurisdiction derived from them) have been regarded as arising either out of contract or out of wrongs independent of contract. This division was no doubt convenient for the working lawyer's ordinary uses, and it received the high sanction of the framers of the Common Law Procedure Act, besides other statutes dealing with procedure. But it does not rest on any historical authority, nor can it be successfully defended as a scientific dichotomy. In fact the historical causes above mentioned have led to intersection of the two regions, with considerable perplexity for the consequence.

We have causes of action nominally in contract which

(b) I do not think it was ever attempted to bring the real actions under this classification.

are not founded on the breach of any agreement, and we have torts which are not in any natural sense independent of contract.

This border-land between the law of tort and the law of contract will be the subject of examination in this chapter.

Classes of questions arising. The questions to be dealt with may be distributed under the following heads:1. Alternative forms of remedy on the same cause of action.

2. Concurrent or alternative causes of action.

3. Causes of action in tort dependent on a contract not between the same parties.

4. Measure of damages and other incidents of the remedy.

I.— Alternative Forms of Remedy on the same Cause of

Action.

It may

One cause of action and alternative remedies. be hard to decide whether particular cases fall under this head or under the second, that is, whether there is one cause of action which the pleader has or had the choice of describing in two ways, or two distinct causes of action which may possibly confer rights on and against different parties. In fact the most difficult questions we shall meet with are of this kind.

The common law doctrine of misfeasance. Misfeasance in doing an act in itself not unlawful is ground for an action on the case (c). It is immaterial that the act was not one which the defendant was bound to do at all (d).

(c) And strictly, not for an action of trespass; but there are classes of facts which may be regarded as constituting either wrongs of misfeasance (case), or acts which might be justified under

some common or particular claim of right, but not being duly done fail of such justification and are merely wrong. ful (trespass).

(d) Gladwell v. Steggal (1839), 5 Bing.