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"In this second class of torts many plausible arguments may be used on both sides in sustaining opposing views. These torts to the person are embraced in the legal maxim, 'actio personalis moritur cum persona.' They are torts committed by force, and are usually prompted by sudden passion or vindictive feelings, and in many cases large punitive damages are properly assessed by a jury against the tort-feasors. As the wrongful intent and motive of the wrong-doer are the usual and substantial grievance complained of, and punitive damages are generally assessed, I am of opinion that actions for such torts should not be sustained against lunatics, as they are incapable, from want of reason, of such intent and motive, unless substantial damages, capable of ready estimation, have been suffered. In no case can vindictive damages be assessed against a person non compos mentis. This liberality of the law to this unfortunate class of persons can work no serious injury to society, as they can be legally confined when considered dangerous; and the disposition, power, and right of self-defense will generally be sufficient to insure the personal safety and security of the citizen against the unreasoning and motiveless action of an imbecile.
"Injuries to property, corporeal and incorporeal, constitute a third class of torts, in which it is generally conceded that lunatics are responsible for compensatory damages to the extent of the actual injury sustained. Some of these injuries are often prompted by malice towards the owner, or are done in a spirit of wantonness, cruelty, and revenge, as in the case of malicious mischief at the common law, and malicious injuries, to property definded by statute. In such cases a sane person is liable to indictment, and also to an action
for the civil injury and punitive damages will generally be recovered. A lunatic can only be made liable for compensatory damages. In civil actions for violation and encroachment upon established rights of property, the law does not so much regard the intent of the wrongdoer as the loss and damage of the person injured.
"In this case the defendant is charged with the infringement of an incorporeal right conferred by law upon the plaintiffs. A patent-right is the exclusive liberty conferred by letters patent from the sovereign on an inventor or his alienee of making and vending articles according to his invention. A patent-right is regarded as personal property and may be assigned; and, if it be infringed, the inventor or his alienee has a remedy at law by action of trespass on the case for damages, and a remedy in equity to prevent the continuance of the wrong by injunction. Ad. Eq., 212. In such cases the statutes of the United States have conferred original and concurrent jurisdiction upon courts of equity, and they may determine, without the assistance of a court of law, the legal right of the plaintiff and the infringement by the defendant; and may ascertain the amount of the defendant's property, and afford a complete remedy for the wrong committed, and prevent its continuance by injunction.
"As the proof in this case establishes the legal right of the plaintiffs, and the infringement is admitted by the defendant, the plaintiffs are entitled to a perpetual injunction, and to an account to ascertain the profits derived by the defendant from his infringement."
The liability of private and public corporations for their torts will be treated under the proper subjects.22 tions, Vol. VIII, Subject 25.
Private Corporations, Vol. VIII,
Servants and agents are liable for their torts even when committed in the service of their master or principal; but if such torts were committed in the regular course of the agency, the principal will also be liable.28 Similarly, all members of a partnership are liable for the torts of any member of the firm committed in the course of the firm's business.24
At common law the husband was liable for the torts of his wife; 25 and under certain cricumstances a parent is liable for the torts of his child.20
SECTION 6. SOME CHARACTERISTICS OF TORTS.
A tort is not a debt." Damages for torts, not reduced to the form of judgment, are therefore, not proveable in bankruptcy proceeding, and are not released by a discharge in bankruptcy.28 Constitutional provisions against imprisonment for debt do not prevent imprisonment for non-payment of judgments growing out of torts.29
A tort is not a chose in action.30 The general rule is that the right of action for a pure tort is not assignable; but this rule has been somewhat modified, and the better rule now is, that, the right of action for damages to property, but not to the person, may be assigned." Liability in tort is a good consideration for a
*See Subject of Agency, Volume III, Subject 7.
"See subject of Partnership, Vol-
American and English Ency. of Law, Vol. VIII, p. 991. Damages for trespass not a debt, 6 Hill, (N. Y.) 252. Damages by slander or libel not a debt. Zimmer vs. Sehleehauf, 115 Mass., 52.
"Hapgood vs. Blood, 11 Gray, 400;
Hun vs. Cary, 82 N. Y., 65. "Long vs. McLean, 88 N. Car., 3; Howland vs. Needham, 10 Wis., 495; Jones vs. Kelly, 17 Mass., 116; Rich vs. People, 66 Ill., 513.
0 Deshler vs. Dodge, 16 How., 622;
promise to pay damages; " and damages growing out of tort may be compromised.3
SECTION 7. HISTORY OF THE LAW OF TORTS.
The subject of torts originates in the idea of hurt or damage done by force. The early history of the law of torts, after its separation from criminal law, is embraced in the history of the action of trespass.35 Trespass early was divided into several distinct actions, or perhaps it would be more accurate to say that trespass was the combination of these several actions. In all of these branches of the action, however, we see present the element of force or violence. In trespass quare clausium fregit, there is the forcible entry upon or damage to the land; in trespass de bonis asportatis, there is the forcible taking and carrying away of the goods of another; while in trespass to the person the violence is directed against the person of the injured party. For indirect damages or for damaages unaccompanied with violence to a person's body, land or personal property, or for such damages as those to his reputation there could be no relief under the action of trespass, and there was no relief under any form of action until near the close of the thirteenth century. Right of action for injuries which cannot be brought within the scope of trespass owe their origin to the famous Statute of Westminster II 36 passed in 1285. Under the authority of this statute there was created
the new action of Case, or of Trespass on the Case which with trespass covers the whole field of torts.
There is no better proof of the statement so often made in this work, that formerly the adjective law, was the controlling branch of this science, than in this fact that the only practical early classification of torts was one on the basis of the action which could be brought to redress the wrong. Although other methods of classifying torts have since arisen, which are now used by text book writers on this subject, the influence of this early classification is still strongly felt in the law, and without an understanding of the original scope of these actions, no clear conception of the law of torts can ever be acquired. Before, therefore, considering the various forms of injury which may furnish a basis for an action for tort, a chapter will be devoted to this fundamental distinction between trespass and trespass on the case.