Page:Encyclopædia Britannica, Ninth Edition, v. 23.djvu/474

Rh difficulties with the authorities, and he ended his life in 1522 in the prisons of the Inquisition.  TORSHOK, a district town of Russia, in the government of Tver, on the river Tvertsa, 38 miles by rail to the south-west of the Ostashkovo station of the St Petersburg and Moscow railway. It dates from the 11th century, and the very name ("market-place") shows that this de pendency of Novgorod was a commercial centre. It was strongly fortified with a stone wall, which, however, only partially protected it from the attacks of Mongols, Lithuanians, and Poles. Torshok is now celebrated in Russia for its embroidered leather-work and manufacture of travel ling bags, and for its trade in corn and flour. The population in 1884 was 12,900.  TORT, as a word of art in the law of England and the United States, is the name of civil wrongs (not being merely breaches of contract) for which there is a remedy by action in courts of common law jurisdiction. It may be said to correspond approximately to the term "delict" in Roman law and the systems derived from it. But this is only a rough approximation. For in English usage tort includes, not only those matters which in Roman law are classed under obligations quasi ex delicto, but various others which Roman or modern Continental lawyers would refer to the law of ownership or real rights, and not to any such head as "delict." The truth is that the actual development of tort as a legal genus has been purely historical and to no small extent accidental. Nothing can be learnt, of course, from the word itself. It is merely the French word for "wrong," specialized into a technical meaning by a process which was completed only in the latter years of the 17th century and the earlier of the 18th.

The early common law had no theory of obligations in the Roman sense, and hardly any theory of contract. Its remedies were directed either to the restitution of something which the defendant unjustly detained from the plaintiff were it land, goods, or money or to the repression of violent wrongdoing. Only the former class of remedies was purely civil; the latter included a penal element of which formal traces remained long after the substance had vanished. A man who trespassed on his neighbour with force and arms offended the king as well as his neighbour, and was liable not only to pay damages to his neighbour but to make a fine to the king. Gradually the category of "force and arms" was held to include all manner of direct injuries to person, land, or goods, though the force might consist in nothing more than the bare setting foot without lawful cause on the soil possessed by one's neighbour. But this was still a long way from making room for the modern growth of the law of torts. The decisive opening was given by the Statute of Westminster, which enabled actions to be framed "on the case"—in consimili casu,—that is, allowed legal remedies to be extended by analogy to the forms of action already recognized. Now those forms and their incidents were archaic and inelastic: the procedure was cumbrous, and plaintiffs were liable in many ways to irrational and irreparable discomfiture. The more modern action on the case was free from these drawbacks. Hence it was the aim of ingenious pleaders to extend the action on the case as much as possible; and so successful was this movement that in the 16th century a special form of "trespass on the case" became, under the name of assumpsit, the common and normal method of enforcing contracts not made by deed, and remained so till the middle of the present century. It still holds its place in those American States where the old forms of action have not been abolished. Note that "assumpsit" had become a substantive title of the law, and was consciously referred to its proper genus of contract, before the genus or order of torts was formed. Meanwhile other actions on the case, framed mostly on the analogy of trespass, but partly on that of other generically similar remedies of the old law, were applied to the redress of miscellaneous injuries to person or property which for one and another reason could not be touched, or could not be conveniently dealt with, by the old action of trespass itself. Some of these actions on the case acquired fixed forms of their own and became distinct species; others did not; there remained (and there still remains in theory) an undefined region of possible new actions applying the principles of legal right and duty to new exigencies of fact.

The extension of forms of remedy grounded on trespass caused those forms which were grounded on restitution to fall into the background, with the curious result that in the modern common law nothing is left answering to the vindicatio of the Roman law. We have an elaborate law of property, but when it comes to the practical protection of our rights we find that we can recover our property only by complaining of a wrong done to our possession or right to possession. The law puts the actual possessor in the first line, and allows an owner definitely out of possession to sue only for "injury to the reversion," though an owner who can resume possession at will is indeed more favourably treated. Its remedies are made efficient, but at the cost of straining the theory at various points. Hence many difficulties of detail and much obscurity of principle. The distinction between dominium and obligatio exists, of course, in English law, but it is peculiarly hard for an English lawyer, with the usual unsystematic training, to grasp it with certainty or trace it with accuracy.

There is also a region of considerable obscurity about the points of contact between contract and tort. The questions thus raised are too technical for discussion here. Since pleadings have ceased to be formal they are much less likely to arise; on the other hand, they are more likely, in the exceptional cases where they may still arise, to be unexpected and baffling.

For the practical purposes of modern law we may divide torts into three groups, wrongs of a personal character, wrongs affecting property, and wrongs affecting person and property, either or both. Under the first group come the wrongs of physical violence and restraint, namely, assault and false imprisonment; then the wrong done to men's good name by libel and slander, in which kind there are sundry curious and not wholly rational distinctions; and we must here rather than elsewhere count deceit, and a somewhat ill-defined class of wrongs of a like nature, of which the generic mark is the necessary presence of a fraudulent intention, or at least reckless disregard of good faith. In one case, that of malicious prosecution, evil motive must be shown; in fact, the much-tormented word "malice" has very nearly its natural and ordinary meaning. So-called slander of title belongs to this class, being in truth a special form of deceit. "Wilful interference with the exercise of public or private rights may be an actionable wrong, though the competitive exercise of like rights is none; and it is held, though not without doubt, that procuring a person to break his contract for one's own advantage (for example, a singer engaged by a rival opera manager, or a specially skilled workman in a rival factory) is on this principle a wrong to the other contracting party.

With regard to property the broad rule of the common law is that a man meddles with whatever belongs to others at his peril. This has been established and worked out only through a series of intricate formal distinctions. But the result is that, special exceptions excepted, even the most innocent assumption of dominion without a real title makes one liable to the true owner.

Wrongs of the mixed kind affecting both person and property arise from the use of one's own property, or the doing of acts lawful in themselves, in a manner inconsistent with the safety and convenience of others. The accustomed heads of such wrongs are nuisance and negligence. Generally some failure in due diligence is involved; but in some cases the law has, on grounds of general policy, imposed an absolute or all but absolute duty of avoiding harmful results. One must do certain things at one's peril, if at all, though the doing of them is not in itself unlawful; others are done not at one's peril, and yet under a wider responsibility than