Page:Harvard Law Review Volume 12.djvu/361

341 A PROPOSED NEW DEFINITION OF A TORT. 34 1 A strong justification of our definition is that, so far as concerns an injury produced by mere words, as in case of slander and libel, it is already in effect applied in the doctrine of privilege. Acts of fraud or negligence are clearly tortious under our definition, not being the natural outgrowths or incidents of any lawful relation. An incidental benefit of the adoption of our definition, would be the abandonment of false and misleading tests of liability that have wrought so much confusion. Conspicuous is the test of in- tent, which has received from Allen v. Flood its death-blow in England. It is to be hoped that Allen v. Flood will soon be gener- ally followed on this point in this country. Perhaps the same con- demnation should be extended to the idea that has,, somehow or other, of recent years, no one seems to know just how, sneaked into our jurisprudence, that a civil liabihty is created by a number of individuals doing in combination what it would be lawful for each to do singly. If this idea ever had any foothold in British juris- prudence, it seems now to have been repudiated in Great Britain.^ Though it has received considerable countenance in this country, it was repudiated in such decisions as Bohn Manuf. Co. v. Hollis ; ^ Macauley v. Tierney;^ and see the forcible and eloquent argu- ment of Caldwell, J., in Hopkins v. Oxley Stave Co.^ Frederick H. Cooke. 120 Broadway, N. Y. City, 1 See Kearney v. Lloyd, L. R. 26 Ir. 268 (1890); Huttley v. Simmons, [1898] I Q. B. i8t. 2 54 Minn. 223,234 {1893). 8 19 R. I. 225 (1895). « 83 Fed. Rep, 912, 930 (C. C. A. Eighth Cir,, 1897).