Page:The American Cyclopædia (1879) Volume XV.djvu/839

 TORT TORTOISE 809 long usage of the law to prescribed and well determined offences. But besides these there are many torts not specifically designated or classed, because they do not affect well defined classes of rights, but vary with the peculiar circumstances of every case. When one al- leges that a tort has been committed against him, he must show at all events that he has been wronged. The mere fact that the act complained of has injured the plaintiff, does not entitle him to claim indemnity unless the act was also a breach of a legal obligation be- tween the parties, resting either on their ex- press agreement, or on the general policy and rules of the law. If, for example, my neigh- bor builds a wall just before windows of mine, to which it is conceded I have no prescriptive right as ancient lights ; or if in a street oc- cupied by private and costly dwellings my neighbor chooses to use his house for a shop, or convert it to other uses offensive to ine and yet constituting no nuisance : in neither case have I ground for action, however consider- able the actual injury or damage may be to me. The reason is, that I have not been wronged ; it is a case of what the law calls damnum abs- que injuria, damage but no wrong ; no legal right of mine has been violated. But every legal wrong imports damage in the very nature of it ; and if no other damage is established, the party is entitled to nominal damage. To use Sir John Holt's quaint and familiar illustra- tion : " If a man give another a cuff on the ear, though it cost him nothing, nay, not so much as a little diachylon^ yet he shall have his action." It is on this principle that, without proving any actual damage, one who has a right of way may maintain an action against an intruder, or one whose lands are flowed against him who con- structs a dam so as to set back the water. ^ So a voter can sustain suit against the authorities for refusing his ballot, even though his can- didate was elected. These are cases of legal wrongs, infringement of legal rights ; and even if no actual damage be proved, the injury or damage is the presumption of the law. To this class also belong those cases of torts in which the legal wrong consists in the doing of a mischievous act which is only likely to prove injurious to others, or even in the doing of a legal act in such a careless or negligent man- ner that injury may probably result ; for care- lessness of the rights of others is in itself morally wrong, and by the construction of law is legally wrong when injury results from it. The commonest form of a tortious intrusion upon real property is called trespass quare clausum fregitj or for breaking and entering upon the plaintiff's close. A higher offence against a person, in respect to his property, than mere encroachment on his possession, is that which consists in a usurpation of the property itself. An injury of this nature is most likely to happen in respect to personal property, and one of the most frequent actions for torts of this nature is that of trover. One may be further injured in his rights of prop- erty by the effect of threats, mistake, or fraud. In the last respect, for example, an action lies when one knowingly utters a falsehood to the plaintiff with the design to deprive him of a benefit and to acquire it to himself, and damage naturally results from the plaintiff's belief. But it is not always necessary to show that the defendant intended to defraud the plaintiff particularly. Thus one who makes a false rec- ommendation of another, representing him to be solvent and trustworthy, and with the pur- pose of obtaining credit for him, is liable to any one who gives credit to the report and thereby suffers injury. The tort of nuisance consists in injury to the more natural rights of individuals, and the tort of infringement of patent and copyrights and rights to trade marks violates rights created and assured by the posi- tive law. In our examination of torts we have thus far considered persons only in their natu- ral capacity. It is obvious that new rights arise and new wrongs become possible when the individual is clothed with an artificial character; when, for example, he becomes a sheriff, a magistrate, or other public officer. The new functions with which he is invested give him capacity for doing official wrongs; and these, as they affect private individuals, form new classes of torts. A corporation is liable like an individual for its torts, and it is liable for the wrongful acts of its officers, either where they are expressly authorized to do the acts, or where they were done lonafide in pursuance of a general authority. But, gen- erally speaking, it cannot be held for any offences by its servants that are properly, in any case, only personal acts, like malicious prosecution, slander, or false imprisonment. But a corporation has been held responsible for an assault and battery committed by a ser- vant acting under its authority. Municipal corporations are liable in tort for the same acts that would warrant an action against individuals, if such acts are done by the au- thority of the corporation or of a branch or bureau of its government, authorized to act in the premises to which the particular act re- lates. Thus they must answer for nuisances on their lands, and they are generally held lia- ble for injuries resulting from the want of care or skill on the part of a public surveyor, from the careless performance of street grading, from neglect to repair streets, sewers, and drains, or from the fury of a mob. The civil liability of municipal corporations for injuries sustained by defects in the highway is gen- erally determined by express statutes. For the various kinds of torts, and of actions for tort, see ASSAULT, ATTACHMENT, COPYRIGHT, EXECUTION, LIBEL, MASTER AND SERVANT, NUI- SANCE, PATENTS, SHERIFF, SLANDER, TRADE MARK, TRESPASS, and TROVER. TORTOISE, the popular name of the chelo- nian reptiles whose habits are wholly or in part terrestrial and fluviatile, including all the