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THE GREEN BAG

THEORY AND DOCTRINE OF TORT1 BY MELVILLE § 3. RIGHT IN DEFENSE, How DEFEATED — ABSENCE OF RIGHT. ASSUMING now that A has a particular legal right which B has invaded by con duct prima facie wrongful, it is plain that A is entitled to maintain an action against B unless it appears that B's conduct, though frima facie wrongful, was in reality rightful, and it is equally plain that to be rightful it must have been of legal right, either in the higher or the lower sense of that term,2 for, of course, no right except such as the law will recognize as a defense, in other words noth ing but a legal right, will be of any avail to B. It is plain that if I have exercised my legal right by wrongful means —• acts or words —• though not in themselves torts, I have usually no defense.3 To say that I had a defense would be a contradiction in terms and inconsistent with the idea of legal right as freedom to do what is reasonable. A legally wrongful thing could not be a legally reasonable thing. Now the law giver has furnished a category of things amounting to wrongful means, some of which may here be named by way of suggesting the nature of such means: Fraud in general, false representation, intimidation, threats of bodily or other harm, or duress; not to mention acts which of themselves would be torts and not (as are those just named) merely constituents of tort.4 But intim1 In advance of publication in the eighth edition of the writer's work on the Law of Torts. Contin ued from February. 'Ante, p. 64. s See qualification, p. 138. 4 Of course, if the means in themselves con stituted torts, it would not be necessary to go further to find liability. To make a question, it must be understood that negligence, wrongful means, and malice, are not of themselves action able, but only constitutents of a right of action, to be helped out by other facts.

M. BIGELOW idation and threats of harm are also expres sions of malice, and may be dealt with properly under that head. The term fraud may for the present be shortly disposed of. The wrong consists of two sorts of cases; one in which the person committing it is now dealing or communica ting with the person upon whom it is com mitted, the other in which he is not. In the first of these cases the person defrauded is induced by the misrepresentations or like acts of the wrongdoer to change his position to his hurt, by entering into new relations with the wrongdoer himself or with some one else. Here the two, the one harmed and the wrongdoer, are face to face, personally or by agent, and the wrongdoer holds out some deceptive inducement which is acted upon by the other. In the other cases of fraud, the wrongdoer is seeking through some third person to circumvent the party to be wronged from enforcing his rights against him. The wrongdoer is putting his property out of his hands, for instance, to defeat the rights of his creditors. The first of the cases then is deception, the second circumvention only. The first of the two, deception, leads to an action for damages; the second does not in ordinary cases. The first alone is a tort in that sense; with the second we are no further concerned. Fraud in the sense in which we are concerned with the term is one of the elements of a specific tort called deceit; in relation to which it has a definite, settled meaning. What that is will appear in the chapter relating to that subject. One more remark concerning fraud should here be made. The word, even in relation to deceit, is used in two senses, a broader sense in which it is here used, as denoting the means by which a lawful act is made un lawful — the whole artifice by which the result is accomplished; and a narrower