45. ICO, upon the hearing of any summary proceedings for 24 & 25 Vict. assault or battery, upon the merits, shall deem the. Ico, ss. 44, offence not proved or to be justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred (m); and that if any person against whom any such complaint shall have been preferred shall have obtained such a certificate, or having been convicted shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause (n). The term tinction to 66 contract." The term "tort" is frequently used for the purpose of denoting a wrong or injury quite independent of in contradis contract (0); but in the definition at the commencement of the present chapter a wider application is given to it, viz., that it is some wrongful act which consists in the withholding or violating some legal right, and, as will be presently noticed, there are many torts in some way connected with contracts, and which are said to arise out of or flow from contracts. Before, however, proceeding to further notice this, it is important to have a correct appreciation of the difference between rights arising from breach of contract and rights arising from tort, using that term as signifying an injury independent of contract, for these are the more ordinary and usual kind of torts. between torts Where a person's right arises from a wrongful act Difference independently of any contract, his action is styled an arising from action ex delicto, but when arising strictly out of a contracts and independently of contracts. There are many cases in election to sue contract it is called an action ex contractu, and in this latter kind it is necessary that there should be privity between the plaintiff and the defendant, for a person cannot sue upon a contract when there is no privity between himself and the party against whom he claims. Thus, if a person sends a message by a telegraphic company, and a mistake is made by the company in sending it, whereby he (the sender) is injured, here there is privity of contract between him and the company, and he has a right of action ex contractu against them. But if through the mistake an injury happens to the person to whom the message is sent, there being no privity of contract between him and the company -for he indeed made no contract with them-he can have no right of action against them ex contractu (p), though possibly he might have such a right ex delicto, on the ground of the company having been guilty of a tort, by reason of the breach of their proper duty. To support an action ex contractu, therefore, it is essential that there should be privity between the parties, but with regard to a tort-again using that term as signifying an injury arising independently of contract -the right of action has nothing to do with any privity between the parties, but it exists simply because of the withholding or violation of some right (q). That this is so is shewn by the case of Langridge v. Levy, the facts in which have been already stated (r). But there are many kinds of torts arising out of which it may contract, being cases in which there has been a contract be in a person's and a breach of that contract, which looked at in one way furnish a right of action ex contractu, and looked at in another way furnish a right of action ex delicto. Thus, in the case of Langridge v. Levy, before referred for a tort or for breach of contract. (p) Playford v. United Kingdom Telegraph Co., L. R. 4 Q. B. 706. Addison on Torts, 676. (g) Gerhard v. Bates, 2 E. & B. 476; Langridge v. Levy, 2 M. & W. (r) Ante, p. 276. to (s), there was a valid contract of warranty of the gun to the father who bought it, and on a breach of that warranty as regarded him he might have brought an action ex contractu, but the actual fact in the case was that the breach happened as regarded the son, as to whom there was no privity of contract, he not having been in any way a party to the contract; but he was held entitled to succeed in an action ex delicto. The point we are at present considering is well explained by Mr. Broom in his Commentaries on the Common Law (t), and we cannot do better than quote the passage from that work: "... Although tort in general differs essentially from contract as the foundation of an action, it not unfrequently happens that a particular transaction admits of being regarded from two different points of view, so that when contemplated from one of these it presents all the characteristics of a good cause of action ex contractu, and when regarded from the other, it offers to the pleader's eye sufficient materials whereupon to found an action ex delicto. Thus, carriers warrant the transportation and delivery of goods entrusted to them. Attorneys, surgeons, and engineers undertake to discharge their duty with a reasonable amount of skill, and with integrity; and for any neglect or unskilfulness by individuals belonging to one of these professions, a party who has been injured thereby may maintain an action, either in tort for the wrong done, or in contract, at his election" (u). never neces And even in cases where the tort flows from contract, Privity is the rule that privity between the parties is not necessary, still applies (x). (s) Ante, p. 276. (t) Page 676. (u) From the above the student will perceive that there are various matters before treated of under Part I., " Contracts," which might perhaps with equal propriety be considered in this part, "Torts," particularly such subjects as Carriers, Innkeepers, and Bailments generally. (x) Gerhard v. Bates, 2 E. & B. 476; Langridge v. Levy, 2 M. & W. sary in torts. Certain cases in which no remedy for torts. Maxim that the king can Having now considered the nature of torts, the distinctions between mere torts and acts actually amounting to crimes, and the differences between acts which are purely and simply torts in the more limited sense of the word, and breaches of contract, it remains but to notice in this chapter that there are certain acts, which, though they are torts, yet the law allows no redress for, principally upon public grounds. There is no remedy for a tort committed by the do no wrong. sovereign, because of the maxim, " The king can do no wrong" (y). Acts done by a judge of a court of record. For any act done by a judge of a court of record, no action lies, provided such act is done in the proper and appropriate discharge of his legal duties, for it is considered for the benefit of the community at large that the judges should have full scope and not be fettered and impeded by any restraint and apprehensions, and this is so even although a judge's acts may be shewn to have proceeded from malice. But if an act is done by a judge not acting judicially, or if an act is done by him in respect of some matter not at all within his jurisdiction, he is not protected then, but is liable in the same. way as any other person (z). (y) Broom's Legal Maxims, p. 52. The meaning of this maxim is stated in Broom's Legal Maxims, as follows: "Its meaning is, first, that the sovereign individually and fully in his natural capacity is independent of, and is not amenable to, any other earthly power or jurisdiction, and that whatever may be amiss in the condition of public affairs is not to be imputed to the king, so as to render him answerable for it personally to his people; secondly, the above maxim means that the prerogative of the Crown extends not to do any injury, because being created for the benefit of the people it cannot be exerted to their prejudice, and it is, therefore, a fundamental general rule that the king cannot sanction any act forbidden by law, so that in this point of view he is under and not above the laws, and is bound by them equally as his subjects. If, then, the sovereign personally command an unlawful act to be done, the offence of the instrument is not thereby indemnified, for though the king is not himself under the coercive power of the law, yet in many cases his commands are under the directive power of the law, which makes the act itself invalid if unlawful, and so renders the instrument of execution thereof obnoxious to punishment." (z) See Broom's Coms. 112-116, and cases there cited and referred to. a superior Again, a superior officer is justified in arresting Act done by and imprisoning an officer under him for the purpose officer. of bringing him to a court-martial in accordance with the rules of the service, and this is so even although the person so arrested is not ultimately brought to a court-martial, if the arrest was in respect of some matter fairly cognisable by a military tribunal, and no action will lie against the superior officer (a). And this rule has been carried so far that it has been decided that it will apply even although the tortious act complained of is done maliciously, and without reasonable and probable cause (b). causâ non If two or more persons commit a tort, and the plain- Ex turpi tiff recovers against them, but levies the whole damages oritur actio. on one, that one has no right to recover contribution from the other or others, for Ex turpi causâ non oritur actio (c). But although, if a person is instructed to do some palpably tortious act, and the person so instructing him undertakes to indemnify him from the consequences of such act, no action will lie, yet if the act he is so instructed to do does not appear of itself manifestly unlawful, and he does not know it to be so, he can recover thereon (d). Thus, if A. instructs B. to drive certain cattle from a field, which B. does, thereby unwittingly committing a trespass, A. is bound to indemnify him; but if A. instructs B. to assault a person, which he does, this is an act manifestly illegal in its nature, and B. cannot call upon A. to indemnify him. (a) Hannafoad v. Hunn, 2 C. & P. 148; Dawkins v. Lord Rokeby, 4 F. & F. 806. (b) Dawkins v. Lord Paulet, L. R. 5 Q. B. 94. Lord Chief Justice Cockburn, however, dissented from this. (c) Merryweather v. Nixan, 2 S. L. C. 546; 8 T. R. 186. It is otherwise in contract. For a further illustration of the maxim Ex turpi causâ non oritur actio, see Hegarty v. Shine, Irish Reps. 2 Q. B. D. 273. See also post, p. 400. (d) Per Lord Kenyon in Merryweather v. Nixan, supra; Betts v. Gibbon, 2 A. & E. 57. |