of its provision and application, are either contracts, torts, or crimes; (a) the first being agreements, express or implied; the second, injuries of omission or commission, done to individuals; (b) and the third, injuries done to the public or the State. Some elementary writers, indeed, have treated a breach of contract as a private wrong, and divided civil injuries into injuries to things in possession, meaning thereby what we have above designated as torts; and injuries to things in action, consisting in neglect or refusal to fulfil contracts and agreements, which are sometimes technically termed things in action or choses in action. (c) This classifi abandoned in the nation of its origin. In a late elaborate French work"Traité Général de la Responsabilité, par M. A. Sourdat,”—relating exclusively to the subject of private wrongs, the word tort is not used, but delit and quasi délit. (a)" Actiones in personam, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere." Inst. 4, 6, 15; 3 Bl. Comm. 117. (b) Injuries may be by nonfeasance, not doing that which it was a legal obligation or contract to perform; misfeasance, the performance in an improper manner of an act which it was either the party's duty or his contract to perform, or which he had a right to do; and malfeasance, the unjustifiable performance of some act which the party had no right or which he had contracted not to do. 1 Chit. Gen. Prac. 8. (c) "Choses in possession are such personal things of which one has possession; choses in action are such, of which the owner has not the possession, but merely a right of action for their possession." 2 Bl. Comm. 389, 397; Bouv. L. Dict. 1, 227. "Another very leading distinction, in respect to goods and chattels, is the distribution of them into things in possession, and things in action. The latter are personal rights not reduced to possession but recoverable by suit at law. Money due on bond, note, or other contract, damages due for breach of covenant, for the detention of chattels, or for torts, are included under this general head or title." 2 Kent, 351. "In its most usual sense, wrong signifies an injury committed to the person or property of another, or to his relative rights, unconnected with contract, and these wrongs are committed with or without force. But in a more extended signification, wrong includes the violation of a contract; a failure by a man to perform his undertaking or promise, is a wrong or injury to him to whom it is made." 2 Bouv. L. Dict. 667—Wrong. cation, however, is far less simple and natural than the one above suggested. 2. In the course of our inquiries it will appear, under the appropriate heads or divisions, that there are certain prominent points of distinction between torts and contracts, as the subjects respectively of legal notice, enforcement or redress, to which in the present connection we need but briefly allude. Such are, the several liability, of parties jointly concerned in the same wrongful act, to the injured party, and the absence of such liability, as between themselves, for the purpose of contribution; the effect, upon the right of action, of the death of either party; the liability of parties under personal disability to contract, such as infants and married women; and the enforcement of the original claim or of a judgment recovered thereupon by attachment, arrest, or imprisonment. At present, however, we propose to consider more particularly the points of connection or analogy between torts and contracts. 3. A promise and a tort may be coincident, giving to the party injured by breach of the promise a remedy as for a simple wrong, without reference to the accompanying contract, as such. (a) In other words, "The breach of a con (a) It is said, " Generally speaking, the law has endeavored to assimilate actions of tort arising out of contract with actions on contracts." Per Maule, J., Howard v. Shepherd, 9 C. B. 319. It is to be observed, however, that a mere executory contract, or an award founded thereon, will not so far affect the title to property, as to justify an action of tort against the party who fails to carry such contract into effect. Under a submission to an arbitrator of all matters in difference between landlord and tenant, the arbitrator awarded, inter alia, that a stack of hay, left upon the premises by the tenant, should be delivered up by him to the landlord by a certain day, upon the tenant's being paid or allowed a certain sum in satisfaction for it. Held, that the property in the hay did not pass to the landlord on his tender of the money, by the mere force of the award, against the consent of the tenant, who refused to accept the money or deliver up the hay; and therefore that the landlord could not maintain trover for it, but his remedy was upon the award. Hunter v. Rice, 15 East, 52. tract may be a wrong, in respect of which the party injured may sue in case, instead of suing upon the contract."1 1 Per Cresswell, J., 9 C. B. 321. On the other hand, where the defendant purchased property of a party to whom the plaintiff's intestate conveyed it, his possession will be held to have commenced and to continue under the contract, and he cannot be made liable therefor in trover, without a demand and refusal, though the sale by the intestate may have been void. Stewart v. Spedder, 5 Md. 433. A false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit. Pasley v. Freeman, 3 T. R. 51. And more especially where a party intentionally misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage over him; there is a positive fraud. Willink v. Vanderver, 1 Barb. 599. And the still more stringent rule is laid down, that, if a man tells an untruth, knowing it to be such, in order to induce another to alter his condition, who does accordingly alter it, and thereby sustains damage, the former is liable in an action for deceit, although in making the false representation no fraud or injury was intended by him. Watson v. Poulson, 7 Eng. L. & Eq. 585; 1 Barb. 599. Fraud in obtaining a promissory note is a good defence to an action brought upon such note. Barber v. Kerr, 3 Barb. 149. Thus, where the bookkeeper and cashier of a mercantile firm, by making false additions, and omitting to charge himself with large sums of money appropriated by him, had fraudulently made a balance to appear due to him upon the books of the firm, when he was in fact indebted to them; and had taken a note for the balance thus appearing; held, a good defence to an action upon the note. Ibid. So, where a person's signature as surety is obtained by fraud and false pretences, this avoids the note as against one who has received it without consideration. Stewart v. Small, 2 Barb. 559. In an action on the case, the declaration alleged that, the defendants having brought a bill for the foreclosure of a mortgage executed to them by the plaintiff to secure a note, it was agreed between the plaintiff and de-. fendants before the decree thereon, that the time for redeeming should be limited to the first Monday of January, 1851, but that the defendants procured a decree thereon, that it should be redeemed previous to said day, viz: on or before the first day of January, 1851, and that, after said decree was passed, the defendants falsely and fraudulently, and for the purpose of 4. Upon this principle, if a vendor, during the negotiation for the sale, makes a fraudulent representation in relation to a material fact, and one on which the vendee has a right to rely, and the latter is thereby misled to his prejudice; the vendor is responsible in damages. So an action on the case is held to lie for a false warranty, and is governed by like rules, and is the same in its results, as assumpsit or covenant on the contract.2 So an action of deceit lies, notwithstanding an express warranty. So, on the other hand, an action on the case, in nature of deceit, will lie for the price of property sold, and which proved of no value, though there was no warranty. The distinction is said to be, that, in an action founded upon deceit, the declaration must be in tort; but in case of warranty, may be either tort or assumpsit.5 (a) Thus it has been held, that an action will lie against the seller of any interest in an estate, for affirming the rents to be more than they are, while he is in treaty, and prior to the sale; if the vendee relies upon such affirmation; although 1 Pritchett v. Munroe, 22 Ala. 501. Waddill v. Chamberlayne, Jefferson, 10. Massie v. Crawford, 3 Monr. 218. preventing the plaintiff from redeeming within the time so limited, represented to the plaintiff and thereby induced him to believe, that the time so limited was the first Monday of said January; that under said belief, and under an agreement between the plaintiff and the defendants, made after said first day of January, that the plaintiff might redeem on said first Monday of January, the plaintiff omitted to redeem until after said first day of January, but was prepared and offered to the defendants to do so on said first Monday, and on that day tendered to the defendants the amount due, which they refused to receive; and that by means thereof he was foreclosed, and, in order to have the foreclosure opened, and to obtain the privilege of redeeming, was obliged to and did bring his application therefor to said court, on which he was allowed to redeem, and that, in consequence of said wrongful conduct of the defendants, he was in the prosecution of said application subjected to great expense, trouble, vexation, and loss of time. Held, that such declaration disclosed a good ground of action. Raymond v. Sturges, 23 Conn. 134. (a) See Election. the seller was not then in possession.1 So a vendor of real property is liable for false and fraudulent misdescription thereof;2 or for false representation that a certain privilege is attached to the land, which is not included in the deed;8 or for selling land which does not exist. Though not for fraudulent misrepresentation as to the land included in the boundaries of the deed. So, where it was agreed between A. and B., that A. should buy a plantation for B., and that B. should pay A. whatever sum he should give for it, and B. paid to A. $3000 on A.'s representing to him that he paid that sum, when in fact he paid a less sum; an action on the case will lie in favor of B., against A., for the deceitful and false representation. So, where property is sold on execution, the defendant is liable to the purchaser in an action for deceit, for false and fraudulent representations made by him at the sale. So, where a party, during a negotiation for the sale of property, stated that the other contracting party must take the property at his own risk, such statement, though negativing a warranty, will not exonerate the party from a liability for a suppression of the truth, or the suggestion of falsehood. So, in an action on the case, for deceit, it appeared that the plaintiff purchased from the warehouse of the defendant, the manufacturer, copper for sheathing a ship. The defendant, who knew the object for which the copper was wanted, said, "I will supply you well." The copper, in consequence of some secret intrinsic defect, lasted only four months, four years being the average duration. Judgment for the plaintiff.9 5. So an action for deceit may be maintained for false and fraudulent verbal representations, whereby a party is induced to enter into a written agreement, and is thereby damnified.10 Thus, in an action on the case for false representations on 1 Lysney v. Selby, 2 Ld. Raym. 1118. 8 Monell v. Colden, 13 Johns. 395. 7 Minter v. Dent, 3 Rich. 205. 8 George v. Johuson, 6 Humph. 36. 9 Jones v. Bright, 5 Bing. 533. 10 Dobell v. Stevens, 5 Dowl. & Ry. 490; Manes v. Kenyon, 18 Geo. 291. |