rights and interests, corporeal and incorporeal, with their respective incidents, which are capable of transfer from one to another, and which in ordinary language are intended when the term property is used, but also all those collateral rights of a personal nature by means of which men are enabled to acquire, enjoy and preserve their property. "Private property," it has been said, "is either property in possession, property in action, or property that an individual has a special right to acquire. . . . A man in trade has a right in his fair chances of profit, and he gives up time and capital to obtain it" (a). In other words, the right to earn a living by all lawful means may in a certain limited sense be said to be a right of property. Domestic rights, in so far as they are recognised in the law of torts, may be classified as rights of property. A father has a right to the service of his child up to the age of twenty-one years, and for the loss of that service he may have his action (b); but a (@) Per Cur., Hannam v. Mockett, (1824) 2 B. & C. p. 937. (b) This right of the father to the custody (In re Agar Ellis, (1883) 24 Ch. D. 317) and to the services (Dean v. Peel, (1804) 5 East, 45) of his child exists up to the age of twenty-one. But the extent to which that right can be enforced has been considerably modified in modern times. From the point of view of the early common law the status of a child was one of qualified servitude; it was regarded as the chattel of the father. In course of time, however, even the Courts of Common Law came to limit the parent's rights to this extent, that after the child had arrived at a certain age-fourteen in the case of boys (In re Shanahan, (1852) 20 L. T. 183), sixteen in that of girls (Reg. v. Howes, (1860) 3 E. & E. 332)—they refused to assist the father to regain possession of the child for the purpose of enforcing his rights, even though no misconduct on the father's part were proved; and they also refused to allow a father to apprentice his child to another person without the child's consent (R. v. Arnesby, (1820) 3 B. & A. 584, dissenting from the earlier authority of Com. Dig. tit. Justices of the Peace, B. 55). But though the Courts of Common Law would not assist the parent in enforcing his rights against his child after the ages of fourteen or sixteen as the case might be, they apparently allowed him to take the law into his own hands and to maintain his rights by force (see below, p. 215), and they also allowed him to recover damages for any interference with his rights by a third person, by injuring, debauching. or enticing away the child, up to the age of twenty-one. On the other hand, the Court of Chancery looked at the question of the custody of the child from the point of view, not of the father's rights, but of his duties. It considered only the welfare of the child. and claimed under the authority delegated to it by the Crown, as the supreme parens patriæ, to control and, if necessary, to supersede the natural right of the parent (per Lord Cottenham, In re Spence, (1847) 2 Ph. 247). The Court had an absolute discretion to regulate the custody of the child up to the age of twenty-one; but in the absence of misconduct on the part of the parent, or of facts showing that it was obviously for the benefit of the child that it should live elsewhere it would only exercise child by the common law has no corresponding remedy for the loss of the protection and support of his father, insomuch as he has nothing therein in the nature of a right of property. By statute (a), however, he may recover compensation for the pecuniary loss caused by an act wrongful in itself, and resulting in the death of his father. It is, to say the least, very doubtful, however, whether, except under the statute above referred to, a wife can recover for the loss of the consortium of her husband (b). But a husband may sue for the loss of his wife's service; and although he can no longer compel his wife to live with him by taking forcible possession of her person (c), it is apprehended that his right to the consortium and services of his wife must still be regarded as a valid and subsisting right available as its discretion in one way, that of giving the custody to the father. For primâ facie the Court, "whatever be its authority or jurisdiction, has no right to interfere with the sacred right of a father over his own children" (per Bacon, V.-C., In re Plomley, (1882) 47 L. T. N. S. p. 284), it being primâ facie of the greatest benefit to the child to be with its father (per Kindersley, V.-C., In re Curtis, (1859) 28 L. J. Ch. 458; per Lindley, L.J., In re McGrath, (1893) 1 Ch. 143). In the exercise of this discretion, the Court of Chancery did not, like the Courts of Common Law, refuse to restore a child to its father after the age of fourteen or sixteen (Todd v. Lynes, Times, 26 July, 1873). Now by s. 25, subsec. 10, of the Judicature Act, in questions relating to the custody of infants, the rules of equity prevail. The net result of the common law, as modified by that provision, may be expressed in the following proposi tions: 1. A father has, in the absence of misconduct on his part, and until interference by the Court, a right to the enstody and services of his children of either sex unmarried up to the age of twenty-one, for infringements of which right he has as against third persons a remedy in damages: and for the purpose of enforcing it as against the ch.id he probably may keep or retake possession of his child's person by force. 2. He probably loses those rights by misconduct, even without the intervention of the Court (see below, pp. 215-217). 3. The Court, upon its aid being invoked to recover possession of the child, has an absolute discretion to dispose of the child's custody, even though there be no misconduct on the part of the parent. But, except in extreme cases, it will always consider it to be to the best interests of the child to be with its father. 4. That discretion the Court will exercise so long as the child is under twenty-one. The old common law distinction between children under the ages of fourteen or sixteen and children over those ages, must be regarded as obsolete. (It is submitted that the dicta of Lord Esher, M.R., and Smith, L.J., in Reg. v. Gyngall, (1893) 2 Q. B. at pp. 245, 253, to the contrary, are not law. It will be observed on reference to that case, that Kay, L.J., did not express any assent to their proposition.) (a) 9 & 10 Vict. c. 93; and see 60 & 61 Vict. c. 37. (b) In Lynch v. Knight, (1861) 9 H. L. C. 577, Lord Wensleydale expressly held that she could not. The other law lords expressed opinions in the contrary sense, but their judgments did not turn on this point, see below, p. 228. (c) Reg. v. Jackson, (1891) 1 Q. B. 671 Conflict of rights. How adjusted. against third persons, and that the case of Winsmore v. Greenbank (a), where an action was held to lie for persuading a wife to continue absent from her husband, is still good law (b). The decision in Ashby v. White (c), that the malicious refusal of a returning officer to accept the vote of a duly qualified elector was a tort as well as a breach of public duty, probably rested on the notion that the political franchise, like other franchises, was to be regarded as a right of property. It is, perhaps, doubtful whether at the present date such a principle would, apart from authority, find acceptance. It is obvious that unless the rights of individuals are modified and limited they must be frequently in conflict one with another. No man can always do as he pleases, except by preventing other people doing as they please. "The due regulation and subordination of conflicting rights constitute the chief part of the science of law. It is impossible to give any rule applicable to all cases which may arise, except the general one that whenever damage is caused to one man by another the law, in deciding which shall bear the loss, is governed by principles of expediency, modified by public sentiment" (d). In many cases where there is a conflict of interests the law does not interfere, but leaves each individual to do the best he can for himself. If one landowner has a well, and his neighbour digs a well in the adjoining close, which drains away the percolating water and leaves the first well dry, the owner cannot complain, for his neighbour has as good a right as he to the subterranean flow. His remedy is to dig deeper (e). So, a landowner may ward off a sudden flood, although the effect be to throw the water on to another man's land (f). Sometimes a right or license (g) is given subject to the condition that it be used with care. Thus the highway is open to all, but every passenger is bound to do his best not to impede or injure other passengers (). Sometimes (a) (1745) Willes, 577. (b) And see Smith v. Kaye and Another, (1904) 20 T. L. R. 261. (c) (1703) Lord Raym. 938. An action will not lie against a Member of Parliament for refusing to present a petition to Parliament (Chaffers v. Goldsmid, (1894) 1 Q. B. 186). (d) Addison on Torts, 8th ed. p. 17. (e) Chasemore v. Richards, (1859) 7 H. L. C. 349. (f) Nield v. London & North Western R. Co., (1874) L. R. 10 Ex. 4. (g) Gibbings v. Hungerford, (1904) 1 Ir. R. 211, C. A. (h) Where, however, the tendency of the only limitation to a right is that it must be exercised in good faith. Sometimes, again, the law subordinates the one right to the other. Thus, a landowner has a right to dig and carry away his own soil, but if in so doing he lets down the soil of his neighbour he is answerable; for the right of the latter to have his soil supported is the better right of the two. duty. Where a right exists there must be a corresponding duty to Right implies observe that right, and a tort may be spoken of either as a breach corresponding of duty or an infringement of a right. It is convenient to use the latter expression where the act is wrongful in itself apart from its consequences, for then its injurious character is best ascertained by an accurate definition of the right of the party aggrieved. But where an injury is consequential only it is more convenient to consider the nature of the duty. If a defendant has been guilty of negligence it makes no difference in the character of his liability whether he injured the person or the goods or the land of the plaintiff. Torts may be divided into three classes: first, those in which Three classes a party is liable simply because he has done or omitted to do of torts. something, which of itself amounts to an infringement of right or a breach of duty; secondly, those in which the conduct of the he in themselves. Trespass. 1. A trespass, that is to say, a direct physical interference Acts wrongful with the person, land, or goods of another, is as a rule actionable in itself, however innocent the conduct of the wrong-doer may be. If A. walk over B.'s field without permission, he may have no knowledge of the owner's right nor intention to injure him; may reasonably believe that he is using a public footpath; but his good faith and absence of negligence, although they may be very material in considering the damages that shall be awarded against him, do not alter the fact that he has been guilty of a legal wrong (a). The only question is whether the very act wilful which constitutes the trespass is his act. That is a man's act trespass. a particular class of users of the highway is to subordinate the rights of the general public to their own selfish interests, the law will impose certain restrictions upon them (the Motor Car 37. (a) Basely v. Clarkson, (1682) 3 Lev. Negligent trespass. which he wills to do, exercising a choice between acting and forbearing, and the strongest moral compulsion still leaves freedom of such choice. Therefore where the defendant had formed one of a party who committed a trespass, it was held no answer to plead that his co-trespassers had compelled him by menaces to accompany them (a). So it will seem that if a man finding himself in the neighbourhood of a dangerous animal goes where he has no right, in order to secure his safety, he is a trespasser; but if being pursued, in the blindness of fear, he takes refuge in the same place, then since he exercises no choice he cannot be considered a voluntary agent and commits no wrong. This proposition would seem to be involved in the well-known American decision (b), where it was held that the defendant was liable in trespass, because a boy whom he had pursued with uplifted weapon rushed headlong into a shop and did damage there, for if the boy were a trespasser, other than in relation, his entry could not well be the act of the defendant. If A. driving along the high road and seeking to avoid a collision with B. comes into contact with C., he may be liable to C. if he be negligent, but not otherwise. But if in order to avoid B., he directs his vehicle against C., making as it were a choice of evils, this of itself constitutes a good cause of action, because he has chosen to do the very thing which infringes C.'s right (c). And, primâ facie, there is evidence of negligence, on the part of the owner, if, in broad daylight, a runaway horse and cart cause injury in a public street (d). It is to be observed that under the form of the action of trespass were included wrongs essentially diverse in their nature. If a man aims at another with his gun and wounds him, here the wounding is the very thing which he intends; but if he fires carelessly and hits a passer-by, in this case the wound cannot be said to be his act, that is to say, the thing which he chooses to do; it is rather the consequence of his act (e). In both cases (a) Gilbert v. Stone, (1647) Aleyn, 35. (b) Vandenburgh v. Truax, (1847) 4 Denio, 464. (c) Holmes v. Mather, (1875) L. R. 10 Ex. 261. As to the liability of infants of tender years, and lunatics for their trespasses, see below, pp. 46-48. (d) Snee v. Durkie, (1903) 6 F. 42, Ct. of Sess. (e) As to responsibility when the immediate cause of the accident is the act of a third party, see Sullivan v. Creed, (1904) 2 Ir. R. 317, C. A. In the old authorities trespass seems to have |