but in accomplishing a murderous purpose. If one knocks another down purposely, it is a crime; but if carelessly, it is a tort. If one negligently burn his neighbor's house, it is no arson, but it is a tort, because the neighbor had a right to enjoy his house in peace, and to have others observe toward him due care in any action that might endanger his property. But there may be a negligence so gross as to be criminal; the criminal inattention to the rights and safety of others supplying the place of intent. Such would be the case if the keeper of a savage beast were to leave it to wander at large, or if one on the roof of his dwelling were to throw the snow and ice into the public street without looking to ascertain if persons were passing; or if a sportsman were to fire in the direction and within the reach of a crowd of people; or if the conductor of a railway train were to run out of time in disregard of orders. In the case of negligence so gross, the law implies a guilty intent; or, in other words, it implies that the culpable party must have intended the natural and probable consequences of that which he did or neglected to do, and it holds him accountable accordingly."

8 Cooley on Torts, 98. Continuing the same author observes: "A classification of the various cases of injuries not actually intended may assist in determining the civil or criminal responsibility. The following will, perhaps, be sufficient.

"1. Those where an individual, in the exercise of his rights, has accidentally, but without negligence, caused damage to another; as where the horse he was driving has taken fright and run his vehicle against the other's vehicle or person. In such a case he is not legally responsible, either civilly or criminally. No

In England, and perhaps in one or more jurisdictions in the United States, a rule prevails, that where a wrongful act gives rise to both a public and private action, and the public offense is of the grade of felony, the private remedy is suspended until the public justice is satisfied.9

one is in fault; the injury is to be attributed to inevitable accident, and the damage must be left where it chanced to fall.

"2. Those where a man, in exercising his rights, has been guilty of negligence to the injury of another. In these cases there is wrong in the negligence, and there is consequently that conjunction of wrong and damage which constitutes a tort.

"3. Those where a party who causes the injury was at the time acting recklessly, or with such gross negligence that an injury has followed which should have been anticipated by him. These may be both crimes and torts. A killing by such recklessness or gross negligence would be punished as criminal manslaughter. A case of fatal wounds inflicted while indulging in rude and dangerous sports might be one of this description.

"4. Those where a party, though not intending the particular injury, was, nevertheless, engaged in doing that which was unlawful. Here it is proper that he be held to an accountability beyond that which he is under when lawfully doing what he has a right to do. These, also may be both public and private wrongs. The case of one who, while committing a trespass, accidentally kills the person trespassed upon, is an illustration. What is thus unintentionally done in the course of a trespass is and must be blamable. The killing, though by an accident, is manslaughter." Pages 98 and 99. Citing, Rice v. State, 8 Mo. 561; State v. Center, 35 Vt. 378; State v. Smith, 65 Me. 257; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Hardie, 47 Ia. 647; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; State v. Vance, 17 Ia. 138; James v. Campbell, 5 C. & P. 372; Regina v. Towers, 12 Cox C. C. 530, and others.

"The law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be

But this rule does not prevail generally in this country, and the civil and criminal prosecution for the same wrongful act may go on simultaneously, or if one is not commenced it is no bar or objection to the prosecution of the other.1

10

Secs. 401-5. THERE CAN BE NO LEGAL WRONG WITHOUT A REMEDY.-It is a maxim of law, that wherever there is a right there is a remedy. For a right cannot exist as such until it is sanctioned by a remedy given for its violation, otherwise it could be invaded with impunity, and such transgression of individual right would not give rise to what we have designated as a legal wrong, and its complement, an action or remedy.' In the establishment of rights, and the

disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect to the public offense; and after a verdict, either of acquittal or conviction, a civil action may be maintained." Per Lord Ellenborough, in Crosby v. Leng, 12 East, 409; Gimson v. Woodfull, 2 C. & P. 41; Sawtell v. West R. R. Co., 61 Ga. 567.

10 Allison v. Bank of Va. 6 Rand. 204; Hyatt v. Adams, 16 Mich. 180; Pettingill v. Rideout, 6 N. H. 454; Boardman v. Gore, 15 Mass. 331. Cooley on Torts 100, 101.

1 "It is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." Per Lord Holt, in Ashby v. White, Ld. Raym. 938; s. c. 1. Smith L. Cas. 105; 3 Bl. Com. 123; Cooley on Torts, 20. This is unquestionably the old school jurisprudent's idea of a right. But it is not beyond reason to believe that a civilization may sometime develop in which the idea of rights, individual and social, may be so deeprooted, and their general recognition and application equally to all, have so improved and uplifted humanity, that the need, nay, even the existence, of compelling sanctions or remedies may be

application of remedies for their protection, it is not always important or necessary that the like right was known and protected before; if a usage or custom can be found which involves a principle, and the natural development of the principle supports a right under new circumstances or facts, then the law will recognize the right as springing from the principle already established, and prescribe and maintain a remedy for the protection of such right.2 The history of the development of the common law is an eloquent commentary on the truth of this proposition.3

forgotten. The author believes that today most people recognize and respect rights, legal as well as moral, because of an inherent impulse or instinct, rather than because of the fear of punishment if they do not. Of course, so long as there are some who will hark back to the primitive stages of human development, and require compulsatory methods to keep them in the paths of rectitude, so long will remedies and punitive sanctions be necessary for the upholding of rights.

2 It is no answer to an action that the like was never heard of before, because every form of action when brought for the first time must have been without a precedent. Cooley on Torts, 21 ; Kujek v. Goldman, 150 N. Y. 176, 44 N. E. 773, 55 Am. St. Rep. 670, 34 L. R. A. 156; Holleman v. Harward, 119 N. C. 150, 34 L. R. A. 803.

3 Ashby v. White, Ld. Raymond, 938. In this case a number of persons had been denied the right to vote for members of Parliament, having brought suit against the officers who excluded them, it was argued that no such case had ever been adjudged, and there was no precedent for their suit. It was held by Lord Holt, that a precedent was unnecessary; if they had a right to vote, which was to be determined by the statute prescribing the qualifications of voters, and the facts bringing them within the statute, then the legal conclusion must follow. The right being

It is to be remembered, however, that it is not the province of the courts to usurp legislative power, and prescribe remedies without a well recognized principle to govern the circumstances or facts of the case to which the remedies are to be applied. And that where by statute certain express penalties are provided as the

found to exist, the remedy was a mere matter of course. In Johnson v. Girdwood, 7 Misc. 651, 28 N. Y. S. 151, the court says: "It is the peculiar merit of the common law that its principles are so flexible and expansive as to comprehend any new wrong that may be developed by the inexhaustible resources of human depravity." In Foot v. Card, 58 Conn., 1, 18, it is said: "Wherever there is a valuable right and an injury to it, with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation."

"The entire absence for a long period of time, even for centuries, of a precedent for an asserted right should have the effect to cause the court to proceed with caution before recognizing the right for fear that they may thereby invade the province of the lawmaking power; but such absence, even for all time, is not conclusive of the question as to the existence of the right. The novelty of the complaint is no objection when an injury cognizable by law is shown to have been inflicted on the plaintiff. In such a case 'although there be no precedent, the common law will judge according to the law of nature and the public good.' Where the case is new in principle, the courts have no authority to give a remedy, no matter how great the grievance; but where the case is only new in instance, and the sole question is on the application of a recognized principle to a new case, 'it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago." Per the Court in Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190, 194, 69 L. R. A. 101.