As shown in the author's definition of a tort, a right of action for tort arises where there has been a violation of a right given by law, while a right of action for breach of contract exists where there has been a violation of some right acquired by contract. These two fields, however, overlap. The same action may constitute a breach of contract and also a tort. In such cases, there is an election of remedies, and the party injured may sue either in tort or contract. The cases where this double remedy exists will be shown in the treatment of the various subdivisions of this subject. A common example of such cases are found in contracts which one party is induced to enter into by deceit.

A few legal differences in the cases of action of tort (ex delictu) and of contract (ex contractu) may here be noted. Joint tort-feasors are generally severally liable and no right of contribution exists among them;15 infants who are incapable of contracting are nevertheless generally liable for their torts;16 at common law actions of tort will never survive the death of either party.

11 Gibson vs. Minet, 1 H. Bl., 611.

12 E. G. Alabama, Georgia, Maine,

Pennsylvania.

13 Plummer vs. Webb, Ware, 75;

Cross vs. Guthrey, 2 Root, 90, 1 Am. Dec, 61; Barton vs.

Faherty, 3 Greece, 327; Bank vs. Gare, 15 Mass., 75; Hyatt vs. Adams, 16 Mich., 180. 14 E. G. Arkansas, California, Georgia, Maine, New York, Pennsylvania.