As torts are the violation of general rights created by law, it necessarily follows that any person in the community may be the party injured by such a violation of rights, and may therefore be the plaintiff in an action of tort. There are some limitations upon the liability of certain classes of persons for their torts; but such limitations are much narrower than the case of the rules governing liability on contracts.

For the extent of the liability of infants and married women for their torts see the subject of Domestic Relations.17 Both are generally liable for their torts, with the exception that young infants cannot be held liable for torts in which malice is an element. A lunatic is also liable for his torts except those involving malice.18 This liability is held to extend even to those torts arising from the negligence of the lunatic,19 on the principle that where a loss must be borne by one of two innocent persons, it is more just that it should be borne by the one who occasioned it.20 The liability of a lunatic for his torts is thus discussed in the case of Avery vs. Wilson:21 "A lunatic is often civilly liable for his torts, as he is not entirely exempt from the general doctrine of the law, that, whenever one person receives an injury directly from the voluntary act of another, that is a trespass, although there was no design to injure. This general rule has been modified by exceptions made by the constructions of the courts in the case of lunacy, and upon this subject there is some conflict of decisions. The current of authority seems to establish the doctrine that a lunatic is not liable for injuries to the sensibilities and reputation of a person, as in such cases malice is an essential ingredient to the tort; as libel, slander, malicious prosecution, and malicious arrest under regular process. A person non compos mentis, is regarded by the law as incapable of a wicked intention to do such injuries. There are other cases of injuries to the person by a lunatic about which there is some conflict of decision, as assaults, batteries, false imprisonments, etc., in which a wrongful intent or culpable negligence are ingredients. In batteries there must always be an intent, express or implied, to do the injury; and legal malice is always presumed when a wrongful act is done intentionally, without just cause or excuse. Express malice is some manifestation of ill-will to a person or an evil design or corrupt motive in doing an act which is injurious to another.

15 In a few cases there can be contribution between joint tort feasors. See contribution under subject of Equity Jurisprudence.

16 See subject of Domestic Relations.

17 Volume IV, Subject 10.

18 Behrens vs. McKenzie, 23 Iowa, 333; Jewell vs. Colby, 66 N. H., 399; Ward vs. Conatser, 4 Baxt., 66; Morse vs. Crawford, 17 Vt., 499, 44 Am. Dec, 349.

19 Brown vs. Howe, 9 Gray, 84, 69 Am. Dec. 276.

20Williams vs. Hays, 143 N. Y.,

450, 42 Am. St. Rep., 743. 21 20 Fed. Rep., 856.

"In this second class of torts many plausible arguments may be used on both sides in sustaining opposing views. These torts to the person are embraced in the legal maxim, 'actio personalis moritur cum persona.' They are torts committed by force, and are usually prompted by sudden passion or vindictive feelings, and in many cases large punitive damages are properly assessed by a jury against the tort-feasors. As the wrongful intent and motive of the wrong-doer are the usual and substantial grievance complained of, and punitive damages are generally assessed, I am of opinion that actions for such torts should not be sustained against lunatics, as they are incapable, from want of reason, of such intent and motive, unless substantial damages, capable of ready estimation, have been suffered. In no case can vindictive damages be assessed against a person non compos mentis. This liberality of the law to this unfortunate class of persons can work no serious injury to society, as they can be legally confined when considered dangerous; and the disposition, power, and right of self-defense will generally be sufficient to insure the personal safety and security of the citizen against the unreasoning and motiveless action of an imbecile.

"Injuries to property, corporeal and incorporeal, constitute a third class of torts, in which it is generally conceded that lunatics are responsible for compensatory damages to the extent of the actual injury sustained. Some of these injuries are often prompted by malice towards the owner, or are done in a spirit of wantonness, cruelty, and revenge, as in the case of malicious mischief at the common law, and malicious injuries, to property definded by statute. In such cases a sane person is liable to indictment, and also to an action for the civil injury and punitive damages will generally be recovered. A lunatic can only be made liable for compensatory damages. In civil actions for violation and encroachment upon established rights of property, the law does not so much regard the intent of the wrongdoer as the loss and damage of the person injured.

"In this case the defendant is charged with the infringement of an incorporeal right conferred by law upon the plaintiffs. A patent-right is the exclusive liberty conferred by letters patent from the sovereign on an inventor or his alienee of making and vending articles according to his invention. A patent-right is regarded as personal property and may be assigned; . and, if it be infringed, the inventor or his alienee has a remedy at law by action of trespass on the case for damages, and a remedy in equity to prevent the continuance of the wrong by injunction. Ad. Eq., 212. In such cases the statutes of the United States have conferred original and concurrent jurisdiction upon courts of equity, and they may determine, without the assistance of a court of law, the legal right of the plaintiff and the infringement by the defendant; and may ascertain the amount of the defendant's property, and afford a complete remedy for the wrong committed, and prevent its continuance by injunction.

"As the proof in this case establishes the legal right of the plaintiffs, and the infringement is admitted by the defendant, the plaintiffs are entitled to a perpetual injunction, and to an account to ascertain the profits derived by the defendant from his infringement."

The liability of private and public corporations for their torts will be treated under the proper subjects.22

22 Private Corporations, Vol. VIII, Subject 24; Public Corporations, Vol. VIII, Subject 25.

Servants and agents are liable for their torts even when committed in the service of their master or principal; but if such torts were committed in the regular course of the agency, the principal will also be liable.23 Similarly, all members of a partnership are liable for the torts of any member of the firm committed in the course of the firm's business.24

At common law the husband was liable for the torts of his wife;25 and under certain cricumstances a parent is liable for the torts of his child.26