The Foundation of Liability in Tort

Author(s): Percy H. Winfield

Source: Columbia Law Review, Vol. 27, No. 1 (Jan., 1927), pp. 1-11
Published by: Columbia Law Review Association, Inc.
Stable URL: http://www.jstor.org/stable/1113538
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 COLUMBIA LAW REVIEW
VOL. XXVII JANUARY, 1927 NO. 1

'THE FOUNDATION OF LIABILITY IN TORT

Is the English law of torts based on the principle that (1) a
juries done to another person are torts, unless there is some justific
recognized by the law; or on the principle that (2) there is a d
number of torts outside which liability in tort does not exist?
ing to the first theory, if I injure my neighbour he can sue me
whether the wrong happens to have a particular name like assau
tery, deceit, slander, or whether it has no special title at all. Accord
the second theory, I can injure my neighbour as much as I like,
fear of his suing me in tort, provided my conduct does not fall und
rubric, assault, battery, deceit, slander, and so forth. If the fir
ciple is the correct one, the courts have full power to create new
or (more consistently with judicial caution) to extend the law of
without any baptismal ceremony for each extension. But the s
principle presents us with a row of pigeonholes, each labelled w
name of a particular tort, and if an injury cannot be fitted into
these, whatever the plaintiff's remedy may be, he has none in tort.
As opinions have differed on the answer to the question
which this paper begins,1 perhaps the best course is first to sta
results of independent inquiry and then to examine the groun
any opposing view to find an eirenicon or, if that be impractic
state reasons for dissent. Investigation appears to shew th
courts have not sent away a plaintiff empty handed in any ac
general, or in any action in tort in particular, simply and sole
cause the action was a new one. Discussion of this assertion
conveniently split into two propositions:

I. Mere novelty has never been a conclusive objection to

cial recognition of any new remedy in English law.
II. Mere novelty is not a conclusive objection to judicial rec
tion of an action in tort.

1E.g., Sir Frederick POLLOCK, LAW OF TORTS (12th ed. 1923) 21-23,
the first view; the late Sir John SALMOND, LAW OF TORTS (6th ed. 1924
preferred the second.

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2 COLUMBIA LAW REVIEW

I. In the early days of the English writ-system new

created freely enough. In Glanvill's time, the king
writs, but made them,2 and the courts, unhampered b
were doing justice on principles of moral fairness, and
tering equity long before men had dreamed of equity
distinct from the common law.3 Bracton, when he no
writ quare ejecit infra terminurm was devised de consil
no word of complaint on the score of its novelty; yet
enough, for it was coined by his contemporary and ma
Ra*iigh.4 In 1285, the Statute of Westminster II5 cert
to Parliament the power of making new writs, while th
Chancery were restricted to the invention of writs in
But two points of this enactment are apt to be ove
first place, the clerks of Chancery not only may, but m
within the region assigned to them. The complaint
Statute had been not that they were too profuse in thi
that they were not generous enough.6 Secondly, aft
the Chancery found actions upon the case for trespass
recognised wrongs so plastic that it is no exaggerat
they were frequently creating new remedies.7 Nobody
this procedure, partly because new actions were urg
partly because innovations were cautious and gradu
commonplace to any one familiar with the innumerable
Registrzum Brevizim. Some of the writs were stillb
cery was a midwife, not a wet nurse, and the man wh
writ had to take his chance of its survival in the sharp
courts. But the mere fact of the steady increase of Regi
in bulk shews that the judges in general worked in sym
Chancery.
A passage that attracted a good deal of attention at
and one that might at first sight appear to militate aga
dom of the courts in making new remedies, occurs
Tenures.s Speaking of a particular clause in the Stat
he says :9

21 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (2d ed. 1898) 151.
8 Ibid. 189-190. Cf. 2 HOLDSWORTH, HISTORY OF ENGLISH LAW (3d ed. 1923)
194, 245.
'2 MAITLAND, COLLECTED PAPERS (1911) 149.
613 Ed. 1, c. 24.
6MAITLAND, EQUITY (1909) 345-346.
'WINFIELD, CHIEF SOURCES OF ENGLISH LEGAL HISTORY (1925) 287-288.
8? 108.
The translation is taken from Professor Wambaugh's edition (1903).
See the variant readings given by the learned translator on pp. 53-54.

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 THE FOUNDATION OF LIABILITY IN TORT 3

"And it seemeth to some . . . that no action can be brought upon

this statute, insomuch as it was never seen or heard, than any action was
brought upon the statute of Merton for this disparagement against the
guardian . . . and if any action might have been brought for this matter,
it shall be intended that at some time it would have been put in ure [use].
. Sed quaere de hoc."

It has been remarked that Littleton was only reporting the opin-
ion of other people, that the opinion was not unanimous, that the
question was not so much whether there was no remedy as whether
the remedy was by action or by entry, and that the passage winds up
with a query. It might be added that Littleton himself in a judicial
dictum reported in the Year Books evinces no alarm at the creation of
new remedies: "if a man is damaged, it is reasonable that he be recom-
pensed."10 Coke, in his comment on the quotation from the Tenures,
after exploding into a Latin platitude, says :11

"And as usage is a good interpreter of lawes, so non usage where there

is no example is a great intendment that the law will not beare it. ...
Not that an act of parliament by non user can be antiquated or lose its
force, but that it may be expounded or declared how the case is to be under-
stood."

Now this amounts to no more than an opinion that non usage is

an argument (not necessarily a conclusive one) against a new remedy,
and there the matter might have rested. But the extract from Little-
ton was rather conspicuous in some of the judgments in Ashby v.
White (1704)12 which, owing to its constitutional importance, was
itself very conspicuous. It will be recollected that the point at issue
was whether the plaintiff could recover damages from the defendants
who, as officials at a Parliamentary election, refused to receive the
plaintiff's vote. Powys, J., said :13 "This action is primae impressionis;
never the like action was brought before."
He then cited the passage from Littleton, and added, "so here."
Gould, J., weakened an emphatic assertion to the same effect by an
admission that the novelty of the action was not a conclusive reason
for denying it.14 On the other hand, Powell, J.,15 and Holt, C. J., were
flatly of the opposite opinion. The Chief Justice not only disposed of
10 Y. B. Mich. 6 Ed. IV. f. 8a.
11 Co. LITT. 81b.
22 Ld. Raym. 938.
13 Ibid. 944.
14"Such an action as this has never been brought before, and therefore shall
be taken not to lie, though that be not a conclusive reason." Ibid. 942.
16 "As to the novelty of this action, I think it no argument against the
action; for there have been actions on the case brought, that had never been
brought before, but had their beginning of late years, and we must judge
upon the same reason as other causes have been determined by." Ibid. 946.

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4 COLUMBIA LAW REVIEW

Littleton's arguments on the technical point in the Statute

but criticized his general proposition:16 "But this saying
force, if it had it would have been destructive of many n
which are at this day held to be good law."
He then referred to some cases in support of this: Hu
man,l7 Bodily v. Long,18 Starling v. Turner,l9 Morse v. Slu
v. Cranshaw,21 Herring v. Finch.22 In Hunt v. Dowma
held to lie for a reversioner who was prevented by a
inspecting waste, and an objection to the newness of the
dismissed as useless. In the last four cases, no word is mentioned
about the novelty of the actions in question, but the very absence of any
such opposition perhaps makes Holt, C. J.'s argument all the stronger,
for the inference is that no advocate thought it worth while to fight
the cases on that ground.
In general, then, it has never been of much use to contend that
merely because an action is new it cannot be brought. At most, novelty
is only a presumptive argument against it,23 nor is it one that is con-
sistently raised. Thus in Vaughan v. Menlove24 both bench and bar
agreed that the case was primae impressionis, but it never occurred to
any of them that this prevented the court from extending the standard
of the "reasonable man" from the law of bailments to the law of torts
at large. If the judges thought that a new remedy was necessary, they
invented it, unless the invention of it would have shocked public
opinion, in which event they left it to Parliament to create it or not,
as Parliament pleased; or unless they considered that the community
did not need it,25 or that it would seriously upset some other branch of
the law. To take the opposite view would be really to deny that English
law could have changed by judicial decision between Edward I and
George V. Counsel might use the argument against the creation of
new remedies as the last ditch of dialectical resource, judges like Powys
might use it as a stick for beating a new idea that they disliked, but
can a single case be produced from the reports which was decided on
the neat ground that the action was not to be allowed because it was
new?

1 Ibid. 957-958.
"7Cro. Jac. 478 (1618). Cited also in ROLL. ABR., "Action sur Case," (N)
32, sub. nom. Hunt v. Todner.
18 (1663). No further reference given. Untraceable in any digest of cases.
19 2 Lev. 50 (1672).
2'1 Vent. 190 (1671 or 1672), 1 Vent. 238 (1672 or 1673).
m W. Jones, 93 (1625).
222 Lev. 250 (1679).
23 See Hargrave's note to Co. LITT. (ed. 1823) ? 108.
243 Bing. N. S. 468, 4 Scott 244, 7 C. & P. 525 (1837).
26 E.g., Scheibel v. Fairbain, 1 B. & P. 388 (1799).

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 THE FOUNDATION OF LIABILITY IN TORT 5

II. We have next to consider whether the law of torts forces

us to modify the principles that have been suggested. Far from being
any exception to them, this part of the law aptly illustrates these prin-
ciples. Torts of a specific character have increased steadily in number
throughout our legal history, and the courts can even now, if they
think fit, enlarge the list. Of course, no one with any legal training
would set out to search our early law for a catalogue of torts such as
one now finds in all the current textbooks. It is in action upon the
case in one form or another-frequently in none whatever-that the
development of the law of torts outside trespass must be sought. Ac-
tions of this type were extremely elastic, so elastic that they defied
the efforts of the earlier abridgers to classify them. In William
Sheppard's Grand Abridgment (1675), "Actions of the case referring
to Acts and Deeds" seems to be a residuary title including a great num-
ber of miscellaneous cases on what would now be called nuisance or
negligence, on disturbance of property and on other wrongs. The same
vagueness appears in later abridgments like those of Bacon26 and
Comyns,27 and leads to some curiosities that would puzzle a modern
codifier.28 This plasticity of action upon the case made the birth of
new remedies easy. It was more difficult for jurists to state this branch
of the law scientifically than for judges to make the law itself. Writers
on the law were like map-makers whose rulers conquer territory so
rapidly that the bounds of their realms cannot be traced. One thing,
however, emerges clearly enough. Nothing would have astonished
the legal profession more than to be told that the scope of actions on
the case could not be widened, or, to put the same assertion in modern
terminology, that the number of existing torts could not be increased.
From Statham and Fitzherbert to Blackstone the evidence is all the
other way, and Blackstone himself is markedly in favour of a genera
liability in tort,29 and so were his contemporaries, Pratt, C. J.,30 an
Lord Mansfield.31 To come to our own times, Bowen, L. J., expresse

26 First ed. 1736.

2First ed. 1762-1767. In the fifth ed. (1822) one division of "Action upon
the Case" is "Action upon the Case for a disturbance." This is subdivided into
(1) For a disturbance in a common. (2) In a way. (3) In a seat in a church.
(4) In foldage. (5) In an office. (6) Or other possession. In the reports of
several of the cases which Comyns epitomizes the word "disturbance" is not
even mentioned.
28What would he make of "Action upon the case for a disturbance in a
seat in Church?" Yet this was all that Comyns could get out of the pleadings
in Buxton v. Bateman, 1 Sid. 88, (1662), ibid. 201-202 (1664).
29 3 COMM. 122-123, 4 ibid. 435.
o "Torts are infinitely various, not limited or confined." Chapman v. Pick-
ersgill, 2 Wils. 145, 146 (1762).
nHe referred to action upon the case as "a liberal action" in Gardiner v.
Croasdale, 2 Burr. 905, 906 (1760), and in Moses v. Macferlan, 2 Burr. 1005,
1011-1012 (1760).

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6 COLUMBIA LAW REVIEW

an opinion a generation ago that at common law there wa

action whenever one person did damage to another wilful
tentionally, and without just cause or excuse,32 and he had
the same thing a few years earlier as current law33 in a p
earned the approval of Holmes, J.34
So far we have dealt with authorities which establish
eral theory for which we have been contending. It certain
be borne out by applying it to the origin of torts which h
specific names. Thus, the tort of malicious prosecution had
nings in action upon the case in the nature of conspiracy
through a protracted period of parturition from Edward
to that of Elizabeth, but its birth was never imperilled b
ment that it was an unwelcome stranger or that infantic
correct treatment for it.35 Again, deceit at first had the pecu
signification of cozening a court in some way and was reall
forms of abusing legal procedure.36 It developed through the l
in particular and the law of contract in general,37 but did
an independent tort until 1789 in Pasley v. Freeman.38 H
argued that there was no precedent for such an action, bu
J., said:

"Where cases are new in their principle, there I admit it is

to have recourse to legislative interposition in order to remedy
ance: but where the case is only new in the instance, and the only
upon the application of a principle recognized in the law to such
it will be just as competent to courts of justice to apply the princ
case which may arise two centuries hence as it was two centuries

We shall have occasion to refer later to the distinction here drawn

between a new principle and the application of an old one.
Negligence we have endeavoured to shew elsewhere ought now to
be regarded not merely as one of the modes in which a wrong may
possibly be committed but also as an independent tort.40 It took the

32 Skinner and Co. v. Shew and Co., [1893] 1 Ch. 413, 422.
3 Mogul Steamship Co. v. McGregor, Gow and Co., 23 Q. B. D. 598, 613
(1889).
34 In Aikens v. Wisconsin, 195 U. S. 194, [204, 25 Sup. Ct. 3, 5-ED.] (1901).
The report is not accessible to me. I am indebted for the reference to Sir
Frederick POLLOCK, op. cit. supra note 1, at 22, 23.
85 WINFIELD, HISTORY OF CONSPIRACY (1921) c. V.
'a Ibid. 33, and Index, "Deceit."
37 3 HOLDSWORTH, op. cit. supra note 3, at 407-408; 8 ibid. 67-70.
383 T. R. 51. See 8 HOLDSWORTH, op. cit. supra note 3, at 426.
393 T. R. 51, 63. Grose, J., the dissenting judge, thought that no real
authority had been cited for the existence of the action, and that this fur-
nished a "strong objection" against it. Ibid. 53. But he did not say that it was
a conclusive objection.
"History of Negligence in the Law of Torts (1926) 42 L. Q. REV. 184-201.

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 THE FOUNDATION OF LIABILITY IN TORT 7

law some time to achieve this result, but the novelty of negli
tort was never an obstacle to its recognition as such.
The rule of strict liability laid down in Rylands v. Fletche
came into being without any such objection. It may be c
that this was not the creation of a specific new tort at all, b
an extension of a very ancient principle that a man must
cattle from straying, irrespective of whether he has been ne
not. Possibly this view is correct, but the extension was so g
it became a mere mask for a new principle. And perhaps
may be said of the rule in Indermaur v. Dames,42 which, as
erick Pollock has pointed out, is separate from the ordinary
negligence.43
It has never been settled whether an action will lie against naval
or military authorities for maliciously causing the retirement of an
officer. Quite recently, the House of Lords expressly declared the
question to be an open one.44 They certainly did not hint that the
plaintiff could not maintain the action simply because it had not been
established in any previous case. As to the infliction of injury by
nervous shock, the courts have not made it altogether plain whether
this should be classified as a substantitive tort or as a particular appli-
cation of the rules relating to remoteness of damage, but the latter view
appears to be the more accurate.45 Finally, it is a moot point whether
conspiracy is a specific tort. The matter has been much debated, and it
cannot be said that the House of Lords has settled it in Sorrell v.
Smith.46 But whatever the issue may be, we are not aware of
opposition to the addition of a new weapon in the legal armoury o
bare ground that it is new.
The conclusions which we have reached are likely to be misund
stood unless some qualifications are added. It has been indica
that in our earlier law action upon the case was a stock upon wh
any new action might be grafted. But it was one thing to do
grafting and quite another to get any fruit from it. An aggr
party could not, of course, go into Westminster Hall in the confi
assurance that the judges would grant him a remedy for any
ceivable injury that he had suffered. If the judges for one reaso

4 L. R. 3 H. L. 330 (1868).
"L. R. 1. C. P. 274 (1866); L. R. 2 C. P. 311 (1867).
' POLLOCK, op. cit. supra note 1, at 516.
"Fraser v. Balfour, 87 L. J. K. B. 1116 (1918).
Cf. Wright, J., in Wilkinson v. Downton, [1897] 2 Q. B. 57, 58-59; Ken-
nedy, J., in Dulieu v. White, [1901] 2 K. B. 669, 671 and Phillimore, J., ibid.
682, 685; Bankes and Duke, L. JJ., in Janvier v. Sweeney, [1919] 2 K. B.
321-322, 327; Bankes and Atkin, L. JJ., in Hambrook v. Stokes, [1925] 1 K. B.
141, 146, 154, 158.
" [1925] A. C. 700.

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8 COLUMBIA LAW REVIEW

another thought that the remedy ought not to be allowed,

would get none. They might refuse to help him because it
public policy to do so, or because the creation of a new rem
throw out of gear other parts of the law, or because the p
asking them to do what Parliament ought to do, or be
asking for something inconsistent with the rights of othe
of the community. And precisely the same holds good at
day. But, so far as we know, neither then nor now would t
the case solely because the remedy sought was previously
The reports illustrate this. In Le Caux v. Eden,47 it w
an action would not lie at common law for false imprison
merely to taking a ship as a prize, though the ship was acq
grounds of the decision were partly that the Admiralty co
clusive jurisdiction in such a case, partly the intolerable in
of allowing every individual in the captured ship to su
every man in the captor's crew; and Ashhurst, J.,48 and B
reinforced these reasons by referring to the novelty of
Lord Mansfield and Lord Loughborough made use of the
ment in differing from the Court of Exchequer in Johnstone
though here again there were other reasons for the decis
Lord Abinger in Winterbottom v. Wright,51 where the m
why the plaintiff lost his case was that a decision in his f
have extended contractual liability beyond all reasonable lim
In one direction there is a genuine difficulty, perhaps
cable one, in grasping the principles upon which the court
new remedies. If they regard the matter as one for the a
the legislature, they will not touch it. But what test exist
taining the line beyond which they will go? We have
hurst, J., as stating that if cases are new in principle, Parl
can remedy the grievance, but that if it is only a question

72 Doug. 594 (1781).

48"The circumstance of no action having ever been brought is
sive, that it has been the general apprehension, that no such act
Ibid. 601.
49 "An universal silence in Westminster Hall, on a subject which so fre-
quently gives occasion for litigation, is a strong argument to prove that no
such action can be sustained." Ibid. 602.
601 T. R. 516 (1786). "Till this experiment, it never entered into any man's
head, that such an action as this could be brought; consequently there is no
usage, precedent, or authority in support of it." Ibid. 548. "These considerations
incline us to lean against introducing this action. But there is no authority
of any kind either way. . And therefore it must be owned that the ques-
tion is doubtful." Ibid. 550.
l 10 M. & W. 107, 109 (1842). The fact that there never had been such
an action was "a strong circumstance" and "of itself a great authority against
its maintenance." Ibid. 114.

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 THE FOUNDATION OF LIABILITY IN TORT 9

an existing principle to new instances, the courts have

But does this really help the legal adviser of any prospec
It would be no easy task even in theory to set a bounda
new principle and the extension of an old one, and pract
in many cases it is impossible. One does not quite see w
J., himself could consistently hold.that the creation of t
ceit in Pasley v. Freeman53 was merely an application o
rule, while an extension of the tort of false imprisonme
v. Eden54 would (if it had been allowed) have been the m
entirely new one. Most modern lawyers would hold
decision was a much longer step in the development of t
decision in the plaintiff's favour would have been in th
truth seems to be that the exigencies of judicial legislat
impracticable, and indeed inadvisable, to mark clearly i
When a new point comes before a judge, he must take i
many different, often many conflicting, considerations
decide whether, and in what degree, he will make new
part of this paper to detail these considerations. They h
treated elsewhere.55 What is important for present pur
they are responsible for much apparent inconsistency in An
law and that they tend to disguise the fact that it is re
of judicial discretion whether a judge will amend the law
before him affords an opportunity of doing so, or whether
any change to the legislature. So far as new remedies ar
we must emphasize among the circumstances which regul
cretion two things-judicial caution and the primary duty
get rid of the case before him. As to the first, the plaintiff
be a strong one if he hopes to get the law extended
Judges are only human and do not relish reversal of thei
as the novelty of an action raises a certain presumption a
are likely to be cautious in allowing it.56 It is much easie
use this presumption as one of the reasons for denying a rem
overcome it for the purpose of creating a remedy.57 Seco
find but rarely in the reports much talk about the power to
actions. The power is undoubted but it is only incidental to t

62 Supra p. xxx.
633 T. R. 51 (1789).
'2 Doug. 594 (1781).
E.g., CARDOZO, GROWTH OF THE LAW (1924) c. iii; WAMBAUGH, STUDY OF
CASES (2d ed. 1894).
66 E.g., Wills, J.: "I have a strong feeling that it is highly desirable not to
establish new causes of action if it can be possibly avoided." Smith v. Giddy,
[1904] 2 K. B. 448, 450-451. Nevertheless he allowed one in this case.
87 E.g., Lord Coleridge, C. J., in Giles v. Walker, 24 Q. B. D. 656, 657 (1890);
Bray, J., in Steam v. Prentice Bros. Ltd., [1919] 1 K. B. 394, 396.

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10 COLUMBIA LAW REVIEW

of a more pressing function-the settlement of the particula

which awaits adjudication.
Hitherto we have tried to state the result of our own inq
It remains to consider the opposite view the chief exponent
was Sir John Salmond:

"Just as the criminal law consists of a body of rules establishing specific

offenses, so the law of torts consists of a body of rules establishing specific
injuries. Neither in the one case nor in the other is there any general
principle of liability. Whether I am prosecuted for an alleged offence, or
sued for an alleged tort, it is for my adversary to prove that the case falls
within some specific and established rule of liability, and not for me to
defend myself by proving that it is within some specific and established rule
of justification or excuse."8

The learned author then gives a list of cases which he regards as

carrying this point. It is not without significance that they have
shrunk in number from seven in his earlier editions to four in the cur-
rent one. They are Mogul Steamship Co. v. McGregor, Gow and Co.,59
Dickson v. Reuter's Telegram Co.,60 Mayor of Bradford v. Pickles,6l
and Derry v. Peek.62 All these cases, he says, are instances of damnum
sine injuria. No doubt they are, but that does not conclude the matter.
Before dealing with them, four propositions must be stated as a basis
for criticizing Sir John's view. We have tried to make good the first
in this paper; the remaining three are matters of common knowledge:
(1) The courts have power to create new torts, or at least new
remedies for tortious injuries.
(2) Whether they will create them or not is a matter for their
judicial discretion.
(3) Most torts are subject to what Sir Frederick Pollock has
happily styled general exceptions from liability, such as "act of state,"
exercise of common right, executive acts.63
(4) Each specific tort has ingredients which must be present if
the plaintiff is to win his case. He will lose it, for instance, in defa-
mation if the defendant proves privilege, in false imprisonment if the
defendant proves lawful arrest, in deceit if the defendant's statement
was merely negligent.
Now, with profound respect to Sir John Salmond, it is suggested
that he has confused the first proposition with the other three, and

68 SALMOND, op. cit. supra note 1, ? 2 (3).

69 [1892] A. C. 25.
"3 C. P. D. 1 (1877).
[1895] A. C. 587.
14 App. Cas. 337 (1889).
S POLLOCK, op. cit. supra note 1, c. IV.

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 THE FOUNDATION OF LIABILITY IN TORT 11

that in effect he regards these three as negativing the ex

first. In every one of the authorities which he adduces
had no remedy because his claim was rebutted by th
(2), (3) or (4), and certainly not because the court fel
able in any event of creating new remedies.
Mogul Steamship Co. v. McGregor, Gow and Co.64 fe
The plaintiffs suffered damage by reason of the defend
rates in the China tea carrying trade, but they had no r
the defendants' conduct came within the perfectly recog
exception of fair trade competition. Dickson v. Reut
Co.65 may be classified under (4) or possibly (2). Th
failed in deceit because the defendants believed their statement to be
true; and in negligence because they were under no duty to take care.
It has been pointed out that the court would have done no violence to
the exercise of its judicial discretion if it had held that there was such
a duty.66 Mayor of Bradford v. Pickles67 is an example of (3). The
plaintiff's grievance was that malicious excavation by the defendant of
his own land intercepted the percolation of water to the plaintiff's
land. But this he was lawfully entitled to do because he was held to
be merely exercising the right of every landowner to dig as deeply as
he likes. In Derry v. Peek,68 the House of Lords settled it that an
essential of the tort of deceit is intentional misrepresentation by the
defendants. There they had been only careless and were therefore held
not liable. In other words, the case illustrates (4).
If the arguments which have been maintained in this article are
correct, we suggest that it is a fallacy to suppose that reasonable and
necessary limitations on the ability of courts to manufacture new torts
negative the existence of such ability altogether, though some excuse
for this fallacy is to be found in the vagueness of these limitations.
A parallel may be suggested from medicine. Certain specific remedies
are fitted to cure only certain specific diseases; and no remedy of
any sort may be applied to procure an abortion, to satisfy a craving
for drugs, or to end suffering by depriving the patient of life. But
these limitations do not prevent a medical practitioner from creating
new remedies for the alleviation or the cure of human ills.
PERCY H. WINFIELD
ST. JOHN'S COLLEGE
CAMBRIDGE, ENGLAND

" [1892] A. C. 25.

3 C. P. D. 1 (1877).
*' POLLOCK, op. cit. supra note 1, at 562-567.
" [1895] A. C. 587.
6 14 App. Cas. 337 (1889).

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