NOTES. 21$ means of prevention is apparent. Though the assailant is a criminal, it is not the province of his intended victim to mete out punishment. His right is merely that of self-defence, and if retreat is an apparently reasonable means of exerting that right, then the sanctity of human life should be respected. A Question of Jurisprudence — While the careful demarcation of the regions of contract and tort is generally regarded as a mere scholas- ticism, it has in England — owing to the County Courts Act of 1846, which taxes costs differently as the action is " founded on contract or tort " — become a living issue. The essential element of contract being the consensus, and that of to;t the universal duty to refrain from injury, the question arises in which category shall a duty to act, imposed by law, such as the carrier's obligation to receive and carry safely, be placed. Clearly it is neither a tort, a duly to refrain, nor a contract, a voluntary obligation, but an entirely different thing, a legal duty, — a relation which has found no expression in the forms of action, and must, therefore, be dealt with as either a contract or tort. In this country legal duties have been treated, generally, as torts {Ames v. Ry., 117 Mass. 541), while in England the authorities have differed widely, some regarding cases of this character as founded on contract, others, the most recent cases, as founded on tort, " the view which prevails in all the earlier authorities, and which underlay the action of assumpsit itself" (11 L. Q. R. 214). In the two latest cases on the subject, Taylor v. M., S. & L. Ry. '95 I Q. B. 134, 64. L. J. Q, B. 6 (commented on in 8 Harvard Law Review, 290), and Kelly v. Met. Ry. '95, i Q. B. 944, the Court of Appeal has maintained the latter view and has arrived at the result that an action against a railroad company for an injury received, is, whether a contract exist or not, one founded on tort, within the meaning of the County Courts Act. In the former case, the negligence was a positive misfeas- ance, in the latter, a mere omission, so that a very wide field is covered by these two decisions. If they are to stand as law, a very radical change will, probably, ensue. The case of A/lonv. Midland Ry, Co. 19 C. B. N. S. 213, deciding that a master cannot recover for loss of a servant's services, caused by the negligence of a railway company, when the contract of carriage is with the servant, — a case already tottering (Pollock on Torts, 446-447), — must now be considered as overruled ; and a surprisingly large num- ber of old cases, involving important points, will probably be unable to bear examination in the light of these decisions. The effect will not be confined to the subject of jurisprudence merely, but will have a great influence throughout the whole field of substantive law. Its theoretic correctness, on the other hand, may, perhaps, be doubted. There are certainly high authorities who oppose this view (Holland, Jurisprudence, 223-224), although it seems, after all, to be the better one. A legal duty resembles a tort very much, except that one is affirmative and the other negative ; while between a contract, whose very essence is a voluntary personal relation, and a legal duty, an obligation forced on a party against his will, there is little in common. Granting this, a farther prob- lem remains, how to treat those situations in which, presupposing a pre- vious relation founded on contract, the parties find themselves under duties imposed by law practically similar to those which they have con- tracted to perform, as in ordinary bailment. This is not, perhaps, to be
