is, of a "personal" action as above noted) which can be sued on in a court of common law without alleging a real or supposed contract, and what, if any, are the common positive characters of the causes of action that can be so sued upon: these are matters on which our books, ransack them as we will, refuse to utter any certain sound whatever. If the collection of rules which we call the law of torts is founded on any general principles of duty and liability, those principles have nowhere been stated with authority. And, what is yet more remarkable, the want of authoritative principles appears to have been felt as a want by hardly any one (b). Are any general principles discoverable? We have no right, perhaps, to assume that by fair means we shall discover any general principles at all. The history of English usage holds out, in itself, no great encouragement. In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent; a distinction important for a state of society where open violence is common, but of little use for the arrangement of modern law, though it is still prominent in Blackstone's exposition (c). Later we find a more consciously and carefully made distinction between contracts and causes of action which are not contracts. This is very significant in so far as it marks the ever gaining importance of contract in men's affairs. That which is of contract has come to fill so vast a bulk in the whole frame of modern law that it may, with a fair appearance of equality, be set over against everything which is independent of contract. But this unanalyzed remainder is no more accounted for by the dichotomy of the Common Law Procedure Act than it was before. It may have elements of coherence within (b) The first, or almost the first, writer who has clearly called attention to it is Sir William Markby. See the chapter on Liability in his "Elements of Law." (c) Comm. iii. 118. itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appropriate general principles, whether any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, or of real property, or of trusts, and when we make use of the name we mean nothing but a collection of miscellaneous topics which, through historical accidents, have never been brought into any real classification. The genera of torts in English law. The only way to satisfy ourselves on this matter is to examine what are the leading heads of the English law of torts as commonly received. If these point to any sort of common principle, and seem to furnish acceptable lines of construction, we may proceed in the directions indicated; well knowing, indeed, that excrescences, defects, and anomalies will occur, but having some guide for our judgment of what is normal and what is exceptional. Now the civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honor and reputation (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally: the word estate being here understood in its widest sense, as when we speak of those who are afflicted or distressed in mind, body, or estate." There are other wrongs which affect specific property, or specific rights in the nature of property property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by 66 arranging the familiar and typical species of torts in groups, omitting for the present such as are obscure or of little practical moment. GROUP A. Personal Wrongs. 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family: Seduction, enticing away of servants. 3. Wrongs affecting reputation : Slander and libel. 4. Wrongs affecting estate generally: Deceit, slander of title. Malicious prosecution, conspiracy. GROUP B. Wrongs to Property. 1. Trespass: (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights. GROUP C. Wrongs to Person, Estate, and Property generally. 1. Nuisance. 2. Negligence. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence. All the acts and omissions here specified are undoubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law court, and governed by the rules of common law pleading (d). We put aside for the moment the various grounds of justification or excuse which may be present, and if present must be allowed for. It will be seen by the student of Roman law that our list includes approximately the same matters (e) as in the Roman system are dealt with (though much less fully than in our own) under the title of obligations ex delicto and quasi ex delicto. To pursue the comparison at this stage, however, would only be to add the difficulties of the Roman classification, which are considerable, to those already on our hands. Character of wrongful acts, ete., under the several classes. Wilful wrongs. The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. But they appear, on further examination, to have certain distinctive characters with reference to the nature of the act or omission itself. In Group A., generally speaking, the wrong is wilful or wanton. Either the act is intended to do harm, or, being an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either (d) In some cases the really effectual remedies were administered by the Court of Chancery, but only as auxiliary to the legal right, which it was often necessary to establish in an action at law before the Court of Chancery would interfere. (e) Trespass to land may or may not be an exception, according to the view we take of the nature of the liabilities enforced by the possessory remedies of the Roman law. Some modern authorities, though not most, regard these as ex delicto. there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men's rights and dignity, which the Greeks called ßps. Thus the legal wrongs are such as to be also the object of strong moral condemnation. It is needless to show by instances that violence, evil-speaking, and deceit, have been denounced by righteous men in all ages. If anyone desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border land of criminal and civil, public and private law. Wrongs apparently unconnected with moral blame. In Group B. this element is at first sight absent, or at any Wrongs apparently unconnected with moral blame. Agreeing with the text it is established in the United States that to sustain an action, where there is a clear violation of a right, it is not necessary to show actual damage, for the reason that every violation imports damage and the plaintiff is entitled to nominal damages, if no other be proved. Webb v. Portland Mfg. Co., 3 Sumn. 189; Dixon v. Clow, 24 Wend. 188; Hastings v. Livermore, 7 Gray, 194; Chaffee v. Pease, 10 Allen, 537; Blodgett v. Stone, 60 N. H. 167. This rule, however, is subject to exceptions. See Upton v. Vail, 6 Johns. 181; Ming v. Woolfolk, 116 U. S. 599; 6 Sup. Ct. Rep. 489; Taylor v. Guest, 58 N. Y. 262; Tryon v. Whitmarsh, 1 Metc. 1; Benton v. Pratt, 2 Wend. 385. The fact that an unlawful act of a defendant was done in good faith does not relieve him of liability. Dexter v. Cole, 6 Wis. 319; Reynolds v. Shuler, 5 Cow. 232; Gibbs v. Chase, 10 Mass. 125; Guille v. Swan, 19 Johns. 381; Kamerick v. Castleman, 29 Mo. App. 658; Higginson v. York, 5 Mass. 34; Caldwell v. Farrell, 28 Ill. 438; Allison v. Little, 85 Ala. 512; 5 So. Rep. 221; Wintringham v. Lafoy, 7 Cow. 735; Miller v. Baker, 1 Met. 27; Morgan v. Varick, 8 Wend. 587; Jordan v. Wyatt, 4 Grat. 151; Burch v. Carter, 32 N. J. L. 554; Drew v. Peer, 93 Pa. St. 234; Parker v. Mise, 27 Ala. 480; Woolf v. Chalker, 31 Conn. 121; Lowenburg v. Rosenthal, 18 Oreg. 178; 22 Pac. Rep. 601; Jefferies v. Hargus, 50 Ark. 65; Conway v. Russell, 151 Mass. 581; 24 N. E. Rep. 1026; Formwalt v. Hylton, 66 Tex. 288; 1 S. W. Rep. 376; Amick v. O'Hara, 6 Blackf. 258; Cate v. Cate, 44 N. H. 211; Hazelton v. Week, 49 Wis. 661; Tobin v. Deal, |