The

genera of torts in English law.

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 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 honour and reputation (which, as men esteem of things near and dear to them, come next after the person, if after it at all), 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 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.
Disturbance of easements, &c.

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

Personal wrongs.

Wrongs to

property.

Wrongs

affecting person and property.

Character

of wrongful acts,

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 (c).

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 (d) 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.

The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. &c. under, But they appear, on further examination, to have certain classes. distinctive characters with reference to the nature of the act or omission itself. In Group A., generally speaking,

the several

Wilful

wrongs.

(c) 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.

(d) 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.

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 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 üßpis. 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.

uncon

with moral

In Group B. this element is at first sight absent, or at Wrongs any rate indifferent. Whatever may or might be the case apparently in other legal systems, the intention to violate another's nected rights, or even the knowledge that one is violating them, blame. is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass-or of ejectment, which is a special form of trespass-has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the

omission.

soil" (f). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake (g). Still less will good intentions afford an excuse. I find a watch lying in the road; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour's; but the law expects me at my peril to know what is my neighbour's in every case. Reserving the explanation of this to be attempted afterwards, we pass on.

Wrongs of In Group C. the acts or omissions complained of have a imprudence and kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be

(f) Per Cur. Entick v. Carrington, 19 St. Tr. 1066.

(g) See Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.