Page:The Green Bag (1889–1914), Volume 22.pdf/541

 The Arrangement of the Law forms of action, which were largely accidental, and the classiﬁcation of

those into actions ex delicto and ex contractu, which classiﬁcation is un satisfactory and has never been free of

dispute.

Debt and detinue certainly

were not always based on anything that

could be properly called a breach of a contract. I think the underlying prin ciple, not always clearly seen or strictly adhered to, was that a wrong was a tort if the right violated was a right in rem.

If so, the division should be into torts and breaches of obligations, which latter name would cover also wrongs cognizable

in equity. 2. Particular Wrongs. Some com binations of breach of duty and viola tion of right, though not all, have received special names, which are con venient for reference, such as. trespass, conversion, disturbance. Each of these should be deﬁned by specifying what

duty must be broken (not describing the duty but simply referring to it), and if it must be broken in any particular way, specifying how, and what right must be violated, and describing any

remedium;

513

who may have a remedy

and against whom;

everything that

relates to remedies in general. Statute of limitations. Limitation should be distinguished from usucaption and pre scription. By the last two primary rights are extinguished and others created in their place. Those subjects

belong in

Part

First under

Duties

and Rights, or in Part Second under Titles to Property. Limitation creates no rights; as applied to primary obli gations it reduces them to the status of imperfect duties and rights, as when a debt is outlawed. Limitation also extinguishes rights of action, and as to that effect belongs here. 2. Cases where there is no remedy: public wrongs without special damage

to the plaintiff;

contributory wrong

or negligence. 3. Particular remedies: damages and the measure of damages;

injunction;

speciﬁc performance; habeas corpus; mandamus, etc., rules peculiar to equit able remedies. PART FIFTH

other facts or circumstances essential ABNORMAL PERSONS

to that particular kind of wrong. Some

wrongs, for instance trespass or con

Only rules which are peculiar to such

version, can be committed by the breach

persons should be treated of here. The

of various different duties and the violation of various different rights.

subject of the Domestic Relations falls here. Many potestative rights might be

PART FOURTH REMEDIAL RIGHTS AND REMEDIES 1. In general. The nature of re medial rights; the rule ubi jus, ibi

appropriately placed here; but perhaps they would more conveniently be dis cussed in Part Second. Corporations are abnormal persons. So are public officers.