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.
