respect to his person, his reputation, and his property. The redress which it provides for any of these rights is usually by compensation in money. Ordinarily it will happen that the jury will find that, if a man has suffered loss or damage, a right has been violated, and that if a right has been violated, damage has been suffered. But not always so. A famous legal phrase, frequently invoked, is damnum absque injuria, which may be translated, "damage, or loss, but no tort." It means that there are acts for which, though they cause hurt and damage to a person, the law has provided no remedy, or, in other words, that no legal right has been invaded. Thus, it is said that there may be no recovery for mental suffering apart from bodily injury. It is no tort to wound merely another's feelings, no matter how grievously he suffers. It is a question, again, on which the authorities are in conflict, whether one may recover for an invasion of his privacy, some courts holding that there is a legal right of privacy, other courts holding that there is no such right. On the other hand, there are cases in which the act of the defendant is actionable, although no material damage can be proved. In such a case, the tort is actionable per se. In all other cases, torts are actionable only on proof of actual damage having resulted from their commission. The striking instances of torts actionable per se are battery to the person and trespass on land. "The explanation of those cases in which a right of action is conferred on a person who has sustained no harm is to be found in the fact that certain acts are so likely to

action of trespass and the action of trespass on the case, or, as it is more commonly called, case. Trespass was the action used for any wrongful and direct application of force, whether to the person or property. Case was a supplementary form of action, provided for all kinds of injury which did not amount to a trespass.

"In all the books the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is in case. And the distinction is well instanced by the example put of a man's throwing a log into the highway; if at the time of its being thrown it hit any person, it is trespass; but if after it be thrown any person going along the road receives an injury by falling over it as it lies there, it is case. Neither does the degree of violence with which the act is done make any difference; for if a log were put down in the most quiet way upon a man's foot it would be a trespass; but if thrown into the road with whatever violence, and one afterwards falls over it, it is case and not trespass. * Trespass is the proper remedy for an immediate injury done one by another; but where the injury is only consequential from the act done, there it is case." 13 Where there is no physical interference with the person or property, then the action in tort is not trespass but case. For example, in deceit, malicious prosecution, or libel, the action employed is case.

*

*

13 Leame v. Bray, 3 East 593 (Eng.).

BIBLIOGRAPHY.

Textbooks: Holmes, The Common Law; Markby, The Elements of Law (3rd ed.); Pollock, The Law of Torts (8th ed.), chapter 1; Salmond, The Law of Torts (2nd ed.), chapter 1; Summary of the Law of Torts, chapter 1.

Magazine Articles: Wigmore, The Tripartite Division of Torts, 8 Harvard Law Review, 200; A General Analysis of Tort Relations, 8 Harvard Law Review, 377.

LAW OF TORTS

PART I

TRESPASS

BY

WILLIAM CAREY JONES, A.B. A M.*

CHAPTER I.

TRESPASS TO THE PERSON-BATTERY-ASSAULTFALSE IMPRISONMENT.

1. Trespass.-The idea of trespass implies a direct interference with the person or property of another. The person so interfering with, or injuring, another's person or property, is usually liable for the consequences of his acts irrespective of his intention to do harm. In other classes of wrongs, liability may depend more or less upon the moral blameworthiness of the actor, but in trespass the only question is whether the act which constitutes the trespass is his own act. A person's rights of immunity with respect to his person or his property is absolute, and any direct invasion thereof by another gives rise to a right of action for damages, nominal if the injury sustained is nominal, substantial if the injury sustained is substantial.

* Director, School of Jurisprudence, University of California.

BIBLIOGRAPHY.

Textbooks: Holmes, The Common Law; Markby, The Elements of Law (3rd ed.); Pollock, The Law of Torts (8th ed.), chapter 1; Salmond, The Law of Torts (2nd ed.), chapter 1; Summary of the Law of Torts, chapter 1.

Magazine Articles: Wigmore, The Tripartite Division of Torts, 8 Harvard Law Review, 200; A General Analysis of Tort Relations, 8 Harvard Law Review, 377.