THE LAW OF TORTS OR PRIVATE WRONGS. AUTHOR OF BY FRANCIS HILLIARD, 66 "THE LAW OF MORTGAGES,' THE LAW OF VENDORS AND THIRD EDITION, REVISED AND ENLARGED. IN TWO VOLUMES. VOL. I. BOSTON: LITTLE, BROWN, AND COMPANY. Entered according to Act of Congress, in the year 1859, by FRANCIS HILLIARD, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1861, by FRANCIS HILLIARD, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1866, by FRANCIS HILLIARD, in the Clerk's Office of the District Court of the District of Massachusetts. 350671 Cambridge Press. PREFACE TO THE FIRST EDITION. THE following work has been prepared, to meet what has long seemed to me a manifest deficiency in the library of the law. Torts, or private wrongs, of course constitute a comprehensive and enlarged subject, among those with which jurisprudence has to deal. Indeed, this is one of the three great departments, into which the whole law is divided: Contracts, Torts, and Crimes, making up, in their broadest interpretation, an entire corpus juris civilis. In view of this obvious fact, it is not a little remarkable, that no elementary work has ever been compiled, either in Great Britain or the United States, exclusively devoted to the second of these great divisions, and embracing all the subordinate topics legitimately included therein. Contracts, as is well known, have been treated in numerous elaborate works. The same is true of crimes. But torts, so far as I am informed, have never, as such, been discussed in any treatise or abridgment. It is true, that most of the various wrongs recognized by the law are in some form or other found treated in legal compilations. (3) But not in the mode demanded by the nature and importance of the general subject; as I think will appear from a brief view of the connections in which the learning relating thereto must be sought. In the first place, works upon Evidence usually include quite a number of titles which fall under this comprehensive head. But I have never been able to understand upon what principle, in treatises of this description, some subjects are selected, and others wholly omitted. Being usually arranged alphabetically, it will readily occur to any one who runs over the headings of the pages, that there is no scientific basis for these collections, and that they do not purport to present a connected, systematic, or complete view of any one of the somewhat heterogeneous topics of which they promiscuously treat. For example, in a highly approved work of this nature, the following is the succession of subjects, under the first letter of the alphabet: Account, Adultery, Agency, Arbitration, Assault, Assumpsit. It would be difficult, perhaps, to explain why Action, Advancement, Agreement, Alien, Amendment, Auction, were not added. Moreover, although under the head of proofs may naturally be comprehended a considerable portion of the whole law upon the subject to which such proofs relate; yet a certain degree of restriction is necessarily imposed upon the method of discussing that subject, by the formal and ostensible caption of the work itself— a work upon Evidence. Another class of works, in which particular torts are treated, are those termed Nisi Prius; a designation, the precise origin of which, in this application, it is difficult to trace, and which has certainly long since lost all the significance that it ever possessed. Of these the same remark is true, as of the works on Evidence; that they select at discretion certain subordinate titles of the general subject (if any such subject there be), and intermingle them, alphabetically, with a variety of other topics, which fall under totally distinct branches of the law. For instance, a very voluminous work of this description occupies one entire large volume with the following subjects: Account, Adultery, Arbitration, Assault, Assumpsit, Attorney, Auction, Bankruptcy, Bills of Exchange. There is still a third class of elementary works, in which Torts are somewhat extensively treated, viz.: those upon Pleading and Practice. And this leads me to speak of what I consider one of the prominent peculiarities of my own book, as distinguished from others on the same subject. By a singular process of inversion, in works of this class, as well as both the others already referred to, remedies have been substituted for wrongs. They treat, for example, not of the act of trespass, but of the action of trespass; not of the conversion of property, but of trover, as the remedy for such conversion; not of the miscellaneous omissions and commissions which constitute the comprehensive wrongs of negligence and nuisance, but of the action on the case, or, as it is usually termed with laconic |