PREFACE.

THE work now offered to the profession is the result of an attempt to furnish for ready service a collection of recognized authorities on the existing law of Torts, with a consideration of the rise and growth of the law as thus represented, followed by a statement in greater detail of its present aspect.

The author has confined himself to a consideration of the typical branches of the subject, omitting bailments, marine torts, statutory torts, and the torts of persons under legal disability. To introduce these with proper fulness would have required such a curtailing of the main branches of the subject as to destroy in a great measure the practical usefulness of the book. They were therefore omitted and reserved for future consideration, should it ever become desirable to add another volume to the work. It may be observed, however, that the topics mentioned. are often incidentally presented, and their leading doctrines touched upon.

Even with these omissions, it was not possible to consider in detail all of the law relating to the main branches of the subject. Slander, Trespasses upon Property, and Negligence have each been treated in text-books as large as the present volume. As to these subjects, and as to one or two others, the author was governed by the same considerations as in deciding upon the omissions above mentioned. It was thought best to present the central and prominent features of these topics in full detail, leaving the rest for incidental mention and illustration.

In one word, it is the object of this book to present a full and complete view of the essential doctrines of the law of Torts. To this end, the notes will be found to contain many minute discussions of particular points in the law; especially of such as have

been the subject of conflict. If there has been any success in proportion to the amount of labor bestowed upon this attempt to bring out in clear relief the great doctrines of the subject, the work will have accomplished its chief purpose.

The author confesses to a partiality for that portion of his work which, in this swift age, will pass unnoticed by many of those into whose hands the book may chance to fall. The practicing lawyer of to-day has little time, and possibly less inclination, for historical study; and the old law, having lost much of its force as authority, is rapidly passing into oblivion. To acquire a knowledge of the crabbed books which were the only sources of authority to the lawyers of the olden time is now too great a sacrifice. The importunity of business forbids it; and the multitude of modern books, in their improved dress and English text of the day, renders it for most purposes unnecessary. May not the author hope that the difficulty of tracing the course of the old authorities upon one branch of law has now, to some extent, been relieved? And if so, may he not also indulge a well-grounded hope that he has done something to arrest the tendency to wholly brush aside the law of the past? This is in part the object of the historical notes.

But there is a growing class of persons devoted more or less to the study of the law, rather than to its practice; and for such the historical notes are especially intended.

The notes of which we speak are given as introductory to those on the existing law, but separate from them, so that no one may be led to suppose that the present law is referred to. They are prefixed to each of the subjects into which the book is divided, and will show how those subjects first took form in the English Courts, after the Norman Conquest, and their subsequent growth and development.

In carrying out the design of presenting a set of authorities ready for present use, the author hopes to have performed a useful service. Something more has been done than to present a considerable number of leading cases in the text. Many short reports of cases will be found in the notes. This feature in other books has met with wide approval, particularly among the great number of the profession who have not ready access to large libraries; and this is sufficient to justify the labor and care bestowed upon it here.

For the arrangement of the work, in its outline, the author is much indebted to the suggestions of Mr. Oliver Wendell Holmes, Jr. The valuable contribution of that gentleman on The Theory of Torts in the "American Law Review," for July, 1873 (7 Am. Law Rev. 652), has been studied, and the arrangement there elaborated has exercised a controlling influence on the one adopted in this book; the differences between the two being more of detail than of substance. The division of duties into the classes of persons upon whom they devolve and to whom they are owed has been omitted as too subtle for a book of leading cases; but the division of topics is substantially adopted. Mr. Holmes's chart will be found on p. 663 of the 7 Am. Law Rev., and may be compared with the following, which represents the order of subjects in this work: —

The present opportunity is taken to tender acknowledgments also to Mr. Green, Lecturer on Torts in the Boston University Law School, for many valuable criticisms and suggestions in the progress of the work; and to Dr. Wharton and Messrs. Shearman and Redfield, whose works on Negligence have been of service in the preparation of the last and largest topic of this volume.

BOSTON, September 1, 1875.

M. M. B.

been the subject of conflict. If there has been any success in proportion to the amount of labor bestowed upon this attempt to bring out in clear relief the great doctrines of the subject, the work will have accomplished its chief purpose.

The author confesses to a partiality for that portion of his work which, in this swift age, will pass unnoticed by many of those into whose hands the book may chance to fall. The practicing lawyer of to-day has little time, and possibly less inclination, for historical study; and the old law, having lost much of its force as authority, is rapidly passing into oblivion. To acquire a knowledge of the crabbed books which were the only sources of authority to the lawyers of the olden time is now too great a sacrifice. The importunity of business forbids it; and the multitude of modern books, in their improved dress and English text of the day, renders it for most purposes unnecessary. May not the author hope that the difficulty of tracing the course of the old authorities upon one branch of law has now, to some extent, been relieved? And if so, may he not also indulge a well-grounded hope that he has done something to arrest the tendency to wholly brush aside the law of the past? This is in part the object of the historical notes.

But there is a growing class of persons devoted more or less to the study of the law, rather than to its practice; and for such the historical notes are especially intended.

The notes of which we speak are given as introductory to those on the existing law, but separate from them, so that no one may be led to suppose that the present law is referred to. They are prefixed to each of the subjects into which the book is divided, and will show how those subjects first took form in the English Courts, after the Norman Conquest, and their subs growth and development.

In carrying out the design of presenting a set of ready for present use, the author hopes to have perfo ful service. Something more has been done than considerable number of leading cases in the ter reports of cases w