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mon law. But only within very recent times has the process of generalization been applied to them. Indeed, as Mr. Bishop's personal experience shows, the idea of a book on Torts, as a distinct subject, was a few years ago a matter of ridicule. His criticism on an unnamed American book, that it treated of Torts, not even as a subject. but as a collection of disconnected cases, might be justly extended to many others. The lack of general conceptions on this subject is apparent in the absence of any consistent theory as to why a man is liable for his tort, although in contract and in crime the reason for legal responsibility readily suggests itself to any inquirer, and is to be found in any book on those subjects. The theory of Torts was essentially terra incognita until the contributions of Oliver Wendell Holmes, Jr., appeared on the subject. His “Common Law” is pronounced by Mr. Fraser (himself a distinguished writer) the ablest law book ever written by an American. The confusion of ideas in regard to the importance of the mental element in the law of Torts is another illustration of this lack of general conceptions. Mr. Cooley's great book on Torts leaves on the reader's mind the impression that the mental status of the wrongdoer is not the material consideration in determining liability for tort, but that the wrong is to be regarded from the point of view of the injury to the sufferer. On the other hand, a learned judge (McCrary, J., in Shippen v. Bowen, 48 Fed. 659–660) insists that “a scienter is the very gist of a tort. that one may recover in tort without proving a scienter is to say that he may omit from his proof the chief element of his case.” Such confusion is not in the subject-matter itself. The broader view, closer analysis, and more precise phraseology of the best modern writers, avoid it. The development of the general law of Torts owes its greatest debt to Sir Frederick Pollock. In his treatise on Torts (happily called by Judge Caldwell a "legal classic") he says: "The purpose of this book is to show that there is really a law of Torts, not merely a number of rules about various kinds of torts,—that there is a true, living branch of the common law, and not a collection of heterogeneous instances.” He accordingly divided his discussion into two parts: (1) The general part, containing principles common to all or most torts; and (2) specific wrongs.
This plan is adopted here, and an attempt is made to extend it by making the discussion of specific wrongs more an illustration and
development of the principles stated in the general text than a mere isolated exposition of rulings as to specific wrongs. To this end, care has been taken to compare and contrast the various wrongs one with another. The thread of relationship of contract and tort, for example, considered in the general part, is traced throughout. It is discussed under the title of "Negligence" in a general way, and is then amplified in detail in the discussion of the liability of the master to his servant, and under the title of "Common Carriers." It is endeavored to bring out, without slavish devotion to the phrase, the idea that, while a contract is based on consent, a tort inheres in relations. This plan, as well as limits of space, preclude consideration of a few specific subjects; like torts arising in connection with copyrights and patents.
Another purpose of this book is to collate and weld together the best of the numerous and diverse contributions to the law of torts, and to bring the subject down to date.
The recent work of English authors along this line is important and valuable. The contributions of Fraser, Pigott, Innes, Clerk & Lindsell, Ball and Shearwood, and others have most materially advanced the study of Torts as a subject; especially with regard to the evolution of the general law, and the simplification of classification. Much legal learning is to be found in books of leading cases. Many of these contain scattered but open treasures, and some are the product of high scholarship, deep thought, and great labor. In no place can the historical development of the law as to specific wrongs be so accurately traced in the cases themselves as in the collections made by Professors Ames and Smith. They are mines rich in learning, but their wealth is deeply buried; nothing but close, hard, and prolonged work will extract it. It is inaccessible to the busy lawyer in the hurry of actual practice. Also, scattered throughout a score or more of legal publications, are articles of the greatest value. The writer has been impressed with the truth of the proposition that many of the most learned, penetrating, and satisfactory discussions of debatable questions, in the law of Torts at least, are to be found in these comparatively short essays. Some of them have been written by specialists on particular topics, who have investigated their subject with a thoroughness impossible to the writer of a general text. Others come as the finished product of trials in court by the most eminent members of the bar, or as the result of dissection by learned teachers in the class room. Finally, the law of Torts has been materially advanced by writers on specific wrongs and collateral subjects. All these authorities and many others have been unsparingly used in the present treatise. Due credit has been given as far as possible, but a further and general acknowledgment is here made for matter borrowed without citation,-in every instance the result of the familiar but futile hunt for a lost reference. All of the more important recent cases have been either cited, or used as illustrations, and the book is brought thoroughly down to date.
Some features of the book which may suggest adverse criticism have been the result of a series of experiments in the class room as to the best means of clarifying confused ideas, and of so viewing a difficult subject from different points, as to also use iteration to impress on the student's mind certain ideas otherwise hopelessly fugitive.
That this book was written in hours stolen from active practice, and at considerable personal sacrifice, may have contributed to prevent any fair attainment of its purposes. It represents, however, at least the writer's own work. It has not been delegated to students. Every case and reference has been individually examined.
To Mr. William B. Hale, who edited the manuscript and prepared it for the press, the writer especially wishes to express his indebtedness for many wise suggestions and criticisms, for preparation of the index, and for much valuable assistance in mechanical details.
E. A. J. St. Paul, Oct. 30, 1895.
TABLE OF CONTENTS
GENERAL NATURE OF TORTS.