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ON THE

LAW OF NEGLIGENCE.

66

BY

HORACE SMITH, B.A.

OF TRINITY HALL, CAMBRIDGE, AND

46

OF THE INNER TEMPLE AND MIDLAND CIRCUIT, BARRISTER-AT-LAW, RECORDER OF LINCOLN.
AUTHOR OF THE LAW OF LANDLORD AND TENANT;" EDITOR OF ADDISON ON
CONTRACTS, "ROSCOE'S CRIMINAL EVIDENCE," ETC.

"

SECOND EDITION.

LONDON:

STEVENS AND SONS, 119, CHANCERY LANE,
Law Publishers and Booksellers.

BODLEIAN LIBRARY

13 JUN 24

OXFORD

LONDON:

PRINTED BY C. F. ROWORTH, BREAM'S BUILDINGS, CHANCERY LANE.

PREFACE TO THE SECOND EDITION.

THE kind manner in which the First Edition of this Book was received by the Profession, and the very favourable criticisms of the Press, have induced the Author to believe not merely that a Second Edition will be acceptable, but that the Work will establish itself as a thoroughly recognized text book upon the subject of which it treats. That subject is one of great interest, and of wide scope. Every member of the community has duties to perform towards other members, and those others have duties to perform towards him. Many of these duties are such as the law will enforce some of them are of absolute obligation to do or to refrain from doing some particular act; but a great many of them only impose an obligation to take care in the doing or in the omission of acts, and this obligation to take care is one which is constantly arising in the daily life of almost every man. Moreover, the questions which arise in actions of negligence are often extremely subtle, involving questions of morals, and "those considerations which ordinarily regulate the conduct of human affairs." The law, also, is in an unsettled, and even in a progressive state. These considerations will, I think, show that the "Law of Negligence" is an interesting and important topic, and, as I observed in the Preface to the First Edition, is one which has not sufficiently attracted the attention of text writers in England.

The division and arrangement of the subject has received general approval, and the device of citing cases by adding to the name of the case a few words (in brackets) indicating the special circumstances, in order to assist the memory, has met with the "sincerest flattery."

"

The text has been generally enlarged and amended throughout, and many fresh cases have been inserted. New sections have been added upon "The Employers' Liability Act," "The Neglect of Duties by Trustees," "by Directors of Companies," and "by Stockbrokers.” The judgment of Brett, M. R., in the case of Heaven v. Pender, has, in consequence of its great importance, been set out at full length in an Appendix at the end of the Book; and a vigorous criticism upon the case of Clayards v. Dethick, by Lord Bramwell, has, with his Lordship's kind permission, been printed in another Appendix.

The Author has to express his thanks to Mr. Aspinall for his renewed assistance in the section upon "Ships," and to his friend Mr. Perceval Keep, of the Midland Circuit, for much valuable help throughout the preparation of this Edition.

HORACE SMITH.

4, PAPER BUILDINGS,

May, 1884.

PREFACE TO THE FIRST EDITION.

The "Law of Negligence" has not, I think, received that amount of attention from English text writers which its importance would seem to demand.

The division of negligence into three classes, viz. Neglect of duties requiring (1) ordinary, (2) more than ordinary, and (3) less than ordinary care appeared, upon the whole, to be a reasonable plan. This division is, no doubt, somewhat arbitrary; but it has the advantage of proceeding in some measure super antiquas vias, and it adapts itself to the increasing complexity of modern obligations. It cannot be doubted that in the progress of civilization a constantly increasing amount of care is required of men in proportion to the increased skill and intelligence which they are found to possess, to the increased difficulties of the duties which they undertake to perform, and to the keener sense of responsibility towards others which is characteristic of a more refined age. Thus it will be found, I think, that there is a tendency, both in the recent judgments of the judges and in the enactments of the Legislature, to widen the responsibilities of men in their conduct towards others.

Upon the whole, then, I have thought such a division of my work to be desirable as giving a clearer view of what care the law requires in the performance of duties generally. These divisions I have subdivided into different sections, each section dealing with a particular class of circumstances: as, for instance, "Duties of Owners of Property," "of Owners of Animals," "of Controllers of Highways," "of Physicians," "of Solicitors," &c., &c.; for I cannot doubt that for convenience of reference such subdivisions are extremely useful, and I have aimed, as far as possible, at rendering my work a practical treatise upon the law for the use of the profession.

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