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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

APPENDIX C.

STATUTES OF LIMITATION.

An Acte for lymytacion of Accions, and for avoyding of Suits in Lowe.

(21 James I. c. 16.)

S. 3. And be it further enacted, that all accions of trespas, quare clausum fregit, all accions of trespas, detinue, accion sur trover and replevyn for taking away of goods and cattell, all accions of accompt and uppon the case, other than such accompts as concerne the trade of merchandize betweene marchant and marchant, their factors or servants, all accions of debt grounded upon any lending or contract without specialtie, all accions for arrerages of rents, and all accions of assault menace battery wounding and imprisonment, or any of them which shalbe sued or brought at any tyme after the end of this present session of parliament shalbe commenced and sued within the tyme and lymytacion hereafter expressed, and not after (that is to saie) the said accions uppon the case (other then for slander,) and the said accions for accompt, and the said accions for trespas debt detinue and replevin for goods or cattell, and the said accion of trespas, quare clausum fregit, within three yeares next after the end of this present session of parliament, or within sixe yeares next after the cause of such accions or suite, and not after; and the said accions of trespas of assault battery wounding imprisonment, or any of them, within one yeare next after the end of this present session of parliament, or within foure yeares next after the cause of such accions or suite, and not after; and the said accions uppon the case for words, within one yeare after the end of this present session of parliament, or within two yeares next after the words spoken, and not after. . . .

S. 7. Provided neverthelesse, and be it further enacted, that if any person or persons that is or shalbe intituled to any such accion of trespas detinue accion sur trover replevin accions of accompts accions of debts, accion of trespas for assault menace battery wounding or imprisonment, accions uppon the case for words, bee or shalbe at the tyme of any such cause of accion given or accrued, fallen or come within the age of twentie-one yeares, feme covert, non composs mentis, imprisoned or beyond the seas, that then such person or persons shalbe at libertie to bring the same accions, soe as they take the same within such times as are before lymitted, after their coming to or being of full age, discovert, of sane memory, at large and retorned from beyond the seas, as other persons having no such impediment should have done.

An Act for the Amendment of the Law and the better Advancement of Justice.

(4 & 5 Anne, c. 3)(a) .

S. 19. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen’s wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract, without speciality of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action, given or accrued, fallen or come beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas (so as they take the same after their return from beyond the seas), within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of King James the First.

An Act to amend the Laws of England and Ireland affecting Trade and Commerce.

(Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 12.)

No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen(b) , or of this Act.

APPENDIX D.

CONTRIBUTORY NEGLIGENCE IN ROMAN LAW.

Contributory negligence, and the allied topics considered in the text, did not escape the Roman lawyers, but they are treated only in an incidental manner and no complete theory is worked out. The passages bearing on the point in the Digest “Ad legem Aquiliam” (ix. 2) are the following:—

L. 9 § 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit occisus, Aquiliae locus est: sed si cum alii in campo iacularentur servus per eum locum transierit, Aquilia cessat, quia non debuit per campum iaculatorium iter intempestive facere. Qui tamen data opera in eum iaculatus est, utique Aquilia tenebitur.

It is not clear whether the words “data opera” are intended to cover the case of reckless persistence in the javelin-throwing after the danger to the slave who has put himself in the way is manifest. There can be no doubt however that Ulpian would have considered such conduct equivalent to dolus. With this explanation, the result coincides with the English rule.

L. 11, pr. (Ulpian). Item Mela scribit, si, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus eam deiecerit et sic servi quem tonsor habebat [al. radebat] gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam: et sane si ibi tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur: quamvis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.

Mela seems to have thought it a question of fact, to be determined by closer examination of the circumstances, whether the barber, or the player, or both, were in culpa. Probably the question he mainly considered was the proper form of action. Proculus held the barber only to be liable. Ulpian agrees that there is negligence in his shaving a customer in a place exposed to the accident of a stray ball, if the evidence shows that he did so with notice of the danger; but he adds that the customer, if he in turn chose to come and be shaved in a dangerous place, has only his own want of care to thank for his hurt. To obtain this result it is assumed that the danger is equally obvious to the barber and the customer; it is likewise expressly assumed, as a condition of imputing culpa to either of them, that the game is carried on in an accustomed and convenient place. Given those facts, English law would arrive at the same result in a slightly different form. The players would not be bound to anticipate the rashness of the barber, and the barber, though bound to provide reasonable accommodation for his customers, would not be bound to warn them against an external source of risk as obvious to them as to himself. It would therefore probably be held that there was no evidence of negligence at all as against either the players or the barber. If the game, on the other hand, were not being carried on in a lawful and convenient place, not only the player who struck the ball would be liable, but probably all concerned in the game.

L. 28 (Paulus). Pr. (A man who makes pitfalls in a highway is liable under the lex Aquilia for consequent damage: otherwise if in an accustomed place). § 1. Haec tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit: et multa huiusmodi deprehenduntur, quibus summovetur petitor, si evitare periculum poterat.

This comes very near the language of our own authorities.

L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur si is in publicum decidat nec ille proclamavit, ut casus eius evitari possit. Sed Mucius etiam dixit, si in privato idem accidisset, posse de culpa agi: culpam autem esse, quod cum a diligente provideri poterit(a) non esset provisum, aut tum denuntiatum esset cum periculum evitari non possit.

Cp. Blackst. Comm. iv. 192, supra, p. 410. Here a person who is hurt in spite of the warning is not necessarily negligent; as if for example he is deaf and cannot hear the warning; but this is immaterial; for the ground of the other not being liable is that he has fulfilled the duty of a prudent man.

The words “vel machinarius” spoil the sentence; they are too much or too little. One would expect “vel machinarius ex aedibus lapidem,” or the like. The passage as it stands can hardly be as Paulus wrote it (though it is likely enough to be as Tribonian edited it), and it seems more probable that “vel machinarius” is an interpolation than that other words have been omitted.

Elsewhere Paulus says, Sent. Rec. I. 15 § 3: Ei qui irritatu suo feram bestiam vel quamcunque aliam quadrupedem in se proritaverit, itaque damnum ceperit [so Huschke: vulg. “eaque damnum dederit,” which does not seem necessarily wrong], neque in eius dominum neque in custodem actio datur.

This is a case, according to English terminology, not of contributory negligence, but of no evidence of negligence in the defendant, the plaintiff’s damage being due wholly to his own act.

[(a) ]So in the Statutes of the Realm and Revised Statutes; c. 16 in other editions.

[(b) ]This is chap. 3 in the Statutes of the Realm.

[(a) ]Sic MS. Flor., which Mommsen’s text reproduces, but it is not Latin. Potuerit is probably the true reading, though Augustan Latinity would require potuisset. “Possit” ad fin. should obviously be “posset,” and is so corrected in other edd.