AN ELEMENTARY TREATISE ON THE COMMON LAW, FOR THE USE OF STUDENTS. CY HENRY T. TERRY, COUNSELLOR AT LAW, PROFESSOR OF LAW IN THE IMPERIAL ANGLO-AMERICAN LAW." SECOND EDITION, REVISED. PUBLISHED BY THE MARUZEN-KABUSHIKI-KAISHA. FOREIGN AGENTS: LONDON: BUTTERWORTH & CO. NEW YORK: CHARLES SCRIBNER'S SONS. 1906. PREFACE TO THE FIRST EDITION. The uses of an introductory book upon Law are: 1. To explain to the student the meanings of legal terms and conceptions. I have found it convenient in this work to make free use of certain expressions which, though used to some extent by writers on General Jurisprudence, are not yet fully domiciled in the technical terminology of the Common Law, and also to introduce a few terms of my own coinage. These last I have pointed out by footnotes explaining that they are not in common use. The student will therefore understand that he will not meet with those expressions in other law books. 2. To furnish to the student a systematic arrangement of the entire law, showing its different parts and their relations to each other. The Common Law has suffered greatly from the want of scientific arrangement, and, as is stated in the text, no authoritative or generally accepted arrangement as yet exists. The arrangement presented in this work must be taken simply as the one that commends itself to the author. In the private substantive law of normal persons its principal basis is the conception of protected rights and the distinction between such rights and other kinds of rights and duties, which seems to me of great importance; but the student must bear in mind that he will not meet with it elsewhere. 3. To enable the student to acquire such an outline knowledge of the whole law as is necessary to enable him to take up the study of special topics and to read the reports and statutes intelligently. It is impossible to study any branch of the law in detail without some knowledge of all other branches, and especially to understand the modern law without knowing something of the old law. The Common Law must be studied historically. The old law everywhere underlies the new, and occasionally crops up to the surface in unexpected places. This is why so much space has been given to rules and principles which are now obsolete. Those are the ends which in writing this book I have had n view. It is written with reference to the ordinary course of instruction in Law followed in the University with which I have et present the honor of being connected and in the American Law Schools. Therefore certain topics which do not need to be understood as preliminary to the study of others, or which are generally taken up early in the course, are touched upon lightly, while others of less intrinsic importance, but which either need to be known at the outset or may not be met with at all except in a work of a general character, are accorded a space out of proportion to their relative importance. The law of contracts, negotiable instruments and shipping may serve as examples of the former class of subjects, and the feudal rules as to seizin and the old common law procedure of the latter. This book is written primarily for students in Japan, but with the hope that it may be found useful to American students also. Some things have been put in which would have been omitted and some subjects treated less fully than they would have been had it been written for either exclusively. The necessity of getting the work into a single volume has compelled me to omit a good deal of matter, mostly illustrative and historical, which I would gladly have put in, and sometimes to make use of vague and general statements where precise details would have been better. In treating of the laws of some forty odd jurisdictions, which differ to some extent in their unwritten portion and very greatly in that part which is statutory, it is of course impossible to mention all the different rules. Such expressions in the text as "generally," "usually," "in most places are sometimes used to indicate the existence of such local differences, and sometimes mean that exceptions or qualifications to rules and principles exist which for brevity's sake have to be passed over without special mention. It may be proper to warn the student that he does not know much law when he has merely read, or even mastered, an elementary book. I have not cited many authorities, because it seems to me that notes and citations are apt rather to confuse than to aid a beginner. A student in any. subject must take his first book on trust; criticism and the investigation of original authorities come later. Where I have employed the exact words of another, I have indicated it by quotation marks, except sometimes in the case of Blackstone's Commentaries, which I have regarded as a mine in which any one is at liberty to dig, and have used freely. Tokio, June 1898. |