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Aaaiirt fob Uiimo Statbs of Ajibbica, THE BOSTON BOOK CO., Boston. 

Aoxirc FOB Canada, THE CABSWELL CO., LIMITED, Tobonto. 










Bankbuptoy, International, A Defect in our Law op. 

By Alfred F. Topham 295 

Bonus Juribta Malus Chribta. By Courtney Kenny . 326 
China, The Government of the Foreigners in. By A. M. 

Latter 316 

Club Trustees' Right to Indemnity. By T. Cyprian 

WaUams 386 

Cost of a Law Suit, The. By H. J. Randall . . 430 

Criminal Sentencing, Studies in. By (i) E. W. Coghlan . 137 

By (a) C. Thomsen and 

C Ussing . 154 

Fee-Farm Rents purchased from the Crown. By T. 

Bennett 417 

France, The Organization of Justice in. By F. P. 

Walton 263, 402 

Gore Case, The. By W. Digby Thumam . . .71 
Implied Indemnities. By Walter Hussey Griffith . .281 
India, A Judge's Life in. By Eustace J. Eitts . . . 423 
Labour Competition and the Law. By D. R. Chalmers- 
Hunt 37, 182 

Law Reporting, English. By the Editor • . . .451 
Marine Insurance Bill, The, By Arthur Cohen, KC. . 367 
Meroantile Law, Codification of. By M. D. Chalmers, 

C.S.L 10 

Patents, The New 'Investigation' for. By J. Dundas 

White 307 

Ees Gestae : Specially Admissible Evidence. By N. W. 

Sibley 203 

Res Gestae, The Doctrine of, in the Law of Evidence. 

By Sidney L. Phipson 435 

School of Law, The Work of a. By W. Blake Odgers, K.C 55 
Slavonic Law, Early. By Maxime Kovalevsky . . .76 
SvTTOK V. Johnstone, The Case of. By W. S. Holdswortiu 222 
Tort in Modern Law, Theories of. By Edward Jenks . 19 
Want v. Stallibsass, The Limits of the Rule in. By (i) 

F. E. Farrer 161 

By (2) T. Cyprian Williams 168 

War Sub Mobo. By T. E. Holland, K.C 133 

1(o^ 13 



BsNNBTT, T. — Fee-Farm Bents purchased from the Crown . .417 
Chalmebs, M. D., C.S.L — Codification of Mercantile Law . . 10 
Chalmebs-Hunt, D. R. — Labour Competition and the Law . 37> i8a 
CooHLAN, E. W. — Studies in Criminal Sentencing, I , . , • 137 
CoHBN; Abthub, K.C. — The Marine Insurance Bill . . • 367 

Fabreb, F. £. — The Limits of the Rule in Want y. StaUibraaa . .161 
Qbiffith, Walteb Husset. — Implied Indemnities . • • .281 
HoLDSWOBTH, W, S. — The Case of StUton v. Johnstons • . aaa 

HoLLAWD, T. E., K.C.— War /SW i/o(io 133 

Jenks, Edwabd. — Theories of Tort in Modern Law • , • ^9 
Kbitnt, Coubtnbt. — Bonus Jurista Malus Christa .... 326 

KiTTSy Eustace J. — ^A Judge's Life in India 423 

KoYALEYSKT, Maximb. — ^Early Slayonic Law • . . .76 

LatteBi a. M. — The Goyernment of the Foreigners in China , .316 
Odoebs, W. Blake, K.C. — The Work of a School of Law . , 55 
Phipson, Sidney L. — The Doctrine of Bes Gestae in the Law of 

Evidence • 435 

Pollock, Sib Fbedebiok. — English Law Reporting . . •451 
Randall, H. J. — ^The Cost of a Law Suit • , • . . 430 
Sibley, N. W. — Specially Admissible Evidence. — Res Gestae . . 203 
Thomsen, C, — Studies in Criminal Sentencing, II . . • • iS4 

Thubkam, W, Dioby. — ^The Gore Case 71 

ToFHAM, Alfbbd F. — A Defect in our Law of International Bank- 
ruptcy ... 295 

Ubbing, C. — Studies in Criminal Sentencing, II . . . •154 
Walton, F. P. — The Organization of Justice in France . . 263, 40a 
White, J. Dundab. — The New ' Investigation ' for Patents . . 307 
Williams, T. Cypbian. — The Limits^ of the Rule in Want v. 

JS^Uibrass .168 

Club Trustees' Right to Indemnity . , 386 


Acad^mie des Sciences Morales et PoIItiques: Bdanoes et trayaax , 240 
Addison (C. G.). — ^A Treatise on the Law of Contracts (loth ed. by 

A, P. P. Keep and W. E. Gordon) 111,342 

Agency, A Contract of in 1281 (by R. J. Whitwell) (n.) » . . 6 

American Bar Association, The (n.) 355 

Annual County Courts Practice, 1903 (by His Honour Judge Smyly, 

K.C. and W. J. Brooks) 241 

Anson (Sir W. R.).— Principles of the English Law of Contract 

(loth ed.) 350 

Ashbumer (Walter). — Principles of Equity . . . 110,234,261 
Bftlfour-Browne (J. H., K.C.), Macnamara (Walter H.), and Neville 

(Ralph). — Reports of Cases decided by the Railway and Canal 

Commissioners . . • • • « • • • 35^ 
Barlow (Montague) and Macan (H.). — The Education Act, 1902 

(2iid ed.) 242, 353 

Bartley (Douglas C). — ^The Metropolis Water Act, 1902, &c. . . 353 

Baynes (William E. C.).—SeB Underbill (Arthur). 

Beal (Edward).— /S'ee Yearly Digest. 

Bell (W. H. Somerset) and Nathan (Manfred). — ^Legal Handbook of 

Practical Law and Procedure in British South Africa * • 350 
Bellot (Hugh H. L.). — The Liner and Middle Temple . . .101 
Beren (Thomas). — The Law of Employers' Liability and Workmen's 

Compensation (3rd ed.) ..••.«• 111,240 
Bigelow (M. M.).— The Law of Torts (2nd ed.) • . . • 474 
Blagden (C. O.).— 5ee Underbill (Arthur). 

Boghitch^witch (M.). — Halbsouveriinitat . • . • • 353, 461 
Bompas (Harold M.). — See Carson's Real Property Statutes. 
Boulton (A. C. Forster). — The Law and Practice of a Case stated by 

a Court of Summary Jurisdiction 109 

Brentano (Franz). — The Origin of Knowledge of Right and Wrong 

(tr, by Cecil Hague) 109 

Brodie-Lines (J. W.). — Comparative Principles of the Laws of England 

and Scotland xii, 466 

Brooks (William James). — See Annual County Courts Practice. 

Brown (Archibald). — The Law and Practice on Enfranchisements, &c 352 

Browne (Irving). — See Ruling Cases. 

Bruce (Hon. Mr. Justice) and Jemmett (C. F.), assisted by Phillimore 

(G. G.). — Williams and Bruce's Admiralty Practice (3rd ed.) • 91 
Bund (J. W. Willis).— iSie Oke (George C). 

Bntterworth (A. R). — Bankers' Advances on Mercantile Securities . 105 
Byrne (L. W,).— ^«e Ellis (A. L.). 
Campbell (Robert).~AS'e0 Ruling Cases. 
Cane (Arthur B.). — See Revised Reports. 
Carson's Real Property Statutes (loth ed. by Thomas H. Carson, K.C., 

and Harold M. Bompas) iii 


vi Subjects of Book Beviews and Notes. 


Carter (A, T.). — Elements of the Law of Contract .... 85 

n History of English Legid Institutions . .104 

Charters, Medieval : facsimile published by the British Museum (n.) 260 

Chironi (G. P.).— Mario Sarfatti, &c 353 

Chitty (Herbert).^-iS'M Smith's Leading Cases. 

Chitty.{T. W.).— ^ Smith's Leading Gases. 

Clark (A. Inglis). — Studies in Australian Constitutional Law . . 96 

Clegg (A. T:.).—See Robertson (Max A.). 

Cocksfaott (H. M.) and Lamb (S. Emefit).— The Statutes of the 

Commonwealth of Australia, Vol. I no 

Cohen (Arthur, K.C.),—See Sale of Goods Act. 

Corpus Professorship of Jurisprudence, The (n.) .... 355 

Coulson(H. J.W.) andForbe8(n. A.). — Lawrelating to Waters (anded.) 100 

Crump (0. Q.).—See Dialogus de Scaccario. 

Dawbam (C. Y. C). — Employers' Liability to their servants at 

Common Law, &c. (and ed.) . . . . • . • 351 
Dialogus de Scaccario : by Richard son of Nigel (ed. Arthur Hughes, 

C. G. Crump, and C. Johnson) • . . • • • 105 

Dicey (A. V., K.C.). — Litroduction to the Study of the Law of the 

Constitution (6th ed.) 110,230 

Digest XVII (ed. by C. H. Monro) in 

Donald (A. W.). — See Encyclopaedia of the Laws of England. 
Ehrlich (Eugen). — Freie Recbtsfindung und freie Rechtswissenschaft 467 
Ellis (A. L.).— The Trustee Acts, &c. (6th ed. by L. W. Byrne) . 24a 

Emden (His Honour Judge). — The Winding-up of Companies, Ao. 

(6th ed. by Henry Johnston) a 36 

Emmet (Lewis E.). — Notes on Perusing Titles (5th ed.) . . •474 
Encyclopaedia of the Laws of England, Vol. XIII, supplement (ed. 

A. W. Donald) . . . . . . . -474 

English Divorce, The Question of : an Essay 241 

Errata a6i, a6a 

Escarra (Edouard). — La succession aur biens r6els dans les coutumes 

anglo-normandes 35a, 471 

Every man'a own Lawyer (40th ed.) 1 1 1 

Forbes (U. A.).— See Coulson (H. J. W.). 

Ford on Oaths (8th ed. by F. H. Short) 353 

Fox (J. C). — See Yearly Supreme Court Practice, 1903. 
Eraser (Hugh). — A Compendium of the Law of Torts . .109 

Fredericksen (N. C). — Finland: its Public and Private Economy . 109 
Freund (Ernst). — Empire and Sovereignty ..... 35a 
Fry (Bight Hon. Sir Edward). — A Treatise on the Specific Perform* 

ance of Contracts (4th ed. by W. D. Rawlins, K.C.) . a4a, 340 

Gibson (Albert) and Hart (Walter Gray). — The Students' Conveyancing 1 08 
Giffard (Andr^). — Les justices seigneuriales en Bretagne aux XYII* 

et XVnP sidles 353, 468 

Gordon (William K).—See Addison (0. G.). 

Subjects of Booh Reviews and Notes. vii 


Gore-Browne (F.) and Jordan (William). — A Handy Book on the Forma- 
tion, Management, and Winding up of Joint Stock Companies . 473 

Gray's Inn Moot Society (n.) 259 

Qrierson (P. J. Hamilton). — The Silent Trade, &c 337 

Hague (Cecil). — See Brentano (Franz). 

Hall (A. C). — Crime in relation to Social Progress . .102 

Hammourabi, King, Code of 240 

Harman (J. E.). — The Finance Act, 1894, &c. (2nd ed.) . .241 

Harris (Richard, K.C). — Hints on Advocacy (12th ed.) . . 351 

Hart (Heber). — The Law relating to Auctioneers (2nd ed.) . 239 

(Walter Gray).— /S'w Gibson (Albert). 

Hayford (C). — Gold Coast Native Institutions 474 

Hewett (E. P.).— ^ Kerr (W. W.). 

Highmore (N. J.). — The Stamp Laws 108 

Hill (Gerard R.>— &« Scholefield (Joshua). 

See Symonds (John F.). 

Hirzel (Rudolf).— Der Eid, &c mi337 

Holdsworth (W. S.). — A History of English Law .... 335 

Holtzendorff (Franz von). — Encyclopadie der Rechtswissenechaft in 

systematischer Bearbeitung 339 

Hubbard (Gustave). — See Justice Internationale. 

Hughes (Arthur). — See Dialogus de Scaccario. 

Hume-Williams (W. E.) and Macklin (A. Romer).— The Taking of 

Evidence on Commission (2nd ed.) 1 1 1 

Husein (Syed Karamat). — A Treatise on the nature and scope of the 

Science of Law 240 

Hutchen (David) and Wright (H. C.).— Land Transfer Acts of Kew 

Zealand 98 

Hutchinson (John). — A Catalogue of Notable Middle Templars, Ac. , no 

Indermaur (John) and Thwaites (Charles). — The Student's Guide to 

Procedure in the King's Bench, &c. (3rd ed.) . . .110 

Innes (L. C). — A Digest of the Law of Easements (7th ed.) . . 474 

Jacobs (Herbert).— /S'^tf Stevens (T. M.). 

Jelf (E. A.). — Fifteen decisive Battles of the Law, &c. . . -351 

Jeromett (C. F.). — See Bruce (Hon. Mr. Justice). 

— ■ — and Preston (R. A. B.). — A treatise on the Law relating 

to Pleasure Yachts 353, 472 

Jenks (Edward). — See Stephen's Commentaries. 

Jenkyns (Sir Henry). — British Rule and Jurisdiction beyond the Seas 87 

Johnson (C). — See Dialogus de Scaccario. 

Johnson (Henry). — See Emden (His Honour Judge). 

Johnston (J, A.). — See Rawlinson (Sir C). 

JoiieB (Q. Edwardes) and Sykes (J. C. G.).— The Law of Public 

Education in England and Wales 353 

Jones (Emily).— The Englishwomen's Year Book, 1903 . • .no 

Jones (Leonard A.). — See Ruling Cases. 

viii Subjects of Book Beviews and Notes. 


Jordan (William).— fiisa Gore-Browne (F.). 

Judson (Frederick N.). — ^A Treatise on the Power of Taxation, &c. • 353 

Justice Internationale, La (ed. by Gustavo Hubbard) . • . 352 

Keep (A. P. Percival).— 5^ Addison (C. G.). 

Kerr (W.W.). — A Treatise on the Law and Practice of Injunctions (4th 

ed. by E. P. Hewitt, Sydney E. Williams, and J. M. Paterson) 353, 469 
Kotz^ (Hon. J. G., K.C.).See Reports of the High Court of the 

South African Republic. 
Lamb (S. Ernest).—^ Cockshott (H. M.). 

Lambert (Edouard). — La fonction du droit civil compart . . 352 

Leake (S. Martin). — Principles of the Law of Contracts (4th ed. by 

A. E. Randall) 85 

Lely (J. M.). — Statutes of Practical Utility passed in 1902 . . 242 

See Woodfell's Law of Landlord and Tenant. 

Levy (Emmanuel). — L'affirmation du droit collectif . . . '352 
Little (James Brooke). — ^The Law of Burial (3rd ed.) . . . 109 
Lusliington (S. G.). — See Yearly Supreme Court Practice, 1903. 
Lynch (H. Foulks).— -Redress by Arbitration (4th ed. by D. F. De 

L'Hoste Ranking) , 106 

Macan (H.). — See Barlow (Montague). 
McBamet (A. C.).—See Oke (George C). 

See Yearly Supreme Court Practice, X903. 

MacGillivray (E. J.). — ^A Treatise upon the Law of Copyright • . 88 
Mackenzie (M. Muir). — See Yearly Supreme Court Practice, 1903. 
Mackenzie (William W.). — See Paterson (James). 
Macnamara (Walter H.). — See Balfour-Browne (J. H.). 
Martin (Thomas Frederic). — A Concise and Practical View of Con- 
veyancing in New Zealand . . . . • . • 99 
Mather (Philip E.). — ^A Compendium of Sheriff and Execution Law • 237 
Mayer (Sylvain). — A Code of the Law of Compensation » . •470 
Mayne (J. D.). — A Treatise on Damages (7th ed. by J. D. Mayne and 

Lumley Smith, K.C.) 473 

Mears (T. Lambert).— 5*6 Roscoe (E. S.). 

Miller (W. G.).— The Data of Jurisprudence 474 

Minton-Senhouse (R. M.). — Accidents to Workmen (2nd ed.) • • 94 

Modern Lawyer's Office, The 1 1 1 

Monro (C. U.).—See Digest XVII. 

Montgomery (R. M.). — Supplement to Montgomery's Licensing Laws, &c. up 

Moore (W. Harrison). — The Constitution of the Commonwealth of 

Australia 242, 344 

Moore (Hubert Stuart). — See Moore (Stuart A.). 

Moore (Stuart A.) and Moore (H. Stuart). — ^The History and Law of 

Fisheries • . 242, 348 

Munro (J. E. C). — Commercial Law (2nd ed. by J. G. Pease) ♦ , 352 
Nathan (Manfred).— /S'e« Bell (W. H. Somerset). 
Neville (Ralph).— ^ef Balfour-Browne (J. H.). 

Subjects of Book Reviews and Notes. ix 

Nicolas (Vale). — The Law and Practice relating to the Formation of 

Companiea • . • -347 

Odgers (W. Blake, K.C.).— The Principles of Procedure (5th ed.) . 24a 
Oke (Oeorge C). — A Handy Book of the Fishery Laws (3rd ed. by 

J. W, Willis Bund and A. C. MoBamet) . . . . 242, 35 J 
Organ (T. A.) and Thomas (A. A.).— Education Law, &c. . . .242 

Palmer (Francis Beaufort). — Company Law 84 

Company Precedents, Part III (9th ed.) 346 

Paterson (James). -7-The Licensing Acts (14th ed. by William W. 

Kackenzie) no 

■ — • — — ( X Sth ed. by William W. Mackenzie) 241 

Paterson (J. M.).— ^ea Kerr (W. W.). 

Phillimore (G. G.).— &e Bruce (Hon. Mr. Justice). 

Phipson (Sidney L.). — The Law of Evidence (3rd ed.) • • • 93 

Picarda (E.)— Pr^is de l^slations commerciales ^trangbres . -474 

Piggott (F. T.). — The Imperial Statutes applicable to the Colonies . 470 

Pike (Luke Owen). — See Year Books of the reign of King Edward III. 

Piper (J. E.). — The Acts relating to the House Tax . . . 474 

Pitt-Lewis (G., K.C). — See Yearly County Court Practice. 

Pollock (Sir I,).— See Bevised Reports. 

Powell (Arthur, K.C.). — ^The Lawyer s Bemembrancer and Pocket 

Book, 1903 IIS 

Pircston (R. A. B.).—See Jemmett (C. F.). 

Randall (A E.).—See Leake (S. M.). 

Ranking (D. F. De L'Hoste).— /Sisd Lynch (H. Foulks). 

Rawlins (W. I)., K.C.).— /S'«« Fry (Right Hon. Sir E.). 

Rawlinson (Sir C). — The Municipal Corporation Acts, &c. (9th ed. by 

John F. P. Rawlinson, K.C. and J. A. Johnston) . . 242, 349 
Rawlinson (John F. F.^—See Rawlinson (Sir C). 
Read (Archibald). — See Yearly County Court Practice, 1903. 

See Yearly Supreme Court Practice, 1903. 

Reeson (Joseph). — ^Tbe Acts relating to the supply of Gas and Water, &c. no 
Beid (Sir Robert, K.C., M.P.) on International Arbitration (n.) • 132 

Reports, Official, of the High Court of the South African Republic 

(ed. by W. S, Webber, rev. by Hon. J, G. Kotz^, K.C.) . 362, 473 
Revised Reports (ed. by Sir F. Pollock, assisted by O. A. Saunders 

and Arthur B. Cane) 1x0,352 

Revue G^n^rale du Droit, &c. . . • • • • • .240 
Rhodes (C. T.). — ^Taxation of Land Values, &c. (2nd ed.) • • .110 
Ringwood (R.). — The Principles of Bankruptcy (Sth ed.) • , • 104 
Roberts (J. R.). — See Stone's Justices' Manual. 
Robertson (Max A.) and Clegg (A. T.). — Digest of Cases decided 

under the Workmen's Compensation Acts, 1897 and 1900 . » 95 

Roby (Henry John). — Roman Private Law 232 

Roflcoe (E. S.) and Mears (T. Lambert). — A Treatise on Admiralty 

Jurisdiction and Practice ,•..,•• 233 

Subjects of Book JReviews and Notes. 


Hothera (Charles L.). — A Practical Qnide to the Licensing Act, 190a 239 
Ruegg (A. H., K.C.).— The Employers* Liability Act, 1880, &c. 

(6th ed.) 353 

Ruling Cases, Vol. XXVI (ed. by Robert Campbell) . . .107 

Sale of Goods Act, 1893 (Arthur Cohen, K.C.) (n.) . . . • 113 
Sarfatti (Mario).^-La ragione ed il contenuto del 'Tort' nel diritto 

inglese . 108 

Saunders (O. A.). — See Revised Reports. 
Scholefield (Joshua). — See Symonds (John F.). 

■ and Hill (Qerard R.). — The Licensing Act> 190a 106 

The Private Streets Works Act, 189a 109 

Scott (J. B.). — Cases on International Law 471 

Scrutton (Thomas Edward*, K.C). — ^The Law of Copyright (4th ed.) . 241 

Short (F. H.).— .&« Ford on Oaths, 

Simonson (P. F.). — A Treatise on the Law relating to Debentures 

(3rded.) 338 

Smith (H. Arthur). — ^A Practical Exposition of the Principles of 

-Equity (3rd ed.) 107 

(Lumley, K.C.).— See Mayne (J. D.). 

Smith's Leading Cases (nth ed. by T. W. Chitty, J. H. Williams, 

and Herbert Chitty) 473 

Smyly (His Honour William C, K.C.). — See Annual County Courts 

Practice, 1903. 
Solomon (G. E.). — A Manual for Colonial Commissioners . « 474 

Stephen's Commentaries (14th ed. by Edward Jenks) -474 

Stephens (J. E. R.).— Digest of Public Health Cases . . .108 

Stevens (T. M.).— The Elements of Mercantile Law (4th ed. by 

Herbert Jacobs) •350 

Stone's Justices' Manual (ed. by J. R. Roberts) . . . .242 
Stringer (Francis A.). — ABC Guide to the Practice of the Supreme Court 84 
Sykes (J, C. Q.).See Jones (G. Edwardcs). 
Symonds (John F.). — ^The Law of Settlement and Removal (4th ed. 

by Joshua Scholefield and Gerard R Hill) . . . •354 

Tardif (E. J.). — Coutumiers de Normandie 47a 

Taylor (Hannis). — Treatise upon InterDational Public Law (T. E. 

Holland) (w.) 8 

Teece (Richard Clive). — A Comparison between the Federal Constitu- 
tions of Canada and Australia » . 98 

Theobald (H, 8., K.C.).— The Law of Land, &c loi 

Thomas (A. A.).— ^S^ Organ (T. A.). 

Thwaites (Charles). — ^A Guide to Criminal Law, ftc. • .no 

S ee Indermaur (John). 
Underbill (Arthur), Blagden (C. 0.), and Baynes (W. E. C.).— An 

Encyclopaedia of Forms and Precedents, Vols. IT and III . 89, 343 
Walton (F. P.). — Historical Introduction to Roman Law . -474 

Wambaugh (Eugene). — Littleton's Tenures in English . . 474 

Table of Cases. 



Watson (Edward James). — ^Pleas of the Crown for the hundred of 

Swineshead, ftc 238 

Webber (Walter S.y—See Reports of the High Court of the South 

African Republic 
White (Sir C. Arnold). — See Yearly County Court Practice, 1903. 
Wbitwell (R. J.). — A Contract of Agency in 128 1 (n.) ... 6 

Who's Who, 1903 109 

Will (John Shiress). — The Law relating to Electric Lighting (3rd ed.) 242 

Williams (John Herbert).— iSetf Smith's Leading Cases. 

Williams and Brace's Admiralty Practice.— ^S^e Bruce (Hon. Hr. Justice). 

Williams (Sydney E.).— &« Kerr (W. W.). 

Williamson (John Bruce). — The Law of Licensing in England (2nd ed.) no 

Willis (William, K.C.). — Law relating to Contract of Sale of Ooods . 107 

Willis (W. Addington). — The Workmen's Compensation Acts, 1897 

and 1900, &c. 363 

Wills (Sir Alfred).- See Wills (William). 

Wills (William). — An Essay on the Principles of Cireumstantial 

Evidence (5th ed. by Sir Alfred Wills) 92 

Willson (W. R.). — A Practical Guide to the Law of Education, &c. 353 
Wollaston (O. Woods). —Coronation of King Edward VII : The Court 

of Claims 353 

Woodfairs Law of Landlord and Tenant (17th ed. by J. M. Lely) . 90 

Wright (Heni7 Cecil).— &« Hutchen (David). 

Year Books of the reign of Edward III, years xvii and xviii (ed. by 

Luke Owen Pike) 349 

Yearly County Court Practice for 1903 (ed. by Q. Pitt-Lewis, K.C., 

Sir C. Arnold White, and Archibald Read) . . . .111 
Yearly Digest of Reported Cases for 1902 (ed. by Edward Real) 242 

Yearly Supreme Court Practice, 1903 (ed. by M. Muir Mackenzie, S. G. 

Xiushington, and J. C. Fox, assisted by A. C. McBarnet and 

A. Read) 109 


[This uMe indtides otdy reeeni ecues specially noted or discussed.] 

Aflalo V. Lawrence & Bullen, 120. 

Ashcrofl V. Ashcroft, 131. 

Att.-Gen. v, Bournemouth Corpora- 
tion, 6. 

Ait.-€kn. v. Murray, 361, 36a. 

Bagel V. Miller, 361. 

Bailey v. Thurston ft Co., ia6. 

Bell V. Gribble, 255. 

— - V. National Provincial Bank of 
England, 361. 

Booth V. New Afrikander Gold 

Mining Co., 124. 
Bradley v, Carritt, 248, 356. 
Capital ft Coanties Bank v. Rhodes, 

Carr v. Anderson, 358. 
Clark V. Army ft Navy Co-opera- 
tive Society, 119. 
Coley, Be, 250, 
Cowper V. Laidler, 363. 


Table of Cases, 

Cunningham v. Tomey Homma, 

Davis V, Town Properties Insurance 
Corporation, 129. 

De Hart v, Compania Anonima de 
Seguros, 126. 

D'Este's Settlement Trusts, Be, 

Doughty V. Lomagnnda Reefs, Ltd. 

' Due d'Aumale,' The, 123. 

Dunn V. Bucknall Bros., 3. 

-^— V, Donald Currie Sc Co., 3. 

Du Fasquier v. Cadbury, Jones & 
Co., 124. 

Easton v, Isted, 252. 

Ellenborough, Be, 127. 

Fitzgerald, Be, 257. 

Glamorgan Coal Co. v. S. Wales 
Miners' Federation, 2. 

Halbronn v. International Horse 
Agency, Ltd., 130. 

Hamlyn v. Houston & Co., Z2o. 

Harburg India Rubber Comb Co. 
V. Martin, 19. 

Harington v. Sendall, 256. 

Harris v. Perry & Co., 358. 

Harrison v. Alliance Assurance Co., 

Harse v. Pearl Insurance Co., 362. 

Herbert v, M^Quade, 5. 

Hilder v. Dexter, 115. 

HoUinshead v. Coley, 250. 

Holloway Brothers v. Hill, 129. 

Houghton V. Houghton, 365. 

Howden v, Yorkshire Miners' Asso- 
ciation, 118. 

Hudson V. Gribble, 255. 

Hunter v. Rex, 254, 

Ibo Investment Co., Be, 360. 

Jarrah Timber 8c Paving Corpora- 
tion V. Samuel, 359. 

Kaufman v. Oerson, 364. 
Kirkwood v. Carroll, 251, 
Kodak, Ltd. v. Clark, 253. 
Kolchmann v. Meurice, 252. 
Lawford v, Billericay Rural Council, 

Long Eaton Recreation Qrounds 

Co. V, Midland Ry. Co., 4. 
Lyon V, London City & Midland 

Bank, 363. 
M<>Quire v» Western Morning New* 

Co., 367. 
Mendelssohn, Be, 364, 365. 
Morel Bros. & Co. v. Earl of West* 

moreland and Wife, 121, 122. 
Ogdens, Ltd. v. Nelson, 363. 
Payne v. Rex, i. 
Peverett, In the Qoods of, 131. 
Read v. Friendly Society of Opera- 
tive Stonemasons, 2, xi6. 
Savill Bros. v. Bethell, 4. 
Scoble v. Secretary of State in 

Council for India, 2S5> 256. 
Scott V. Coulson, 259, 360. 
Sharpe v. Midland Ry. Co., 356. 
Sheffield Corporation v. Barclay, 

Smith V. Gold Coast and Ashanti 

Explorers, Z32. 
— - V. Moody, 128. 
Starkey v. Bank of England, 247, 
Sweet V, Bishop of Ely, 129. 
Telescriptor Case, The, 258. 
Thomas v. Pritchard, 131. 
Tolhurst's Case, 5. 
Tollemache, Be^ 252. 
Wallis V. Sol.-General for New 

Zealand, 249. 
Wise V, Perpetual Trustee Co., 249. 
Wright V. Carter, 123. 
Young V. Ashley Gardens Property, 

Ltd., 358, 359. 



Ko. LXXTTT, January, 1808. 


THE Editor of this Review will cease to be Corpus Professor of 
Jurisprudence at Oxford on the ist' of February, as the term 
of five years for which he was last re-elected will then expire, and 
he does not seek re-election. Correspondents of the Review are 
therefore warned that the editor and publishers will not be answer- 
able for any miscarriage or delay caused by letters or printed matter 
of any kind being wrongly addi*essed to Oxford. It is best to 
communicate direct with Sir F. Pollock, 13 Old Square, Lincoln's 
Inn, marking book-parcels with the letters L. Q. R. 

When does a person, who during his lifetime so deals with his 
property that it may on his death escape liability to death duties, 
act * with intent to evade the payment of duty ' 1 

This is a question which occasionally harasses the minds of con- 
scientious testators who wish that as much of their property as 
possible should pass untaxed into the hands of their children, and 
yet are haunted by a secret fear that whoever so aiTanges his affairs 
that on his death his estate may be chargeable either with no death 
duties or with a very small amount thereof is guilty of something 
like fraud. 

The inquiry however, what constitutes evasion, is directly raised 
and answered by several cases, all of which have reference to 
colonial statutes avoiding acts done with intent to evade the pay- 
ment of duty. 

These cases, such for example as Payne v. Rex [1902] A. C. 552, 
71 L. J. P. C. 128, Simrm v. Registrar of Probates [19CX5] A. C. 323, 69 
L. J. P. C. 51, Bullivant v. Attorney-General for Victoria [1901] A. C, 
196, 70 L. J. Q. B. 645, appear to lay down a pretty clear prin- 
ciple. The Colonial Acts which impose penalties upon attempts 
to evade the payment of duty extend to colourable transactions 


2 The Law Quarterly Review. [No. lxxtii.' 

only; if there is a real and complete transfer of the property 
during the lifetime of the owner, the manifest desire of the owner 
to avoid liability to the payment of duty is not in itself enough 
to make the transaction an attempt to evade payment. Evasion, in 
short, which has in it some idea of fraud or dishonesty is in itself 
quite a different thing from the honest dealing with property in 
such a way as to escape liability to death duties. 

* In the absence of fraud, good faith is not of itself a sufficient 
defence to an action founded on tort,' including an action for 
wilfully procuring a breach of contract; and in such an action 
the defendant does not ' occupy a better position than a defendant 
setting up privilege in an action for libel or slander,' and it is not 
Bufficient for him to allege that the person whom he procured or 
compelled to break a contract with the plaintiff was under some 
conflicting obligation to himself. So Stirling L. J. explains the 
principle on which the Court of Appeal proceeded in Read's case 
[1902] 2 K. B. 732,71 L. J. K. B. 994 (the defendant society's name is 
really too cumbrous), agreeing with the Lord Chief Justice in the 
Court below that the plaintiff was entitled to judgment — ^a conclusion 
for which the other members of the Divisional Court had thought 
the evidence not sufficient. The reasons of Stirling L. J. seem to 
us clear and adequate, though not exhausting or professing to 
exhaust other questions which may arise. The M. R. gave a more 
elaborate judgment, stated by Cozens-Hai'dy L. J. to express his 
own views also. If we rightly understand it, of which we are not 
sure, it is not easy to reconcile with Lord Macnaghten's opinion 
(followed by Stirling L. J.) in Quinn v. Leathern, We humbly 
submit that the use of illegal means, when once it is found that 
the breach of an existing contract has been procured without some 
positive justification, is merely matter of aggravation ; and that the 
question whether such conduct would not deprive the defendant of 
the benefit of an otherwise valid justification is interesting, but did 
not arise in this case. We are still of opinion that this and allied 
subjects will never be cleared up till we leave off talking about 
malice, but this opinion, we confess, does not seem to prevail at 

It is certain, at any rate, that the authority of Lumley v. %tf, 
shaken for a time by the dicta in Allen v. Floods is now restored by 
Quinn V. Leathern ; and accordingly people who procure breaches of 
contract are liable to be sued for it as a wrong : subject, almost 
certainly, to exceptions, and in particular to the immunity of 
honest advice given on request, if the judgment of Bigham J. 
jn Glamorgan Coal Co, v. 8, Wales Miners' Federation [1903] i K. B, 

Jan. 1903.] Notes. 3 
_ . 

118, 71 L. J. K. B. looi — which we understand is to be taken to the 
Court of Appeal— is right. In some cases, at least, of giving advice 
it may be said that there is no ' procuring ' at all of the breach of 
contract. But, whatever the exceptions may be, good faith or good 
motivee alone do not constitute one. A learned coiTespondent ob- 
serves that the decision in Read' 9 case * limits the power of societies, 
whether they be trade unions or employers' federations, to enforce 
rules of trade or business by methods which go very near to intimi- 
dation.' That is quite true, but the principle is much wider, and 
its generality should not be forgotten. 

Dunn V. Bucknall Bros, [1902] 2 K. B. 614, s. c. *. «. Bann v. 
Donald Cnrrie 8f Co., 71 L, J. K. B. 963, C. A. decides the following 

(1) The carriage by a shipowner of goods destined for an alien 
enemy without the knowledge aiid consent of the other shippers, 
is a breach of duty towards them, and the shipowner is therefore 
liable to damages caused to them thereby, and this is so even if the 
damages are caused through seizure of the ship by reason of its 
having enemies' goods on board, and even if the shipowners are in 
the bill of lading exempted from liability for loss occasioned by 
restraint of princes. 

(2) There is no rule of law that damages cannot be recovered for 
loss of market on a contract of cai-riage by sea. 

On each point the decision of the Court of Appeal commends 
itself to common sense. A shipowner who» without the knowledge 
of a shipper of goods, either through negligence or for the sake of 
securing additional gain, exposes the shipper's goods to unnecessary 
risks assuredly has violated a duty to the shipper, and if the shipper 
loses by this breach of duty, owes him compensation. It is again 
hardly conceivable that as a matter of principle, a shipowner should 
be free from all liability for loss of market on a contract of caiTiage 
by sea. No doubt, as pointed out by the C. A., in criticizing or 
explaining Tie Parana, 2 P. D. 118, it may well happen that owing 
to the uncertainties and the length of a voyage by sea, neither of 
the parties to the contract of caniage has formed a reasonable 
expectation as to the state of the market when the goods may 
arrive at their port of destination, whence it follows that the mere 
fact of a loss of market need not be a damage which is contemplated 
by the parties and recoverable from the carrier. But when the 
circumstances admit of reasonable calculations as to the time of 
arrival and the fluctuations of the market, there is no reason why 
damages caused by a loss of market should not be recovered from 

B 2 

4 * The Law Quarterly Review. [No. lxxitl 

^ « 

the shipowner who has been guilty of a breach of duty. The 
prevalent idea that such damages are not recoverable is a curious 
example of the way in which a practice in itself reasonable is often 
supposed by lawyers and merchants to sanction a principle far 
wider than is required for the vindication of the pittctice. Ceitsante 
rafione cessat lex ipsa : but it is easier to know a custom than to 
understand the reason of it« 

The breach of a restrictive covenant (in the particular instance 
a covenant entered into by a vendor not to erect thereon *any 
building other than private dwelling-hotiaes *) may be the ground 
for a claim for compensation under the Lands Clauses Act, 1845, 
by the owner of land for the benefit of which the restriction was 
imposed. This is the effect of the Lonff Eaton Becreation Grounds Co, 
V. Midland Uy. [1902] 2 K.B- 574, 71 L. J.K.B. 837, C.A, The 
judgment of the C. A. dismissing an appeal from the judgment of 
Lawrance J. is so obviously reasonable that an ordinary reader 
finds some difficulty in seeing what room there was for doubt. 
It can hardly be maintained that where the value of A^ land is 
affected by the breach of a covenant made by X and for the 
benefit of A^ the land is not * injuriously affected ' within 8 & 9 
Vict, c. 18, s. 68. > 

In Savill Bros. v. Befhell [1902] 2 Ch. 523, C. A., 71 lu J. Ch. 652, 
a vendor, conveying unto and to the use of the purchaser in the 
common form, proceeded to except and reserve * a piece of land not 
less than forty feet in width commencing at' a certain point 'and 
terminating at the nearest road to be made ly the purchaser or his 
assignee on the estate so as to give access to such road/ &c At 
first sight this exception looks thoroughly bad for uncertainty. But 
it was said to have been made certain by the vendor's election. 
Buckley J. thought this argument, founded on somewhat slender 
authority, not tenable. The C. A. did not dedde this point, but 
held the exception bad on two other grounds : first, for purporting 
to create an estate of freehold to commence infuturo^ the conveyance 
operating at common law; secondly, and independently, because 
the futui*e time in question — namely the making of a road by the 
purchaser or his assignee— was not necessarily within the limits of 
the rule against perpetuities. A suggestion that if the exception 
was bad the whole grant was bad was summarily put aside. Alto- 
gether it is a prettier pure conveyancing case than we commonly 
get nowadays. 

Jan. 19 v.] Notes. 5 

Is a voluntary contribution made to a beneficed clergyman by 
a society, the object of which is to raise and distribute a clerical 
Bustentation fund, assessable to income tax in the hands of the 
recipient as * perquisites or profits accruing by reason of his office ' 
under the Income Tax Acts, 1842 (5 & 6 Vict, c 35), s. 146, and 
1853 (16 & 17 Vict. c. 34), s. 2, Sched. E? 

This question, which may be of supreme importance to the clergy 
of the Church of England, was raised by Herbert v. M^Quade and 
was answered in the negative by a Divisional Court (Kennedy and 
Phillimore JJ. [1901] a K. B. 761, 70 L. J. K. B. 725). The 
judgment of the Divisional Court has now been reversed by the 
Court of Appeal (Collins M. R., Stirling and Romer L.JJ. [1902] 
2 K. B. 631, 71 L. J. K. B. 884), which has decided that the Rev. G. N. 
Herbert is under the circumstances of the case assessable on the 
sum of £65, paid to him by the Noi'wich Diocesan Branch of the 
Queen Victoria Clergy Sustentation Fund. The Court moreover 
has, as we understand the judgments, laid down the following 
principle for discriminating cases, the facts of which seem to run 
very near one another, namely that a sum of money voluntarily 
paid to a clergyman, or any other minister of religion, on personal 
grounds, e. g. on account of services rendered by him, or on account 
of his own poverty, is not assessable to income tax, but that a sum 
of money voluntarily paid to a clergyman or other minister, with 
a view to increase the emoluments of his office, is assessable to 
income tax^ and that it is so assessable even though it be not paid 
for more than one year, and though the recipient has no right to 
demand .the payment : the reason for this distinction being that, in 
the one case the grant or gift does not, whilst in the other case 
it does come within the terms * perquisites or profits, accruing [to 
the recipient] by reason of his office.^ The distinction seems a subtle, 
but is very probably a sound one. A point however which may 
perhaps remain open to doubt, at any rate on an appeal to the 
Hquse of Lords, is whether charitable gifts made to a man who 
holds a particular office can in any case be considered perquisites 
or profits within the meaning of the Income Tax Act, 1842, s. 146. 

In TolhursVs case [1902] 2 Q. B. 660, 71 L. J. K. B. 949, the Court 
of Appeal reversed the decision below (on which we commented 
a year ago, L. Q. R. xviii. 10), but substantially re-affirmed the 
principles on which it was grounded, the diflerences being partly on 
inferences of fact and partly on the eifect of the particular contract 
in question. It remains true that the Judicature Act has not made 
contracts more assignable at law than they formerly were in equity, 

6 Hie Law Quarterly Review. [No. Lxxiir. 

and that the promisee under a contract cannot without the pro- 
misor's assent assign the benefit of the contract in such a way blb 
to impose a new burden on the promisor. Here the Court held 
that the original contract was still subsisting, and enforceable by 
the original promisee (a vendor company in liquidation), who was 
before the Court; they also held that the substitution of the 
purchasing for the selling company would really impose nothing on 
Tolhurst beyond what was contained in the contract, and must be 
deemed to have been contemplated as possible. 

Buying land to build works upon is not a substantial commence- 
ment of works, and statutory ' conclusive * evidence is not exclusive 
of other kinds of proof that works have not been commenced. 
Those are the points decided, and inevitably so decided, by the 
C. A. in A,'G. V. Bournemouth Corporation [1902] a Ch. 714, 71 L. J. 
Ch. 730, though it was a hard case for the Corporation and the 
ratepayers of Bournemouth. The Corporation had done everything 
in the way of preparation, but had not actually commenced the 
works for their tramway within a year from obtaining the pro- 
visional order. Accordingly they lost their rights and had no 
defence to an application, promoted by a rival company, for an 

A Contract op Agency in 1281. 

The appended document is of value as showing the terms on 
which services were hired in the city of London in the tiiue of the 
fii'st Edward, and the stipulations made by the parties. 

A good deal is known of the principal, William Servat, of Cahors, 
but this Review is hardly the place for the particulars of his history. 

We may note that he dealt at various periods in wool ^, silk 2, 
and groceries {auer de peitt de e9picerie) ^ ; and that he seems to have 
done his best to live up— or down— to the name of a Caorsin*. 
Possibly he found that it was expected of a Caorsin that he should 
be a money-lender and an offender against the coinage laws ^ The 
bad reputation of the past beai-ers of the name may have de- 
moi-alized him. At any rate, the facts are that on Nov. 27, I3CX)^ 
he paid a fine of 50 marks for offences against the recent ordinance 
touching base coin ; while the money-lending of himself and his 

» Pat. Roll, I Edw. I, m. 8 d. (1273). 

' Letter-book A (ed. Sharpe), 37 (1281). 

^ Ibid. 31 (1280) : this is probably the meaning of the phrase. 

* Matt. Paris, Chron. Maj., iii. 328 sq., iv. 8, 442^ &c. 

* Cf. Matt. Paris, Chron. Maj., v. 15-16. 

* Pat. Roll, 29 £dw. I, m. 34. 

Jan. 1903.] Notes. 7 

partners ranged from thirty shillings, lent to Henry Baunquer in 
1286 \ to a sum of about £2,250, which the king owed him in 1315 ^ 
Obviously, then, a shrewd and successful man of business, to whom 
nothing by which he could turn a penny came amiss \ He was 
returned as one of the members for the city of London to the par- 
liaments summoned to meet at Westminster, 27 April, 1509 and 
23 Sept. 1313 ^ ; and was i^ alderman (Walbrook) in 1310-11 and 

Thomas le Flauner, the other party to the agreement, had had 
business with Servat before. On March 29, 1280®, he had given 
a recognizance before the mayor and aldermen of London in 
favour of Servat and five partners for the sum of £44 i2#. for the 
* heavy goods of spicery * above mentioned. 

Our document shows that Thomas was a member of the 
pepperers* company. 

It recites that he has been in William's service, as his merchant 
within and without the city, from St. Edward's day"', 1281. He is 
to continue in that service till June 20, 1283, and to trade for 
William's benefit with a hundred pounds' worth of William's goods 
which have been bailed to him *, or with a larger quantity if William 
should so choose. Thomas shall render to William or his attorney 
faithful account of the profit that God shall give of the goods at 
the expiry of the two years, deducting the cost of his necessary 
maintenance during the term. For these services he shall receive 
ten pounds a year. William shall sustain and aid him in all 
{>laoes, according to his duty to his merchant. And if Thomas 
have loss or damage for lack of his proper maintenance, William 
shall compensate him by award of the merchants. 

It will be noticed that the agreement must have been dictated 
to one, who, though a careful scribe, was not really familiar with 
Anglo-French. The constant recurrence of la vantdit for lauandit 
is one among several proofs of this. 

Robert Jowitt Whitwell. 

' Letter-book A, loa ' Close RoU, 8 Edw. II, m. 7. 

* I hope in another place to tell of his ingenious scheme to exploit the pastures of 
Pipewell. * Return of Members (1878), 30, 44. 

* Close Roll, 4 Edw. II. m. 9 ; Letter>book B, 35 ; H. T. Riley, Memorials, 94, loa. 

* Letter-book A (ed. Sharpe), 31 (laSo). 
^ June 20. 

* This is the natural translation of ' Cent Liueres des biens ke . . , William ly 
ad bailie ' ; but as the clerk writes liuerta below where he certainly means cash, it 
is not impossible that this also means sterling money, and that Thomas was to do 
the smaller (but highly remuneratiye) money-lending business for William. One 
wonders whether he had already done something in that line, which led certain 
persons to waylay him between the hospital of Clerkenwell and the city, twist his 
hood round his neck, throw him down, and beat and wound him (Patent Roll^ 
9 Edw. I. m. 39 d.). The fact that he was to be maintained and paid so large a 
salary as £ 10 a year out of the profit on £j 00 is some evidence in the same direction. 

8 The Law Qtmrlerly Review. [No.LXxm. 

Cest le couenant fet entre William Seruat de Chaorz Cytein de 
Londres de vne part & Thomas le Flavner Peverer de Londres 
de autre part. Ceo est asajier ke meyme cely Thomas est demore 
en le seruise le auandite Williame come son marchaiint de dens vile 
& de hoi-s del Jour seint Edward Ian de grace m.cclxxig. Jekes 
a la fyn de devs avns prochein suauns plenerement acomplis. en 
tel manere ke la vand dit Thomas deit leaument marchander al 
prov & al profit la vandit Williame de Cent Liueres des biens ke 
memes cely William ly ad balie & de plus si plus li balie la avan 
dit terme. Et del prov qe deus en dora des biens auantnomeez 
la vant dit Thomas deit rendre a la vant dit Williame ov a son 
attome lei akvnte a la fyn de les avant dis .ij. avns, sawe a la 
vant dit Thomas sa sustinance nesessarie par tot la terme avant 
nomee del chateil & del gayn avant dit. Et ke le avant dit 
William deit doner a la vant dit Thomas checon an de les avant 
nomeys .ij. avns dis liueres des sterlings por son service e por son 
travail. Et la vant dit William deit sustiner & aider a la vant 
dit Thomas en tos luys sicom a son marchaunt. Et sil eit perte ov 
damage par faute de sa sustinence il lui deit amender par agard des 
lens [? les] marchans. Et testmoinage de verite les avant nomees 
William & Thomas a cest Escriit [sic] parti entrechangablement 
on mis lur sens pendauns. Temoines sent: William de Farendon', 
Nichole de Wyncestr*, Rauf de Algate, &a 

Memoranda^ King* 8 Remembrancer i Michaelmas 9 and 10 Edward I, 
m. 7, cedule. 

With reference to the notice which appeared in L. Q. R. xviii. 310 
of Mr. Hannis Taylor's Treatise upon International Public Lata, I should 
be glad to be allowed to dissociate myself from any responsibility 
for the title of the book, which involves a phraseological innovation^ 
calculated^ as it seems to me, to introduce fresh and g^ratuitous 
confusion into legal science. Mr. Taylor (pp. 153, 155) has con- 
vinced himself that what is described sometimes as ' the Conflict 
of Laws/ sometimes as * Private International Law/ is best 
described as ' International Private Law/ a term which he thinks 
is * favoured ' by myself, because I slightly prefer it to one which 
is certainly the worst, though unfortunately also the most current, 
of all the terms applied to the topic in question. (In my Juris- 
piudence^ ed. ix. pp. 397, 398, I condemn the term adopted by 
Mr. Taylor, as * dangerously ambiguous,* and, of the seven terms 
which I enumerate, express a preference for * Conflict.*) 

So far, no great harm is done, but, unluckily, Mr. Taylor proceeds 
to contrast with his ' International Private Law ' what he chooses 
to call 'International Public Law,' meaning thereby what is usually 

Jan. 1903.] Notes. 9 

spoken of as ' International Law/ pure and simple. This neologism, 
adopted to secure a verbal opposition between what Mr. Taylor 
apparently believes to be two branches of the same subject, is, 
I venture to think, much to be deprecated. 

' Public Law ' has a well understood technical meanings as in- 
cluding, in each coimtry, the constitutional, administrative^ and 
criminal, &c., law of that country. * Llter^ational Public Law* 
can only mean — an international species of constitutional, ad- 
ministrative, and criminal, &c., law. Such a science is, of course, 
non-existent, and is certainly not dealt with by Mr. Taylor's 
treatise. His title is therefore misdescriptive of his book, while, 
if received, it would empty of meaning the well-established and 
indispensable term ' Public Law.' 

The defence, which it sadly needs, of the term * Litemational 
Private Law ' might be that it indicates, in popular language, that 
the topics with which it deals are questions of * Private Law/ 
regarded from a point of view which is not that of any one 
legislative system. The incurable defect of * Litemational Public 
Law * is its suggestio falsi^ viz. that ' International Law ' is a species 
of a group of topics with which it has in truth no connexion. 

I ^ould be sorry to be supposed to have part or lot in a phrase 
which I venture to hope may disappear from the title-page of the 
next edition of Mr. Hannis Taylor's considerable work. 

T. E. Holland. 

We have to regret a strange erratum in our last number (L.Q.R. 
xviii. 335). By one of those unaccountable slips that sometimes 
happen to the most careful writers, the decision of the C. A. in 
Harlmrg India Rubber Comb Co. v. Martin is there stated as the 
reverse of that which it really was. The Court held that the 
promise in question was substantially dependent on a third person's 
default, and therefore did come within the description in the 
Statute of Frauds of a special promise to answer for the debt, &c. 
of another person. Our learned contributor's observations on the 
general principles laid down by the Court do not appear to be 
substantially affected by the mistake. 

It seems convenient to repeat in a conspicuous place that it is not desirable 
to send MS. on approval unthotU previous communication with the Editor^ 
except in very sjtecial circumstances ; and that the Editor ^ except as aforesaid^ 
cannot he in any way answerable for MSS. so sent. 



Gentlemen of the American Bar Association: — 

I HAVE to thank you sincerely for inviting me to address you on 
a subject which for many years has engaged my interest and 
attention. Though I am a stranger to you personally, I cannot feel 
myself a stranger in a strange land when I am addressing an 
assembly of brother lawyers in the country where Chief Justice 
Marshall and Mr. Justice Story delivered their judgments, where 
Chancellor Kent wrote his Commentai'ies, and where Mr. Justice 
Oliver Wendell Holmes penned his admirable essays on the common 
law. Whether we be American or English lawyers, we have in the 
common law the same foster mother, and from that foster mother 
we have all alike imbibed the principles which guide us in the 
practice of our profession. Though I am a strong advocate of 
codification, I am no disparager of the common law, which is 
unsurpassed- for its collection of reasoned piinciples and applied 
precedents. Every American or English code must pre-suppose the 
common law. I think you may compai*e a code to a building, and 
the common law to the atmosphere which surrounds that building, 
and which penetrates every chink and crevice where the bricks 
and mortar are not. We cannot escape from the common law, and 
we should not try to do so. As Mr. Justice Holmes has well said, 
* However much we may codify the law into a series of seemingly 
self-sufficient propositions, those propositions will be but a phase in 
a continuous growth. To understand their growth fully, to know 
how they will be dealt with by judges trained in the past 
which the law embodies, we must ourselves know something of 
that past. The history of what the law has been is necessary to 
the knowledge of what the l^yj is ^.* The learned judge's words 
are weighty ones, and they suggest an important principle to be 
followed by those who would codify any branch of the law. While 
any branch of the law is in process of formation, it is unwise to 
attempt to codify it. A code should be founded on a firm basis of 
experience. You then know what you are doing. A practical and 
working code cannot spring from the head of the draftsman, as 

* An Address delivered to the American Bar Association at Saratoga, August 

* The Common Law, p. 27. 

Codificdtion of Mercantile Law. i r 

Pallas Athene is fabled to have sprung, fully equipped, from the 
head of her father Zeus. In legislation, as in other sciences, the 
a priori road is a dangerous one to tread. When the principles of 
the law are well settled, and when the decided cases that accumu- 
late are in the main mere illustrations of accepted general rules, 
then the law is ripe for codification. A code can usefully settle 
disputed points, and fill up small lacunae in the law, but it should 
always have its feet on the ground. If you go above and beyond 
experience, you are codifying in the air, and will probably do more 
hai-m than good to Qommerce and mercantile law. No service is 
done to the cause of codification by putting the case for it too 
high. The province of a code, I venture to think, is to set out, in 
concise language and logical form, those principles of the law 
which have already stood the test of time. It co-ordinates and 
methodizes, but does not invent, principles. Compare for a moment 
a proposition of law where there is a code and where there is none. 
In the case of a code the propositions of law are stated in the 
authoritative words of the legislature. When a particular case 
arises, the sole question is whether it falls or does not fall within 
some given statement in the code. The process of reasoning is 
purely deductive, and the code supplies the major premiss in the 
syllogism. In the case of uncodified law, when a lawyer has to advise, 
or a court has to decide a given point, two processes of reasoning 
have to be gone through. The decided cases have to be examined, 
and from the more or less sufficient data which they give, a general 
proposition has to be framed. This is an inductive process, which 
must precede the deductive process. The inductive process has to 
be gone through afresh each time a question of law has to be 
determined, for however correctly the general proposition may have 
been framed, the words in which it is formulated have no authority. 
On the one hand, no doubt, there is the advantage that the 
language of the proposition can be adapted to the particular facts, 
but, on the other hand, it is obvious that there is a greatly increased 
chance of error in formulating the proposition. 

As the Bills of Exchange Act of 1882 was the first successful 
attempt to codify any branch of English commercial law, it may 
possibly interest you to know the procedure which was adopted in 
preparing the measure. The idea was suggested to me by my 
experience of the working of the Indian Codes, particularly the 
Indian Penal Code of i860. I therefore set to work to frame 
a Digest of the law on the lines of an Indian Code, and published 
it as a text-book. The frame of an Indian Code is as follows : 
First of aU, the general propositions are stated in sections as in an 
ordinary statute. Qualifications which in an ordinary statute are 

12 The Law Quarterly Beview. [No. Lxxiii. 

inserted as provisos are called and drafted as * exceptions.' If the 
propositions involve any complication, they are followed by illustra- 
tions which are part and parcel of the Act itself. This is a peculiar 
feature of Indian legislation, which owes its origin to Lord Macau* 
lay. It works well in India, where law has to be administered 
largely by judges and advocates who are not trained English 
lawyers. But 1 do not think it is a good precedent for legislation 
elsewhere, for it holds out almost irresistible temptations to loose 
thinking and loose drafting. When, as often happens, the draftsman 
comes across a proposition which is difficult to formulate, he is apt 
to frame it in terms which are not accurate, and which have to be 
controlled and modified, instead of being merely explained, by 
illustrations. But the illustrations can hardly be exhaustive, and 
then difficulties of interpretation arise in practice. For a pre- 
liminary Digest, however, the Indian Code form is a very convenient 
one. You see at a glance the tests and proofs of your absti-act 
propositions. When I had examined the English reported • cases, 
and roughly digested them, I found what any student of the 
common law would expect. On some points, and not always on 
important points, there was a plethora of authority. On other 
points, authority was wanting, or spoke with an uncertain voice. 
A good many propositions in the Digest had to be qualified with 
a * probably ' or * perhaps.' As Lord Macnaghten has pointed out 
in a recent case, the more obvious a proposition of law may be, the 
more diflScult it is to find direct authority for it. It is not litigated, 
and it is assumed rather than stated in the reported judgments. 
But it is essential that a code should explicitly state the funda- 
mental principles of the law. The next step, therefore, was to test 
the validity of the doubtful propositions, and to fill up lacunae, by 
reference to American decisions and the Continental codes and text 

The weight to be given to American decisions in England is 
well stated by Lord Chief Justice Cockburn in the case of 
Scaramanga v. Stamp (1880) 5 C. P. D., at p. 303. After remarking 
that the point for decision was one of first impression, he proceeds 
to say, ' I am glad to think that in laying down the rule we had 
the advantage of the assistance afiTorded to us by the decisions of 
the American courts and the opinions of American jurists, whom 
accident has caused to anticipate us on this question. And, 
although the decisions of the American Courts are, of course, not 
binding on us, yet the sound and enlightened views of American 
lawyers in the administration and development of the law — a law, 
except so far as altered by statutory enactment, derived from a 
common source with our own — entitle their decisions to the utmost 

Jan. 1903.] Codification of Mercantile Law. 13 

respect and confidence on our part.' I presume that in these States 
somewhat similar weight is attached to English decisions in matters 
of mercantile law. Lord Mansfield and Mr. Justice Story, in 
judgments which are too well known to need citation ^ have 
emphasized the essential unity of the law merchant throughout the 
world, and, in more recent times, Lord Blackburn has again 
enunciated the rule. 'There are,' he says, 'in some cases differences 
and peculiarities which by the municipal law of each country are 
grafted upon it, and which do not affect other countries ; but the 
general rules of the law merchant are the same in all counti*ies. . . . 
We constantly, in the English Courts, upon the question what is 
the general law, cite Pothier, and we cite Scottish cases where they 
happen to be in point ^.' In attempting to frame a Code of any 
branch of mercantile law, comparison with foreign laws is an 
essential branch of the opeitition. It not only enables you to fill 
up gaps and to form an opinion on doubtful propositions, but it 
enable^ you to see what are the really fundamental propositions of 
your code, which requii-e to be put in the forefront. When a 
principle is reproduced in the laws of all commercial nations, you 
may be sure that it is founded on good sense and based on broad 
grounds of expediency. The Roman lawyers were justified in 
attaching a peculiar value to those rules of law which were juris 

My next step was to publish the Digest, and get it criticized as 
far as I could. The result encouraged me to throw the propositions 
of the Digest into the form of a Bill. The draft was carefuUy 
examined by an expert committee of the Institute of Bankers. Lord 
Herschell steered the Bill through Parliament, and it became law 
as the Bills of Exchange Act, 188:^. If I could do the work over 
again, I could produce a better Act, and I am glad to see that you, 
in your Negotiable Instruments Law, which has now been adopted 
by twenty-nine States, have in some respects improved on the 
English measure. Still, the English Act, during its twenty years 
of life, has, on the whole, worked very smoothly, and has given 
rise to very little judicial decision. The most important of those 
decisions, curiously enough, have arisen on the few amendments 
which were introduced in Committee. The effect of turning a text- 
book into a statute was curious. In the next edition which I 
published, the text was hardly altered, but the legal value of the 
propositions laid down and of the illustrations which followed them 
was exactly reversed. In the text- book, the propositions were only 
law in so far as they were correct and logical inductions from the 

' See Swift V. Tyton, 16 Peters i. 

* McLean v. Clydesdale Bank (.1883) 9 App. Cas., at p. 105. 

14 The Law Quarterly Eeview. [No. LXXiiI. 

decided cases : the illustrations drawn from decided cases were 
authoritative. But as soon as the statute passed, the general 
propositions became the law, and the illustrations drawn from 
decided cases were only law in so far as they were correct and 
logical deductions from the language of the Act. None the less is 
it useful to the legal reader to call his attention to the decisions 
which form the basis of the various sections, and which were 
intended to be i-eproduced in the Act. In so far as the law is 
unaltered, the decided cases are still in point as illustrations. 

In dealing with the law of sale, I followed a similar procedure, 
and again, with Lord Herscheirs assistance, we succeeded in passing 
the Sale of Goods Act, 1893. I am now following a similar plan 
with regard to Marine Insurance, which is an excellent subject for 
codification, as it rests mainly on well established principles, 
worked out by the courts with very little interference by the legis- 
lature. The Bill, under Lord Halsbury's guidance, has passed the 
House of Lords, but has stuck fast in the House of Commons, where 
there is increasing difficulty in passing any measure of law reform ^. 

I hardly know the trend of opinion in the States, but in England 
1 think you may say that mercantile opinion is in favour of codifi- 
cation, while legal opinion is rather against it. Perhaps, then, 
I may briefly examine the arguments for and against codification 
from the English point of view. The mercantile view is this : Law 
is made by lawyers, but not for lawyers ; it is made for laymen, 
who have to regulate the conduct of their business in accordance 
with the rules laid down by the law. A man of business, in effect, 
says to the lawyera, ' Leave me free to make my own contracts, but 
tell me plainly beforehand what you are going to do if I don't 
make a contract, or if I fail to express it intelligibly. If I know 
beforehand exactly what you lawyers are going to do in a given 
case, I can regulate my conduct accordingly. All I want to know 
is exactly where I am.' Our gi-eat mercantile judges have always 
kept the mercantile position in view. As long ago as 1776, Chief 
Justice Willes, in deciding a new point of commercial law, observed 
that ' in all commercial transactions the great object is certainty. 
It will therefore be necessary for the court to lay down some rule, 
and it is of more consequence that the rule should be certain than 
whether it is established one way or the other *.' This is a point of 
view which is very difficult for lawyers to grasp. The lawyer is 
thinking, first, of the interests of his own particular client, and 
secondly, of the nice and exact application of precedents to the 
particulai' case he is ai*guing. The fact that a decision, equitable in 

* [Common report says that it is blocked by one obstinate member. — Ed.] 
' Lockyer v. Qffley, i T. R, at p. 259. 

.laD. 1903.] Codification of Mercantile Law. 15 

itself, may introduce uncertainty and difficulty into thousands of 
other commercial transactions, is a matter outside his purview, and 
with which he does not concern himself. The object of the man of 
business is not to get a scientific decision on a particular point, but 
to avoid litigation altogether. On the whole, he would rather have 
a somewhat inconvenient rule clearly stated than a more convenient 
rule worked out by a series of protracted and expensive litigations, 
pending which he does not know how to act. A judge deciding 
a disputed question of law always reminds me of a great surgeon 
performing an operation. The surgeon proceeds calmly with the 
use of his knife, and pays no attention to the blood which spurts 
from every vein of the patient on the operating table. So, too, the 
judge calmly proceeds to apply his precedents to the case before 
him, regardless of the costs which spurt from every pocket of the 
unfortunate litigant. 

The most serious, but, I think, the most fallacious argument 
against codification is the stock objection that the common law is 
thus deprived of its elasticity. In so far as that elasticity exists, it 
is another name for uncertainty and obscurity. On this point 
I cannot do better than cite the authoritative words of the Royal 
Commissioners on the Criminal Code Bill, who were all great 
common law judges. Lord Blackburn, Lord Justice Lush, Sir James 
Stephen, and Mr. Justice Barry, in their report made in 1877, say: 
'The objection most frequently made to codification—that it would, 
if successful, deprive the present system of its elasticity, has, we 
believe, exercised considerable influence, but when it is carefully 
examined it will, we think, turn out to be entitled to but little, if any, 
weight. The manner in which the law is at present adapted to 
circumstances is, first, by legislation, and secondly, by judicial 
decisions. Future legislation could of course be in no way ham- 
pered by codification. It would, on the other hand, be much facili- 
tated by it. The objection under consideration applies, therefore, 
exclusively to the effects of codification on the course of judicial 
decision. Those who consider that codification will deprive the 
common law of its '' elasticity '' appear to think that it will hamper 
the judges in the exercise of a discretion which they are at present 
supposed to possess in the decision of new cases as they arise. There 
is some apparent force in this objection, but its importance has, to 
say the least, been largely exaggerated. In order to appreciate the 
objection it is necessary to consider the nature of this so-called 
discretion which is attributed to the judges. It seems to be 
assumed that when a judge is called upon to deal with a new com- 
bination of circumstances, he is at liberty to decide according to 
his own views of justice and expediency ; whereas, on the contrary, 

16 The Law Quaiierly Review. [No. LXXiii. 

he is bound to decide in accordance with principles already esta- 
blished, which he can neither disregard nor alter. The consequences 
of this are, first, that the elasticity of the common law is much 
smaller than it is often supposed to be ; and secondly, that so far as 
a code represents the effect of decided cases and established princi- 
ples, it takes from the judges nothing which they possess at present, 
in fact, the elasticity so often spoken of as a valuable quality would^ 
if it existed, be another name for uncertainty. The great richness 
of the law of England in principles and rules embodied in judicial 
decisions no doubt involves the consequence that a code adequately 
representing it must be elaborate and detailed, but such a code 
would not, except in a few cases in which the law at present is 
obscure, limit any discretion now possessed by the judges. It 
would simply change the form of the rules by which they are 
bound. The truth is, the expression '^ elasticity " is altogether mis- 
used when applied to English law. The great characteristic of the 
law of this country is that it is extremely detailed and explicit and 
leaves hardly any discretion to the judges/ 

The stock illustration of the effect of a code in arresting the 
development of mercantile law, which, it is said, ought to be 
a living and growing body of law, is furnished by the French Code 
de Commerce. That code, passed early in the nineteenth century, 
to a large extent reproduced and perpetuated mercantile laws 
passed in the end of the seventeenth century, when modem com- 
merce was in its infancy. It may well be that France codified her 
laws at too early a period in her history. But, putting that ques- 
tion aside, let me invite your attention to two other considerations. 
In the first place, France herself is satisfied with her codes. She 
may change her political institutions with bewildering frequency, 
but she ever remains constant in her attachment to her civil and 
commercial codes. It is only in minute details that she has 
amended them. But more than that, no country which has codified 
its law has ever thought of repealing its codes and reverting to 
the old state of things. That is an argument in favour of codifica- 
tion to which you may apply the test, quod semper, quod ubique, quod 
ab omnibus. In the second place, no code is final. The legislature 
which enacted it can alter it if it requires alteration. Modern 
legislatures respond very readily to a stimulus from the outside, 
and are not, as a rule, overwhelmed with respect for the work of 
their predecessors. Legislation, it must be borne in mind, is both 
speedier and cheaper than litigation. The English law of negotiable 
instruments took about 150 years to develop. Its main principles 
were worked out by about ^,oco decisions, and taking a moderate 
estimate, the taxed costs of this litigation must have cost the parties 

Jan. 1903.] Codification of Mercantile Law. 17 

about two million dollars. Judge-made law has certain great 
merits, but cheapness is not one of them. 

Codification of coui-se does not mean the abolition of litigation. 
Until the millennium arrives there will always be disputed facts 
which will give rise to legal contest. • Lord Westbury is said to 
have advised an aspiring junior at the bar in^the following terms : 
< My young friend, in arguing your case, never make a mistake in 
your logic ; the facts are always at your disposal/ The object of 
a code is limited to the prevention of mistakes in logic. It is no 
part of its purpose to curb the exuberant imaginations of the 
witnesses. Moreover, draft a code as carefully as you will, there 
are certain to be ambiguities and small discrepancies and obscurities 
in it, which can only be cleared away by judicial interpretation. 
No code can provide for every case that may arise or always use 
language which is absolutely accurate. If a code provides a clear 
rule for a great majority of the cases which crop up in ordinary 
business, it satisfies the needs of business men. Exceptional 
cases must shift for themselves. An acute lawyer can always 
pick holes in any codifying drafts and can suggest doubts and 
difficulties of construction. But experience shows that these 
theoretical doubts and difficulties do not arise in practice. The 
solution of the problem is to be found in the old answer, solvitur 

Lawyers, perhaps, are inclined to attach too much weight to the 
occasional difficulties which arise in construing a codifying statute. 
The cases which come before lawyers are just the cases in which 
the code is defective. In so far as it works well, it does not come 
before them. Every man s view of the question is naturally 
coloured by his own experience. In dealing with commercial 
matters, we, as lawyers, are apt to forget that we see mainly the 
pathology of business ; its healthy physiological action is a matter 
outside our professional experience. A perfect code is, of course, an 
impossibility, but in codification, as in other practical matters of 
life, le mieux est Fennemi du bieti. If we seek after an impossible 
perfection, we lose our chance of a practical and positive good 
which is within our reach. 

In the United States, the case for codifying mercantile law is 
stronger than in England. I am told that an American lawyer who 
wishes to keep abreast of the current of judicial decision has to 
take in some fifty-eight volumes of Law Beports every year. In 
America, there is no choice between common law on the one hand 
and statute law on the other. Each State is independent in matters 
of legislation and judicature. The American lawyer, therefore, has 
. to deal not with one but with forty streams of common law, each of 

VOL. XIX. c 

18 The Law Quarterly Review. 

which is liable to be disturbed by the action of an independent 
Legislature. But commerce knows nothing of State boundaries, 
and it seems intolerable that if a man in Chicago makes a contract 
with a man in New York, his rights and duties cannot be deter- 
mined without an elaborate investigation into the conflict of laws. 
The only possible remedy that I can see for this state of affairs is 

M. D. Chalkebs. 



THERE is, probably, no branch of legal study to which the com* 
parative method can be more profitably, applied than the Law 
of Torts. The dangers arising from a too restricted view of the 
subject may be gathered from a sentence written by an author, 
to whom all intelligent students of English law will readily 
acknowledge a debt of gratitude. In the Preface to his admirable 
Elements of the Law of Torts, Mr. Bigelow makes the following 
remark : ' The chief principles of the English law of torts prevail 
in all civilized countries.' If this statement is really true, it must be 
true in a sense beyond the comprehension of the ordinary student 
of the laws of civilized countries. For to him it seems tolerably 
clear, on the plainest evidence, that in no respect does English law, 
at least English private law, differ so profoundly from contemporaiy 
systems as in the matter of Torts. 

Let us look first at the definition of Tort. It is frankly admitted, 
by Mr. Bigelow himself, that English law does not afford what 
may be caUed a substantive definition. At best we can say that a 
tort is ' a breach of a duty towards one's neighbour, imposed by the 
law, for which the Courts will award damages to the party wronged*; 
or something to that effect ^ That is, obviously, a very lame 
definition ; but would it be safe to go further ? Mr. Bigelow ^ indeed, 
hints at intention as being the 'connecting link which binds the 
whole chain of torts.' But is he serious in suggesting, for example, 
that the publican whose servant leaves open his cellar-flap, really 
'intends' that the casual passer-by shall fall through it and break 
his leg? Or that the man who, in pei-fect good faith, buys A'% 
stolen horse from B, * intends ' to convert A'^ property ? 

On the other hand, contemporary systems furnish us with 
abundant definitions of Tort. We tuni naturally to the Code 
Napol^n, the parent of so many Continental codes, and we fiind 
(Art. 1382) the following statement: 'Every human act {fait de 
FAamm^ whatsoever, which causes damage to any one, obliges the 

* This I take to be Sir Frederick Pollock's Tiew (Law of Torts, 6th ed.. pp. a, 3). 
My criticism of it would be, that it would include remedies quasi ex contractu. But 
this is a small point. [My attempt in the Encyclopaedia of English Law, s. v., is as 
follows : ' a breach of some duty between citizens, defined by the general law, 
which creates a civil cause of action.' — F. P.] 

* Preface, 2od ed., p. v. 

C 2 

20 The Law Quarterly Beview. [No. Lxxiil. 

man by whose fault the damage occurs to make it good/ Or we 
look at the newly promulgated BUrgerlichet Gesetzbuch of the German 
Empire, and we read (Ai-t. 823) : * He who, by design or negligence, 
wrongfully harms {verletzt) the life, body, health, freedom, pi-operty, 
or other right of another, is bound to compensate that other for the 
resulting damage.' Or, once more, we refer to the Swiss ObUgationen" 
recht of 1881, and we see (Art. 50) : ' Whoever wrongly causes harm 
to another, by intention or negligence, is bound to compensate 
him ^.' It is easy for an English lawyer, confident in the superiority 
of his own system, to deride what to him appears to be the 
vagueness of such definitions. But the facts remain, that they are 
substantive definitions, not mei'e subterfuges, and that they are 
daily administered, by thousands of tiibunals, as working principles. 
Mr. Bigelow's distinguished fellow-countryman, Mr. Justice Holmes, 
of the Federal Supreme Court, has, indeed, in his brilliant essay 
on Torts ^, suggested that the germ of the English conception 
is the fact^ that the tortfeasor might reasonably be expected to 
know that his conduct would cause harm to another; and the 
suggestion deserves all respect. But he would be a bold advocate 
who submitted such a proposition, as a working principle of English 
law, even to an Equity judge in his most expansive mood — nay, 
probably, even to Mr. Justice Holmea himself. To take an actual 
decision. The farmer who negligently allows thistles to grow on 
his land, must reasonably be deemed to know that bis conduct will 
cause serious damage to his neighbours. Moreover, to apply 
another test which the learned writer appears to favoui* ^, the farmer's 
conduct falls below the standard of the ' fair average member of the 
community.' Yet it is settled law, in England, that he is not liable 
in Tort*. 

It must not be supposed, however, that the peculiarities of the 
English Law of Torts are confined to the arbitrary character of its 
scope. In the somewhat baiTen discussions which have taken place 
on the nature of so-called ^ absolute rights,' it has seemingly been 
forgotten that our Law of Torts does recognize rights which, in a 
very practical sense, may be termed ' absolute '. A trespasses on 
^s field. B may not, on that account, be one penny the worse. 
But he is entitled to damages from A. By the purest accident, 
A takes ^s stick from the hall of a dub, leaving his own, which is 
much better, in its place, and, likewise by accident, loses B'b stick, 

* For a similar provision see Dutch Burgtiyk Wefboek (Artt. 1 401-2) and the Italian 
Codice Civile (Art. 1151). Belgium adopts the Code Napoleon. The Portuguese 
Codigo CivU (Artt. 2394-8), is much more like English law. 

• The Common Law, Lectures III and IV. See especially pp. 147, 149. 
*Op.cU, p. 162. 

« Giles V. WaXker (1890) 24 Q. B. D. 656. 

Jan. 1903O Theories of Tort in Modem Law. 21 

A is liable in damages, probably for conversion, certainly for 
trespass. And the fact that he volunteeredi on being challenged, to 
give np his own stick to -B, is no defence, A publishes an untrue 
and unprivileged defamatory statement about B. As a matter of 
fact, £ suffers no loss ; either because no one believes A*s state- 
ment, or because J9's character is already so bad, that A'a libel 
cannot affect it for the worse. Yet B is entitled to damages. No 
doubt ^'s conduct, in all these cases, deserves reproof, possibly even 
punishment. But the English law is, probably, alone in leaving 
the infliction of the necessary reproof or punishment to the dis- 
cretion of a private individual, mitigated only by the clumsy 
expedient of refusing costs, when the Court deems that discretion ' 
to have been wrongly exercised. 

Further, English law is, probably, unique in the separation which 
it affects to draw between Tort and Crime, a distinction the more 
remarkable, because the forum of Tort and the forum of serious Crime 
have for ages been, in theory, identical in England. It is a matter of 
common knowledge that the French Code d'ln^f ruction Criminelle^ the 
earliest and one of the best of the procedure Codes of modern Europe, 
expressly (Art. 63) allows the partie civile to appear and claim 
dommage^-iniSreU^ in all criminal prosecutions. The only question 
is whether the party injured is to have control of the criminal 
proceedings; and this appears to depend on the nature of the 
alleged offence, whether it is crime^ delity or simple contravention *• 
This rule appears in several of the codes modelled on the Code 
d'Tnsfruction Criminelle ; and, after a most interesting discussion, the 
principle has been adopted in the projected Penal Code of the Swiss 
Republic ^ the latest, or almost the latest effort at codification in 
legal history. Nay, the Swiss Code goes a step further, and 
provides ^ that, when any one has been damaged by a delict, and it 
appears impossible for him to obtain reparation {Ereatz des ScAadens) 
in any other way, the tribunal may award him part of the fine 
inflicted on the criminal, or even secure him part of a convict's 
earnings. To the best of the writer's knowledge, the principle of 
awarding civil damages in a criminal prosecution is, in English 
law, confined to the limited scope allowed to it by section 4 of the 
Forfeiture Act, 1 870^, and section 9 of the Criminal Law Amendment 
Act, 1867 ; for the rules affecting the restitution of stolen property 

> President Barris, in Merlin, Repertoire de Jurisprudence, vii. 235-8, 

* Art. a. » Art. 31. 

* This section empowers the Court to order compensation, to the extent of £zoo, 
to be paid out of the convict's property, to any person whose property has been 
injured by the oifence. The family of a person killed in endeavouring to arrest an 
offender may be compensated by the Treasury (Criminal Law Act, 1826, s. 30). 

22 The Law Quarterly Review. [No.LXXiii. 

rest on other principles ^ One obvious result of this rigid severance 
between proceedings in Tort and proceedings in Crime is the alleged 
existence of the unsatisfactory and anomalous rule, acted upon in 
Weilock V. Can(tf^ttf'ine\ to the effect that a person who has been 
damaged by an act, which is both a felony and a tort^ cannot sue 
in Tort until the offender has been prosecuted for the felony. To 
this severance may, probably, also be attributed the anomalous rule 
that a breach of trust is not a tort \ 

Once more (not to labour illustrations) the inheritance of rights 
and liabilities in Tort is, by English law, left in a thoroughly 
anomalous position. Starting with an inadequate, and, possibly, 
a misapprehended maxim — actio personalis moritur cum persona — the 
rules on the subject have been modified, at haphazard, by statute 
and decision, till some of the worst consequences of the governing 
maxim have been removed. But, even now, the results cannot be 
called satisfactory. Claims for restitution, even though they sound 
in Tort, may be said, broadly speaking, to be beyond the chances 
of death. But many claims for compensation are still dependent on 
the accident of the survival of the parties, even though the damage 
done is capable of money satisfaction. Why should the victim of a 
wanton assault, or a cruel libel^ be deprived of such compensation as 
damages can afford him, merely because his assailant dies before 
an action can be brought to trial ? Why should the family of a 
man who has been ruined by a deliberate malicious prosecution 
be remediless against the oppressor^, merely because their unhappy 
parent has succumbed to his sorrows ? The climax of the absurdity 
is reached whei) we find that, as was explained by Bowen L. J. in 
PhiUips v. Homfray ^, the executors of a deceased person can be made 
liable, in an action of mesne profits, for the value of minerals taken 
from land of which he has been in unlawful possession, but not for 
the value of his occupation, nor for the actual damage done by him 
to the land. Apparently there is no trace in the chief Continental 
Codes of such a state of things ; and we may, therefore, fairly 
assume that simpler rules prevail ^. 

» See Larceny Act, 1861, 8. loo ; Police Property Act, 1897, ^ '• 

> (1863) 2 H. & C. 146. 

' This iB, of oourse, not merely a technical distinction. It prevents the party 
injured obtaining any damage beyond the repayment of the money misappropriated 
by the trustee— sometimes a most inadequate remedy. 

* I take it that this is the rule, notwithstanding TVoycroas v. Qrani and similar 

^ (1883) 34 Ch. D. 439. See especially p. 455. 

* See Merlin, Repertoire, vii. 243-4 ; Dalloz, zxziii. 117, 251, zxxix. 299-301, and 
8. 2 of the Code d'Instruotion Criminelle for France. The German Strafgesetzbuch 
(a. 30) makes even a true criminal penalty recoverable from the estate of a deceased 
offender, if the sentence has actually been pronounced before his decease. The only 
focceptions, in the case of civil liability, appear to be those mentioned in Art. S47 
of the B. G. B. 

Jan. 1903.] Theories cf Tort in Modem Law. 25 

It is, sorely, not an unprofitable task to inquire, firsts how such 
anomalies come to exist in English law, and, second, what are the 
consequences of their existence. 

The history of the English Law of Torts has been sketched, 
with admirable clearness, by Mr. Justice Holmes, in the work 
previously alluded to ; and its main outlines are now fairly well 
known. It would seem, therefore, more profitable to look at the^ 
history of a cognate system, which has succeeded in shaking off 
the survivals which still cling to our own^law. And, inasmuch as 
the Continental Law of Torts is, at the present day, virtually that 
of the Code Napoleon, we shall, perhaps, do well to look at the 
circumstances of French legal history. 

French law, as distinguished from the law of Roman Qaul, 
begins, of course, with the three Barbarian Codes — the Lex Salica^ 
the Lex Burguudionum^ and the Lex Wmgotharum — which formed 
the basis of the Droit CoiUnmier, As is well known, these codes, 
like most custumals from a similar stage of civilization, are 
largely concerned with providing penalties for a class of offences 
which the late Sir Henry Maine, in an unguarded moment, spoke 
of ai^ ' torts ^.' Maine's object was, of course, to emphasize the 
fact that these offences could not properly be called crimes ; 
because neither the community itself, nor the rudimentary execu- 
tive, undertook to punish them. But, for all that^ they were not 
torts, in the modem sense ; for the object of the penalties was not 
compensation, but atonement and vengeance. No doubt the 
amount of the penalty varied, roughly, with the loss suffered by 
the injured party (more for an arm, less for a tooth, and so on). 
But that fact is explained by the desire of the community to 
induce the avenger of blood to stay his hand. No doubt, also, as 
has been said, the application of the penalty was, in a sense, left 
to the injured pai-ty ; that is to say, he or his friends would start 
out on the track of the offender. But the really characteristic step in 
the proceedings comes when the offender's kin, or, maybe, the elders 
of the village, induce the avenger of blood to swear the peace and 
accept the fine. It is to be feared that Maine's unguarded ex- 
pression has led a good many people to the hasty conclusion, that 
the law of Tort is one of the oldest, instead of one of the youngest, 
branches of the tree of jurisprudence. 

It is hardly necessary to insist on the essentially penal character 
of primitive delictual procedure. The authorities on legal history 
appear to agree, for once, with the conclusions of ' general juris- 

^ Ancient Law, i5tli ed., p. 370. 

24 The Law Quarterly Review. [No, Lxxiil. 

prudence ^/ But, if proof were needed, it will suffice to point to 
the mutilation of corpses, the hanging in effigy, the sacrifice of 
animals which have been guilty of violence, the whole theory 
of deodands. In all these cases, the object of the party is mani- 
festly vengeance, not compensation. The persistence of these 
primitive ideas may be gathered from the fact that the practice 
^of noxal surrender of animals prevailed in Flanders until the 
sixteenth century at least ^. 

It is, however, right U> point out that the barbarian custumals 
do reveal faint traces of a more modem rule. The phrase datn^ 
num aestimafum occurs, at least in the later texts, on rare occasions ' ; 
and perhaps the mysterious delatura {excepto capitate et delatura\ 
which appears so often, stands for something in the nature of 
a payment for delay. But, if so, it is more than probable that, 
like the payment for the later essoin ^ it was an arbitrary sum, as 
was the fine itself. And it is^ perhaps, equally probable that the 
damnum aestimatum of the codes is a mere flourish, borrowed from 
some epitome of Koman law. At any rate, it is significant to note 
that, where the Salic and the Visigothic Laws compel the man who 
drives a herd of beasts into • his neighbour's com to pay the 
damnum aestimatum ^, the Burgundian Lex Gundobada (xxvii) makes 
it simply a shilling fine for each beast. 

With the earliest documents of the middle period of French law 
we get a significant movement — a movement towards specializa- 
tion. The word meffS appears to be used as a generic term, to 
cover all kinds of ofiences; but it is recognized that meffes fall 
into two groups, which Beaumanoir^, for example, distinguishes as 
crimes and menres meffis. It would be easy to suggest that we 
have here a recognition of the line between Crime and Tort But 
an examination of Beaumanoir leads us to the conclusion that, 
if an English parallel must be sought, it is to be found rather in 
the distinction of Felony and Misdemeanour ^. Though the passages 
are not all entirely consistent, the general result appears to be^ 
that a crime involves death, imprisonment, or loss of goods, a menre 
meffe only a fixed fine [amende) '^. The thoroughly penal character 
of the amende is shown by the fact that it varies, not with the 
rank of the injured party, but with the rank of the offender. 

^ See 6. g. Branner, Bechtsgeschichte, ii. s. 156 {PrivaMrafen) ; SchrOder, Rechts- 
geschiohte, b. 36 ; Pollock and Maiiland, i. a6. 

* See Damhoud^re, Praxis Berum Criminalium, cap. 144. 

' e.g. Lex Salioa, Tit. ix, De Damno in Messe (ed. Geffcken,p. 114). 
^ I^x Sal ix. 7 ; Lex Viaigoth. (Antiqua) VIII. iii. 10. 
' Coutomes des Beauvoisis, attrib. to thirteenth century. 

* This again seems to correspond very closely with Brunner's classification (for 
an earlier period) into Achttachen and Buas-aachen (Bechtsgeschichte, ii. s. 136). 

^ It is noticeable that Beaumanoir*B word for penal consequences of all kinds is 

Jan. 1903.] Theories of Tort in Modern Law. 25 

' It is annoying/ says Beaumanoir, ' that our custom allows a little 
iome de poeH {homo de pote^tate^ serf) to strike a worthy man, and 
then only to pay five sous amende \ and so I agree that a long 
imprisonment must be given him ^/ 

The almost contemporary Ancienne Coutume de Normandie (the 
Summa de Leffibus of Tardif) has a corresponding classification of 
Querelae personalee^ into quae per legem apparentem deducuntur and 
quae per iimplicem legem {vel desrainiam) terminantur *. The first class 
are probably the ofiences which entail batJble and ordeal ; and they 
correspond, in fact, very closely with the list of crimes enumerated 
by Beaumanoir. The second class, apparently, involve merely 
a denial or rational disproof by the accused. But there is nothing 
to suggest that the less serious class of cases are one whit less 
' criminal,' in the strict legal sense, than the graver charges. It 
is assumed that the punishment of amende duly follows, and that 
the amende goes (normally) to the proprietor of the tribunal. 
The same is the rule in the many interesting cases reported for us 
in the Olim^^ or records of the Parlement de Paris, also dating 
from the thirteenth century. 

The last fact emphasizes the really important change which has 
taken place in the idea of legal offence since the days of the 
Leges Barbarorum. In spite of the political anarchy of feudalism, 
the individual man finds the hand of authority heavy upon him. 
A murder or a theft is now no longer merely a personal wrong 
to an individual or clan; it is an act of disobedience to authority, 
royal or seignorial. And the particular authority, whose orders 
have been disobeyed, has a strong interest in bringing the offender 
to justice ; for it will get his property, or, at least, a part of it, 
if he is convicted. No doubt the process had been a long one; 
and only by degrees established. Dr. Schroder's suggestion \ that 
criminal law begins with the necessity of bringing home punish- 
ment to the person alieni juris, is well worthy of attention. And 
we realize, of course, that, in the palmy days of feudalism, most 
people were aliefii Juris, at least relatively ; for they were in the 
power and jurisdiction of their immediate lords. We have hardly 
yet learnt the full significance of that revolution which, in the 
England of the twelfth and thirteenth centuries, rapidly threw 
open the King's Courts to all lideri homines. Or it may be that 
we exaggerate the completeness of the change. 

Making all allowance, however, for these considerations, it seems 
tolerably clear, on looking at the custumals of Western Europe, 

^ Coatnmes des Beaavoisis (ed. Beagnot), cap. xzz (i8). 

' Coutomiers de Normandie (Tardif, vol. ii. See cap. Izyi. 5 (p. 166). 

' ed. Beagnot, Documents In^dits. * Bechtsgeschiohte, s. 36. 

26 The Law Quarterly Review. [No.lxxiil 

that, if there had been, in the eighth and ninth centuries, very little 
law that was truly criminal, in the thirteenth and two succeeding 
centuries there was very little law that was anything else. It 
may sound a rash challenge; but we should like to see a dear 
proof that, apart from claims to recover specific property ^, there 
was any purely civil action in French law before the middle of 
the fifteenth century. The law merchant of the burgher courts 
may have recognized such a thing ; but would not the answer of 
the defendAit to a purely ' civil ' proceeding in any royal or feudal 
tribunal have simply been — ' I have broken no command : what 
have you to allege against me ? ' 

And yet it must be admitted that, even in the early monuments 
of the Droit Coutumier, the claim for damages in the strict sense 
is beginning to make itself felt. And this particularly in two 
important classes of cases — (i) in actions of trespass, and (2) in 
accusations of negligence. As respects the first class, we must 
not, in the face of Professor Maitland*s protest ^ regard the amende 
as compensation for breach of the lord's seisin. But it is difficult 
to deny, that all the numerous ofiences which in England fell 
under the denominations of disseisin and trespass, in France of 
nouvele dmaisine,fcrce, and nouvel fourhle^ in Germany of FriedensbriicA, 
were regarded, primarily, as offences against authority \ rather than 
as wi'ongs to private individuals. As early, however, as Beaumanoir 
and the Olim^ we find distinct evidence of a tendency to award 
part of the amende to the injured party by way of compensation, 
especially if his record is clear. Thus, in a famous case of a riot 
committed in 1306 by the mayor, jurats, and commonalty of 
Corbeil, on the lands of the convent of Corbeil, the ofienders were 
fined 500 livres Toumois ; ' but nothing was adjudged to the 
religious, because some of them gave occasion to the aforesaid 
riot*/ By the time that we reach the Trh Ancienne Coutume de 
JBrela^ne, attributed to the fifteenth century, but parts of it 
certainly older, the rule is more boldly stated. ' When amends are 
imposed for the deed of any one, the party to whom the wrong 
{meffait) is done ought to share the amends with the Seigneur, 
except in the following oases ^.' The case of mere negligence is 
very curious. ^ He has not a very good conscience/ says Beau- 

' Even the old popular action to recover movableB (the InttrtiaHo) was clearly 
penal in idea. It assumed that there had been a. theft, and that the restoration 
of the chattel was the reward of a pursuit of the offender (* He gets his chattel for 
beheading him '). 

• L. Q. R i. 324 ; ii. 481 ; iv. 24, a86. 

' This seems to be quite clear from the rule stated in Beaumanoir (zxxii. 6), that 
if a man \b rash enough to bring nowoels cUssaisiiu against his lord he incurs a fine of 
sixty sols. 

* Olinif iii. 314 (ed. Beugnot). ' Bourdot do Riohebourg^ ir. a 1 5. 

Jan. 1903.] Theories of Tort in Modem Law. 27 

manoir^, *who levies a fioe for a thing not done maliciously, 
although no doubt he can levy it by custom in many cases/ 

* If a led beast break its tether and do damage, and if the owner 
will swear on the gospels that it broke its lead, and that he went 
after it as noon as he could, he is relieved of the fine ; but he must 
pay the damage done by the beast, for the negligence or bad 
guardianship of a man does not excuse the damage done to 
another V 

Thus it would appear that, so far from intention being the gist 
of Tort, it is precisely the point at which Tort begins to sever itself 
from Crime. But the severance is very gradual. In the same 
important custumal, we seem to get, at first sight, on the subject 
of Tricherie (Tit. xxxiii) a full-blown statement of Tort. Tous le9 
damaces qui sont fet par force ou par tricherie doivent estre rendu. 
We should, however, err greatly if we translated this as — *A11 
the damage done by force or trickery must be paid.' The real 
meaning is, as the examples show — * All the gain made by force 
or trickery must be given back.' In other words, the illicit profit 
is regarded as being the property of the injured party. The 
measure of damages (as we should say) is not the plaintiff's loss, 
but the defendant's gain \ 

The real* change comes when the Roman law begins to impinge 
on the Droit Coutumier ; and the point of contact is the Coutume 
d' Organs. 

Orleans was, of course, in the heart of the pays coutumier ; for the 
Orl^annais was the ancient possession of the counts and kings of 
Paris, and it formed a good part of that royal domain which 
afterwards expanded into the kingdom of France. But, just 
when this expansion was going on most rapidly, in the days of 
Philip Augustus, St. Louis, and Philip the Fair (perhaps because 
of that process ^) the jurists of Orl&uis began a passionate study of 
the Roman law. And their study was no lifeless exercise. They 
taught the Roman law in the vulgar tongue ; and they aimed to 
rationalize the Droit Coutumier by comparing it with the Digest' 
and the Code. The customary rule which could not be made to 
harmonize with the Roman law was' coutume iaineuse; but the 
efforts at reconciliation were desperate, and the 'Aurelian gloss' 
became a byword in the mouths of sterner critics. Where the 
two systems agreed, there was droit commun, which none could 

* Tit. Ixxii. ■ ib. xv. s. 57. 
' See the examples given in the passage referred to. 

* Probably the conqaests in the south (Touloube and Provence) brought the royal 
officials a good deal into contact with the droit ecrit. 

28 The Law Qtuirterly Review, [No.LXxnr. 

The work which most strongly reflects this important movement 
is the famous Livre de Jostice et de Plet^ perhaps the product of 
a teacher in the University of Orl&ns, attributed to the end 
of the thirteenth century. The order followed is that of the 
Digest ^ ; and the author has drawn largely on the Be Lege AquUid 
and the De Dole Malo. But, in spite of an audacious fiction which 
attributes the provisions of the latter title to Hhe king/ and 
equally fictitious quotations from £tienne Sancerre and Jean de 
Beaumont, there can be little doubt that, in this matter at least ^, we 
are dealing with pure speculation. The interest of the passage lies 
in the evidence which it affords, that one, at least, of the influential 
French thinkers of his day was beginning to realize the imperfec- 
tions of the barbarian theory of damage. The case of the Leu 
Aquilia is more important; for here was, beyond question, 
common ground for Roman and customary law^. All the more 
interesting is it, therefore, to. discover that, even with the Digest 
open before him, the author cannot get away from barbarian 
ideas : 

' If a man or four-footed beast does damage, first we must know 
the manner how he did the damage, whether he did it intentionally, 
or unintentionally {h esciant on. mm esciant) . . . And if thy horse or 
beast, thy ox, thy cow, thy swine do me harm, art thou liable ? 
No, if that were not done by thy negligence or bad care ; but the 
beast is bound *.' 

It would be difficult, perhaps, to fiind a clearer example of the 
meeting of two systems of ideas. But the later history of the 
Coutvme d^ Orleans seems to show, that the author of the Livre de 
Jostice failed to impress his countrymen permanently. For, in 
the official redactions (Coutumes de Larris) of 1509 and 1583, there 
appears to be no reference to the subjects of damage and fraud ^ 

His toil was not, however, without its fruit. Two important 
efforts at consolidation of the customary law appeared at the end 
of the fourteenth century ; and one of them at least has something 
interesting to say on our point. If a domestic animal does harm, 
and the owner disavows it, then the beast is sold par tordonnance 
de justice^ and out of the proceeds the injured party is rUintegrSe. 
But if the owner avows it, he is liable. This statement appears 

^ The almost contemporary CotiMtt de Pierre de Fontaines (for Yermandois) follows 
the order of the Code. 

» Bk. IIL Tit viii, ed. RapettL 

' Is it ignorance of Roman law which causes the writer to feel that the famous 
Lex Aquilia itself is a trifle barbaric ? 

* Bk. XIX. Tit. xWiii. ss. i and 10. It may interest students of English law to 
know that this Title (s. a) anticipates the facts of Angus ▼. Dalion, 

* The ' customary ' character of this edition may be gathered from the fact that, 
in a dispute about movables, the ancient process of iniertiaUo still applied, even in 
the city of Orleans (Tit. ccclxzix of 1505). 

Jan. 1903.] Theories of Tort in Modem Law. 29 

without comment in the splendid Colard Mansion edition of the 
Somme Rurale of Jean BoatUlier in 1479 ' ^^^ ^ ^^ ^^^ edition, 
by Charondus le Caron, in 1603, the editor remarks, ^vix hoc dejure 
Mustineri pMset, et ne 9ob9erve poi le droict fran^aisJ But the Somme 
itself goes a step farther (Tit. xxxyiii). * If it happens that a man 
does damage to another non escient, why should not he be com- 
pelled who did this to amend the damage only, and the injury not ? ' 
This was nearly a hundred years before the famous argument of 
Fairfax in the English Thorns case ^ ; and that the suggestion was 
acted upon, at least in later days, is proved by an actual precedent 
quoted by Charondus. A labourer of Crefy in Brie was condemned 
to pay the value of beasts which had fallen into a pit digged by 
the defendant in his own land, because it was near the highway, 
and he had not given notice '. Again, however, we are bafBed by 
the fact, that the almost contemporary Gratid CoiUumiery attributed 
to Jacques d'Ableiges, and valuable as one of the precursors of the 
Cautume de Paris^ does not, apparently, approach the question. We 
find, however, a suggestive maxim: criminahs causa civili prae- 
judicata. And this may serve as a fresh point of departure 

The sixteenth centifry is notable in French history as the cul- 
mination of that process of absorption, which converted the old 
kingship of Paris into the modem kingdom of France. The 
crowning act in the long drama was the formal annexation to the 
Crown, in the year 153a, of the great Duchy of Brittany. And 
this supreme achievement was rapidly followed, not only by a 
great revival of the process of recording the Coutumes, begim in 
the previous century, but by a striking series of great royal 
Ordonnanees, inspired by statesmen such as Poyet, THdpital, Colbert, 
Pussort, and Seguier. One or two of the provisions of these statutes 
must be mentioned. 

The Ordonnance sur le/ait de justice dans le duchS de Bretagne (Aug. 
1536), afterwards generalized for the whole kingdom, provides 
(ii. (1) and (a)) that the juges ordinairts are to inform themselves, 
and cause informations to be brought, and not to wait till they 
are approached by the parties civiles et interess^es^ in all matters of 
crime and delict. And again (subs. 5) the compositions which the 
parties interested have been accustomed to make by reason of the 
said crimes and delicts are not to be henceforward received, and 
justice is to have no regard to them, until it has fully inquired into, 

' Y. B. 6 Edw. rV (1466, Mich.) 7 a. pi. 18. 

> SubTit. xzzyiii. 

' Bk. II. c. xliv. Another notable attempt to harmonize Roman and Customary 
Law wUl be found in a redaction of the CouiMtne d'AnjoUf known as Selon le$ 
Rubriehet de Code^ attributed to Claude Liger, about 1437 (ed. Beautemps-Beauprd, 

30 The Law QtMrterly Review. [No. Lxxiil. 

and been informed of the said crimes ; and their (i. e. the prosecutors') 
interest is to be arbitrated by justice, as shall be found reasonable — 
aggravations, qualities, and circumstances of the said crimes and 
delicts being weighed and considered. 

Three years later, the famous 88th Article of the Ordonnance de 
Villers^Cottsrets enacts that : 

'In all matters, real, personal, possessory, civil, and criminal, 
there shall be an adjudication of damages and interests proceeding 
from the instance, and the calumny, or the temerity of the party 
who fails ; and these shall be, by the said sentence and judgment, 
taxed and moderated at a certwi sum . . . provided always, that 
the said damages and interests have been demanded by the victo- 
rious party/ 

It seems clear, in spite of the somewhat obscure wording of this 
section, jbhat the damages and interests include, not merely the loss 
arising from the proceedings, but the whole of the private claims of 
the parties. And it is quite certain that they were in addition to 
the ddj)ens, or costs, which by several sections of these statutes are 
made payable by the defeated party ^. No doubt, if the process 
led to confiscation of goods, the jnirtie civile might get little or 
nothing ^. And this may have been the reason why the Ordonnance 
d'OrUans^ of 1561, provides (Art. 63) that the judges shall not 
compel the parties civiles to take any actual share in criminal prose- 
cutions. But the distinction between the civil and the criminal 
claim is now becoming definite, despite the fact that both are, or, 
at least, may be, enforced in the same proceedings ^. 

The influence of the Ordonnances soon made itself felt in practice. 
The famous Style de du Breuil^^ composed about 1330, though it 
deals with the highly specialized procedure of the Parlement de 
Parity seems unable to draw any clear distinction between civil and 
criminal proceedings. We read a little about the causa criminalis 
vel ex officio (fo. ix), and about causae criminates civiliter intentatae 
(fo. xviii). In his note on the latter passage, Aufr^re (who glossed 
the Style in the sixteenth century) explains that you sue civiliter d^ 
erimine, when you ask that * any corporal penalty or debt for delict ' 

^ See the great Ordonnance of 1667, Titt. zzxi {d^pens)^ xzzii {domnuigea et intirits). 

* The rule of confiscation seems to have been far more lenient in France than in 
England, being practically confined, eyen for movables, to high treason (Imbert, 
Practique Judiciaire, ed. Gudnois, i6oa, iii. 17, s. 6, n. g). Bat the Courts were in 
the habit of imposing enormous fines, which amounted to much the same thing 
(ib. s. 7). Of these, however, the pa^iie eiviU got a share (ib. ai. 4). 

' One of the great inducements to adopt criminal process was the fact that 
damages awarded to the partie civile in such proceedings could be enforced, if above 
aoo livres, by indefinite imprisonment, although imprisonment Hfor detUs puremmt 
cMlet had been abolished (Ord. of 1667, Tit. zxxiv). 

* I have only been able to see the ed. of Aufr^re (Stilus curie Parlementi, 1551). 

Jan. 1903.3 Theories of Tort in Modern Law. 31 

may be imposed. The Practica Forensis .of Jean Masuer, composed 
about a century after the date of Breuil's work, though professing 
to describe the practice of Auvergne, is so obviously copied from 
Roman sources, that it is of very little value for our purpose. It 
states, however, a rule which is of some interest to English lawyers, 
and which we may suspect to have been borrowed from a similar 
source. *The heir is never liable for the delict of the defunct, 
unless the cause has been contested in his (i. e. the defunct*s) life- 
time, or unless something has come to him from it^' 

But much light breaks in when we open the InHitutionum Fa^ren* 
Hum Libri Quattuor of Jean Imbert, who practised at Fontenay-le- 
Comte in the middle of the sixteenth century, and whose work 
was, in effect, the earliest commentary on Uie new legislation. 
Apart from the luminous clearness of its style, which makes it the 
easiest of reading, it is of special interest as professing to give the 
practice of the pays coutumier^ and well deserves the punning 
encomium placed upon its title-page by an enthusiastic editor^. 
Imbert has in his head a perfectly clear and comprehensive scheme 
of procedure, which we may tabulate thus : 

Jugemens ' 

(Bks. I and II) 

(Bka. Ill and IV) 



Carrying not more than de haute 
60 $dlB TowmoU dp amende juetiee 

Contractnels Quasi- P^titoires 


The very want of logic in this arrangement is a testimony to its 
genuineness. It will be observed that, whilst personal actions are 
classified according to the nature of the obligation out of which 
they arise, real actions and criminal proceedings are grouped 
according to the objects for which they are set on foot. Further- 
more, it is possible to trace in Imbert's pages, in the clearest 
numner, the normal course of a civil action, and to contrast it with 
the course of criminal proceedings. The result may be usefully 
exhibited in parallel columns : 

> Tit. zxiz, De Obligatimibus, Ac. (3). 

* Quasilmber euper ?ierh<tmf et quasi etiUae super gramina, 

' * Jogemen/ with Imbert, means a good deal more than our 'judgment.' He 
defines it as * une disputation ou plaid &ict en lieu public destine pour les plaids ' 
(i. I. a. 3). 

32 The Law Qtmrterly Beview. [No. Lxxiii. 

Civil (jpersotuU ') Action. OrimincU Cause. 

1. Adioumemen {oT.BVLmtaoTLB), i. Ii\formatuyiu 

2. Proposition de demands et action. a. Ddpositions (no copy to be given to 


3. Exceptions— 3. Decret d^adioumemen personnel, or 

(a) ' dUatoires. de prinse de corps. 

(b) piremptoires. 

4. Appoinctemen de contestation en catu% 4. Ouir et interrogation (of accused). 

5. Interrogatoires {mutuds). 5. Contestation (formal demand of release 

or prosecution). 

6. i^nguettf (if question of fact involyed). 6. Sentence interlocutoire. 

7. Appoinctemen a produire pikes. 7.' BecoUment et cortfrontation des temoins. 

8. Publication de fenquite, 8. Conclusion des gens du Roy. 

9. Appoinctemen en droit. 9. Nommementdestemoinset/aitsjustiftcatifs 

(by the accused). 
10. Sentence, io« Questiony i. e. torture (if presumption 

of guilt raised by evidence). 
X I. Sentence deijfflnitive. 

This is so clear that we need but call attention to three points 
of importance. Firat, the line between civil and criminal proceed- 
ings is not so broad as it might seem, for (a) all minor criminal 
proceedings (en Justice mot/enne) are conducted in the same way as 
civil actions'; {b) even a prosecution for serious crime en haute 
justice may be turned into proces ordinaire (or civil) at the stage^ of 
sentence interlocutoire ^. Second, all proceedings on delict are primarily 
criminal, i. e. commenced by information^ unless they are so light as 
to be within la justice mqyenne ; for, as will be seen by a glance at 
the Table, civil personal actions are all ex contract4 or quasi ex 
contractu^. Third (and this has not been before mentioned) Imbert 
tells us, a propos of the proposition de demande^ that we now never 
name an action^ but only state the facts ^ 

Comparing this state of things for a moment with the con- 
temporary position of English law, we shall not fail to note the 
salient points of difference. In England, with the disappearance 
of appeals of felony, there comes a sharp line of cleavage between 
civil and criminal proceedings ; and cei*tainly there can be no 
chameleon-like change from the one to the other, as in French law. 
Hence the disastrous wavering in the English judicial mind as to 
the true gist of Toi*t ; whether it be the damnum of the plaintiff or 
the culpa of the defendant. In England, too, as Sir Henry Finch 
informs us, we have the purely historical distinction of personal 
(civil) actions, into actions implying force and actions not implying 
force®, a distinction which was afterwards rendered still more 
meaningless by Blackstone, who applied it to * civil injuries ^' Third, 

^ If the action is ' real ' there may be further steps, e. g. view, award of interim 
possession, &c. 

* Imbert, iiL o. i, s. a. * Ordonnance Griminelle of 1670 (Tit. zz). 

* Imbert, i. c i, s. 8. » ib. i. c. 15, s. 4. 

* Discourse of the Law, Bk. IV. o. 14* Those 'without force' again subdivide into 
(a) that go not so far as breach of the peace, (&) that do break it. Under the latter 
head fall (virtually) all aclions of Tort (cap. 15). ' Comm. iii. 118. 

Jan. 1903.] Theories of Tort in Modern Law. 33 

> ■ - - ■ 

in England we have, until long after Finches day, the necessity for 
the choice of a special action, upon penalty of complete failure if 
the wrong writ be chosen. These latter peculiarities long tended to 
obscure the theory of Tort in England, by keeping it involved with 
the idea of contract or oisumpsU, by insisting on the necessity for 
bringing each claim within the words of an existing writ, and by 
making the reasonable distinction bet^^reen direct and indirect 
damage turn on the existence of physical possession. On the other 
hand, the clarifying effect of the sixteenth century Ordonnances at 
once resulted^ in France, in the wholesome rule, that, whereas crime 
is extinguished by the death of the criminal, the claim for reparation 
civile can always be brought against the criminal's heir^ ^' 

The way of procedure cleared by the Ordonnances^ the development 
of the substance of French law was resolutely taken in hand by 
the great French civilians of the seventeenth and eighteenth 
centuries. Domat, in his famous work, Les Lois Civiles dans leur 
Ordre Naturel^ first published in 1694, after vainly striving to 
reconcile Roman law with the CoutumeSy and finding both unsatis- 
fiictory, at last throws aside all technicalities^ and lays it down 
that: 'all the loss and damage which may happen by the deed 
{fait) of any one, be it imprudence^ carelessness, ignorance of what 
one ought to know, or other like faults, trifling as they may be, 
must be made good by the person whose imprudence or other 
£Eiult has given rise to them ^.' For this bold proposition, Domat 
admits that he can find no express authority; but his boldness was 
imitated by his great successor, Fothier, who, in his Traits des 
Obligations^ ^\xh\i&hQd. in 1761, has an equally sweeping definition 
of tortious liability. 'Le fait par lequel une personne, par dol 
ou par malignity, cause du dommage ou quelque tort k un autre ' 
(Ddlit) ; ' le fait par lequel une personne, sans malignity, mais par 
une imprudence, qui n'est pas excusable, cause quelque tort k un 
autre ' (Quasi-d^lit). 

The older notion of d^it continued to appear in the exponents of 
customary law, e.g. Loysel {Institutes Coutumieres) and Bouijon 
{Droit Commun de la France^), But when Napoleon took up his 
great work of codification after the Revolution, the generalizations 
of Domat and Fothier were accepted ; and the principles of liability 
on delict are stated broadly and compendiously in five famous 
Articles of the Code Civil, which may be paraphrased thus : 

(i) Every act which causey damage to another binds the man by 
whose fault the damage occurred to repair it. (Art. 1382.) 

1 Bouchel, BibUoth^ue du Droict Francois, ed. 1629, iii. p. 225. 
« Bk. II. Tit. viii. 8. 4 (I). 
. » Bk. VI. Tit. iii. 


34 The Law Quarterly Review. [No.LXXiii. 

(2) A man is responsible also for the damage caused, not only by 
his act, but by his negligence or imprudence. (Art. 1383.) 

(3) A man is answerable for damage done, not only by his own 
act, but by the act of persons for whom he is responsible, and of 
things which are under his care \ (Art 1384.) 

(4) The owner of an animal (and the user of it whilst he is using 
it) is responsible for the damage done by it^ even though it is 
frightened or has escaped. (Art. 1 385.) 

(5) The owner of a building is responsible for the damage done 
by its fall, when the fall was caused by neglect of maintenance or 
vice of construction. (Art. 1386.) 

The last two rules appear to be mere illustrations of the final 
clause of Rule 3; but they were probably inserted to remove 
historic doubts, and to prevent unprofitable discussions as to 
whether the movements of animals and inanimate objects could 
properly be described as * acts '. The discussion on the prqfet of 
the title seems to have been very brief ^ ; and the result is a 
theory of Tort unsurpassed for brevity and clearness, which, as 
previously stated^ has been, in the main, adopted by almost every 
civilized community of Continental Europe. An examination of 
the consequences of this theory, as contrasting with the doctrines 
of English law^ must be reserved for another chapter ; but it may 
be well, in conclusion, to summarize the history of Tort, as it ha&r 
appeared in French law. 

In the first stage, the idea of justice is confined to regulating the 
exaction of vengeance by the injured party or his friends. Whether 
the object of the vengeance is the expiation of the offence, or the 
solace of the outraged feelings of the avenger, is too subtle a 
question to be discussed here. It is more profitable to note, that 
the ascertainment of the acts which will wan*ant the exaction of 
vengeance seems to be purely arbitrary. In all probability, they 
are the acts which^ as the experience of the community has shown) 
do in practice tend to disturbance and bloodshed. 

In the second stage of its history, the idea of compensation appears 
as an appendage of the idea of punishment. The conception of an 
offence is now, primd facie, the conception of an outrage against 
authority. Naturally, the two conceptions at first work side by 
side ; and (to use English terms) the ^ appeal ' still competes with 
the 'indictment,' as a consequence of manslaughter and larceny.' 
But the State^ if it is at all vigorous, is so keenly bent, on more than 

* Parents, teachers, and mechanics can get rid of responsibility by proving that 
they could not have prevented the acts of their children, pupils, or apprentices. 
Not so employers and contractors, in respect of their servants and workmen (Art. 
1384, subss.). * See Discours du Code Civil, vol. L No. 6a. 

Jan. 1903.] Theories of Tort in Modem Law. 35 

one ground, in discouraging the private prosecution, that the latter 
almost disappeai*s, at least for a time, in that class of offences which 
the State is interested in suppressing. But, almost always, the State 
has to make concessions to the natural desire for vengeance, and 
to encourage, by the offer of a bribe, the supply of information to 
be used for purposes of a State prosecution. 

This bribe generally takes the form, either of sharing the results 
of the prosecution with the party primarily injured, or of awarding 
to him compensation, in addition to the punishment inflicted on the 
offender by the State. In France this bribe was offered on a great 
scale. But, even in England, a clear instance of the practice is to 
be found in the well-known statute of the year 15^9^, which 
allows the prosecutor in an indictment for larceny to recover 
his goods if the felon is by his active help convicted. But, in 
England, with the conspicuous exception of revenue oases, the 
practice did not spread. The distinction between Crime and Tort 
became sharp at an eai'ly date. The quasi-royal action of 
trespass soon became purely private ; while the quasi-private appeal 
of felony disappeared entirely before the royal prosecution. 

In France the process was more gradual, and the severance was 
never accomplished. The partie civile early established his claim, 
as a matter of practice, to compensation, in a prosecution which we 
should call criminal, because it was certainly conducted by the 
officers of justice. But, though the two claims, the claim of the 
ruler and the claim of the party injured, were enforced in the 
'same pi-oceedings, the differences in their character were early 
recognized. The quasi-paternal position of the Court induced a 
mitigation of punishment when the intention to offend was absent ; 
but this could not be held to affect the position of the injured party, 
for it would have been bad policy to discourage prosecutions. Thus, 
in spite of the apparent closeness of the procedural connexion in 
France, the distinction between Crime and Tort ultimately became 
more clear there than in England ; and the way was open for the 
rationalizing efforts of the great jurists of the eighteenth century. 

Historically speaking, then, we are left with four alternative 
theories of Tort : 

(a) A tort is an act which is likely to provoke retaliation by the 
person who suffers from it. (The view of the Le^es Barbarorum.) 

{b) A tort is an offence against the criminal law, which also 
involves damage to a private person. (The view of the French law 
in the later Middle Ages.) 

{c) A tort is any act or omission^ due to a moral or intellectual 

» 2iHon.VIIL c. II. 
D 2 

The Law Qtmrterly Review. 

failure, which causes damage to a private person, (The modem 
Continental view.) 

(d) A tort is an act or omission, not being a mere breach of 
contract, for which the Court will award damages to a private 
person. (The English view.) 

I hope to be allowed, in a later article, to compare the practical 
consequences of these rival theories, 

Edwabd Jenks. 

[I venture to doubt whether there is any necessary difference 
between (e) and (^), except that ^ moral ' and * intellectual ' failure are 
not terms lamiUar to the Common Law. Four years ago I suggested, 
in the Encyclopaedia of English Law, xii. 190, that now, at any rate, 
English lawyers ' are free ... to say that the various forms and 
species of action express a general duty not to do harm to our 
neighbours, either wilfully or by failing to observe reasonable care 
and caution. Any duty so widelv stated is and must be subject to 
large exceptions; but there will in any case be exceptions, and 
large ones, even if we confine ourselves to stating particular duties ; 
ana this being so, it seems the more rational and simpler way to 
consider the modem law of tort as enforcing so much of the 
moral duty " to hurt nobody by word nor deed " as positive law can 
conveniently enforce in an individualist and competitive scheme of 
society.' As a matter of fact, the Continental categories most 
nearly answering to the law of torts are exceedingly meagre in an 
English lawyer's eyes, and Continental lawyers appear to treat 
many questions of what we should call purely civil liabilitv fr'om a 
quasi-criminal point of view. I do not know that practically equi- . 
vaJent results are not attained in other ways by French, Qerman, 
or Italian jurisprudence, or that the vagueness of the rules may not 
lead to very wide applications of them in particular cases. — F« P.] 


Paet I. 

MR. HALDANE, in the recent debate on the subject of Labour 
legislation in the House of Commons, struck home when 
he compared the alleged position of Trade Unionists in recent cases 
with that of the combination of shipowners in the Mogul case ^, 
and asked, in effect, whether there be one law. for the capitalist 
and another for the working man. 

The problem, indeed, which has to be faced and solved in the 
immediate future resolves itself into two distinct questions. Upon 
the answer given in each case^ the possibility of a satisfactory 
adjustment of the whole Labour question must, it is conceived, 
ultimately depend. They may be thus stated : — * 

1. Does there exist a special law affecting combinations of work- 
men with illegality and rendering them actionable, as compared 
with -combinations of a purely trading character, or otherwise not 
affecting the relations of capital and labour irUer set Does the 
law deny to the working man, in the matter of combination and 
competition, rights which it permits the members of more fieivoured 
classes to enjoy ? If this in truth be the case, it seems difficult to 
deny that the law does work at least the semblance of that injustice 
towards the labouring classes to which Mr. Ritchie referred at the 
dose of the debate. 

2. Next, assuming that the law in these respects permits equal 
rights for all, what is to be the dividing line between combinations 
which are actionable and those which are not ? 

It may be interesting to note upon what slight thread of argu- 
ment the answer to the first- of these depends. The great majority 
of the judges are presumably disposed to deny the existence of any 
distinction of so invidious a character as that to which Mr. Haldane 
tentatively referred in the debate ; but it would appear that there 
is at least one noble and learned member of the House of Lords 
who entertains views to the contrary. 

Any such special liability as this (if indeed there is any such 
special liability) must depend upon what is known as the doctrine 
of 'restraint of trade.' It has been commonly but erroneously 
supposed that the Conspiracy and Protection of Property Act, 1875, 

» (1889) 33 Q. B. D. 598 ; [189a] A. C. 25. 

38 The Law Qtuirterly Review. [No.lxxiii. 

might affect the civil liability of workmen and others for strikes. 
But the House of LordQ in Quinn v. Leathern held, and one cannot 
doubt the legal accuracy of the decision, that this Act does not 
affect civil liability. This Act, indeed, is in spirit and in letter 
a purely criminal provision. 

The following expressions, however, of Lord Lindley in Quinn v. 
Leathern ^ seem to assume that the question of civil liability may 
depend on a construction of the Act of 1875, and that where that 
Act does not apply, all injurious combinations by workmen are, if 
indeed not punishable, at least actionable. The civil liability of 
traders in respect of injurious combination is certainly not deter- 
mined by any reference to the Act of 1875. Consequently we 
are •driven to suppose that in Lord Lindley's view workmen 
labour under a disability in the matter of combination from which 
traders are exempt. The passage in question runs as follows : ' Is 
a combination to annoy a person's customers, so as to compel them 
to leave him unless he obeys the combination, permitted by the 
Act or not ? It is not forbidden by s. 7. Is it permitted by s. 3 * ? 
I cannot think that it is. The Court of Appeal (of which I was 
a member) so decided in the case of Lyons v. Wilkins * in the case 
of Schoenthal which arose then.' Seeing that the question in 
Lyons v. Wilkins was one of civil liability only, it is diflBcult, except 
upon the above assumption, to reconcile the above expressions 
with a later jyassage* in his Lordship's judgment where he re- 
pudiates the notion that the civil liability in conspiracy depends 
necessarily upon the criminal liability therefor. 

*Nor can I agree with those who say that the civil liability 
depends on the criminality^ and that if such conduct as is com- 
plained of has ceased to be criminal it has therefore ceased to be 

In connexion with the first part of this sentence, it will be well 
to make an observation. 

The notion that the civil liability for conspiracy to injure 
depends in its historical origin upon the criminal responsibility 
therefor, seems to have received support from several judges in 
the case, and to be one for which weighty authority is otherwise 
to be found, notably in the Mogul case. It is moreover in no 
wise inconsistent with the doctrine that a specific elimination of 
criminal responsibility does not necessarily carry with it a corre- 

' which enacts {inter alia) as follows : — * An agreement or combination hy two or 
more persons to do or procure to be done any act in contemplation or furtherance 
of a trade dispute between employers and workmen shall not: be indictable as 
a conspiracy if such act committed by one person would not be punishable as 
a crime/ 

• [1896] I Ch. 811. * [1901] A. C. p. 54a. 

Jan. 1903.] Labour Competition and the Law. 39 

Bponding relief from civil responsibility, the latter being a distinct 
and independent doctrine not peculiar to Lord Lindley, but finding, 
it seems, universal favour with the judges in the House of Lords. 
The civil liability for conspiracy to injure may well indeed have 
sprung from the criminal liability ; but the two sources of respon- 
sibility seem to have existed side by side for a very considerable 
time, as independent though germane conceptions. To accord, 
therefore, support to the doctrine connecting the two conceptions, 
is entirely consistent with the above principle of construction 
unanimously subscribed to by the House of Lords. 

A similar difficulty is raised by the language, in the same case, 
of Holmes L. J. in the Irish Court of Appeal. The learned judge 
would almost seem to have assumed that so far as the criminal 
liability for conspiracy was expressly eliminated by s. 3 of the Act, 
the civil liability therefor was destroyed as well, for he bases 
a portion of his judgment on the consideration that there was in 
the case before him no ' dispute between employers and workmen ' 
within the meaning of s. 3 ^ ; and he, too, refers with approval to 
Zyofu V. Wilkins. But it seems plain that if the rights of workmen 
are equal to those of traders, and if, as the House of Lords held, 
the exemption- from criminal responsibility accorded by the Con- 
spiracy Act does not carry with it a corresponding exemption from 
civil liability, that Act of Parliament, which in the matter of con- 
spiracy is purely protective in character, has no bearing whatever 
in a case where the civil liability for conspiracy is the questoin for 
determination. Consequently, to decide a civil case of conspiracy 
against the defendants upon the ground- that their conduct does 
not appear to be permitted by the terms of the Act, is to decide 
it on a false issue, and to entirely beg the question whether the 
combination be justifiable at common law. If there be no justifi- 
cation for the injurious combination at common law, Quinn v. 
Leaihem decides that it is actionable whether or no the combination 
be criminal by virtue of the Act. Conversely, if there be justifi- 
cation at common law for a conspiracy to injure, there can be no 
cause of action, whether or no the conspiracy be ' in furtherance of 
a dispute between employers and workmen V 

The learned Lord Justice himself admits that the common law 
recognizes justification under certain circumstances for injurious 
combination, and he refers in illustration to the Mogul case. He 
further admits that if there had been no justification in the Mogul 
case for the combination, 'the case would have been otherwise 
decided.' These considerations do not of course concern the actual 
decision in Quinn v. Leathern^ but they have an important bearing 
* [1899] a I. R. p. 778. » Ibid. p. 777. 

40 The Law Quarterly Review. [No.lxxiii. 

on the general law of civil liability for conspiracy, and in par- 
ticular upon the question whether the decision in Lyont v. Wilkiun 
on the point of conspiracy was right. For it follows from the 
foregoing that the Court of Appeal in deciding that case on a con- 
struction of 8. 3 of the Act of 1875 decided it on irrelevant grounds ; 
unless, indeed, it be that rights of workmen to-day in the matter 
of combination are less than those of traders. If we lay aside the 
latter question as one for independent consideration, it follows that 
the resJ question for determination in Lyons y. Wilkins was whether 
or no there was justification at common law for the injurious com- 
bination. This is also a question to which we shall have occasion 
later on to suggest an answer. 

The statutory sheet-anchor, however, of Trade Unions with 
respect to their protection from civil liability for acts in restraint 
of trade, really consists, it would seem, of the second and third, 
and particularly the third, section of the Trade Union Act, 1871. 
Section 2 enacts that : — 

'The purposes of any ttade union shall not, by I'eason merely 
that they are in restraint of trade, be deemed to be unlawful, so 
as to render any member of such trade union liable to criminal 
prosecution for conspiracy or otherwise/ 

Section 3 enacts that : — 

' The purposes of any trade union shall not, by reason merely 
that they are in restraint of titbde, be unlawful so as to render void 
or voidable any agreement or trust ^.' 

Now although section a does not in terms carry with it an 
exemption from civil liability for acts in restraint of trade, does 
the language of the third section permit of, or is it compatible 
with, an action against a trade union for acts coercive of other 
persons, as being in restraint of trade % Upon this question one may 
quote with advantage what Lord Bramwell said in the Mogul case 
with reference to this very section : — 

'The enactment is express, that agreements among workmen 
shall be binding, whether this would ojp would not but for the 
Acts have been deemed unlawful as in restraint of trade. Is it 
supposable that it would have done so in the way it has, had 
the workman's combination been a punishable misdemeanour? 
Impossible. This seems to me conclusivCi that though agreements 
which fetter the action of the parties to it may not 1^ enforceable, 
they are not indictable *.' 

Applying what I take to be the argument of Lord Bramwell in 
this passage to the question of civil liability (which was the question 

' For the statutory definition of a trade union see infra. 
• [1892] A. C. 47. 

Jan. 1903] Labour CkyinpetUion and the Law. 41 

in point of fact in the Mo^l case), we arrive at the key to the legal 
position of trade unionists upon this particular question. How can 
it be said that an agreement, which is not to be unenforceable at 
law by reason of its being in restraint of trade, can yet at the same 
time have been intended by the Legislature to be actionable at law 
for the damage which it contemplates and inflicts, by reason only 
of the fact that the conduct inflicting such damage presents the 
element of retiraint of trade, the very element which it is declared 
shall be no bar to its enforceability at law 1 

Supposing the answer to this question be against the workman, 
tracing the matter back, the question might then incidentaUy depend 
upon whether the opinion expressed in Mr. Justice Wright's standard 
work on Conspiracies (Consp. p. 5 1 ), which Sir James Stephen followed 
in his History of the Criminal Law (vol. iii. pp. 210, ^220), to the 
effect that the old Combination Laws (repealed in 1824) were not 
declaratory of the common law, ot that of Sir William Erie (Trade 
Unions, p. ^7} to the contrary effect^ be the right one ; and tracing 
the matter still further back, the question might ultimately depend 
on whether the common law recognized any civil liability of work- 
men to an action upon this ground. But the language of Lord 
Bowen in the Mofful case\ in which he expresses his disapproval 
of a dictum of Crompton J. in Bilton v. Eciersley^ is precise. 'No 
action at common law will lie, or ever has lain against any 
individual for entering into a contract merely because it is in 
restraint of trade.' Equally precise on this question is the language 
of Fry L. J. (23 Q. B. D. p. 627); Lord Halsbury L. C. (189a, 
A. C. p. 39) ; Lord Watson (ib., p. 42) ; Lord Bramwell (ib., p. 46) ; 
and Lord Hannen (ib., p. 58). 

If this be true, and the authority to that effect seems over- 
whelmingly strong, was the result of the repeal of the Combination 
Laws in 1824 to destroy the civil liability for restraint of trade 
which the criminal liability therefor had involved ? Tracing now 
the matter forward, and assuming a negative answer to the last 
question, did the repeal of the replacing Acts of 1825 ^^^ '^59 ^7 
the Criminal Law Amendment Act, 1871, destroy the civil liability 
depending on the criminal liability which these replacing statutes 
again involved 1 If not, then lastly, does section 2 of the Trade 
Union Act 1871 cover civil liability ? Does not the language and 
operation of section 3 show that the Legislature intended, or must 
be taken to have intended, section 2 to have that effect ? 

And this leads us to an inquiry, in order that our investigation 
of the subject may not lack completeness, as to the precise meaning 
to be attached to the term * restraint of trade ' in the Tirade Union 

» as Q. B. D. p. 619. " (1859) 8 E. & B. 47. 

42 The Law Quarterly Review. [No. Lxxin. 

Act, 1871. Such difficulties as may be raised by the language of 
the Act and by decisions upon various of its sections seem to be 
considerably minimized, if not altogether dispelled, if close regard 
be had to the general scheme and intendment of the Act as evinced 
by the precise terms in which the draftsman embodied, or pur- 
. ported to embody, the intentions of the Legislature. 

One salient feature of the structural foundation upon which the 
Statute is built must never be lost sight of. The Act, it appears 
from a scrutiny of its language, was intended to give legal recogni- 
tion to a body or collection of persons. The method employed is 
to accord in specific terms le^Jity, previously withheld, to the 
purposes for which that collection of persons is formed ; and then 
again through those purposes to legalize the rules and other agreements 
entered into by members of the body as such; but still, again, 
only so far as they were previously illegal by reason of those 
purposes. This is clear from the language of sections 3 and 4^. 
Consequently, notwithstanding that section 3 declares Ihat the 
purposes of a trade union are not to be deemed unlawful as being 
merely in restraint of trade, for the purpose of rendering void or 
voidable an agreement or trust, this enactment does not operate to 
render valid an agreement in unreasonable or oppressive restraint 
of trade, entered into by members of a trade union as such. Such 
an agreement is therefore void by virtue of the common law. Upon 
this point reference may be made to the cases of Mineral Water 
Bottle and Trade Protection Society v. Booth ^, and Urmston v. Whitelegg^, 
where in each case the Court of Appeal appear to have held an 
agreement void on the ground of unreasonable restraint of trade, 
notwithstanding that sections 3 and 4 ^ of the Trade Union Act^ 

» S«t out infra. • (1887) 36 C. D. 465. » (1890) 55 L P. 453. 

^ Section 4 of the Trade Union Act, 1871, enacts as follows: — 
' NoUiing in this Act shall enable any Court to entertain any legal proceeding 
instituted with the object of directly enforcing or recovering damages for the 
breach of any of the following agreements, namely : — 

I . Any agreement between members of a trade union as such, concerning the con- 
ditions on which any members for the time being of such trade union shall 
or shall not sell their goods, transact business, employ, or be employed, 
a. Any agreement for the payment by any person of any subscription or 
penalty to a trade union. 

3. Any agreement for the application of the funds of a trade union, 

(a) To provide benefits to members ; or 

(5) To famish contributions to any employer or workman not a member 
of such trade union, in consideration of such employer or work- 
man acting in conformity with the rules or resolutions of such, 
trade union ; or 

(e) To discharge any fine imposed upon any person by sentence of a Court 
of Justice. 

4. Any agreement made between one trade union and another. 

5. Any bond to secure the performance of any of the above mentioned agree- 

But nothing in this section shall be deemed to constitute any of the above 
mentioned agreements unlawful.' 

Jan. 1903.] Labour Competition and the Law. 43 

1 87 1, were applicable thereto. So again on a reference to Swaine v. 
Wilson (1890; 24 Q. B. D. 252) we see how it may even happen 
that a trade union may possess a rule operating in unreasonable 
restraint of trade and tJierefore illegal and void, and yet its other 
rules and agreements may be unaffected by s. 4, and be directly 
enforceable at law; and that, even though they be of a kind 
specifically mentioned in that section. Provided, however, that 
the main purpose of the union be not in restraint of trada This 
result, however, it would seem clear, has only been rendered 
possible by the operation of the section of the Act of 1876 amending 
the definition of a trade union, for under the principal Act^ a trade 
union was limited to such a body as would prior to the Act ' have 
been deemed to have been an unlatqful combination by reason of some 
one or more of its purposes being in restraint of trade ^.' To 
ascertain whether the main purposes of a trade union are in 
restraint of trade or no the Court considers all the circumstances, 
and in particular inquires whether it be possible or even probable 
that a member could disobey with impunity a rule in restraint of 
trade without forfeiting his chances of obtaining benefits under 
other rules (see Old v. Bobion (1890) 59 L. J. M. C. 41, per Wills J.). 
It follows, therefore, that where the Act refers to restraint of 
trade as an element which prior to the Act rendered the purposes 
of a combination illegal, something is thereby denoted less than 
unreasonable or oppressive restraint of trade : for it is plain that if 

*■ See next note. 

* Section as of the Trade Union Aet, 1871, defined a trade union as foUows : — 
'The term '* trade union" means such combination, whether temporary or per- 
manent, for regulating the rehitions between workmen and masters, or between 
workmen and workmen, as between masters and masters, or for imposing restrictive 
conditions on the conduct of any trade or business, as would, if this Act had not 
passed, have been deemed to have been an unlawful combination by reason of some 
one or more of its purposes being in restraint of trade : Provided that this Act 
shall not affect : 

1. Any agreement between partners as to their own business; 

a. Any agreement between an employer and those employed by him as to 

such employment ; 
3. Any agreement in consideration of the sale of the goodwUl of a business 
or of instruction in any profession, trade, or handicraft.' 
Section i of the Trade Union Act Amendment Act, 1876, enacts as follows : — 
'This Act and the Trade Union Act, 1871, hereinafter termed the principal Act, 
shall be construed as one Act, and may be cited together as the '* Trade Union Acts 
1 87 1 and 1876," and this Act may be cited separately as the Trade Union Act 
Amendment Act, 1876.' 
And section 16 : — 

* 80 much of section 33 of the principal Act as defines the term trade union, 
except the proviso qualifying such definition, is hereby repealed, and in lieu thereof 
be it enacted as follows : — 

The term ''trade union" means any combination, whether temporary or per- 
manent, for regulating the relations between workmen and masters, or between 
workmen and workmen, or between masters and masters, or for imposing restric- 
tive conditions on the conduct of any trade or business, whether such combination 
would or would not, if the principal Act had not been passed, have been deemed 
to have been an unlawful combination by reason of some one or more of its 
purposes being in restraint of trade.* 

44 The Law Quarterly Review. [No.lxxiii. 

it had included that element, the Court could not, as they did in 
the two cases above referred to, have held the agreements entered 
into by a trade union void ; in face, that is, of the provisions of s. 3, 
and of the concluding proviso to s. 4. For s. 3 declares that the 
purposes of a trade union are not to be deemed to be unlawful 
merely on the ground of restraint of trade ; and as we have seen, 
the legality of the rules and agreements of an union follows, 
according to the intendment of the Act, that of the purposes for 
which an union exists. And the latter inference becomes parti- 
cularly plain on an examination of the proviso to s. 4. 

What then was the precise source of illegality which the Legis'- 
lature in passing the Trade Union Act, 1871, intended to eliminate 1 
We have, so far, ascertained that the epithet 'in restraint of trade * 
denotes at least something merely restrictive of trading liberty, an 
interpretation consonant with the language of Sir Montagu Smith 
in Collins v. Lode ^, and of Lords Esher and Lindley (then L. J.) in 
Swaifie v. Wihon '. Is there any limitation or qualification upon the 
term as thus interpreted ? 

We do not get in reality much help from the language of s. 3 of 
the principal Act, taken by itself. But much light is thrown on the 
question by the lustory attaching to s. 16 of the Amendment Act 

For although s. 23 of the principal Act refers in terms to com-^ 
binations for regulating the relations of capital and labour inter «e, 
or for imposing restrictive conditions on the conduct of any trade 
or business, which would have been illegal, &c., we may now assume 
in view of the section of the amending Act that the latter of these 
expressions or phrases was and is to be construed as ejusdem generis 
with the first. For it was considered necessary to alter the defini- 
tion of a trade union in such a way as to embrace combinations 
coming within either of the above-mentioned groups or classes, 
whether or no it would have been illegal prior to the Act of 187 1 
on the ground we have been discussing. And Lord Alverstone C.J. 
explained in Chamberlain's Wharf Limited v. Smith ^, that this altera- 
tion was made in consequence of the existence of a doubt in com- 
petent quarters whether combinations merely restrictive of trade, 
but not affecting any relationship of capital towards labour inter se, 
or vice versa, were illegal; whether tiiey wei'e illegal, that is to 
say, as being in restraint of trade prior to and within the meaning 
of the Act of 1 87 1, and thus whether they were within the definition 
of a trade union in the principal Act. 

We are now, therefore, in a position to define the precise mean- 
ing of the epithet ' in restraint of trade ' as used in the principal 

' 4 App. Cas. 674. ' Supra ; and eee TaHia v. Tdllis, i £. & B. 391. 

■ [1900] a Ch. 605 at p. 61 a. 

Jan. 1903.] Labour CompetUion and the Law. 45 

Act, and accordingly to say that it means ' restrictive of trading 
liberty in connexion with or concerning some relationship, actual 
or prospective, of capital towards labour, or of labour towards 
capital.' And this definition is in accordance with all that is known 
about the history of trade unionism from the earliest times \ 

The term * restraint of trade,' then^ in the Trade Union Acts 
does not cover 'unreasonable restraint of trade.' The Act of 
Parliament) which we have had occasion to designate the ' statutory 
sheet-anchor ' of trade unionists, is limited in its intendment and 
in its application. Can, then, a combination of workmen or other 
persons be actionable in cespect of the damage which it causes, on 
the ground that its purposes are in unreasonable or oppressive 
restraint of trade ? 

Here, again, we are met with the dicta referred to above of Lord 
Bowen and of several other judges in the Mo^ul case, to the effect 
that a contract in unreasonable restraint of trade is merely void -and 
not illegal ^ The feature of unreasonable restraint of trade is con-> 
irary to law only in the sense that the law will not assist either party 
to enforce it. This consideration, however, does not, as we shall have 
occasion to suggest later on, exclude the incidental materiality of 
the reasonableness or unreasonableness of conduct for the purpose 
of determining legal liability for the conduct of two or more persons 
taking part in a combination to compass the harm of another. 
It is sufficient for the present to state that restraint of trade in any 
sense of the term is not, and cannot be, according to authorities of 
the highest eminence, the ^ist of an action laid in conspiracy. 

It follows that the doctrine to be inevitably inferred from Lord 
lindley's language in Lyons v. WUHm and Quinn v. Leathern^ and 
differentiating the position of workmen and traders with regard to 
their civil liability respectively for injurious combination, cannot 
be supported by any reference to the notion of restraint of trade. 
We may also place out of consideration as untenable, but not per* 
haps altogether irrelevant, the notion that a court of law has an 
inherent power to declare, out of its i^ner consciousness and with-> 
out reference to the legality of the act threatened, certain conduct 
to be illegal, merely because the mind of another person has been 
affected by a moral pressure which no reasonable man could with-< 
stand. The truism seems obvious that all coercion of the will is 
effected by inducing the fear of unpleasant consequences to follow, 
if the demands of the coercer be not complied with. If it were 

' Crompion J. appears to have been the only judge who has ever been disposed 
to hold that aU agreements restrictive of trade are iUegal and even criminal at 
common law. His dictum to that effect in HUUm v. Eckersley was, as has been already 
remarked, disapproved by six judges in the Mogul case. 

' In the sense of possessing a tortious character. 

46 The Law Qtmrterly Beview. [No, LXXiii. 

true that the actual inflicting of unpleasant consequences or loss 
were invariably prima facie unlawful, and needed justification, we 
might no doubt correctly assume that all pressure on the mind of 
another needed justification as well, if, that is, it were of a kind, 
and offered under circumstances, which would be likely to influence 
a reasonable person into compliance. 

But one of the most important consequences, from a legal point 
of vi^w, of what was said by the majority of the House of Loids in 
Allen v. ^^CM^ ^ (excluding Lord Shand) is to destroy the notion that 
every damage or harm inflicted on another is prima facie wrongful 
and needs excuse, even where that damage so inflicted directly 
affects that other's source of livelihood. K, we repeat, it were true 
that every act of pressure on another's mind is prima facie un- 
lawful, it would follow that a threat of a merely lawful act might 
be illegaL But there is absolutely no case directly deciding that 
such a threat is or can be illegal, still less criminal; except, 
indeed, where the object of the threat is to extort property ; a 
case in which there must apparently be present something 
approaching the animus furandi (see R. v. Walton^ L. & C. 238; and 
B. V. TonUinson (1895) i Q. B. 706) ; a case, moreover, to meet 
which it is significant that it was thought necessary to pass an Act 
of Parliament. On the other hand, the language of the judges 
in R. V. Perham * and WaUhy v. Anley ^ may be considered positive 
authority the other way. The actual decisions, too, in the Mogul case ^ 
and the Glasgow Fleshers case ^ may be fairly regarded as authorities 
for the proposition that the justifiability of certain conduct suggested 
or threatened which is prima facie unlawful in itself, operates to 
justify the act of influencing another's mind by means of that 
suggestion, an act which would in like manner be presumably un- 
lawful, scilicet^ because its legal character depends in the result upon 
that of the act threatened. It is plain on this view that the actual 
degree of moral force or pressure employed is immaterial, given 
that it effect or be reasonably calculated to effect its desired object. 
Consistently with this, the threat of an act which is not prima 
facie unlawful, does not (apart from express enactment to the con- 
trary) need any justification whatever. To admit, in view of the 
cases last mentioned, that a threat of a lawful act is ever unlawful 
at common law, is apparently to hold that the State has entrusted 
to the (!:iourt8 an inherent and purely arbitrary discretion in the 
matter of what is and what is not illegal coercion, or else to credit 
our judges with a mysterious knowledge or power of discrimination 
not accorded by Providence to other reasonable beings. 

* [1898] A. C. I. • (1859) 5 H. & N. 30. » (1861) 30 L. J. M. C. 61. 

* [1893] A. C. 35. ■ 35 S. L. R. 645. 

Jan. 1903.] Labour Competition and the Law. 47 

Let us take a ease. A threatens B that if he continues to employ 
C, he {A) will sink a well in his own land and dry up F^ spring. 
B in consequence gives C proper notice to leave his service. Here 
the act threatened is lawful, and B would have no right of action 
against A if he carried out his threat {ChaBemare v. BicAards, 7 H. L. C. 
349). Neither has C any right of action under the circumstances 
supposed, according to Allen v. Flood ^, unless ^'s conduct amount 
to an unlawful threat to J9. If it were good law that every person 
has a prima facie right to freedom of the -mind, unless justified on 
some ground or other, and A were to be held liable to J9 on the 
ground of coercion resulting in the loss of a servant, or to C7 for the 
loss of his employment, it would follow that a man would never 
know what he might lawfully do in the matter of influencing his 
neighbour's mind, whether with reference to contemplated con- 
tractual relationships or as to any other matter. The freedom of 
the subject and of speech would be so curtailed by the fear of legal 
proceedings for coercion, that the conditions of life would be un- 
bearable. Allen V. Flood precludes, on the other hand, A from 
being made liable on the ground of procurement by lawful means 
not to enter into contracts. And the inadequate justice displayed 
by an application of that principle to (amongst others) the present 
case, leads one to suppose, that that rule itself may sooner or later 
be altered by statute. But the liability for coercion must, it is 
thought, always remain qualified in general by an application of 
the above limitation. 

If, then, there is any distinction between the cases of workmen 
and traders with regard to their rights of injurious combination, it 
must lie in the fSB.ct that the common law denied and still denies 
a source of justification to workmen which it accorded or accords 
to traders, on some ground other than restraint of trade. But if in 
truth there exist any such ground of distinction, it is certainly, at 
least since the Trade Union Act, 1871, past the powers of the 
ordinary lawyer to tell what it is, or when and why it was first 
established ^. * 

It would seem, therefore, that it ought fairly to be assumed, and 
this on behalf of masters and workmen alike, that the Legislature 
has finally done away with any special ground of civil liability as 
well as criminal liability for combination, that may have existed, 
depending for its illegality upon any notion of restraint of trade, or 
otherwise upon the notion that the combination in question was 

» [1898] A. C. I. 

' The eifeoi of the Trade Union Aet, 1 871, in the writer's yiew, was to release, as 
it were, the common law justifloation for conspiracy to injure, preriously withheld 
by the application of the doctrine of restraint of trade ; so far, that is, as the latter 
had been preserved by the legislation subsequent to 1824. 

48 The Law Quarterly Review. [No. Lxxni. 

prejudicial in its operation to a nice adjustment of the relations of 
labour to capital and vice versa. We proceed to discuss the second 
question, the question perhaps of even more vital importance at 
the present juncture. What is to be the dividing line between 
actionable and non-actionable combinations to injure a man in the 

In the writer's view there is but one principle upon which the 
Courts can fairly and justly proceed in trying cases of this 
character ; and it is a principle which is not without its analogy in 
some respects in another branch of our law, the law of defamation. 
Furthermore, it is a principle which is pre-eminently calculated to 
strike at the real evil of trade unionism, and at the same time to 
preserve all its beneficial characteristics. And again, since the 
principle about to be indicated is equally applicable to all classes of 
His Majesty's subjects, it is one of which no one has any right or 
just cause to complain. But before proceeding to discuss it, it will 
be necessary to interpose some remarks concerning the general law 
of conspiracy. In view of the baffling and often elusive character 
of the topic before us, extreoie caution and accuracy in the use of 
terms will perforce need to be observed, even at the risk of a 
seeming prolixity. 

The earliest conceptions of conspiracy, for the purpose of a civil 
action, lay in the notion of procurement of a wrongful act as 
evidenced by the fact of agreement to do it or to procure it to be 
done. It merely embraced the notion of joint and several liability 
for an act intrinsically tortious or wrongful, arising from the fact 
that a wrongful act had been counselled and abeUed by the con- 
spirators and also brought about in pursuance of their agreement. 
Some authorities allege that a charge of conspiracy has been occa- 
sionally inserted in a declaration in a spurious sense, as mere 
surplusage, intended either as matter of aggravation, or else as 
evidence of ill-motive in the exceptional cases where actual motive 
is an essential ingredient of a cause of action, e. g. malicious prose- 
cution.* But it may be doubted whether these instances do not 
merely illustrate the use of the term * conspiracy ' as a ipethod of 
charging the joint and several procurement of a wrongful act. 
These points seem to be the sole inferences properly deducible from 
the cases cited in the note to Skinner v. Chinton (i Wm. Saunders, 
p. 230), e. g. Savill v. Roberts and Roberts v. SavilL The charge 
discussed in these two cases was one and the same, namely, con- 
spiracy to maliciously indict a person of a crime. The treatment 
of the expression * damage' by Lord Holt in these cases as if it 
were synonymous with the phrase ' wrongful act ' was, I submit, 
a clerical inaccuracy to which the greater part of the confusion 

Jan. 1903.] Labour Competition and the Law. 49 

concerning the nature of conspiracy is attributable. Note that in 
Savile v. Koberts (i Ld. Raym. at p. 378) the Chief Justice says that 
' the damage is the ground of the action ' in connexion with the 
distinction between actionable and indictable conspiracies (see the 
reporter's side note, and the general context) ; but in Roberta v. Savile 
(5 Mod. at p. 408) he says the same thing in order to explain that 
persons agreeing to do or procure an unlawful act are severally 
liable in tort. According to modern views, in no case is it com- 
pletely accurate to say that the damage is the ground of an action 
at law ; any more t^an it is true to say that proof of damage is 
invariably necessaiy to the successful maintenance of an action ^. 
And it is submitted with some confidence that an allegation of 
agreement in a statement of claim furnishes a specific element of 
illegality essential to the cause of action on the case for conspiracy, 
and thisr whether it take the form of conspiracy to harm, or that of 
conspiracy to do an unlawful act. In the former case, the combina* 
tion constitutes an element of danger and of oppression by reason 
of its numerical strength. This, coupled with the harmful object, 
* furnishes the injuria as distinguished from the damnum^ which in 
this instance is a necessary condition of civil liability ; while in the 
latter case the issue of agreement or (so-called) conspiracy is, in 
substance and effect, an issue of procurement or proximate cause. 
It may be added that the statement of Lord Holt that ' an action 
will not lie for the greatest conspiracy imaginable, if nothing, be 
put in execution ' is equally true of either form of action ^ on the 
case for conspiracy ; and, furthermore, that the commission of one 
overt act or more in pursuance of an agreement does not necessarily 
involve damage to any one. From which the truth emerges that, 
since Lord Holt was considering a charge of conspiracy to do or 
procure an unlawful act, either his logic was at fault in making 
reference to the diffisrence between criminal and civil conspiracy at 
all ; or, in the alternative, he should in strictness have said that 
the wrongful act as well as (in some instances) the damage is the 
ground of the action in the class of case before him. These con- 
siderations explain the rule appearing incidentally in many old 
cases, that where the alleged counsellors or procurers of a wrongful 
act were sued by the person injured^ one of them might be found 
guilty without the other, although an agreement between them was 
alleged ; or where both the alleged procurers and the actual wrong- 
doers were before the Court, judgment might go against the latter 

' lUegal conduct (injuria) is always, damage is only occasionally, an essential 
feature of a cause of action. 

' If it be true, as we contend, that there are two forms known to the law of the 
action on the case for conspiracy. 


60 The Law Quarterly Review. [No. Lxxiil. 

alone ^. So far, the effect of proof of an agreement to secure the 
performance of a wrongful act is but to render the persons agreeing 
responsible as procurers of an unlawful act ; a responsibility which 
could be equally brought home to one of them without proof of 
agreement. Namely upon showing that the act was proximately 
due to his personal influence, exertions, or assistance offered in full 
knowledge of another's rightB. 

By the time, however, that Gregory v. Duke of Bninstoick came up 
for decision in 1 843, a separate and independent doctrine had been 
evolved, the salient features of which appear to be these : — 

1. Agreement not merely contemplating acts calculated to damage 
an individual specifically contemplated by the parties to the agree- 
ment, but having for its immediate object the occasioning of harm 
or loss to a known individual. This is of the essence of the lia- 
bility both civil and criminal. Although a presumption of fact 
that the object of the agreement was to inflict harm on an indi- 
vidual would appear to be raised by proof of an agreement to do 
that which is calculated to harm (a presumption assisted in civil 
cases by proof also of the damage), whether harm was the primary 
object of the combination is always a question of fact for the jury 
alone to determined 

2. Infliction of such damage in pursuance of the agreement. 
This is a feature of civil liability only. 

3. A secondary purpose of an improper character ; a desire other 

^ The Court in Qregory ▼. Duke qfBrutmoick (6 Man. k G. 953) were evidently doubtful 
whether judgment in that case could or could not have been given, as the declara- 
tion stood, against one defendant alone. But the suggestion that judgment could 
have been so given, assuming it to be correct law, is susceptible of meaning merely 
that on action brought against A and B for conspiracy to injure C, and it transpire 
that A and D were the culprits, judgment may go against A alone, even though D 
is not before the Court. The liability of several persons for any kind of tort, 
including the procurement of a wrongful act, is in general, we apprehend, a joint 
and aevercU liability. 

' The fact that the damage contemplated or inflicted by the combination is of 
a very slight character, is doubtless one which the judge may take into account in 
considering whether there is any evidence to go to the jury of a primary intention to 
inflict harm. It is not enough to show a mere agreement to do a harmful act. 
Th^re must be a common intention to inflict harm for harm's sake. This may 
evidently exist with or without an intention that the person to be harmed shall 
be conscious of the injury in store for him. Where such a consciousness is 
intended (as in practice has been invariably the case),* the agreement is either 
purely vindictive, in which case it is absolutely illegal ; or the harm is intended 
either by way of punishment, or with a view to coerce. In such cases it is merely 
prima facie illegal, and may be justified. Thus, in the Mogul case, there was a 
coercion in fact of the plaintiffs, ns well as the shippers and agents ; but what 
needed the justification, ultimately accorded by the House of Lords, was the 
concerted harm for harm's sake, inflicted upon the plaintiffs, threatened to the 
shippers, and both threatened and in some instances inflicted by the defendants 
upon their agents. These reflections may render it sufficiently clear how the 
unfortunate (though frequently noticeable) confusion arose between the con- 
ceptions of illegal coercion and harmful conspiracy : conceptions which have 
alwolutely no logical connexion with one another. 

Jan. 1903.] Labour Competition and the Law. 51 

than that to exercise legal rights or pursue lawful interests ; in 
short, a desire to gratify feelings of hatred and ill-will. Usually, 
however, this desire is merely deemed to exist by presumption of 
law, although sometimes its existence must be real and actual to 
render a combination to injure illegal. It is sufficiently raised from 
proof of the agreement and of the fact that its primary object was 
to harm. Such presumption, however, is rebuttable, but only 
rebuttable (at least in civil cases) by proof of facts from which 
a desire to exercise lawful rights ought reasonably to be presumed. 
In other words, to justify the agreement and the primary object of 
harm which it embodies, a reasonable utility must be shown to 
attach to the harm agreed upon, as also a reasonable occasion for 
its infliction ; each of these being considered in relation to the lawful 
purpose relied upon as justification. Lastly, this presumption 
of a lawful motive may in turn be negatived by independent 
evidence that ill-will lay in reality at the root of the agreement. 

The kinds of cases where this presumption of malevolence arises 
and where not, it is left for cases occurring in the future to 
ascertain and establish as precedents. The main difficulty in the 
way of considering Kearney v. Lloyd (26 I. R. 268) rightly decided, 
lies in the fact that there was no evidence that the plaintiff was 
morally, socially, or physically unfit for his post. Consequently, 
it becomes difficult to admit that the damage inflicted upon him 
was r^a«(mai/y referable to the desire on the part of the defendants to 
further lawful interests. In this case the defendants, who were sub- 
scribers to a sustentation fund upon which the plaintiff, a clergyman, 
was mainly dependent, agreed to withdi-aw, and in pursuance of 
the agreement did withdraw^ their subscriptions, in order to make 
liim resign his living, Held^ no cause of action. It is clear that the 
primary or direct object of the defendants in this case was to harm 
the plaintiff adverting to the los9 caused Aim. They wished to 
impoverish him so as to drive him from his living, with an ultimate 
object which was in itself a proper one, namely, that of furthering 
the religious and social interests of the parish. The writer can 
discover no sufficient ground for supposing that any distinction 
exists between criminal and civil cases, with reference to the pre- 
sumption above indicated. The whole legal position appears to 
rest on this, that two persons contrive harm to a third, contem- 
plating his loss and intending it, at their peril ; and secondly, that 
although the law sometimes permits ^ proof of the actual existence 
of an unjustifiable object to oust a presumption of legal right, it 
cannot in general allow a legal presumption of illegality to be 

' Ab it apparently does indeed, in certain instances of conspiracy to injure, aa 
well as in certain cases of defamation. 

E 2 

52 The Law Quarterly Review. l^o. Lxxni. 

rebutted by proof of an object (here a secondary one) which is, 
intrinsically speaking, perfectly innocent. The law in this par- 
ticular adopts an ' objective * and not a ' subjective ' standard. It 
is also to be observed that the criminal law does not in general 
punish a man for seeking to gratify vindictive feeling, it punishes 
him rather for the nature of the concrete act which he does, and 
in many cases also for an abstract object of harm or fraud. 

The conceptions, therefore, of conspiracy to procure a wrongful 
act including a breach of contract, and of conspiracy to injure 
respectively, are to be carefully distinguished. The difference in 
the legal effect of motive in these two forms of action depends on 
the fact that in the latter instance the agreement immediately 
contemplates loss or harm and is directed to the damage^ while in 
the former it is merely directed to an act which is wrongful. 

If the above distinction be borne in mind^ a flood of light seems 
to be thrown on much that has been said in the older cases con^ 
nected with the law of conspiracy* Lord Brampton in Quinn v. 
Leathern ([1901] A. C, 529) appears, indeed, to have treated the case 
of Barber v. Lenter (7 C. B. N. S. 175) as a case of conspiracy to 
injure. If, however, one reads that case, keeping always before 
the mind the above distinction, it becomes abundantly clear, 
I think, that Erie C. J., for one, thought that no cause of action 
arose for a conspiracy to injure — not because the plaintiff had 
charged a conspiracy to injure and had failed to show special 
damage — but because such a charge neither had been made nor, 
if made, could have been substantiated. It is conceivable, how- 
ever, that at the present day the declaration in this case, since 
the decision of Wright J. in Wilkinson v. Bmonton ([1897] a Q. B. 
61), could be supported on the ground of something like deceit. 
This point does not seem to have been adequately considered by 
the judges in Barber v. Lesiter, 

The difference between the liability for an agreement to procure 
a wrongful act and that for procurement by a single individual of 
a wrongful act appears to be one of form rather than of substance. 
It is probably necessary to show that each of the defendants 
by means of his promise of support proximately caused the 
wrongful act, besides showing that the damage (when this is 
essential to the action) is proximate both to the wrongful act and 
to the act of conspiracy or procurement. For in these cases a 
charge of agreement is to all intents and purposes a charge of 
procurement And in all cases of procurement it appears necessary 
that the acts relied upon as amounting thereto be shown to be in 
a visible manner the caiisa causan* of the wrongful act. It must 
appear that but for the act of the person sought to be charged, the 

Jan. 1903.] Labour Competition and the Law. 53 

application of bis peraonal influence or exertions, or the tendering 
of his assistance, pecuniary or otherwise, the wrongful act would 
not have been, humanly speaking, committed. It therefore seems 
reasonable to suppose that the same grounds of justification for 
procurement of a wrong (vide infra) by a single individual apply 
to excuse an agreement to procure a wrongful act. Such are the 
main features, in the writer's view^ of what is known as the law 
of civil conspiracy. 

Let us now consider conspiracy to harm a man in his calling, and 
in particular — 

TAe doctrine of useleM and unnecessary damage. 

Assuming that all conspiracies to injure a man in his trade^ 
and which do in fact injure him, are prima facie actionable, and 
assuming that the jury in a given case have found that such an 
agreement existed, and that the damage complained of is referable 
to that agreement, it is then, we suggest, the function of the judge 
to proceed to inquire (1) whether the relative position of the 
plaiatiff and the defendants and the circumstances, generally, of 
the case are such as to raise a legal presumption that the motive 
which prompted the defendants to contrive the harming of another 
was the proper one of furthering their own interests in the pro- 
vince of trade or labour ^ For this purpose he will consider 
incidentally whether the acts occasioning the damage complained 
of are sufficiently nearly connected with facts proved in evidence 
and found by the jury from which such presumption might 
reasonably be inferred. Such presumption is no doubt determined 
with reference to the circumstances at the time when the agree- 
ment to injure was entered into. And in particular, he will ask 
himself whether the damage of which the plaintiff complains was 
reasonably calculated to effect the purpose of advancement of personal 
interests. In other words, was, or was not, the damage inflicted 
in respect of an ultimate or secondary object so removed from that 
damage, as that the conduct in question can only be described by 
reasonable men as ' arbitrary ' ? This is, I venture to believe, 
a question of law ; a question, be it carefully noted, in which 
considerations of actual motive or purpose play no part whatever. 
Should the judge decide that this legal presumption of privilege 
is not raised by reason of the foregoing considerations, he will 
give judgment for the plaintiff. If he finds, on the other hand, that 
privilege is so raised by the circumstances, he will next consider 
(2) whether there is any specific and independent evidence of the 

^ Or, indeed, any other lawful interest. Cf. the facts in OiUan v. Naiixmal 
Amalgamated Labourers* Union of Oreai Britain and Ireland^ infra. For the present we 
are only concerned with the lawful object of furthering interests in the course of 

54 - The Law Quarterly Beview. 

presence of an improper motive to account for the conduct of the 
defendants ; and if he thinks there is, he will then, but not till 
then, ask the jury to say whether the defendants in fact abused 
their privileged position for the real purpose of gratifying /<?tf/i«^* 
of animosity or ill-will, or for any other improper purpose. I need 
hardly add that the jury would have to find^ in the event last 
named, either that this was the common purpose of them all, or of 
two or more of them, specifying them by name; so that the persons 
80 specified would alone be affected with liability. 

The judgments in Quinn v. Leathern are certainly far from indi- 
cating any clear rule upon the matter, and it is true that in one 
out of the two cases of this description which have been tried at 
nUi prim in the present year^ the judge appears to have lefl it 
entirely to the jury to say whether the defendants acted vindic- 
tively or with the object of furthering their own interests. This 
course appears to have been adopted with a view to giving judgment 
for the plaintiff only in the event first named. But the disadvan- 
tage, nay, the danger, if one may respectfully say so, of this course 
regarded as one generally to be followed in cases of this kind, seems 
fairly obvious. Two main objections present themselves to this course 
as a fair and proper method, in the general case, of deciding a matter 
fraught with momentous consequences for the pei*sons concerned. 
Determination of cases of this sort would in the first place depend 
entirely upon what might be a jury's opinion of the actual character 
of the defendants' motive — of what was passing in the minds of each 
of them. Neither of the litigants^ and especially so the defendants^ 
can be sure (to quote a wise observation of Lord Herschell) of 
' what their rights are.' A still more forcible objection is that which 
we have already noticed in passing. The class of cases in which an 
actually existing honest or proper state of mind may directly 
operate to destroy the right to compensation which an injured 
person would otherwise possess, appears to be now limited to the 
liability for malicious prosecution. It is true that the question of 
honesty of purpose may also be material in an action for defama- 
tion, but it is only material in an indirect sense, namely, in that the 
law may in some cases of this oXdiSia presume it from the surrounding 
circumstances until and unless the contituy be proved. The justice 
and expedience of limiting instances of a direct exemption from 
liability on this ground, must occur to every thinking person. 

D. R. Chalmers-Hunt. 

• {To be continued.) 



IN comiDg here to-day, as a Saxon stranger, to speak before the 
University of Wales, I desire in the first instance to con- 
gratulate the University in general, and the College at Aber- 
ystwyth in particular, on the creation of its new Law School. 

The people of Wales, like the people of Scotland, have ever 
shown a zeal for education, in advance, I grieve to say, of the 
majority of Englishmen. And it is no longer necessary now, as 
it was on October 25, 1758, when Dr. Blackstone rose to deliver 
the first Vinerian Lecture in the University of Oxford, for any one 
to argue that the Common Law of England is a subject which may 
properly be included in the curriculum of a University. Wales has 
now its University; and that University could not long exist 
without a Faculty of Law. Still I cannot but feel that the 
University College of Wales has done a plucky and a patriotic 
thing in establishing here in the far west at Aberystwyth a School 
of Law — a teaching and not merely an examining body — ^a School 
with two Professors, whose lectures will include the law of Lnperial 
Borne a^ well as that of modem England, who wiU not neglect that 
somewhat neglected science, jurisprudence, but will also correct 
and expand its academic propositions by the practical study and 
comparison of the legal systems actually prevailing in the British 
Empire, on the Continent^ and in the United States of America. 

Many legal writers have dwelt on the dismay and discourage- 
ment that attend the commencement of the study of the law, when 
that study is commenced in the old-fashioned way. A lad fresh 
from school is placed in his father s office : he is caught up at once 
in a whirlpool of business unintelligible to him : he is set to copy 
out certain common forms of conveyancing : as a relaxation he may 
accompany the managing clerk when he goes to issue a writ. No 
one in the office has any spare time to explain to him the elements 
either of the theory or the practice of the law: these he must 
dimly discover for himself as best he may, with the result that his 
original 'discoveries will probably be erroneous or only half true. 
Many & practitioner, educated in this way, suffers all his life from 
wrong ideas which became rooted in his mind when he was in his 

^ An Address read at Abeiystwyth before the Univeraity of Wales on Friday, 
October 10, 190a. 

56 T}ie Law Quarterly Review. [No. Lxxiil. 

teens, and which no subsequent training can wholly eradicate. 
But here the future practitioner will be started on the right road, 
a road which avoids the Slough of Despond : he will be shown 
a map of the district and taught how the land lies, before he begins 
his journey : if there must be peas in his shoes, the professor will 
kindly boil his peas for him before he starts I 

Tour students, as a rule, will enter here when they are young ; 
for there is a good deal of law to be learnt. But they must first 
receive a sufficient training in general Arts subjects : this you will 
secure by requiring them to pass a' Matriculation Examination. 
They will then proceed to the Degree of LL.B., which will save 
the future solicitor two years of his articles. The future barrister 
can keep terms at the Temple while reading here for his Degree. 

It is unnecessary, then, for me to urge upon you the need of 
a School of Law; for yours is already an accomplished fsict; the 
only School of Law in the Principality. But I propose this after- 
noon to tell you what I humbly conceive the work of a School of 
Law should be ; I shall even venture to state the methods by which 
I think such work can best be done. I am fully aware, of course, 
that such subjects include many debateable points — that men, at 
least as capable of judging as I am myself, will probably differ 
from me in many particulars. But that is no reason why I should 
not state my views for what they are worth. And I think it is 
better to state them boldly and baldly, so that there can be no 
mistake about my meaning, than to hedge them about witn saving 
generalities so as to deprecate criticism from any quarter. But 
please do not think when in a few minutes you hear me laying 
down the law bluntly and curtly in the imperative mood, that 
I wish to dictate to others, or that I am not ready to listen to all 
that may be urged in answer to the opinions which you have rashly 
invited me to inflict upon you to-day. 

What, then, is the work that lies before this School of Law ? 

Its first and foremost duty will be to train future practitioners, 
to teach them how to learn law. 

First, it must teach them our legal language ; it must teach them 
the true signification of the terms which they will have to use in 
practice hereafter. They must know exactly what is meant by an 
*' easement * or an ' estate in fee simple.' And they must learn to 
iise such words with accuracy and precision ; they must not regard 
' devise ' and ' demise ' as interchangeable terms. Above all, they 
must learn always to use the same word in the same sense. Different 

Jan. 19030 The Work of a School of Law. 67 

lawyers seem to attach different meanings to the same word ; nay, 
often the same man will use the same word in different senses. 
Nothing leads to confusion of thought so much as this looseness of 

Hence, whenever a teacher in addressing beginners has occasion 
to use such phrases as ^ mesne profits ' or ' days of grace/ he should 
always stop to make sure that they understand the meaning of 
those words before he proceeds to state the law relating to them. 
Some students are most ingenious; they have great powers 
of invention; and will assign to such terms very remarkable 
meanings of their own. Others will be content to repeat them 
like parrots without any idea as to their proper use. 

Next, the teacher should make dear to these beginners what 
I may call 'elementary legal notions.' For instance, he should 
teach them to distinguish ' accident ' from ' negligence ' and * negli- 
gence ' from ' fraud.' And he should teach them that there is no 
such thing as ^ legal fraud' or 'constructive fraud ^.' Fraud is 
fraud ; the word means in law exactly what it means in ordinary 
English, and always did mean that, till certain Chancellors and 
Yice-Chancellors took to calling any conduct of which they 
disapproved 'equitable fraud'! Then teach them, if you can, 
what the word ' malice ' means in law ; and above all teach them 
that there is no such thing as ' malice in law ' — that phrase has been 
a stumbling-block gratuitously placed in the path of the student 
for more than a century. 

Next, you must state to the student in clear bold language of 
your own the elementary principles of our law, as it at present 
stands. Do not worry him at the same time with history ; that 
should come later. The existing law is one thing ; how and by 
what stages it came to be the existing law is another. Teach him 
first what you conceive to be the present law. And state it to 
him, as far as possible, in your own words. Do not string together 
scraps and tags from different judgments delivered, one fifty, one 
a hundred, years ago. Above all, do not read them sections from 
Acts of Parliament. They will have to suffer aU the rest of their 
lives from the involved and tortuous style in which our Legislature 
thinks fit to issue its edicts to the people. Spare them this yet 
a while 1 Avoid too the ancient phraseology so incessantly repeated 
in our text-books. Do not talk to beginners about a 'tabula in 
naufragio,' or tell them that the grantee to uses in an ordinary 

' [I agree that this term is useless now : but the terms constructive possession, 
constructive notice, constructive fraud, are in themselves all apt and significant. 
The adjective means that facts which do not amount — or ai'e not judicially proved 
to amount — to actual fraud, &c., are treated, for reasons of policy or convenience, 
as if they did.— Eo.] 

58 The Law Quarterly Review. [No. Lxxiii. 

settlement of real estate is merely ' a conduit-pipe ' ; most students 
find these time-honoured metaphors more diflScult to understand 
than the propositions which they are supposed to elucidate. 
I cannot conceive why English law should be taught in bad Latin. 
I am sure that much of the difficulty which a beginner experiences 
when he has to grapple with the rule in Shelley's case is caused by 
the words * either mediately or immediately/ which invariably 
occur in the statement of that proposition. The student never 
saw the word 'mediately' before; he has no idea what it means ; 
yet he is afraid to ask for an explanation ! 

And do not teach doubts to your younger students. There is 
plenty of law that is absolutely fixed and clear. The ' uncertainty 
of our law ' is grossly exaggerated by ignorant persons. I always 
find that the uncertainty is in the so-called ' facts.' In ninety-nine 
cases out of a hundred the law is clear enough; the trouble is 
caused by the witnesses not swearing up to their proofs 1 If the 
facts suggested in the brief are proved to the satisfaction of the 
jury, then a man in good practice has seldom any serious doubt 
about the law applicable to those facts ; though he may not know 
at first just where to find it clearly stated. 

So here in your School of Law I would advise you (if I may) 
to leave 'moot points' and other apices juria till the men reach 
their third or fourth year. Teach the younger men what the 
undoubted law is ; it will take them quite two yeai*s to master 
that. State it to them in clear, general propositions ; and illustrate 
those general propositions by decided cases drawn from the reports. 
Whenever you lay down a rule, you should also give an example. 
State to them the actual facts of some decided case and leave them 
to say whether the action will lie or not in that case. If they 
decide it will, then alter one fact; will the action still lie ? If so, 
take away or add another element of the cause of action — does 
that bring the case across the dividing line? In this way they 
will learn the exact limits of the rule of law laid down, and will 
also learn to apply that rule to varying sets of facts. With 
beginners you must pursue deductive methods. 

Later on, when the framework is put together, when the student 
knows the outline of the law of England, then precisely the reverse 
method can be employed. Now the student should be urged to 
dig in the rich mines of English case-law. Set him to study four 
or five decided cases apparently in conflict ; bid him evolve from 
them the ralio decidendi^ the guiding principle, the rule of law 
which underlies them alL This is work which has constantly to 
be done in practice. Every lawyer writing an opinion, every legal 
writer composing a law book, every judge preparing a judgment, 

Jan. 1903.] The Work of a School of Law, 59 

must go through this process. It is right, therefore, that the more 
advanced students should attempt this. Encourage them by all 
means, after they are familiar with the general outline of the law, 
to reconcile and distinguish apparently conflicting decisions, to 
discuss moot points of law, to argue cases as in court, to write 
essays on legal subjects. Teach beginners merely the results at 
which you have arrived. But to the more advanced students 
explain the method by which you have arrived at those results, 
and invite them to embark on similar journeys. Teach them how 
to find out the law for themselves. Teach them where to look for 
it. Teach them how to state their arguments and how to marshal 
and present their facts. 

If this Law School does nothing more than teach the future 
practitioners of Wales to think clearly and to express themselves 
clearly, to state facts clearly and in proper order, whether in 
a speech or a letter, in instructions or the recitals of a deed, it 
will have done the State good service and saved much public time. 

While thus sketching out the training of the intending practi- 
tioner at College, I do not for one moment underrate the value of 
' practice/ No man is fully competent to act either as a barrister 
or a solicitor till he has been brought into contact with actual cases 
that are coming before the law courts, or has helped in the prepara- 
tion of legal documents which are really needed by actual clients. 
There are also many practical details which can only be properly 
mastered when the student is engaged in the work of a solicitor's 
office or a barrister's chambers. These the Law School will wisely 
neglect. But it will ever strive to prepare <the student for contact 
with the business of the profession ; and so to prepare him that he 
may quickly grasp the meaning, and thoroughly appreciate the 
importance, of even technical details when he meets them in actual 


But a School of Law will not confine itself to training future 
practitioners. It aspires also to teach the principles of our law to 
laymen and to laywomen. Every citizen, whether male or female, 
should have some acquaintance with the laws by which he or she is 
governed, and which he (though not yet she) has some share in 
making. The laws of this country are not the exclusive property 
of any special clique or class ; they are not the perquisite of any 
particular profession : they are the heritage of the nation as a whole. 
Therefore the nation should take a pride in its property, and make 
some efibrt to understand its value. 

And in former days it did so. In Saxon times the doomsmen were 

60 The Law Quarterly Review. [Xo. Lxxiii. 

judges of law as well as of fact. The Norman barons knew their 
exact rights^ and refused to change the laws of England at the 
bidding of clerical canonists : nolumus leges Angliae mutare quae uritaiae 
sunt et approbatae. In the days of Queen Elizabeth a lad from 
Stratford-on-Avon, who ran away to London because he had 
been out poaching, yet knew so much of the law that some of his 
misguided admirers actually assert that his plays were written by a 
Lord Chancellor. Falkland and Hampden knew the laws of their 
country and fought for them sturdily and welL During the six- 
teenth and seventeenth centuries some years' study at an Lm of 
Court was the natural finish to a liberal education. But that is not 
so now. Our laity seem to have abandoned any attempt to com- 
prehend even the outline of the system by which they are governed, 
or rather by which they are supposed to govern themselves. Our 
law is to them a matter of indifference. They take no interest in 
it, except when they abuse it and ignorantly declare it unjust. 

This is matter for regret, though the cause of it is not far jbo 
seek. The Law of England is worth studying. It embodies the 
traditions and instincts of a noble people that has ever sturdily 
maintained its rights. To us the whole world has come for lessons 
in the law of freedom. And shall we now pretend that this, our 
birthright, is valueless? The genius of the English race, its 
manners and customs and modes of thought, the growth of its 
civilization as well as the development of its constitution, are 
best learnt from its litigation and its legislation. Our law is 
not a thing of to-day ; it is not the product of one period ; it 
has broadened slowly down from precedent to precedent. The 
trained intellects of a long series oi most capable judges, lawyers, 
and legislators, have been for centuries busy in its amendment. It 
is a thing of native growth ; not a ready-made importation, nor a 
Code Napol^n suddenly imposed by an Emperor on his people. 
And yet, while still retaining what was valuable in the former law, 
it has never been unduly reluctant to accept suggested improve- 
ments from any source. It has assimilated what was best in Roman 
law, in Teutonic custom, and in the Maritime Laws of Oleron and 
of Rhodes. We can trace in it the gradual interweaving of the 
Saxon law with the feudal system which the Conqueror introduced ; 
we see how both these subsequently were modified by the rise of 
commerce. Our law is full of human interest : it is a living and a 
growing thing, which has spread and grown, and still will spread 
and grow, with the social development of the people. The law of 
England is worth knowing for itself alone. 

Again, the study of the law is of great value as an educational 
factor. I should place it next after mathematics and classics, and 

Jan. 1903.] The Work of a School of Law. 61 

before natural science, as a training for the mind. It supplies all 
the fundamental requisites of a good education ; for it tends to 
develop and enlarge the mind, and to quicken and invigorate its 
powers. It requires an intellect of no mean order to grasp the rules 
and fundamental notions of our jurisprudence, to distinguish true 
from false analogies, to draw correct inferences from evidence, and 
to reason justly and readily on questions which are not concluded 
by authority, or on which the reported decisioas of our judges 
appear to clash. Moreover, from the law — ^if properly taught — the 
student learns an invaluable lesson : how to ' sift facts ' ; that is, in 
the first place, to reject much unnecessary recrimination, charge 
and countercharge, and narrow down the dispute to the real question 
which has raised the controversy between the parties ; and next, to 
disentangle from a crowd of irrelevant details the facts that are 
material to the question in i^sue. Then comes a further mental 
process, equally valuable, equaUy difficult to learn elsewhere, 
namely, the application to these material facts of the appropriate 
rule or principle which guides us to the right conclusion. These 
lessons will be useful in every scientific study, and in every problem 
of a busy life. 

And if we descend to more utilitarian considerations, it is surely 
the interest, as well as the duty, of every English citizen to under* 
stand the law by which England is governed. That law is not 
only a most interesting product of the human mind ; it has at the 
same time a direct practical bearing on our health and wealth, on 
our means of livelihood and our personal happiness. It regulates 
all our social concerns. How can a man adequately and intelligently 
discharge his various duties as a citizen, how can he share in local 
government or take his pai-t in the administration of justice, without 
some knowledge of the law — in its principles, if not in its practice ? 
Each one of us is liable to. be called as a witness, or to serve on a 
jury, or to be made a guardian of the poor; each one of us ulti- 
mately must become either a testator or an intestate. We might 
be asked to stand for Parliament : we might be made an executor 
or a trustee, or worse still, a defendant in a lawsuit. Is it not wise 
to prepare ourselves for these various calamities ? Is it too much 
to say that some knowledge of the law is the best introduction to 
the living business that goes on around us, the best preparation for 
the actual afiiedrs of life. In all the infinite variety of human 
concerns, law has a finger. The progress and well-being of a nation 
depend largely on its legal system. It is right, then, that a School 
of Law should not be merely a training ground for future lawyers ; 
but should open its door to all future citizens of the State. 

And in the phrase ' future citizens ' I include women as well as 

62 The Law Quarterly Review. [No.LXXiir. 

men. I have the honour to be a graduate of an ancient and learned 
University, which refuses to allow the letters B.A. to be placed after 
the name even of a young lady whose place in the Mathematical 
Tripos was * above the Senior Wrangler ' ! But in the University 
of Wales men and women stand in all respects on equal footing. 
And I see no reason why women should not know some law, though 
they cannot act as advocates. A married man dies unexpectedly; 
his widow is suddenly called upon to take command of his family 
and his affairs. At a moment when she is overwhelmed with private 
sorrow she is called upon to deal with questions of probate duty 
and partnership law, of trustee investments, of specific legacies and 
the guardianship of young children ; ,and she cries * Why was I not 
told of all this before *? ' Even a spinster must live somewhere, and 
must pay her bills ; she will be none the worse, then, for knowing 
something about a lease and a cheque. Moreover, the Legislature 
has at last admitted that a married woman is capable to some 
extent of managing her own affairs. If so, should she not be taught 
what her rights d>re over her separate estate ? A learned note to 
Blackstone's Commentaries quotes a writer of the fifteenth century 
who states in so many words that 'it does not appear, to me 
unseemly that women should know law ; for it is written concerning 
the wife of John Andreas, the commentator, that she was so learned 
in both the civil and the canoif law that she dared to teach publicly 
in the schools ^.' I myself examined and. presented for her degree at 
the University of London a young lady who took first class honours 
in the LL.B. Examination, beating all the men but one. So who 
shall say that the twentieth century may not rise to the level of 
the fifteenth, and see a Lady Professor expounding the Common 
Law of England to a class at Aberystwyth. Professors Brown and 
Levi must look to their laurels I 


Then, again, there is Research work to be done. A Law School 
may do much to improve and extend our knowledge of the existing 
law and of the history of our law. Such work as my friend Pro- 
fessor Maitland has done at Cambridge is invaluable, beyond all 
praise from me. But there is room for many labourers in that 
field. And there are other fields awaiting Welsh followers of 
Savigny, Austin, and Maine. 

First comes Jurisprudence — a science which can only be ade- 

* * Nee videtur incongrunm mulieres habere peritiam juris. Legitur enim de 
uxore Joannis Andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut 
publice in scholia legere ausa sit.'— Bemadinus de Busti : Mariale, pt. iv, serm. ^ 

Jan. 1903.] The Work of a School of Law. 63 

quately studied in detail by those who are already acquainted with 
more than one system of law. The province of this science was 
most accurately determined, its boundaries marked out with most 
minute precision, by John Austin some seventy yeai*s ago. But 
the intervening area has not yet been occupied by buildings of 
much actual utility. We need now a more practical jurisprudence 
— a scientific statement of the elementary principles which underlie 
all modem legal systems — a true primer in the law. Next, there 
is much work to be done in the field of Comparative Law. Every 
lawyer in practice should be acquainted with some system of law 
besides his own. Such knowledge will help him in his practice : 
it will clear his ideas : it will suggest to him many an argument 
and apt illustration: it will give him a wider grasp of general 
principles. And the means .are close at hand. If we keep to these 
islands alone — ^^England, Scotland, Ireland, the Isle of Man, and the 
Channel Islands — we meet with very various rules of law and pro- 
cedure. It is startling to an English lawyer to learn that in Jersey 
legal documents require no stamp, that in Guernsey a landowner 
cannot dedicate a highway to the use of the public, and that in 
Scotland a husband who is found guilty of adultery is still liable 
to be treated as civilly dead. While if we extend the field of view 
till it covers the whole of the British Empire, we shall find every 
vagdety of modem civilized law and many specimens of ancient law 
still in force—Hindu and Mahometan law in India, Roman- 
Dutch law in Cape Colony, French law in Quebec and Mauritius, 
and many another variety ; while each member of the new Austra- 
lian Federation has a legal system of its own. And how much 
depends on the way in which these various bodies of law are 
administered by Englishmen abroad. In many of our recent 
acquisitions any careless disregard of local law and custom might 
create disaffection, or even arouse revolt. Now add the present 
law of France, Germany, Switzerland, and the United States, and 
from. the apparent conflict of laws extract the common subsfratum, 
the essential elements of civilized law ; 'and the j^oblem of juris* 
prudence is solved. You have arrived at the true JM gentium. 
You have refined away the dross of antiquated technicality, the 
accidents of local custom ; and only the pure gold is left. 

And now we enter the field of Legal History. The study of the 
various existing bodies of law must provoke the question : How 
did all these differences arise. Whence did these various systems 
spring 1 First in importance comes the history of our own law. 
We sadly need a good modem text-book on this subject. I do not 
mean by this a book on Constitutional History. The men and 
women who study at this University are of coui*8e taught the 

64 The Law Quarterly Beview. [No. Lxxiii. 

English Constitution ; as it is and as it was. Nor do they neglect, 
I trust, the kindred study of the laws affecting Local Oovemment. 
The future district or county councillor must learn what are the 
powers and what are the duties of those important bodies which 
hold in their hands the health and comfort of each neighbourhood* 
And the history of Local Government in England and Wales 
deserves attention also. But apart from the existing law of the 
Constitution, apart from Constitutional History, apart from Local 
Government, stands the History of our Private Law. Look at the 
changes which the last century saw in the law of libel, in the law 
of husband and wife, in the law of master and servant. What 
a flood of light these changes throw on the social history of the 
period ! what an advance they show in the morality, in the sense 
of justice and fair dealing, and, I may add, in the common sense, 
of the English nation ! 

Is the same advance to be traced in other nations ? For this we 
must study the history of Continental Law; we must see how 
France and Germany have dealt with the problems of capital and 
labour, husband and wife, master and man. How do they manage 
their prodigals and lunatics, their habitual drunkards and their 
habitual criminals ? Have they pursued the same path as we have 
or adopted methods of their own? We may learn much of the 
national characteristics of these nations from the temper in wh|ch 
they respectively approach such questions. We may learn, too, 
how the methods which they did adopt have answered. Have they 
been eflTectual, or have they only aggravated the evils which they 
were intended to remedy 1 It is possible — ^I state this proposition 
mildly — ^it is posnble that foreign nations may have found the true 
solution of some difficulties which still trouble us. 

The English law of landlord and tenant works fairly well in 
England : in Ireland it provoked ill-feeling, disaffection, agi^arian 
outrage. Under the later Roman Emperors the peasant who tilled 
the soil paid his landlord a fixed proportion of each year's crop. 
This form of tenancy still lingers in the south of Europe: the 
metayer tenant is the direct descendant of the Roman colons 
medietarius : he pays the landlord half the value of whatever the 
land has produced. I am informed that a precisely similar form 
of tenancy exists among the natives of Ceylon. And such an 
arrangement, so widely spread, seems fairer to the tenant than our 
system which compels him to pay the same amount of rent, in bad 
years as in good. Yet on the other hand it may be that such 
a system does not provide the same stimulus to exertion on the 
part of the tenant as would arise from the necessity of his paying 
a fixed rent. 

Jan. 1903.] The Work of a School 0/ Law. 65 

Again, take the law of the family in France, which is very- 
different from our own, and which is indeed at once the cause and 
the effect of that devout family affection which stands to many 
Frenchmen in the' place of a religion. In France a £Ekther cannot 
wholly disinherit his children: a husband must make some pro- 
vision for his widow : if he does not, the law will do it for him. 
Is this better or worse than our system which allows a man to 
leave not a penny to wife or .child, but to bestow all his property 
on some unworthy mistress or on a hospital for cats — a system 
which drives our judges to find undue influence, and our juries 
to discover traces of insanity^ in cases where a proper will would 
pass muster. When the University of Wales has produced a clear 
and simple History of the Law of England, it must next embark 
on the Comparative History of the Laws of Modem Nations. 

You are thinking, no doubt, that I have set you two pretty 
tough jobs. Well, so I have. But this new Law School is going to 
aim high. Al€v ipiartvtiv will be its motto. There is, however, 
one little fragment of legal history which is specially for you. 

Wales possesses three most valuable ancient Codes written in 
the Welsh tongue — the Code of Venedotia (or North Wales), the 
Code of Demetia (or South Wales), and the- Code of Gwent (or 
South-East Wales). There seems no reason to doubt either their 
authenticity or their antiquity ; and, that being so, they prove that 
a higher degree of civilization existed in Wales in the eleventh and 
twelfth centuries than we had previously imagined. These three* 
Codes are now distinct and independent, but they are all avowedly 
founded on one Code, said to have been made by King Howel the 
Good with the help of his wise men at the White House on the 
Taff during Lent in the year A.D. 943. There were probably still 
earlier compilations of Celtic custom, as it is expressly stated in 
the preface to the Yenedotian Code that ' the wise men there 
assembled examined the ancient laws ; some of which they suffered 
to continue unaltered, some they amended, others they entirely 
abrogated, and some new laws they enacted.' 

I invite you to embark on a quest in search of these * ancient 
laws ' which existed before A. D. 943. By collating the three Codes 
that we have and noting where they a^ree, you could probably re- 
construct, out of the portions common to all three, the original 
Code of King Howel Dda. But ancient customs die hard; they 
constantly crop up again. Hence it is by studying where the three 
Codes differ that you may hope to arrive at the pre-existing ancient 
laws of the Britons which the wise men wished to abrogate. These 
would be worth discovering. It would be interesting, too, to 
ascertain what impression, if any, had been made on the laws of 


66 The Law Quarterly Review. [No. Lxxili. 

the ancient Britons by the laws of the Romans during their occupa- 
tion of the island and also by contemporary Saxon castom. 

I said just now that I thought a beginner should not be set to 
study our existing law and its history at the same moment. First 
one and then the other ; and, in my opinion, some knowledge of our 
present law should precede the study of its history. The existing 
law can be stated ctearly — at all events, in outline — without any 
reference to the earlier law on the subject. And in a student's 
book it should be stated so. Suppose a workman has been injured 
through the negligence of the foreman in superintendence over him. 
Can he recover damages from their common employer 1 This ques- 
tion can now, at all events, be answered without repeating the long 
story of the doctrine of ' common employment.' And I venture to 
think that just as a solicitor would reply to this workinan, so ought 
the professor to teach those who are beginning the study of our law. 
He ought to tell them the net result of the mixture of common law 
and statute. If he is writing a book for beginners he should state 
the existing law in his own words, in big print at the head of each 
chapter ; the history can be stated subsequently in different type. 
The air we breathe is more wholesome mixed ; we do not want 
a professor to divide it back into oxygen and hydrogen before we 
swallow it. 

I admit that no lawyer is fully equipped till he knows both the 
existing law and its history. So no lady is fully dressed for a ball 
till she has on two gloves — a right-hand glove and a left-hand 
glove. But I defy her to put on both at once. 

Over and over again I have been assured by students that a 
tenant-in-tail can bar the entail as soon as he has issue bom alivo 
that can inherit. In vain I tell them that that may have been the 
law once, say in the days of King Henry HE, but that it is not the 
law now. They look at me with an incredulous smile, and refer me 
to an excellent compendium of the law of real property. And 
there, no doubt, the proposition on which they i-ely is to be found 
at the beginning of the chapter on Estates Tail. Of course the 
learned author later on explains how the law was altered in the 
reign of Edward I, and many times since then. But the busy 
student does not trouble about that ; he has found one clear and 
intelligible statement at the beginning of the chapter; the rest 
makes no impression on him ; he regards it merely as variations of 
the same air or motif; he prefers it as he heard it first in the over- 
ture ; and so he sticks to that. 

You see, if on my journey to this town I had read and tried to 
remember everything stated in the ' Gossipping Guide to Wales ' 
about every place of interest on the route, I should not be left with 

Jan. 1903.] Uie Work of a School of Law. 67 

any clear recollection of the three pages about Aberystwyth, to 
which place I have now arrived. And yet it is just those three 
pages that would be of the most use to me to-day. 


Lastly, this School of Law will, I trust, aid in giving to our law 
a better form and a clearer expression. That is what both students 
and practitioners need most. I am far from saying that the sub- 
stance of the law of England is perfect ; each of us, no doubt, thinks 
that he could improve it in one or two particulars, though others 
would probably differ from him as to those very matters and prefer 
the law as it stands. Such amendments should be made, if at all, 
with caution and deliberation, and after careful inquiry as to what 
the law on the point really is ; for our present law is far more just 
and far more sensible than most people imagine. Talk of the 
Roman law I Ours is infinitely superior. The law of England — 
when once we can find out what it is — is the best and noblest 
system which this world has ever seen. But it is sadly defective 
in its arrangement and the manner of its expression. The great 
advantage — ^and I think I may say the only advantage — which the 
Boman law possessffi over ours is that Justinian had the sense to 
commission an eminent juiist to write an elementary institutional 
work, which should be an outline and an introduction to the whole 
law. And further, he had the sense to have this institutional work 
passed into what was equivalent to an Act of Farliai^ent, without 
allowing any layman to tinker at it. That is what we need to-day 
— ^a Tribonian I 

It is essential to the welfare of the community that in every 
State there should exist an authoritative body of law, readily 
accessible, easily intelligible, and strictly and impartially enforced. 
That our law is strictly and impartially enforced, no one will deny ; 
in iia substance, I repeat, it is as logical and as enlightened as any 
body of law which has ever existed on this earth. But it is not 
easily intelligible, by laymen at all events ; and it is not readily 
accessible to either laymen or lawyers. 

Why is this 1 Why is our law so devoid of scientific arrangement 1 
Why is it so difficult to find an exact and authoritative pronounce- 
ment of what we all know is the law ? 

There are many possible answers to these questions. But perhaps 
the chief reason for this sad lack of form is that our law has come 
to us from so many and from such different sources. The law of 

F 2 

68 The Law Quarterly Beview, [No. Lxxiii. 

England is largely deriTed from antecedent custom. Much of it, and 
I may say the most valuable part of it, was custom before it was 
made law. In the thirteenth century legal writers incorporated in 
their text-books large portions of the Roman law, and declared that 
these were also the law of England. As civilization advanced, our 
judges endeavoured to mitigate the rigour and the technicality of the 
common law by means of legal fictions. Subsequently the same 
object was attained in pai-t by means of a separate Court of Equity. 
Later judges regarded the decisions of their predecessors diA precedents^ 
which they were bound to follow in similar cases ; and in following 
they often extended them. But now changes in the law of England 
are made almost entirely by statute. 

And what is the result ? 

There are more than i,6oo text-books in Messrs. Stevens and 
Sons' list : and one must consult the last edition, for it is unsafe to 
rely on an edition of a text-book six years old I There are now in 
the library of the Middle Temple at least 3,000 volumes of reports of 
English cases alone ; and in any one of these may lurk a decision or 
a dictum which may be cited in court on any given point of law. 
But worse than this is the unnecessary number of hastily-drafted 
and ill-considered statutes which throw the law into confusion. 
Every year adds more than a hundred enactments to the Statute 
, Book ; enactments often passed in the dead of the night by men 
who^ as a rule, are ignorant of the law, and who are content to trust 
to a general certificate from the member in charge of the Bill, that 
* the law of it is all right.' Few of these statutes are preceded by 
any serious attempt to master the law already existing on the 
subject. Very few of those who vote for a measure have realized 
the precise effect and meaning of the enactment which they are 
helping to carry into law. Legislation is the only trade which 
requires no apprenticeship ! 

Our law-making is at present at a low ebb. Our legislative 
machinery is out of gear, and does its work badly. It turns out 
a quantity of material ; but it is poor stuff, not closely woven — ^not 
good Welsh flannel, all wool. And there is a deal too much of 
it produced. For three centuries after Parliaments began to 
assemble there was very little legislation. Now there is .un- 
doubtedly too much. 

Hence ignorance of law is very excusable in the present day. 
How can we expect any layman to study our law, so long as it 
remains in its present unscientific atid unattractive shape? Can 
he wade through thousands of statutes, or through tens of thousands 
of reported decisions? Who shall warn him which statute is 
obsolete, which decision overruled? Who shall guide him to the 

Jan. 1903.] Hie Work of a School of Law. 69 

proper text-book to suit an amateur? Shall he for pleasure under- 
take the toil of Leolin, 

' Mastering the lawless science of our law. 
That codeless myriad of precedent, 
That wilderness of single instances, 
Through which a few, by wit or fortune led, 
May beat a pathway out to wealth and fame'? 

Is not this description as true now as when the Laureate wrote 
it in 1865? The truth is that the present condition of our law 
is a bar to any real study of it by a layman. It is not the 
substance of the law, but the way in which it is presented to the 
non-professional man, which leads him to despise and sometimes 
even to abuse it. 

And yet all the time the State insists that ignorance of the law 
affords no excuse for any breach of it. The prisoner in the dock, 
the defendant in a lawsuit, is not allowed to urge in his defence 
' I was not aware that I was breaking the law.' One would have 
thought that this fact alone would be regarded as imposing on 
the State the duty of expressing its commands in clear and un- 
mistakeable language and of rendering them widely known. But, 
if so, this is a duty which at present the State wholly ignores. 
It makes no attempt to teach the law to the people. 

And it is not only the non-professional man who suffers. The 
task of any student who intends to practise the profession of the 
law is enormously increased by its unwieldy bulk and want of 
form. But it is to the lawyers themselves that the condition 
of our law is especially detrimental. Every year it becomes more 
and more difficult for any solicitor or ban*ister in active practice 
to retain familiarity with more than some special branch or por- 
tion of the law. Any comprehensive study of the law of England 
as one compact and organized whole is at present impossible to 
a busy man. And this renders it so difficult for him to discover 
and apply those broad common-sense principles which underlie our 
English law. A real grasp of the primary principles which pervade 
the whole field of law is rarely attained by a man who has 
thoroughly mastered only a portion of the subject. Until the law 
is reduced into better form and order, our study of it necessarily 
must be fragmentary and probably will be unscientific: and our 
analysis and definition of legal ideas will be neither accurate nor 

How is our law to be reduced into better form and order ? We 
cannot go on much longer as we are doing now. Of course the 
proper remedy is a Code. Sooner or later the law of England must 

70 The Law Quarterly Beview. 

be codified. To do this would cost the nation not one-tenth part 
of the price of a single iron-clad. And it would be well worth the 
money ! I fully admit the value of such measures as the Bills of 
Exchange Act, the Partnership Act, the Sale of Goods Act, and 
others recently passed. But far greater benefits would in my 
opinion flow from a systematic and organized attempt to produce 
a series of such Digests, covering the whole ground, and arranged 
in some scientific order. The Acts relating to a given subject 
should be all repealed f^nd then re-enacted in one compendious 
and well-arranged statute. Such statutes would be in fact in- 
stalments of the future Code. 

In the meantime much may be done by this Law School and 
others to give to our legal system lucid expression and scientific 
arrangement. And then, when our law is made clear and in- 
telligible and readily accessible to all, when at last its lack of form 
and defects of expression are removed, then I trust English men 
and women will know and understand its principles, and every one 
will recognize and admit that the law of England is logical, 
sensible and just 

W. Blake Odgers. 



IT was said, rightly or wrongly, in 1848, that Lord John Russell, 
the then Prime Minister, administered an intentional reproof 
both to the Church of England and to the University of Oxford 
by the nomination of Dr. Hampden to the Bishopric of Hereford ^. 
Whether this were so or not is matter of ancient history. When 
the see of Worcester, in November, 1901, became vacaht by Bishop 
Perowne's resignation, a Conservative premier (if one may use the 
word) nominated the Rev. Charles Gore to the see. Mr. Gore 
was a known Liberal, had been installed as Canon of Westminster 
on a Liberal Minister's nomination, and had written strongly against 
the concentration camps ^. If ever a man could have been, so to 
speak, acclaimed to the mitre by the general consent of his own 
Church and of his own University, that man's name was Charles 
Gore. The writer does not call him Canon Gore. He has too 
much respect for the English language, and for the memory of 
a whilom contributor to the Law Quarterly Review. He would 
not envy the man who dubbed Mr. Freeman professor. 

Li an article written for, and (if read at all) read by lawyers, 
there is no need to recapitulate the facts of the Hampden case. The 
title it. V. Archbishop of Canterbury is confusing, for there are some 
half-dozen cases so intituled in the books, enough to make the 
cynic suggest that a Primate of all England has a double dose of 
original sin. As for the Hampden case, is it not recorded urbi et orbl, 
e.g. II Q.B. 483, and 6 St. Tr. (N. S.) 409, and is it not fully 
dealt, with in Phil. Eccl. Law (second ed.) i. 40, and Cripps' Church 
Law (sixth ed.) 79 1 Above all, did not the late Mr. Richard Jebb 
bring out his encyclopaedic Report of the entire proceedings? 

In the Hampden case, Archbishop Howley's commissaries 
(Dr. Bumaby V.-G., Dr. Lushington, and Sir John Dodson) had 
after argument held that they were not empowered to hear objec* 
tions against the orthodoxy of the bishop-elect. The confirmation 
being decreed, the ground was shifted to the temporal arena. 
A rule nisi was granted by the Q. B., calling upon the Archbishop 
and his Y.-G. to show cause why a inandamua should not 

1 Rex ▼. Ahp, qf Canterbury [1902] 3 K. B. 503, 71 L. J. K. B. 894, 86 L. T. Bepi 79, 
60 W. R. 348. 
' Law Magazine, vol. 39, p. 333, Art. Congi cPelire, ' Times, Cot. a8, 1901. 

72 The Law Quarterly Review. [No.LXXiii 

issue commanding them to permit the opposeis to appear, and 
to hear and determine upon the opposition. At the return, the 
following showed cause against the rule: Sir John Jervis A.-G. 
(afterwards C. J., C. P.), Sir David Dundas S.-G., Mr. Matthew 
Davenport Hill, Dr. Bayford, and Mr. Waddington. With them 
was Dr. (afterwards Sir Travers) Twiss, but the Court only heard 
one civilian on each side. For the opposers. Sir Fitzroy Kelly 
(afterwards C. B.) led Dr. Addams, Mr. Archibald John Stephensj 
Mr. (afterwards Sir Barnes) Peacock, and last, though by no means 
least, Mr. Edward Badeley. The law officers of the Crown would 
seem to have been retained on the instructions of the Treasury, 
in order to support the Crown's nomination, with the little more 
than passive concurrence of Archbishop Howley. The judges 
delivered their judgments on February i, 1848, Lord Denman C. J. 
and Erie J. holding that the rule should be dischaiged, Patteson and 
Coleridge J J. that it should be made absolute. This equal division 
of judicial opinion resulted in a deadlock. No order was, or could 
be, made. The only spot in the sun of Mr. Jebb's Report is that 
it concludes ' Rule discharged.' See per contra^ 11 Q. 6. 666 and 
6 St. Tr. (N. S.) S'^i' ' No order was made ' ^ 

Archbishop Howley died on February 11. His successor. Arch- 
bishop Sumner, as the first public act of his Primacy, together 
with the Bishops of Llandaff, Norwich and Worcester, consecrated 
Dr. Hampden at Lambeth Palace Chapel on Sunday, March 26. 
On April 27, the Bishop was enthroned in Hereford Cathedral, and 
his tenure of the see ended by his death in 1868. The legal 
question has ever since remained undecided in the temporal Courts. 
But history has a provoking way of repeating itself. 

A futile attempt was certainly made to object on similar grounds 
to the late Archbishop of Canterbury's confirmation as Bishop 
of Exeter in December, 1869, but Sir Travers Twiss V.-Q., after 
argument, ruled it out'. The objectors had not the courage to 
take their case into the Court of Queen's Bench. 

The question slumbered till last year '. On the recent death of 
Sir Jas. Parker Deane, Mr. C. A. Cripps, K. C, M.P., was appointed 
Vicar-General. The patent was in customary form, in terms com- 
mitting to him the business of confirmation. The Primate sends 
\A%fiat canfirmatio in every case. As to the strictly limited powers 
of a Vicar-General see Smith v. Lovegrove^ 2 Lee Ecd. 162, and 

Thorpe v. Mansell^ 2 Hag. Con. 4, In the present case the Dean 


' Compare The Vera Orua (No. a) (1884) 9 P. D. 96. ' 

* For an adequate report of Dr. Temple's case one has to go to the John BuU 
newspaper : Phil. Eccl. Law (second ed.), i. 45. 

* Some unseemly proceedings of late years at Bow Church may be dismissed as 
exhibitions of partisan wrong-headedness in contact with official fatuity. 

Jan. 1903.] The Gore Case. 73 

and Chapter of Worcester having, on Dec. 27, 1901, duly elected 
Dr. Gore, and certified his election to the Crown, the Royal 
Assent to such election was given by Letters Patent, dated 
January 11, 190a, directed to the Archbishop of Canterbury 'and 
all other bishops herein concerned,' commanding them ' to confirm 
the said election * and to consecrate the bishop-elect. On January 
16, 190a, the citation of opposers was issued, laying the venue 
not, as usual, at Bow Church, but at the Church House, West- 
minster, returnable on the 22nd of that month between 9 a.m. and 
2 p.m. Notes were appended — and this was novel practice — that 
persons claiming to be heard as objectors must deliver notice of 
their objections in writing at the Provincial Registry before 4 p.m. 
the day beforehand, and that the V.-G. would sit in chambers at 
10 a.m. on the day of confirmation to consider any objections, 
with an intimation that no opposer who did not appear in chambers 
and establish his right to appear and be heard could appear or be 
heard during the business of confirmation. Amongst the written 
objections lodged were two by laymen named Cobham and Garbett, 
neither of them residing in the diocese of Worcester, but both said 
to represent societies located in London. A trustworthy report 
of the proceedings at the Church House appears in the Times 
newspaper of January 23, igo2\ 

Again, the scene was shifted to the temporal tribunal and three 
days' argument took place coram rege^ in other words, before 
Lord Alverstone C. J., Wright and Ridley J J. On February 10, 
the Court gave judgment unanimously discharging the rules. The 
bishop-elect was consecrated at Lambeth Palace Chapel, on 
Sunday, February 23, and enthroned in Worcester Cathedral two 
days later. 

As a matter of substantive English law the question turns on the 
proper interpretation of 25 Henry VHL c. 20. That Act> with 
much contemporary legislation, certainly pushed the prerogative- 
royal as far as- possible. But it was clearly felt at the time that 
confirmation was a distinct act of the spiritualty. It corresponds 
to the institution of an incumbent. Confirmation gives the bishop- 
elect jurisdiction in spirituals over his diocese. Consecration 
makes him a bishop of the Church, not of any particular see. It 
gives him no sort of claim to local jurisdiction. As long as 
Dr. Gore's confirmation remained in doubt, there was nobody who 

could consecrate a church, ordain a priest or deacon, institute an 


* A ■ingnlar error, which a reference to the TiiM» would have averted, has crept 
into the reports : [1903] 2 K. B. 509, 71 L. J. K. B. 899, 86 L. T. Rep. 81. Grippe 
V.^. is reported to have said * Worcester ' instead of, which he quite correctly did, 
* Hereford.* 

74 The Law Qtmrterly Beview. [No.LXxni. 

incumbent, license a curate, or confirm a child, in the Worcester 
diocese. The Archbishop of Canterbury was guardian of the 
spiritualities sede vacanii only. The argument that the appointment 
of a bishop by Royal Letters Patent really puts the appointee 
in an artificial position is difficult to meet. The Legislature 
certainly sanctioned it in the Bishoprics Act, 1878, 41 & 42 Viet, 
c 68, which enacts that so long as there is not a dean and chapter 
the sees ^ thereby founded shall be filled directly by Letters Patent^ 
' and those Letters Patent shall be made in the like manner and 
have the same effect as Letters Patent of her Majesty nominating 
a bishop in the case of a bishopric where a dean and chapter have 
not proceeded to elect a bishop in accordance with the licence and 
letters-missive of her Majesty/ but that on the foundation of a 
dean and chapter a vacancy shall be filled ' in the same manner 
as a vacancy in any other bishopric in England founded in the 
reign of any of her Majesty's predecessors.' That manner is by 
election and confirmation. Thus the Act of 1878 clearly creates 
an artificial position, and one that is purely provisional ^. 

The confirmation of episcopal elections has given rise to con- 
siderable discussion, and there may be said to be two views of it. 
The one view is that it is a mere ministerial duty on the part of the 
Archbishop or his V.-Q., and that the tribunal is limited to an 
inquiry as to the identity of the person elected and as to the validity 
of his election. The other view is that without confirmation the , 
election is inchoate, and the consecration^t^uinot properly proceed, 
and that the tribunal is entitled, and, if duly asked, bound to inquire 
into the fitness of the person elected. All the forms used at a con- 
firmation, especially the citation and praeconization of opposers, 
point to its being a genuine judicial inquiry. 

In canon law, confirmation is the process by which the election 
of a new bishop receives the assent of the episcopate. This can be ' 
traced back to the third century. From the fourth century it has 
been regarded as the definite ratification of the election by the 
bishops of the province ^. 

One can follow, but not endoi-se, the ailment that confirmation 
cannot be a necessity in England, because some bishops of Pro- 
vinces in communion with the Church of England are not con- 

' Liverpool, Newcastle, Southwell, and Wakefield. 

* It is sometimes said (e.g. Gripps, Ch. Law, sixth ed.,p. 79) that the five sees 
founded under 31 Henry Vlll. c. 9 (viz. Bristol, Gloucester, Chester, Peterborough, 
and Oxford) are Grown donatives in form as well as substance. With unfeigned 
deference for the very learned author and editor, the present writer is unable to 
accept that view. The Act was repealed i & a P. & M. 0. 8, and the repeal confirmed 
I Eliz. c. I. All those sees are filled by election and confirmation. See the 
Bishopric of Bristol Act, 1884 (47 & 48 Vict. c. 66), s. 3. 

' See Art. by Rev. W. E. Collins, < Confirmation of Bishops,' in Encyd. Brit, 
vol. 37, p. 197 (1902). 

Jan. 1903.] Tlie Gore Case. 75 

firmed. How can the practice of Provinces outside England supply 
a standard from which to interpret an English Act of Parliament ^ ? 
There is in many of such Provinces a practice of confirmation of 
the diocesan electio;i by the House of Bishops. Assuming the 
finality of the decision, one can only re-echo the comment of Lord 
Alverstone C. J. : — 

* It seems to me worthy of consideration, whether the form of 
public citation which ought to be retained for some purposes should 
not be modified so as to meet the real case, and remove the 
possibility of the observation that it is a temptation to people 
to raise questions at an unsuitable time and place/ 

But the experience of the last six years makes one despair of arch- 
bishops or their officials taking the hint The Gore case illustrates 
a peculiarly English preference for doing the right thing in the 
wrong way. 

* If one may go to a Galilean precedent, it is not unimportant to note that the 
Civil Constitution of the Clergy, which was Erastianism at its high-water*mark, 
recognized the right of the Metropolitan, or senior bishop, to examine the elect 
on his doctrine and his morals {sur sa doctrine et aes »ui?urs), and to refxise confirma- 
tion, leaving the elect to his remedy by appeal oomtne tfdbua, 

W. DiQBY Thubnam. 


PROFESSOR SIGEL, of Warsaw, has written a quite fair 
manual on the history of Slavonic law. The book contains 
a series of lectures delivered at the University of Oxford. The 
want of space of course prevented him from entering into any 
details concerning the development of the diflferent institutions of 
private or public law he had to treat of. To use a well-known 
German expression, the Russian legist has endowed the English- 
speaking public with the external and not the internal history of 
Slavonic law ; or to put it in plain English, he has told us only the 
story of the sources of law, not that of its evolution. But, although 
briefly, he succeeds in tracing the close correspondence between the 
political history of the Slavonic nations and the development of 
their written and unwritten law. I cannot say that he was well 
inspired when he tried to reduce the latter to three periods. Such 
a division is easily to be found in the history of Russian law, and 
that for no other reason but the removal of the centre of the whole 
political life from Kief to Moscow and from Moscow to Petersburg. 
But why should the Polish or Bohemian law be similarly treated 
under three divisions ? I see no plausible reason for it, and the 
author does not give any serious explanation of his predilection. 
Another objection I have to address to the distinguished author of 
this small but very valuable volume is that he not only uses but 
abuses historical parallels. Some of them are really too para- 
doxical to find general acceptance. Let me give an instance : 
Professor Sigel compares the evolution of the Western and Eastern 
Slavs and believes he has found the key of their difierent ways by 
saying : the Western Slavs sought for liberty, ready to sacrifice to 
it the well-being of the lower classes ; as to the Eastern Slavs^ they 
wanted social justice and acquired it under the rule of autocracy. 
But if so, how do you explain the origin of personal servitude and 
the prominent part which in the establishment of serfdom has been 
played by the same autocracy from the time of Boris Godonnov to 
that of Catherine II, the friend of Voltaire and the encyclopaedists? 
It is true that our author speaks of serfdom only on account of its 
abolition by Alexander II, but how can we be ignorant of the fact 

^ Lectures on Slavonic Law : being the Uoheater Lectures for the year 1900. By 
Feodor Sigel. Iiondon : Henry Frowde. 190a. Svo. vi and 152 pp. 

Early Slavonic Law. 77 

that the emancipation of millions of peasants only undid the work of 
this Tsar's remote predecessors ? 

Mr. Sigel begins with an introduction the scope of which is to 
establish the existence of a general old-Slavonic customary law, 
partly written according to the testimony of Procopius and the 
analyst of Fulda. He thinks that some features of this earliest law 
have transpired in the legal measures of the Byzantine emperors of 
the dynasty of Isaurius. Following in the steps of the regretted 
Petersburg professor of history, Wassilievski, he explains the rules 
concerning village communities, contained in these laws, by Slavonic 
influence. According to Mr. Sigel, the Slavs began their social 
development by the establishment of a clannish or gentile organiza- 
tion and of large family communities. This, of course, is a foregone 
conclusion, drawn from a later state of things described by legal 
documents^ such for instance as the recently discovered oldest 
statutes of Ragusa. Direct information is very scarce so far as we 
have to deal with the first Slavonic settlements. The testimony of 
Byzantine and Arabic authors is rather favourable to such an 
hypothesis, but it does not agree with that of the well-known 
ecclesiastical writer Cosmus. of Prague, or of the earliest Russian 
chronicle, which both speak of certain Slavonic tribes, Western and 
Eastern, as not being familiar with the institution of marriage. 

The first country, the enigma of whose legal condition Professor 
Sigel tries to unravel, is old Bulgaria. The Bulgars are not 
a Slavonic people, but their state reduced to obedience a number of 
Slavonic tribes, leaving to them at the same time a certain amount 
of autonomy. The celebrated Simeon who ruled over this country 
from 888 to 927 is known to have been a great admirer of Byzan- 
tine civilization. He ordered the translation into Bulgarian of the 
Ecloga, the Prochyron, and the 'Agricultural Laws ' of the empire. 
Professor Sigel gratuitously supposes that these translations, the. 
text of which has not come to us, were rather adaptations of Greek 
law to Slavonic conditions. The example of Theodoric, the Gothic 
king, anxious to maintain Roman law among his German subjects, 
is not quite fit to support such a conclusion. The author endorses 
in this case the opinion of a well-known Polish historian and legist^ 
Romuald Hube. In a French monograph on the Roman and Byzan- 
tine law among the Slavs Hube called attention to the fact that, 
side by side with the translation of larger legal tracts, Simeon of 
Bulgaria favoured the publication of smaller Greek codes, in which 
some modifications are introduced in the text of the law. So, for 
instance, mutilation, spoken of in the private compilation ascribed 
to Constantine, disappears in its Bulgarian translation, to be re- 
placed by money fines. I do not think that this fact can be brought 

78 The Law Quarterly Review. [No. Lxxiii. 

forward as a proof of the maintenance of Slavonic law. It only 
gives material evidence of the regulating power of the Bulgarian 
prince, a power similar to the Konigs-Bann of the German rulers, 
so conclusively established by Professor Brunner. The Bulgarian 
princes, like the German barbarian kings, made use of it in order to 
modify the rules of written or unwritten law prevailing in their 

I find more originality in those pages which Professor Sigel 
dedicates to the legal history of early Servia. Our author began 
his already long scientific career by giving us a new edition, with 
commentaxy, of one of the best versions of the code of Stephen 
Dushan, which has been followed by a more complete edition of the 
different manuscripts containing the same code, published by 
Professor Florinsky, of Kief, who in a full and well-worked-out 
commentary gave also his judgment as to the preference to be 
accorded to this or that version. The code of Stephen cannot be 
considered as an early monument of Slavonic law, being of the 
middle of the fourteenth century and imbued with Byzantine legal 
ideas. Its comparatively late origin does not allow any supposition 
as to its influence on the earliest Russian legal relics. But the same 
cannot be said of the Bulgarian translations of Byzantine laws. 
Accordiug to Professor Kluchevsky of Moscow, they had a wide 
diffusion in Russia. The first introducers of Christianity, Cyril 
and Methodius, being themselves Southern Slavs, the education of 
the Russian people in the new creed was naturally entrusted to our 
predecessors in the knowledge of Christian doctrine and inventors 
of the Slavonic alphabet. It is very likely that they took also a 
prominent part in the first legal codes that were compiled in the 
time of Yaroslav, the son and successor of St. Vladimir. The very 
fact that our earliest * mirror of justice,' the Pravda, contains a 
certain number of South Slavonian words, speaks in favour of 
such a supposition, first expressed by my former colleague at 
Moscow. Another instauce of the same Bulgarian influence on 
early Russian legal thought is given by the old Slavonic version of 
the Byzantine ' Agricultural Laws,' recently published by Professor 
Pavlov. I regret to see that Mr. Sigel has not called the attention 
of his English readers to this transmission of legal work from old 
Bulgaria to Russian principalities of the tenth and eleventh centuries. 
What our author says about the maintenance of many a rule of the 
Pravda of Yaroslav in the statute of Lithuania (fourteenth century) 
is excellent and in full conformity with recent works of Leontovitch, 
Boudanov and Lubarsky, which show that all the south-western 
part of Russia, contrary to the north-eastern, and more especially 
to Moscovy, presents an uninterrupted development of legal rules, 

Jan. 1903.] Early Slavonic Imw. • 79 

already expressed in the Pravda of Yaroslav. The customary law 
of the so-called Little Russia, which formed the subject of an official 
compilation in the second part of the eighteenth century, contains 
to a great extent regulations drawn from the statute of Lithuania. 

Mr. Sigel follows the history of the codification of North Russian 
law from the time of the legal compilations made in Novgorod and 
Pskov for the use of courts of justice to the last, but not least, 
collection of Russian laws made in 1832, under the direction of 
Speransky, whose admiration for the Code Napol^n is apparent 
in our modem code, notwithstanding the formal order of the 
Emperor Nicolas I not to introduce any rule not directly taken 
from the orders or ukas of the Tsars and Emperors. This topic has 
been ably treated by Mr. Vinaver, whose general conclusions are 
accepted and reproduced by Mr. Sigel, his master. 

Ck)ming to speak of the Bohemian law, the Ilchester lecturer 
makes large use of the rich literature in which the general history 
of Bohemian law by Professor Chelakovsky, of Prague, is the last 
expression. English readers may be interested in the prominent 
part which the courts and their decisions played in the develop- 
ment of the Bohemian law. The majority of the private legal 
compilations, some of which received an official acknowledgment, 
contained nothing but such precedents. Bracton and Britton found 
their imitators even in Bohemia. Such were, for instance, the 
unknown landlord of Rosenberg and the Alderman or Starosta 
Andreas, of Doub. Professor Sigel shows the way in which German 
law first appeared in Bohemia as the statute law of certain munici- 
palities. No one has illustrated with greater science and sagacity 
the extraordinary growth of that foreign law, called by and by 
to supersede the common law of the country, than Professor 
Chelakovsky. He not only has written a series of papers on the 
different municipal laws of German origin to be found in Bohemia, 
but is the editor of a most important publication containing the 
text of all these statutes. By examining them we come to the 
conclusion that, as the result of a mixed migration of Saxons and 
Swabians, Bohemian cities and boroughs borrowed their municipal 
regulations both from the Saxon and the Swabian ' Mirrors.' The 
fatal battle of the White Mountain put an end as well to the 
political as to the legal autonomy of Bohemia. The Emperor-king 
Ferdinand II entrusted only German judges with the right of 
applying to the decision of legal suits the different prescriptions of 
his code. Germans alone were called to sit in the high court by 
imperial order of 1627. This fact alone accounts for the dis- 
appearance of Slavonic customary law from among the sources of 
Bohemian jurisprudence. Unaware of the judicial precedents of 

80 The Law Quarterly Beview. [Xo. Lxxiii. 

former ages, which constituted, as we had occasion to say, the 
common law of the country, the judges of the high court referred 
exclusively to the German code. Professor Sigel is right therefore 
in declaring that the natural evolution of Bohemian law ends with 
the first quarter of the seventeenth century. 

In Mr. Sigel's lecture on the history of Polish law, which forms 
a sepai-ate chapter of his book, the English public will find another 
instance of the great part which customary law has taken in the^ 
development of the Slavonic civil law. The first attempts to give 
a written customary law were made in those parts of Poland which 
were occupied by the Teutonic Order. No wonder that the lan- 
guage used by the compiler was the Qerman« Mr. Vinaver studied 
minutely this monument, which is worthy to attract the attention 
of all students of ancient law, on account of the great number of 
juridical archaisms it contains, such as ordeals, compositions, &c. 
Professor Sigel, although confining his study to the sources of law, 
tries nevertheless to give some information on the social and 
political state of the country at the time of their appearance. T^is 
leads him to speak of the relation of the people to the land in the 
twelfth and thirteenth centuries, a period at which the first legal 
rules were formulated. He thinks that the common people enjoyed 
freedom and the possession of the soil, considered, as it first was, 
to be tribal property and only afterwards that of the king. I do 
not think that this last point has ever been established, or that 
the acceptance of it agrees with the fact recognized by Mr. Sigel 
himself, that the oldest documents of customary law already speak 
of inheritance in immovable property as well as movable, and of 
the relations existing between proprietors and landholders. I am 
inclined to think that the possession of the whole land area by the 
king in Poland is a gratuitous supposition, just like the one which 
Antonius Possevin, a Jesuit traveller in Russia in the middle of the 
sixteenth century, made as to the Muscovite Tsar being the only 
owner of his dominions. This fancied exclusion of private pro- 
prietary rights did not prevent the existence in Russia of lands 
passing from father to son (ptchina — a kind of terra avuiiica\ and 
of benefices or lands granted in remuneration of public service 
{pomestie). Has it not been said also, of course by foreigners, that 
William the Conqueror became the only proprietor of the kingdom 
he had conquered, and such expressions ilded by him as terra mea, 
dominium meum, interpreted in the sense, not of political dominion, 
but of private ownership ? 

The want of space prevents me from following Iti^r. Sigel in all 
he says about the difierent sources of Polish law. I intend only 
to call the attention of the reader to the large legal autonomy 

Jan. 1903.] Early Slavonic Law. 81 

enjoyed by different provinces which constituted the kingdom. 
In this way Mazovia had its own legal code until the year 1576. 
The same may be said of Lithuania, which received in 1588 a 
revised edition of its old statute. Great and Little Poland had 
each its own customary law, both codified in the middle of the four- 
teenth century — Great Poland, the statute published at Petrokov ; 
Little Poland, the statute of Vislitza. 

With the history of the Republic of St. Mark, or Venice^ is 
involved to a certain extent the history of that part of the southern . 
Slavonians who either escaped Turkish bondage or liberated them- 
selves from it« Such was the case of the city and village republics 
of Dalmatia. Professor Sigel devotes the fifth and last lecture of 
his course to a short sketch of their legal development. The oldest 
monument of Dalmatian law is that of V inadol, compiled in Croatian 
in the year 1283. It is certainly one of the most genuine and in- 
teresting documents of Slavonic law. It has been published several 
times. The best edition is that given in Petersburg by Professor 
JagiS, now Professor of Slavonic Philology at Vienna. A French 
translation made by Mr. Jules Preux appeared in 1897 in the Bevue 
de droit frajufais et Stranger. 

Another legal relic of a later date is the statute of Politza, 
a small Dalmatian republic, situated close by Spalato. This little 
code, published a few years after the time when Politza passed 
from the Turkish supremacy to that of Venice, in the year 1485, 
contains partly old customs, never written, partly those which had 
been already included in an earlier statute of 1440. The statute 
of Politza is much richer in regulations of civil law than that of 
VinadoL Amongst other curious institutions mentioned by it we 
find the house community, known in our days to Southern Slavs 
under the name of Zadruga. The word employed by the statute 
to designate the same is Verv ; we find it also in the oldest code of 
the Russians — a fact showing first of all the antiquity of the insti- 
tution and then the part taken in the compiling of our earliest law 
by scribes of South Slavonian origin. 

Besides the two already mentioned documents, Mr. Sigel speaks 
also of municipal statutes, published at the time of the Venetian 
supremacy, such as those of Zara and Ragusa. We should be 
mistaken in admitting that these compilations are the first in 
time. Mr. BogisiS, the well-known codifier of the civil law of 
Montenegro, has recently published in the Revue de droit fran^is 
a very interesting paper on the old statute of Ragusa, which is of 
the thirteenth century. The same well-known scholar is now pub- 
lishing at Agram, in the memoirs of its Academy, the text and 
interpretation of this very important document. The fact alone 

vofv XIX. a 

82 The Law Quarterly Beview. [No. Lxxiii. 

that the statute of Ragusa proves the existence side by side of two 
different types of family organization — ^the 'house community ' and 
the * small family ' (inocosna)—iB made to confirm the theory of the 
same writer, according to which the small family is but a separated 
branch of the joint family to be found both in town and country. 
The early Slavonic legists were of an opposite view ; they thought 
the Zadruga to be peculiar to the village and the 'small fieimily' 
to the town. This gratuitous supposition found even an expression 
in the Croatian code. 

It is to Mr. Bogi6iS that Professor Sigel is also indebted for the 
greater part of the information he gives on the development of 
Croatian law. A monograph 'on the written law among the 
Southern Slavs' long ago attracted on Mr. Bogidifi the attention of 
the scientific world, which only increased after the appearance of 
his collection of South Slavonic customary rules. Whilst Dalmatia 
early fell under the supremacy of Venice, Croatia became depen- 
dent on Hungary. This did not prevent her from retaining a legal 
autonomy, the right of calling together a kind of diets, known 
undei* the name of Generalei Congregationes. This rather aristocratic 
institution from the thirteenth century selected regularly for a year 
the chief justice, the so-called ' Jupan.' It also made the laws of 
Croatia, creating thus the first foundations of its juridical develop- 
ment. In the year 1973 ^^ j^^g^ received written instructions 
compiled by the states. In the same century appeared the statute 
of the principal city, Agram, and the privileges of the nobility. 
Two centuries later was published a series of criminal laws, and 
the rights of the Croatian kingdom were confirmed by Hungary. 
It is only from the sixteenth century that the Croatian diet loses 
the right of legislation without the intervention of the Hungarian 
king. Before this period the sanction to the legal decisions taken 
by the states was given by the highest official of the country, the 
Eann. Notwithstanding this limitation of its autonomy, the 
Croatian diet continued to assemble until the year 1848. 

The book we have just revised ends with a general view of 
the Slavonic law, in which one point deserves sp^ial attention. 
Mr. Sigel is quite right in saying that, with the exception of 
England and Scandinavian states (why not also of France ?), the 
juridical development of Western Europe shows the defeat of 
national laws and customs by Roihan law. The Slavs, on the 
contrary, maintained their own legal rules. As such they present 
a greater resemblance to the juridical development of the English 
nation than any other people of the Continent. I hope that the 
confirmation of this view, which the English reader will find in 
Mr. Sigel's small volume, may be an inducement for historical 

Jan. 1903.] ISarly Slavonic Law. 83 

students, more especially those interested in legal antiquities, to 
consult the sources of Slavonic law, some of which are accessible 
even to those ignorant of the language ; the more so as some of 
these documents are written in old German or medieval Latin, 
whilst others are translated, or in course of being translated, into 
French or German. I suppose that in writing his book, Mr. Sigel 
had no other end but that of disclosing the rich materials which 
the old Slavonic laws and juridical compilations contain on the 
earlier forms of civil institutions. It will be therefore a great 
satisfaction to him to see some one in England entering upon the 
same line of studies. 

Maxime Eovalevsky. 

[It is impossible to expect any appreciable number of English 
historical students to master two or three Slavonic languages. 
A uniform French or (German translation — French by preference — 
of the principal documents of early Slavonic law seems much to be 
desired.— Ed.] 

a 2 



[Short notioea do not necessarily exclude fuller review hereafter.] 

Company Law. By Francis Beaufort Palher. Fourth Edition. 
London: Stevens & Sons^ Lim. 1902. La. 8vo. 1 and 
631 pp. (12*. 6d,) 

In January and February, 1897, Mr. Pahner delivered six lectures upon 
Ck)mpany Law at the request of the Council of Legal Education, and the 
first edition of the work before us, which came out early in 1898, was 
based on the lectures. The work was duly appreciated by the profession, 
and before the end of the year a second edition was published. On the 
title-page of the second edition the author described the work as ' A Practical 
Handbook for Lawyers and Business Men,^ and in the third and fourth 
editions the use of the second title has been continued, and in the third 
edition all reference to the lectures was omitted. In the fourth edition, 
now under notice, the author refers to the lectures in his preface only. 
Three ' large ' editions, as he tells us, have been sold since the first publica- 
tion in 1898, and the size of the last exceeds that of the first by 127 pages. 
Nevertheless, the price has not been increased. In commenting on the 
Ck)mpanies Act, 1900, Mr. Palmer has had an easy task, as the statute has 
been recently dealt with by him in his eighth edition of the first volume of 
^Company Precedents,' but he has been . watchful of and critical as to 
recent decisions on the Act — for example, Keatings v. Paringa ConBolidated 
Minesy with which the author does not agree. 

The fourth edition is quite up to the standard of its predecessors, and 
may be recommended for perusal, not only by the lawyers and business 
men for whom it is primarily intended, but by the numerous students who 
would hesitate to tackle any of the larger books on the same subject. 

F. E. 

The ABC Guide to the Practice of the Supreme Courts 1903. By 
Francis A. Stringer. London: Sweet & Maxwell, Lim.; 
Stevens & Sons, Lim. 1902. 8vo. xv and 144 pp. (5^.) 

Mb. Stringer is ' of the Central Ofice of the Supreme Court/ and he is 
the author of a book on Oaths and Affirmations. He is also one of the 
editors of the Annual Practice and of Daniell's Chancery Practice. The 
colour of his binding is white, like that of the Annual Practice, and his 
new volume is put forth by the same publishers and is a kind of anntxe 
to that work, to which it frequently refers. It is not an index to the 
Aimual Practice, however, but is intended to give within a small compass 
^ the practical information necessary for the conduct of actions and matters 
in the Chancery and King's Bench Divisions . . . and in the Court of 
Appeal, and to give that information in such a manner as to make it 
easily and rapidly accessible in every part.' It tells the legal practitioner 

Beviews and Notices, 83 

how, when, and where *he may take such step in procedure as he may 
decide to take,' and purports * to define the mode, time, and place with 
precision/ If any body acts on the book and goes wrong, Mr. Stringer 
will probably hear of it promptly, especially as he invites suggestions for 
the improvement of his book. 

The Annual Practice is an excellent work, but it has grown to a great 
bulk, and might we think be now advantageously flattened out into royal 
octavo. Mr. Stringer's volume, however, can be easily carried in a medium 
sized pocket, yet it contains much practical matter in a readily accessible 
form. Take the title 'Appearance.' Under this title we are told how to 
enter an appearance, and where to appear in an action commenced in 
a district registry. Information is also afforded as to giving notice of 
appearance, conditional appearance, and as to what is to be done in the 
case of companies, corporations, and other bodies which are made defen- 
dants, as well as in the cases of persons under disability, landlords, persons 
served with notice of judgment or a third-party notice, added defendants, 
and trustees in bankruptcy. We are also told how female defendants 
should be described, what appearance * gratis ' is, how appearances may 
be amended, and the limit of time for entering them. The above is a fair 
example of the information given under the various titles, which are 
arranged alphabetically; and the book will, we think, be found useful 
in ordinary practice. F. £. 

Principles of the Law of Contracts. By the late S. Martin Leake, 
Fourth Edition by A. E. Randall. London : Stevens & Sons, 
Lim. La. 8vo, Ixxxiii, 916 and 60 pp. (3^-) 

Elements of the Law cf Contract, By A. T. Carter. (Students' 
Series.) London: Sweet & Maxwell, Lim. 1902. 8yo. 
xiii and 198 pp. (7*. 6^.) 

The late Mr. Leake's treatise, which may now be called classical, 
retains in the learned editor's hands its character of an accurate digest 
of the law of contract, not attempting to explain the history of the law, 
and severely reticent as to the author's personal judgment of doubtful 
points. Thus the statement as to agreements in restraint of trade has 
been duly made to embody the actual results of the Nordenfdt case ; but 
no reader would discover from it the fact that the decision of the House 
of Lords made a revolution in the accepted doctrine. Nor would any 
one discover from Mr. Leake's language at p. 436 that his two proposi- 
tions, namely Ihat * a person may promise to a third party to do what he 
is already bound to do by contract with another,' and that on the other 
hand *• the performance of a legal duty affords no consideration for a con- 
tract,' involve — especially when coupled with the significant and certainly 
deliberate omission to cite ShadweU v. ShadiveUy 9 C. B. N. S. 159^ as 
bearing on either branch of the doctrine — a decided solution of one of the 
most difficult and subtle problems in the law of Consideration, over which 
learned persons have differed for many years. Leake's solution agrees 
with Mr. Langdell's, and is in the present writer's opinion correct ; though 
we do not think the authority cited for the second proposition really bears 
it out. But the student must learn elsewhere with what searchings of 
heart the result was probably arrived at, and also that it is at first sight 
opposed to the weight of existing authority. We do not in the least intend 

86 Ths Law Quarterly Beview. [No. Lxxni. 

to censure Mr. Randall ; he has faithfully preserved Leake's method, as 
he was bound to do. 

We. are rather puzzled by the plan of Mr. Carter's book. It purports 
to be * written not so much perhaps from an academical as a professional 
standpoint.' But it is much too short to be used in practice, and on the 
other hand, if it is intended to be a very elementary book preparing 
the way for Sir W. Anson's, it contains many things which ought not to 
be put before mere beginners, or not without warning. Thus ShadtceU t. 
ShadweU is stated with inadequate explanation, and without the least hint 
that there is any difficulty. What will the poor student* say when he 
turns from Mr. Carter to Sir William Anson, not to mention Mr. Langdeil 
and Mr. Ames? We have mentioned the silence of Leake; a reader 
going straight to Leake with no other, guidance than Mr. Carter's would 
be tempted to wonder how an author who omits to cite important 
decisions has acquired an almost unique reputation for accuracy. 

It is disappointing, again, to find it stated without qualification that 
'an acceptance tnust be eommumcated by writing, words, or conduct,' 
while Carlill v. CarboUc Smoke BaU Co. is given as an illustration without 
any comment on the obvious fact that in that case the acceptance was not, 
in any ordinary sense, communicated at all. There is much to be said for 
Mr. Langdell's view tiiat when the consideration asked for by the offer of 
a promise is not a promise but an act, the performance of the act as 
requested suffices, and there is no question of communication. It is also 
allowable to say that the proposer is estopped from raising any such 
question if the conditions proposed by himself have been satisfied. But at 
any rate a point of principle which is sure to puzzle intelligent beginners 
should not have been left wholly unexplained. 

This is the more to be regretted because the short but very sound 
exposition of the doctrine that ' all valid considerations are present con- 
siderations,' a few pages later, shows that the learned author is perfectly 
capable of giving the required explanation. 

There is a chapter on rules of evidence and construction, but we do 
not find anywhere the fundamental rule that * the language used by one 
party is to be construed in the sense in which it would be reasonably 
understood by the other' (Blackburn J., 3 B. & S. at p. 929, 32 L.J. Q.B. 
at p. 159). ^ 

We find no trace of acquaintance with the work of Mr. Langdeil, 
Mr. Ames, or Mr. Harriman, to mention only the best known of the 
learned American lawyers who have done so much to elucidate both the 
theory and the history of the subject. 

Then there is an appendix on Consideration and the history of Assumpsit, 
quite out of place in such an elementary treatise. But, being there, it 
should have been accurate. We read on p. 181 : 'A. leaves his horse with 
B. to shoe. B. runs a nail into the hoof and injures it. The plaintiff 
brings trespass on the case.' So far good. The action is on the case 
because, the operation being with the plaintiff's consent, there is no 
actual trespass to his goods. Instead of this perfectly well-known 
explanation, however, the next sentence is a gloss which we can only 
call astounding : ' If he had been in possession [of the horse] he could 
have brought trespass [no, certainly not, if the shoeing was at his request], 
but the wrong suffered was the same whether the honse was in the owner's 
stable or the smithy' [true but irrelevant: Mr. Carter, or his assistant 
Mri Fox, appears never to have heard that some unauthorized acts even 
by a bailee in lawful possession may amount to a trespass, being held to 

Jan. 1903.] JRevieios and Notices. 87 

determine the bailment]. Then follows a reference to 46 Ed. m, 19, 
pi. 19; a student might well think that the bad reason as well as the 
facts comes from the Tear Book, where, of course, there is nothing of 
the kind. The actual question was on the omission of the words vi et 
armU from the writ. It is almost worse that on the preceding page the 
action of Debt is stated to have lain ' for the recovery of a sum certain 
alleged to be due, founded on a c<mtraot express or implied.' This confuses 
the whole history by importing into the ancient action of Debt the ideas 
and terms deyeloped much later in Assumpsit. Certainly the word ' con- 
tract' was used in connexion with Debt, but long before it had acquired 
its modern implication of obligation created by promise. The action of 
Debt had nothing to do with promise : it was ' an action of Property ' 
{Edgeomb v. />«, Yaugh. loi), a writ of right for chattels. 

We are sorry to be compelled to censure a well-meant piece of work of 
which, no doubt, the greater part is sound, and which may, for aught we 
know, haye its particular uses. But we cannot help thinking, and think- 
ing we are bound to say, that a text-book produced by a teacher at Oxford 
and in the Inns of Ck)urt might and ought to have been a great deal 
better. There is an apology for the book not having been finished by the 
learned author himself, by reason of illness, and handed over to Mr. W. F. 
Fox. But why could it not wait ? Perhaps the reason is to be sought in 
the exigencies of publication in a 'series.' If so, it is not the first time 
they have spoilt promising material. 

British Rule and Jurisdiction beyond the Seas. By the late Sir Henrt 
Jenkyns^ with a Preface by Sir Courtenay Ilbkrt. Oxford: 
Clarendon Press. 1902. 8yo. xxiii and y>o pp. 

This book will be of much interest, alike on account of its contents and 
of its author, though perhaps in both cases to a limited circle of readers. 
What manner of man was Sir Henry Jenkyns — lovable, if somewhat 
austerely self-centered, and wholly devoted to public duty — may be 
gathered from the admirable semi- biographical preface which Sir Courtenay 
Ilbert, the colleague, and afterwards the successor of Jenkyns in the office 
of Parliamentary Counsel to the Treasury, has contributed to this post- 
humous volume of his friend's essays. The more solid results of the 
literary activity of Sir Henry Jenkyns are bound up in the thirty volumes 
of the statute-book which appeared between 1869 and 1899. During all 
those years, Jenkyns was bestowing upon measures which, besides having 
ultimately to stand the test of forensic discussion, had first of all to be 
carried through Parliament, an amount of time and thought of which the 
uninitiated can have little conception. What he accomplished in this 
way was rendered possible only by an unrivalled knowledge of the 
existing law upon all the subjects with which, from time to time, he 
was called upon to deal. 

The present volume is a mere excursus to those labours of a lifetime. 
It contains a series of careful memoranda, such as would be required 
before legislation upon the topics of which they treat could safely be 
attempted. But the book has a unity, which is expressed by its title. 
The essays which Jenkyns was engaged in putting into shape, when he 
was cut off by death, all relate to jurisdiction exercised by the British 
Crown outside of the United Kingdom. They travel, it will be observed, 
over some of the same ground which was covered in 1894 by the late 
Mr. W. E. Hall, in his Treatise on the foreign powers arul jurisdiction of the 

88 The Law Quarterly Beview. [NcLXXiii* 

Brituh Crown ^. The later has less of scientific method than the earlier 
-work, but is, of course, better brought up to date, and although two years 
have elapsed between the death of its author and its publication, the 
interval has been spent in much useful revision by Sir Courteniy Ilbert, 
assisted by Mr. Graham Harrison. One chapter, that on ' self-governing 
colonies,' has been entirely re- written by Mr. J. A. Simon, a step which 
seemed to be called for by the passing of the Commonwealth of Australia 
(Constitution) Act of 1900. Although, therefore, Sir H. Jenkyns was 
not spared to put the finishing touches to his valuable essays, they contain, 
vyith the collective guarantee of Sir Courtenay Ilbert and his colleagues, 
a mass of information which, so far at least as it relates to the colonies, 
may be vainly sought for elsewhere. 

The volume opens v^ith a short chapter, classifying find defining the 
territories within which British jurisdiction may be exercised. The 
second chapter describes the general relations between the United King- 
dom and British Possessions. Then come chapters dealing with the 
various classes of British Possessions, chapter iii dealing with such as are 
not, and chapters iv and v with such as are, ^ Colonies.' Of these two 
chapters, the former treats of self-governing, the latter of Crown, Colonies. 
Chapter vi gives information of a somewhat supplementary character 
about Colonial Governors^ as exercising, in a self-governing Colony, the 
powers of a constitutional sovereign, in a Crown Colony, those of an actual 
ruler. The author here quotes, and in the main adopts, the clear descrip- 
tion of a governor of the former kind given by Mr. Herman Merivale, who 
remarks that * the really onerous part of his duty consists in his watching 
that portion of Colonial policy which touches on the connexion with the 
mother country.' Chapters viii-ix differ from those which precede them 
in that they relate to jurisdiction exercised in places not within the 
British Dominions, the subject of Mr. Hall's treatise, already mentioned. 
The text of the work is followed by a useful appendix of documents, 
including also an account of the pre-federation constitutional history of 
the Australian Colonies. 

A treatise upon the law of Copyright in the United Kingdom and the 
dominions of the Croton^ and in the United States of America [with 
appendix of Acts^ conventions^ and other documents']. By E. J. 
MacGillivray. London: John Murray. 1901*. La. 8vo. 
:xxxvi and 403 pp. (25s. net.) 

This is a full text-book in the nature of a digest. Tlie learned author 
has rightly kept his personal opinions in the background for the most 
part, but in the preface he justly complains that ' it is now twenty-eight 
years since the Royal Conmiission on Copyright was appointed, and still 
nothing has been done to ameliorate the lamentable condition in which 
the Commissioners then found the law.' We have tested the work on 
some nice points, such as the history of copyright before the Act of 1842, 
copyright in reported speeches, and the common-law right — often erroneously 
called copyright — to restrain the unauthorized publication of unpublished 
matter, and in every case we have found it sound and trustworthy. The 
arrangement is as good as the subject and the state of the law permit. 

The American section will add greatly to the utility of the book for the 
profession, and still more, perhaps, for publishers and others who have to 

' See L. Q. R. x. 276. 

Jao. 1903O Reviews and Notices. 89 

acquaint themselyes to some extent ^ith copyright law. We may say the 
same of the documents conyeniently collected in the Appendix. 

It is refreshing to see a law-book produced in handsome print and with 
an ample page, though we are not sure that practising lawyers would not 
have preferred a less bulky form. 

An Encjfclopaedia of Fomu and Precedents other than Court forms by 
Eminent Conveyancing and Commercial Covnsel. Under the Greneral 
Editorship of Arthur Underbill, assisted by Charles Otto 
Blagden and Willla^m E. C. Baynes. Vol. II. Apportionment 
to Building Schemes. London ; Butterworth & Co. 1902. 
La. 8yo. xliii and 653 pp. 
This yolume contains the subjects ' Apportionment ' to ^ Building and 
Engineering Contracts/ inclusiye. It would perhaps be impossible to 
write within the space tA our disposal an exhaustiye reyiew of a book 
of such extent and yariexy. The general character of the work is high, 
and it may fairly be recommended as a safe guide to those who consult 
it. There is a great number of precedents containing forms which are 
not to be found in the ordinary books. For example, under the head 
^Apprentice' there are twenty precedents of deeds of apprentice and 
of instruments relating thereto. The fact of Mr. Muir Mackenzie being 
one of the authors of the heading ' Arrangements and Compromises with 
Creditors' is in itself a guarantee that the preliminary note and the 
precedents are good. The reader will find under the head of * Arrangement 
and Compromise ' some instruments which he would haye hardly expected 
to haye found under that head, for example, separation deeds between 
husband and wife and between a man and his mistress, and agreements 
for compromise of Actions, and to withdraw opposition to a bill in Parlia- 
ment. We are not aware of any other book in which the forms relating 
to auctioneers which are in this book can be found. There is a large 
collection of banking documents. It may perhaps appear to some that 
the insertion of a letter of inquiry as to tlie financial position of a 
customer of a bank and the reply of the bank thereto was hardly necessary, 
but we consider that the editors exercised a wise discretion in inserting 
these forms, as inquiries of this nature must be of conistant employment. 
There is a large number of guarantees to bankers adapted to yarious 
circumstances. Perhaps one of the most interesting parts of this yolume 
is * Building and Engineering Contracts,' by Mr. Strahan. The preliminary 
note contains a good deal of information, some of which will be new to 
many of our readers ; for example, few people are aware that contracts for 
work where both parties to them are of high standing and integrity are 
often made in a yery informal fashion, eyen without any writing. 

There is, howeyer, one point which appears to haye been oyerlooked, 
or as to which possibly Mr. Strahan does not agree with us. The form of 
Building Contract adopted by the Royal Institute of British Architects 
(giyen at p. 587) proyides in effect that the architect may sanction 
additions to the buildings without consulting the owner. No doubt from 
the point of yiew of the architect this is desirable, but we yenture to 
submit that it is a power that ought not to be placed in the hands of any 
profiessional man. It would be simple enough to proyide that no additions 
costing in the whole more than a certain sum should be paid for unless 
the landowner consents in writing to their being made. The danger of 
using this clause in the form adopted by the Royal Institute of British 

90 The Law Quarterly Review. [No. Lxxiii. 

Architects is stated in an unanswerable manner by Lord Grimthorpe in 
' Beckett on Building ' at p. 42 et seq. 

The Yolume is singularly free from clerical errors, but there is a 
^reference to a wrong section of the Conveyancing Act, 1881, in the note 
on p. 8 which is somewhat misleading. The precedent to which the note 
is annexed is 'Apportionment of Rent reserved on a lease where the 
reversion is sold in lots the lessee not being a party/ The scheme of the 
deed is for the vendor to demise the land to a trustee whose duty it is to 
collect the rent from the original lessee and to divide it among the 
purchasers of the reversion. According to the usual and correct practice 
the term created by the demise to the trustee is longer by one day than 
the unexpired term granted by the lease. The note explains that it is 
doubtful whether this is now necessary in the case of leases made since the 
coming into operation of the Conveyancing Act, 1881, s. 44. It is sub- 
mitted that there is Some error in the note. At the time when the 
vendor demised to the trustee he was seised of the land in fee subject to the 
original lease. In other words, he was entitled to the reversion expectant 
on the term granted by the lease, and when he demised to the trustee it made 
no difference whether the term granted to the trustee was equal to or less 
or greater than the residue of the term granted by the lease, as in either 
case the trustee as assign of the reversion would be entitled to the rent 
reserved by the lease and the benefit of the lessee's covenants under the 
Conveyancing Act, 1881, s. 10. 

Woodfalfs Law of Landlord and Tenant Seventeenth Edition. By 
J. M. Lexy. London : Sweet & Maxwell, Lim., and Stevens 
& Sons, Lim. 1902. La. 8vo. Ixxvi and 11 58 pp. (38^.) 

This is not merely the seventeenth edition, but also the centenary edition 
of a book which is entering upon its second century with a reputation and 
prestige of authority not surpassed, and scarcely rivalled by any other 
work on the same subject 

The book, however, bears traces of old age, the removal of which 
requires a somewhat more drastic treatment than it has lately received, 
for though the latest authorities are plentifully cited it is not always easy 
to ascertain from the tef t how far they have modified the older cases and 
authorities which are there still retained unaltered. 

For instance, Comyn is cited at p. 289 in support of the proposition that 
under a continuing covenant to keep in repair the assignee of a term may 
be made liable in respect of dilapidations which accrued previously to 
his assignment, and from the context of Woodfall it would appear that 
the original lessee might enforce the liability by way of implied indemnity. 
But the case of Mouie v. Garrett^ (1870) L. R. 5 Ex. 132, is elsewhere cited 
in Woodfall to show that the implied liability of the assignee of a term 
to indemnify the original lessee against breaches of covenant is limited to 
breaches which have been committed by the assignee during the con- 
tinuance of his own estate ; and on an examination of MovU v. Garrett it 
will be found that the lessee who was there suing the assignee in respect 
of breaches of a continuing covenant to keep in repair, prudently limited 
his claim under the implied indemnity to the dilapidations which had 
occurred during the continuance of the assignee's estate. 

This fully justifies and supports 'the proposition for which Motde v. 
GarreU is cited, but at the same time it would seem to require some modi-^ 
fication of the other passage in which the authority of Comyn is cited* 

Jan. 1903.] Eeviews and Notices. 91 

Again at p. Ixii it is stated as a leading proposition that a lease for 
more than three years is Yoid unless made by deed, but the qualifications 
introduced by decisions, both at law and in equity, as to the effect of such 
a lease, should be supplied to make the proposition accurate. 

A Treatise an tie Jurisdiction and Practice of the English Courts of 
Admiralty Actions and Appeals, being a Third Edition of Williams 
and Brace's Admiralty Practice. By the Hon. Mr. Justice Brucb 
and C. F. jEMJiMT, assisted by G. G. Phillimokb. London: 
Sweet & Maxwell, Lim. 1902. La. Svo. 11 and 789 pp. (32s.) 

The last edition of Williams and Bruce was published in 1886, and 
a new edition was much wanted. The law of the Admiralty, as compared 
with other branches of English law, is largely unformed. In no other 
Court does 'judge-made law* grow so quickly. Moreover, the Judicature 
Acts, the County Court Acts, and other modem statutes have introduced 
many novelties and some confusion into its practice. One need mention 
only two or three recent cases, such as the Zeta, Gas Float Whitton No. 2, 
the Gemma^ and the DiekUor, to show that elementary points of Admiralty 
law were until the other day undecided, and that any day questions may 
arise in the Admiralty Division which make it necessary to trace the 
growth of the Admiral's jurisdiction from its very origin. 

The very considerable addition to the length of the table of cases in the 
present edition, some 3,000 cases in all as against about 2,000 in the 
second edition, indicates that a considerable addition has also been made 
to the text. Many of the new cases cited must be of earlier date than 
1886, for it cannot be that 1,000 reported cases have been decided since 
that date. Some of the additional cases are, it is true, unreported ; and 
the number of these unreported cases cited is not altogether a satisfactory 
feature. Reporters in the Admiralty, as in other Courts, do not err on the 
side of omission. 

There does not appear to be any considerable alteration in the body of 
the book ; and the Introduction, which deals with the history of the juris- 
diction, shows little change. This and the text throughout might have been 
amplified, and in some cases corrected. For ex|imple, the existence of 
contemporary copies of the alleged agreement of 1575 between the Conunon 
Law and Admiralty judges as to the limits of the jurisdiction should have 
been mentioned (p. 9); as also the similar agreement of 1632, which is to 
be found at the Record Office, with the signatures of the judges at its foot. 
The important supersedeas of a commission to common law judges in 
a case of piracy of the year 1361 is set out in Selden Series, Admiralty, 
vol. i, p. xlv, but the learned editors only give us (p. 4, note i) a reference 
to what Cockbum C. J. said that Hale C. J. has about it. Again, the 
long note or appendix to the Introduction (p. 18), in which the recent 
decisions in the Gemma and the Dictator are criticized, cites Clerke's 
Praxis, but contains no reference to the. existing lecordB of the courts 
which are surely better authority than the Praxis. Upon the point 
discussed in this note, namely whether in an action in rem judgment can 
go against the appearers in a sum larger than the value of the res or the 
amount of the bail, at least one decided case (Parkinson c. PiUy Selden 
Soc. Adm. ii. 195) should have been ihentioned. A careful search amongst 
the court records would probably throw further light upon this important 
question. It is a matter which in the neat future may engage the atten- 

92 The Law Quarterly Review. {No. LXXIIL 

tioQ of Parliament, in view of the demand which is being made by British 
shipowners that the measure of their liability in case of collision should 
be the same as that of shipowners in other countries. In discussing it 
the learned editors have perhaps attached too much weight to decisions 
of Dr. Lushington and subsequent judges who appear not to have been 
aware of the earlier records. It should, however, be added that the 
records referred to tend to show that the view taken by the editors of 
Williams and Bruce is more in accordance with the early practice oi the 
court than that taken by the President and by the Court of Appeal in the 
Gemma and the Dictator, 

The history of the Admiralty Court has yet to be written, and Williams 
and Bruce does not say the last word on. the subject. As a practical 
treatise it stands almost without a rival ; and in point of accuracy, full- 
ness, and caution in dealing with modem decisions, it is admirable. The 
alteration in the size of the volume makes it far more easy to handle. 

An Essay on the Principles of Circumstantial Evidence. By the late 
William Wills. Fifth Edition. Edited by Sir Alfred Wili^, 
one of His Majesty's Judges of the High Court of Jugtice. 
London: Batterworth & Co. 1902. 8yo. xxv and 458 pp. 
It is evident that the work of editing his father's book has been to 
Mr. Justice Wills a labour of love. Not only has the text been carefully 
revised and brought up to date, but the paper is of the best, the print 
excellent, and there is a full and complete index. One of the most 
interesting chapters in the book is that which deals with the testing of 
documents by internal evidence, and we propose to apply one or two 
of the rules given on page 197 for testing the genuineness and authenticity 
of written instruments from a critical examination of the internal contents 
to the book at present under review. In the first place we notice on 
page 267 and again on page 270 a statement that the judge who presided 
at the trial of Madeleine Smith was the Lord Justice Clerk Cockburn. 
We do not think that Lord Cockburn ever presided over the Second 
Division, and it would seem that he died on the 26th of April, 1854, ^^ nearly 
three years before the trial in question took place. What is the inference 
which the higher critic writing some five or six hundred years hence with 
the biographies of Lord Cockburn and Mr. Justice Wills before him will 
draw from this passage ? May he not fairly say that a critical examina- 
tion of these pages ' betrays their fraudulent origin,' because the date of 
the death of so celebrated a judge as Lord Cockburn is 'an event or 
a circumstance which must have been known' to such an able and 
accurate writer as Mr. Justice Wills? 

Again, the attention of our higher critic will be arrested by the state- 
ment on page 203, that ' the law of England recognizes several presump- 
tions juris et df. jure which create 'entire or partial exemption from 
criminal responsibility,' and he will be at once struck by the word partial 
and by the fact that the phrase presumptio juris et de jure is being used in 
a sense different to that in which it is used by the civilians. He will ask 
himself whether the application of this expression alike to the presumption 
that an infant under the age of seven years cannot be guilty of crime and 
to the presumption that an infant above that ago and under fourteen 
years shall be prima facie adjudged doli ineapax is ' in harmony with the 
known character, opinions, and feelings of the pretended writer.' He will 

Jan. 1903.] Beviews and Notices. 93 

then turn to page 24 where he will find the true distinction between 
presiunpHones juris et de jure and preswnptionea juris accurately drawn, 
and no hint that the former expression is ever used in any wider sense, 
and he will say to himself that the passage on page 204 must be spurious. 
We notice these two slight slips because they seem to us to illustrate and 
to emphasize the great truth that ' the most important part of the inductile 
process ... is the correct exercise of the judgment in drawing the proper 
iirferenee from the known to the unknown from the facts proved to the 
Juetum probandum.* It is to be regretted that this edition has come out 
just too soon to deal with that which we have lately been told is perhaps 
the most accurate of all circumstantial evidence, namely identification by 
means of finger-prints. The note on page 423 should provide some 
material for a skilful cross-examiner, and we can imagine the surprise 
of an ordinary house surgeon who has been called to speak to blood stains 
found on the prisoner's clothes when he is asked whether he has treated 
those stains with haemotoxic rabbit serum. Every page of this book 
contains something of value to those who are brought into contact with 
the Courts of this country. The advocate who has to examine a scientific 
witness should remember that 'science is never final and new facts are 
every day found to disturb or modify long established convictions.' 
The counsel who has to deal with damaging statements alleged to 
have been made by his client should bear in mind the wise words of 
Mr. Justice Foster cited on page 56. He says, ' Words are transient and 
fleeting as the wind ; they are frequently the effect of sudden transport 
easily misunderstood and often misreported.' To the person upon whom 
suspicion has been unjustly thrown we commend the story of the wicked 
uncle, which Lord Coke says he has reported * for a caveat to the innocent 
and true man that he never seek to excuse himself by false and undue 
means lest thereby he, offending God (the author of truth), overthrow 
himself as the uncle did.' The cases, which are chiefly taken from the 
criminal law, are full of human interest, and should prove excellent 
reading for a judge during a long train journey on circuit We can 
without hesitation recommend this edition to the newly appointed member 
of the Bench who is anxious to obtain a due appreciation of the proper 
value to be attached to circumstantial evidence before he is called upon to 
pi^ide at the Central Criminal Court or in the Crown Courts on Circuit. 

Tie Law of Evidence. By Sidney L. Phipson. Third Edition. 
London : Stevens & Hajnes. 190:^. 8yo. cviii and 66^ pp. 
Thb present edition of Mr. Phipson's book on the law of evidence seems 
to us to fulfil admirably the purpose which he originally set before himself 
in his preface to the edition published in 1892. The fact that over 700 
cases have been added to those cited in the last edition is sufiicient to 
show that he has managed to steer clear of that Scylla known to us as 
Stephen's Digest of the Criminal Law, and one has only to look at the 
present volume to see that he has also successfully avoided the Charybdis 
of that other 'great repository of evidentiary law' to which he refers. 
The plan adopted in former editions of giving at the end of each chapter 
illustrations of admissible and inadmissible evidence in parallel columns 
is again made use of and should prove helpful to the student of the Law 
of Evidence. We are rather surprised in a book dealing with this subject 
to find no mention in the index of the expression * Lex Fori,' but perhaps 
we may have missed some statement in the text that the admissibility or 

94 The Law Quarterly Beview. [NcLXXIII. 

inadmissibility of eyidence does not depend upon the law of the country 
where for example a contract is entered into, but on the law of the 
country before whose tribunals the remedy is sought to be enforced. We 
do not however find Leroux y. Brown (12 C. B^8oi), one of the leading 
cases in which this subject has been dealt with, in the yery lengthy table 
of cases which extends from page xxi to page cyiii. We notice on page 16 
a statement that ^Scotch Colonial or foreign law must be proved as a fact 
by skilled witnesses except in the House of Lords or the Privy Council, 
where what was in the Court below a question of fact to be proved by 
evidence becomes a question of law to be judicially noticed.' The latter 
part of this statement is clearly not correct as regards foreign law, and is 
really negatived by the case cited. Cooper v. Cooper (13 App. Cas. 88). 
The judicial knowledge is an incident of jurisdiction. We doubt, therefore, 
whether the Judicial Committee could assume judicial knowledge of Scots 
law. The author himself correctly states the rule on this subject at 
pages 341-2 of this book. Most of the new editions of Works on Evidence 
which have been so plentiful during the last two or three years probably 
owe their existence to the passing of the Criminal Evidence Act, 1898. 
With this subject Mr. Phipson appears to us to deal adequately in the 
space at his disposal. The text of the Act is set out at page 612, and the 
principal decisions under the Act have been collected on pages 413-6. 
So far as we have been able to test this edition it seems to be a^urate 
and up to date, and it should prove useful to a large class of persons. 

Accidents to Workmen. Second Edition. By R. M. Minton Sbnhouse. 
London: Sweet & Maxwell, Lim. 1902. La. 8yo. Ixviii and 
43^ PP- («5*-) 

Wb learn from some of Mr. Minton Senhouse's prefaces not only that 
the Lords Justices have often referred in kind terms to the first edition of 
this work, but that the County Court judges have used it and that it has 
had 'a very great distinction conferred upon it. The House of Lords 
has discussed the submissions contained in it. It is without precedent 
for a legal work, while in its first edition, and during the life-time of the 
author, to be cited and adopted in the Court of Appeal ' [not so as regards 
the Court of Appeal, see e. g. DaUon v. Fitzgerdd [1897] 2 Ch. at p. 90] 
' and in the House of Lords.' In the face of these guarantees of superlative 
merit praise from us would seem as superfluous as condemnation would 
seem impertinent. But ' Accidents to Workmen ' is in fact a good enough 
book to hold its own without praise from the author. 

Mr. Minton Senhouse has one quality which is too rare in writers of 
legal treatises. He fearlessly grapples with unsolved questions and is not 
afraid of hazarding his opinion on questions likely to arise. His opinions 
earn our respect if not always our assent. He has thoroughly mastered 
his subject, and his notes on the Workmen's Compensation Acts, Employer's 
Liability Act, and Lord Campbell's Act are generally excellent. In the 
appendix will be found a useful collection of rules, forms and other 
relevant matters. 

We could wish that the author had followed some uniform system 
of citation in the body of the work. It is annoying to have to turn 
to the table of cases for the reference to the Law Reports. 

The note on the question — certainly a difficult one— of ^scaffolding' 
is not written with the aciunen and precision which characterize most 

Jan. 1903.] Reviews and Notices. 95 

parts of the book. In the first place it ia now beyond doubt that the 
question whether a particular structure is or is not scaffolding is not 
a mere question of fact. In HoddinoU v. Newton^ Chambers ^ Co. [1901] 
A. C. 49, though the question was spoken of as one of mixed fact and law, 
the majority of the lords seem to have really treated it as one of pure 
law. The arbitrator is to find the facts necessary to determine the 
question, such, for instance, as the mode in which the materials are put 
together and the materials used, and then, as Lord Brampton says, whether 
upon the facts so found the arrangement so constructed is a scaffolding is 
a question of law. It is rather hard to see how a question of the construc- 
tion of a statute can be otherwise. It is unfortunate that after this the 
Court of Appeal has continued to treat the question as one of *• mixed fact 
and law.' The result is that Marshall V. Budeforth [1902] 2 E.B. 175 
and Veazey t. ChaiUe [1902] i K.B. 494, together with Wood y. Wedah 
[1899] I Q. B. 1009 (which Collins M.R. regards as oyerruled by BoddinoU 
T. A^ewtofiy Chambers Je Co.^ whilst Mathew L. J. seems to regard it as 
still binding), seems to be, as our author points out, that two men may be 
injured whilst working on the same ladder, and in the case of one a County 
Court judge may find that the ladder is a scaffolding, while in the case of 
the other another County Court judge may find upon the same eyidence 
that the same ladder is not a scaffolding ; and in both cases the Court of 
Appeal will say that unless they can come to the conclusion that the 
County Court judge misdirected himself in arriving at the finding that 
the ladder was (or was not) a scaffolding, they have no power to interfere. 
The result is that the task of advising as to whether a given structure — 
say a common ladder — is or is not a scaffolding is no simpler than before. 

Possibly each County Court judge may get into the way of following his 
own finding as though it were one of law, and this prospect may justify 
Mr. Minton Senhouse in quoting as freely as he does the decisions of 
County Court judges as though they were authorities. 

Apparently the book is intended to deal with the law of Scotland as 
well as that of England. A good many cases from the Scottish Courts are 
referred to ; but others equally important are not. For instance, there is 
no reference to Clement v. BeU & Sons (36 S. L. R. 725) and Legget Je Sons 
V. Burke (39 S.L.R. 448) on the question who are dependants under 
s. 7 (2) 5 of the Workmen's Compensation Act. 

Digest of Cases decided under the Workmen* s Compensation Acts^ 1897 
and 1900. By Max A« Robertson and A. T. Cleog« London; 
Stevens & Sons, Lim. ; Edinburgh : William Green & Sons. 
1902. La. 8vo. xvi and 244 pp. {los, net.) 

This book purports to be a digest of those cases ^ which seemed to the 
authors to be of importance ' ' decided under the Workmen's Compensation 
Acts, 1897 and 1900, in the House of Lords, Courts of Appeal in England 
and Lneland, Divisional and High Courts [sic] in England and Court of 
Session in Scotland down to the end of August, 1902.' The arrangement 
of the work is novel. 

The cases are arranged not according to subjects, or alphabetically, but 
in order of date. They are not set out in full as in the Reports, nor are 
the headnotes only given as is usual in digests. A short summary of the 
facts in each case is given, then the decision, and finally in most cases 
a short quotation from one or more of the judgments. This is certainly 

96 The Law Quarterly Review. [No.LXXiii. 

not an adequate substitute for the full reports, and we cannot think it 
a convenient form of reference digest. 

The Digest is followed by a copy of the Acts with short references to the 
cases digested or reported in the earlier portion of the book, and lastly 
there is an excellent analytical index to the digest and the annotated Acts. 

The Digest would have been more useful if the authors had been careful 
to indicate when cases have since been overruled or commented on. For 
instance, Maude v. Brooke and Wood v. Walsh were both discussed un- 
favourably if not overruled in HoddinoU v. Newton^ Chambers d& Co. 
[1902] A. C. 49 ; and in Veazei/ v. Chattle [1901] i K. B. 494, Collins M. R. 
took the view that * we are not incumbered to-day by the decision in Wood 
V. Walsh.' Yet these cases are digested without any reference to their treat- 
ment in the House of Lords. Actual reversals are indeed noted, but this is 
not sufficient. The authors have at any rate shown ingenuity in devising 
and producing a book wholly unlike any other of the many treatises on 
the Workmen's Compensation Acts. 

Sludies in Australian Comtitutional Law. By A. Inglis Cla.rk. Judge 
of Supreme Court, Tasmania. Melbourne : Charles P. Maxwell 
(G. Partridge & Co.). 1901. 8vo. xv and 446 pp. 

A oooD deal of information respecting Federal Constitutions has been 
collected by the learned author of these Studies. The distribution of the 
executive, legislative, and judicial powers among the several bodies in 
which they are respectively vested, and the functions of those several 
bodies, are fully discussed, and the author has evidently bestowed much 
time and labour on his comments on these subjects. He has made a care- 
ful study of the Constitution of the United States, and of the judicial 
decisions on many of the points which have arisen in the practical working 
out of its provisions ; and while making copious quotations from American 
authorities, he is at some pains in pointing out the extent to which, in his 
opinion, these are applicable to the Australian Constitution. 

While the book* contains much useful information, we cannot help 
regretting the absence of the happy faculty of condensation. The style 
too frequently obscures the author's meaning, and many of the sentences 
are extremely long and involved. 

The author questions the legality of the Letters Patent and the Instruc- 
tions that have been issued to the Governor-General. The form in which 
the power of pardon is conferred on the Governor-General, being 
virtually identical with that in which the power is conferred on the 
governor of each State, is said to have been denounced by the late Chief 
Justice Higinbotham of Victoria as a piece of * flagrant illegality.' The 
author appears to have forgotten, or to be unaware, that since and in con- 
sequence of the Chief Justice's remonstrance addressed to Lord Enutsford, 
the form in 1892 underwent a very material alteration, so that the above- 
mentioned quotation is misleading. Moreover, the author appears to be 
in some doubt as to the precise meaning of the Chief Justice's criticisms, 
although it might well be thought that the full and masterly statement 
of them which he addressed to Lord Knutsford, whether one does or does 
not agree with his views, possessed at least the merit of lucidity. 

When chairman of the Judiciary Committee of the National Australasian 
Convention of 189 1, Mr. Clark took an active part in opposing those who 
desired that an appeal should lie from the new Federal High Court to 

Jan. 1903.] Bevtews and Notices. 97 

the Priyy Council, and in the present book he enforces these views at 
considerable length, though in a manner hardly likely to carry conviction 
to those who can appreciate the quality of the judicial work which has 
been performed by the Privy Council. The line of argument is not 
always easy to follow. His Majesty, it appears, was wrongly advised 
in giving to the Duke of Cornwall a commission to open the firot Parlia- 
ment of the Commonwealth, because, in the author^s opinion, no one could 
legally open it but the Governor-General. * Such advice,' he adds, * is not 
a hopeful augury of the manner in which the provisions of the Constitution 
of the Commonwealth will be interpreted by the majority of the members 
of the Judicial Committee of the I^ivy Council.' Assuming the author's 
view respecting the Duke of Cornwall's commission to be sound — and this 
we venture to think is a very bold assumption — the argument (if it can be 
so designated) appears to be that as the Law Officers have given His 
Majesty erroneous advice on one point, the majority of the Judicial Com- 
mittee are not likely to give sound advice on other points. Several cases 
are set out at considerable length in which decisions of the Privy Council 
have been subsequently questioned or even dissented from, nor do the 
decisions of the House of Lords appear to stand in a much better position, 
since ' on one occasion, at least,' what that house declared to be the law 
of Scotland was ' within twelve years ' altered by legislation ! If these 
instances are intended to show that no human tribunal is infallible, they 
seem somewhat unnecessary as well as irrelevant. If they are intended 
to convey the impression that the decisions of the Privy Council generally 
are not entitled to the greatest respect, and do not carry very great 
weight, they are what Charles Reade used to call ' false samples.' 

There appears to be some confusion of thought in the author's treatment 
of the uniformity of decision which must undoubtedly be promoted by 
retaining the appeal to the Privy Council from all outlying parts of the 
Empire, instead of constituting Courts of final appeal in various parts, 
as though it were synonymous with what he calls ' unity of law,' which, 
he observes, cannot exist without unity of legislation. At the same time, 
uniformity of decision would appear to his mind to be often more injurious 
than beneficial, as calculated to retard the ^ expansion of legal doctrines 
to meet the exigencies of social and industrial development,' and, so 
enamoured is the author of everything that prevails in the United States, 
that even divergent declarations of the common law in relation to similar 
facts appear to him to possess distinct advantages. The latest American 
editions of legal text-books afford abundant evidence of the results of 
such divergence, the editors often filling many pages with the conflicting 
decisions of different State Courts, and being apparently quite unable 
to deduce any rule of law whatever from the farrago — ' rudis indigettaque 
fnoUs/ Such is the mode of this admired ' expansion of legal doctrines 
to meet the exigencies of social and industrial development,' meanwhile 

< Chaos umpire sits 
And by deoision more embroils the fray 
By which he reigns.* 

We cannot agree that such a state of things is desirable from any point 
of view, whether we regard the interests of litigants or the science of law. 


9d The Law Quarterly Review. [No. LXXiii. 

A Comparison ieiweeu the Federal ConsMution* of Canada and Autiralia* 
By Richard Cltvb Teice. Sydney: W. K Smith, Lien. ipoz. 
loL 8yo. T and 7 1 pp. 

In thift, the Sydney Beauebamp Prize Essay, 1902, Mr. Teeoe ghres 
a clear and succinct aceonnt of tbe two chief Fe<)eral Constitntions 
established within the British Empire, inclttding a general view of their 
political organization, with occasional references to the constitution of 
the United States. Those who desire to obtain a clear idea of the new 
Australian Constitution will do well to torn to this interesting and read- 
able Tittle book, where they will fitnd its main featiires crisply depicted. 

The diapter on the powers of the Parliament touches on seyeral of the 
difficult problems which are likely to give rise to dispute between the 
Federal Parliament and the Parliaments of the States. The author, who 
is a recognized authority on questions of finance, regards the financial 
clauses of both the Canadian and Australian Constitutions as very un- 
satisfactory. In Canada they are a constant source of jealousy, friction, 
and unrest, and have encouraged agitation in the Provinces for 'better 
terms' from the Dominion Parliament. Similarly, the Australian Act 
leaves the way open for designs on the Federal Treasury, and is, in the 
aathoi^B opinion, 'pregnant with grave consequences in the shape of 
constant plots to plunder the Commonwealth for the benefit of needy, 
greedy, and extravagant States.' 

With reference to the stringent provision whereby the seat of any 
member of Pariiament is vacated if be takes any fee for services rendered 
t& the Conmionwealth or in the Parliament to any person or State, the 
author observes that it is peculiar to Australia, and that, by preventing 
a member of Parliament from accepting a brief for the Commonwealth in 
the Courts, it will, in his opinion, deter leaders of the bar from entering 
Parliament, and thus infiict injury to the country by depriving it of dieir 
services. The weight of this opinion is not diminished by the fact that 
Mr. Teeoe is a layman. 

Tke Zand Transfer Acts of New Zealand. By David Hutchbn and 
Hbkkt Cecil Weight. New Plymouth, N.Z. r Thomas Avery, 
1901. 8vo. XXV and 152 pp. 

It is noteworthy that although the Torrens system of registration of 
title has been in operation in New Zealand for over thirty years» no wwrk 
on the subject has, prior to this, been published in that Colony ;. and in 
presenting the existing Land Transfer Acts and the decisions thereon in 
a compact form the authors have done good service. Their aim has been 
to give the effect of all the cases decided in New Zealand and in the 
Privy Council in notes to the various sections, but they have not considered 
it necessary to cite cases decided in Australia which have not come before 
the Privy Council. To do so would no doubt have added considerably 
to their labours and to the sixe of the book, but it is certainly to be 
regretted that all reference to such cases has been omitted. 

The bold effort made by Sir Robert Torrens, a layman, to simplify the 
transfer of land in South Australia by registering the title itself instead 
of merely registering deeds was carried through in that Province in 1858 ; 
and the success of his system was sufficiently established for it to be 
adopted within the next four years in Queensland, New South Wales, 
Victoria and Tasmania, while New Zealand followed suit in 1870, West 

Jan. 1903.] Reviews and Notices. 99 

Australia in 1874, and Fiji in 1876. Since many of the provisions of the 
various Land Transfer Acts are in similar and sometimes identical terms, 
the cases decided in the Supreme Courts of the different Colonies throw 
a good deal of light upon those provisions; and vre therefore think it 
a matter for regret that no reference has been made In this book to some 
of the principal decisions in other Colonies. Moreover, such a task would 
haYe beeu made considerably lighter by the good work already done in 
this direction by Mr. Cana way's Real Property Acts of New South Wales 
(1887), and the very complete treatise of Messrs Duffy and Eagleson on 
the Transfer of Land Act of Victoria (1895). 

The present work, however, although in this respect Hot so complete 
as could be wished, appears to be carefully executed, and the introductory 
chapters as well as the notes on the principal Act of 1 885 make it a book 
which ought to be in the hands of all who have to deal with the titl^ 
to land in New Zealand. 

A Cancige and Practical View of Conveyancing in Vett> Zealand. By 
Thomas Frederic Marttit. Chiistchnrch, Wenington, and 
Dunedin, N.Z. : Whitcombe & Tombs, Lim. I901. 8vo. li and 
378' pp. 

This is a clear and well-arranged book on the conveyance and mortgagje 
of property, both real and peisonal, in New Zealand, with a number of 
useful precedents and a good index. The author has shown much 
industry in his collection of authorities, both Australasian and English, 
bearing on his subject. The four different tables of statutes relating to 
real property and conveyancing will be found useful. One is of Imperial 
Statutes in force in the Colony at its foundation; another of Imperial 
Statutes which have come into force there sinee ; a third of New Zealand 
Statutes ; and lastly a c(Mnparative table of the sections of the Property 
Law Consolidation Act, 1883, with other enactments^ The bo(^ as 
a wlM^e seems likely to prove a valuable guide to the intricacies of 
conveyancing in New Zealand. 

The chapters on the land transfer system, Mid on advising, will be 
of special use to the younger members of the profession. In the latter, 
reference is made to an observation by Lord Macnaghten in Eode* v. MilU 
(1898), A. C, at p. 369. In that case, an opinion had been given by 
Sir Roundell Palmer and Mr. (afterwards Mr. Justice) Archibald without 
stating reasons, and had been acted upon for nuiny years by trustees in 
New Zealand, but, when their action waa subsequently disputed, counsel 
in New Zealand were unable to support the opinion, although it was 
afterwards upheld by the Privy Council. Lord Macnaghten said : ' The 
learned counsel^ of course, gave no reasons with their opinion.' It is 
perhaps somewhat difficult to say precisely what was meant by thia 
observation coming from a learned lord who possesses a keen sense of 
humour,, but the inference which Mr. Martin, perhaps not unnaturally, 
draws, that it i» the practice of counsel in England to give opinions 
without any statement of reasons, is in fact not well founded. Clieats 
may, in the case of very eminent counsel, be content with a short answer 
to a specific question unaccompanied by any statement of reasons, but the 
majority of opinions given are not of ^is nature, and complaint is some* 
times heard when such opinions- are given. 

H % 

100 The Law Quarterly Review. [No. Lxxiii. 

The Law relating to JFaters—Sea, Tidal, and Inland. By H. J. W. 
CouLSON and UsquHART A. Forbes. Second Edition. London : 
Sweet & Maxwell, Lim. 1 902. La. 8vo. xxxi and 736 pp. (35^.) 

The authors of this comprehensive work may be congratulated on the 
great improyemeut made in the second edition. In the twenty-two years 
that have elapsed since the publication of the first edition many notable 
cases have been decided, and of these, as well as of such books as Mr. Stuart 
Moore's yaluable History of the Foreshore, intelligent use has been made. 

In the earlier chapters, which treat of the common law of the Sea and 
Seashore, Rivers and Fisheries, the law is set out correctly, though a little 
more skill might have been used in arrangement and compression of state- 
ment. We have not in every case found easily what we searched for, but 
have not failed ultimately to find it, and find it accurately stated. 

But the authors' ambition leads them to treat of the whole law so far as 
it may have water for its subject-matter, thus including many branches of 
the law connected together, from the legal point of view, only by accident. 
Thus we have chapters on easements connected with water, canals and 
docks, bridges a|id ferries, water-supply by companies and by local 
authorities, pollution and navigation. And unless the book is to swell 
to inconvenient dimensions many of these subjects must necessarily receive 
but inadequate notice. A few pages devoted to navigation, consisting 
mainly of the rules of the road without notes or comment, and a very brief 
summary of parts of the Merchant Shipping Act are almost useless. So 
too are the scanty summaries of the statute law relating to water-supply 
and to sea- and fresh- water fisheries. Each of these subjects is much too 
large to be satisfactorily compressed into a few pages, or even a few 
chapters, and the result is, as might be expected, that there are slips, 
omissions and inaccuracies. For instance, we are told that in CaygiU 
V. Thwait$ (33 W. R. 581) it was held that a person who took or attempted 
to take cray-fish in a private fishery was not guilty of an offence under 
sec. 24 of the Larceny Act, 1861 (or, as the authors call it, the Larceny 
Consolidation Act). In fact the Court decided exactly the contrary, 
Mathew J. giving his reason succinctly, if not convincingly, by saying 
* my reason being that fish are fish.' Again, it is said that no person may 
fish for salmon in any fishery without a proper licence. Surely a licence 
is only necessary in a fishery district under a board of conservators. True, 
most salmon rivers are within fishery districts, but we believe not all, e. g. 
the Itchen. 

In connexion with oyster-fishing we are told that the Convention of 
1868 with France is not yet in force, and would appear to be binding 
only on the subjects of France and England so far as it relates to the sea 
beyond the territorial limits of either country — a curious result of its not 
being in force. The Convention of 1843 1* entirely overlooked. The true 
position appears to be (though it is not easily discovered) that the Conven- 
tion of 1843 is in force as regards French boats, but not as regards British 
boats or British subjects, whilst the Act of 1868, but not the Convention 
of that date, is in force as regards British subjects everywhere and French 
boats within British waters. It seems, on the whole, that as regards 
French boats there is a close season for oysters from May i to August 31, 
and as regards British boats from June 16 to August 31 — a curious and 
probably unforeseen result of which the authors give us no inkling. 

On the subject of damage done to oyster fisheries by vessels we miss 
The Swift [1891] P. 168, and The Octavia Stella, 6 Asp. M. C.C. 182, and 

Jan. 1903.] Beviews and Notices. lor 

in connexion with pilchards^ we wonder that there is no reference to the 
Act of I Jac. I. c. 21 which in the counties of Cornwall, Devon, and 
Somerset allows 'balkers, huors, condors, directors or guidors' to enter 
and go upon private lands to ' balk, hue, cond, direct and guide the fisher- 
men * and permits the drawing of ' scans ' upon private lands. This is an 
Act of vast importance to the pilchard fisheries of those counties. Without 
it we imagine pilchard fishing as now carried on would be impossible — and 
it is of some interest historically. Nor can it be said to be generally 
unknown. Special attention was called to it, for example, in a handbook 
of fishery law prepared for the International Fisheries Exhibition in London 
twenty years ago. 

The moral is that even learned authors should not attempt to write an 
encyclopaedia in one volume. 

TAe Zaio of Land, 8fc. By H, S. Theobald, K.C. London : Wm*. 
Clowes & Sons^ Lim. 1902^. 8yo. xxix and 955 pp. {i%9. 6d.) 
Mb. Theobald has performed the uncommon feat of writing a new and 
useful law-book which does not fall within any recognized category. * The 
point of view from which the book has been written is to take a person 
who is the owner of land, and to inquire what are his rights and obliga- 
tions, what use he can make of his land, how far are his rights affected by 
those of his neighbours.' Thus we have conveniently brought together 
many small outlying subjects, such as the law of boundaries, for which 
many good lawyers would Hot have known off-hand where to find the 
authorities, while even familiar rules gain a kind of novelty by Mr. 
Theobald's concise and eminently practical treatment. Discussion of 
doubtful points is avoided, but the judicious reader will not fail to find 
profitable hints, for example on the distinction between nuisance and 
continuing trespass (p. 55). We have noted only one error, and that 
a minute one. In Bird v. HcHhrooky 4 Bing. 628, 29 R. R. 657, it is 
literally true that the final decision was given after the Act which made 
setting spring-guns an offence, but the cause of action arose before it, and 
there was only incidental mention of the Act, with a suggestion that 
perhaps it was declaratory. 

The Inner and Middle Temple : legal, literary, and Aieloric aeeociatians. 
Bj Hugh H. L. Bellot. London: Methnen&Co. 1902. Svo. 
XX and 41!^ pp. (6«.) 

Mb. Bellot has not written the history of the Inns of Court or even of 
the TemplOj but he has made a pretty and readable book of miscellaneous 
information and anecdotes, not the less readable for being desultory. The 
illustrations are numerous, well chosen, and as well produced as is com- 
patible with the small size of the page. Few readers of such a book will 
trouble themselves about strict accuracy. The late Mr. Justice John 
Williams, however, was a remarkable person, and it is cruel of Mr. Bellot 
to deprive him of a characteristic story and attribute it to Mr. Montagu 
Williams. The real story is thus told by the late Sir F. Pollock in his Re- 
membrances (i. 1 48). ' When at the bar John Williams was once defending 
a prisoner on his trial for murder, before the Prisoners' Ck>unsel Act, so 
that he could make no speech to the jury, and his function was confined to 
examining and cross-examining the witnesses. Before putting a question 
to one of the witnesses for the prosecution, the answer to which was of 

102 Tlie Law Quarterly Eeview. [No, LXXiir. 

rital impoitanee, be explained this to the attorney who was instruetiDg 
him, and was assured that the answer would come out fayourablj to their 
client. Then he put the question, but it was answered the wrong way, 
upon which Williams turned round to the attorney and said, ** By God ! 
we are hanged ; and when you meet your client in hell, as you will do, 
you must taice off your hat and make a low bow to him, and ask bis 
pardon for making me put that question." ' 

Again, we do not expect learned writers at this time of day to repeat 
the idle and exploded conjecture that the black cap is put on by the judge 
who passes sentence of death * in token of grief.' It is really the comple- 
tion of the full judicial costume. 

Mr. Bellot retails some very wild talk about the Templars and iree- 
masonry, but we are bound to say that he does not profess to believe it. 

The bibliography appended to the book is workmanlike and in a general 
way full, including a good many American as well as English publications. 
But we are surprised at the omission of Judge Dillon's ' Laws and Juris- 
prudence of England and America ' and Manning's classical * Seryiens ad 
Legem.' Sexjeant Manning, indeed, does not seem to be mentioned any- 

Crime in Uf Refafion to Social Progresn. By Arthur Cleveland Hal^, 
Ph D. (Columbia University Studies.) New York : Columbia 
• Univ. Press ; The Macmillan Co. London : P. S. King & Co. 
190JJ, 8vo. xvii wA/^%^ pp. 

Had this book appeared ten years ago, we should have been inclined to 
dpubt its usefulness. For it is, in the main, an attempt to refute a trans* 
parent fallacy; and that should be a needless task. But fallacies have 
a stubborn vitality, especially when they can be used fi>r controversial 
purposes. And the recent revival of obscurantism in this country has 
given a new lease of life to many a venerable sophism. 

The particular fallacy which the book attempts to combat is the assertion, 
that the increase of crime, as recorded by criminal statistics, indicates social 
decay. It is unnecessary to dwell on the fascination of such an argument 
for the politician who wishes, let us say, to abolish School Boards. In 
spite of popular education, statistics show that crime has increased, not 
only absolutely, but relatively to the increase of population. Therefore, 
popular education is a failure. 

The legal reader need not, of course, be told that the fallacy centres in 
the use of the word 'crime.' If we could be sure that < crime,' in the 
eomprehensive sense of immorality, or anti-social conduct, was on the 
increase, we should have to confess that our civilisation was a failure. 
But criminal statistics do not, it is obvious, use the word in that sense ; for 
the simple reason that exact records of immorality are unobtainable. The 
* crimes ' which figure in the columns of official returns are merely offences 
for which the offender has been punished by the State, or, at the most, 
offenees for which he would have been punished if he had been caught. 

The immensity of the gap between the two senses of the word is 
measured, or, at any rate, suggested, by two considerations, (i) the activitv 
of the State in selecting from the category of evil acts a list which it will 
treat as punishable offences; (a) the vigour and success of the State in 
carrying out its self-imposed task of vindicator of the national conscience — 
in other words, the efficiency of its police system. With the latter of these 

Jan. 1903.] Beviews and Notices, 103 

two eonsiderations, Dr. Hall deals but slightlj; his work is, mainly, 
a deTelopment of the fonner idea. 

Dr. Hall defines a crime, Tery fairly, as ' any act punished by society 
as a wrong against itself' (p. 171); and he insists on the neoeseity 
of adhering rigidly to this definition. Thus, he will not admit that 
<^enee6 which fall within the scope of the criminal law are ' crimes,' itj 
as a matter of fact, such offences are habitually practised with impunity. 
* In the utter anarchy of Stephen's reign, crime practically ceased ' (p. 1 68) ; 
and this, though a hard saying, is strictly true, according to Dr. HalJ's 
aif;ument. We are not, faowerer, sure that be is always quite consistent ; 
and we think that his sponsor, I^fessor Franklin Giddings, has giyen the 
reader a wise caution on this point in his Introduction. But we sympa- 
thize so strongly with the view of law upon which the definition is baaedi 
that we are not inclined to be critical of it. 

Dr. Hall's main argument is, that it is just precisely when ciyilizatioa 
is really making way that we may expect to find an increase in crime, 
L e. in conyictions for crime, and that this is exactly when we do find it. 
The more genuine the progress, the more alert is the national conscience, the 
more ready to proscribe anti-social conduct and bring it within the reach 
of the law, the more resolute to insist on the enforcement of the law. 

This argument is enforced by appeal to two kinds of eyidence. One 
may be termed the eyidence of history, the other the eyidence of con- 
temporary statistics. 

In the historical part of his work Dr. Hall is not entirely satisfactory. 
He deyotes too much space to what we may call the anthropological epoch 
of history, i. e. to those primitiye types of society about which we really, 
at present, know too little to generalize with safety. He eyen speculates, 
somewhat unprofitably, upon the existence of social punishment aipong 
animals. Neyertheless, we think he is right in saying that eyen sayage 
communities recognize and punish crime, e. g. incest and witchcraft, 
possibly also cowardice. 

Passing to later stages, Dr. Hall practically attempts, in the course of 
six chapters, to sketch the history of English criminal law, from the earliest 
recorded times, making use for the purpose (and he could hardly do 
better) of such classical works as those of Pollock and Maitland, Hale, 
Blackstone, Pike, and Sir James Stephen. An attempt of this kind must, 
necessarily, be sketchy; but, such as it is, Dr. Hail's summary is in 
general sound, though he occasionally makes startling slips ^. Moreoyer, 
we think he makes out a fair case for his assertion, that, all through 
English history, epochs of genuine progress haye been marked by increasing 
actiyity in criminal justice, and, consequently, by increase of ' crime.' 

The second kind of eyidence adduced by Dr. Hall in support of his 
thesis is drawn from contemporary statistics. And here he does show, 
yery eonyineingly, that there is at least an apparent synchronism of crime 
with ciyilization. In England, Scotland, Germany, and Italy, for example, 
there is, taking the figures for the past sixty or seyenty yean, a yery 
marked increase in the proportion of conyictions for crime to the numbers 
of the community. Fut a little examination shows that, while the grosser 
forms of crime — ^murder, theft, arson, rape, and the like— are steadily 
diminlriiing, the increase in the figures is accounted for by the conyictions 

^ One of the most carious of those ie the repeatod assertion (pp. ST3 and 352) that 
foroiblo entry was not a crime until the Tudor epoch. What would Heury 
FitzEmpress have said if he had heard such blasphemy? 

104 The Law Quarterly Eeview. [No.lxxiii. 

fOT adulteration of food, failure to comply with Education Acts, breaches 
of sanitary regulations, misuse of roads and other public conveniences — 
offences which, a hundred years ago, were not within the scope of the 
criminal law at all. On the other hand, the one ciyilized country in 
which the number of conyictions tends steadily to diminish, in proportion 
to the population, is Spain ; and here, evidently, because of the indifference 
of the State towards many forms of anti-social conduct which, in other 
countries, it attacks with vigour. 

On the whole, we think that the subject chosen by Dr. Hall for his thesis 
is interesting and well worthy of study, and that his book, if not an 
exhaustive or very profound, is, at least, a suggestive attempt to deal 
with it. In details there is much to be desired. The spelling of proper 
names (especially in the List of Authorities) is distinctly weak ; but we 
must, probably, pardon Dr. Hall for spealung (p. 243) of Bucks as a 
* neighbor * county of Devonshire. 

A History of English Legal Institutions. By A. T. Cabter. London : 
Batterworth & Co. 1902. 8vo. 4 leaves (not nambered) and 
30a pp. (14*.) 

This is an enlarged and much improved recension of the learned author's 
earlier work * Outlines of English Legal History ' (L. Q. R. xv. 208). The 
new chapter on the early history of the Law Merchant, originally published 
here last year, L.Q.R. xvii. 232, is of great interest. In the account of 
the C!ourt of Chancery it might have been more clearly shown that a large 
number of the early petitions related to mere common law causes of action 
such as trespass and assault, the complaint being not that there was no 
remedy at law, but that by reason of the defendant's local power and 
influence — * horrible maintenance ' was one current phrase — he was able 
to defy the ordinary process of the Courts. As to that process in its 
developed form, we should have liked to see some mention of the quaint 
and characteristic fact that in the eighteenth century the original writ and 
all intermediate steps before the capias or tesUUwm capias had become 
fictitious (Blackst. ii. 282). Appendix I is the only unlucky part of the 
book. It is substantially identical, though differently entitled, with 
Appendix B to Dr. Carter's ' Elements of the Law of Contract,' which we 
have noticed above. 

The Principles cf Bankruptcy, By Bichabd Bingwood. Eighth 
Edition. London: Stevens & Haynes. 1909. 8vo. xland 
4CX) pp. (10*. 6d.) 

That Mr. Ringwood's work has reached an eighth edition indicates that 
it is largely used by those for whom it is chiefly intended — law students and 
candidates for the examinations of the Institute of Chartered Accountants. 
It is perhaps a misfortune that law students should be expected to know 
anything about bankruptcy-^a subject as ill-fitted as any for training the 
mind in legal principles. However, as it has to be learned it cannot be 
better learned than from Mr. Ringwood's lucid epitome, wherein the out- 
lines of the law and practice are clearly and intelligently set forth. 

Into the new edition the author has woven the recent cases with skill 
and judgment, and for the most part the text seems to be as accurate and 
complete as can be expected to be in a work of this size. 

Jan. 1903.] Beviews and Notices. 105 

We have, however, come across some slight inaccuracies in the fringe of 
the subject. For instance, in the list of offices for which a bankrupt is 
disqualified membership of a sanitary authority and highway board is still 
included. Those authorities are now superseded by parii^ and district 
councils. Nor do we find any reference to s. 25 (i) of the Trustee Actj 

We regret the exclusion of the complete text of the Bankruptcy Acts, 
1 883-1 890. No doubt all the sections are referred to and in substance 
set out in their appropriate places, but it would have been convenient to 
have these Acts complete in the appendix. 

Bankeri Advance on Mercantile Securities. By Arthur Reginald 
BuTTBRWORTH. London : Sweet & Maxwell, Lim., and Effingham 
Wilson. 190a, 8vo. xv and ao8 pp. (7*. 6d.) 

This admirable little work is founded on a course of lectures delivered 
by the author before the Institute of Bankers. The lecturer has a thorough 
grasp of his subject, and is gifted with a lucid and accurate style of 
exposition. Though adapted specially for the use of those to whom the 
lectures were given, it is a book which a -lawyer may well read with 
profit and pleasure. It contains a good deal of information not hitherto 
collected in a single volume and some really valuable discussions of 
difficult points of law. 

DeNecessariii Observantiis Seaecarii Dialogua ; commonly called Ditilogns 
de Scaccario. By Bichabb Son of Nigel, Treasurer of England 
and Bishop of London. Edited by Arthur Hughes, C. G. 
Crump, and C. Johnson. Oxford: at the Clarendon Press. 
190a. 8vo. viii and 250 pp. (12s. 6d. net.) 

This is an excellent edition of a work which has long needed editing. 
The Dialogus de Scaccario, for so it will continue to be called in spite of 
its new title, was frequently cited by the lawyers of the Elizabethan age 
and, written as it was before the year 1179, much interest will always 
attach to it as being the oldest treatise on English law. It is concerned 
chiefly with fiscal and administrative matters, but it supplies some useful, 
though not entirely trustworthy, inf<»ination about fyiurdrum, aotio furti^ 
and other subjects which were frequently discussed in the courts of justice 
of the twelfth and thirteenth centuries. 

The introduction contains a study of the origin of the Exchequer of 
Henry 11, in which the editors arrive at the conclusion that the officers 
of the Treasury, which was closely connected with the Lower Exchequer, 
show signs of a pre-Conquest origin, that the monetary system leads back 
to the same era, and that the main portion of the staff of the Upper 
Exchequer was of foreign origin. Their conclusion is reached after 
a carefully written summary of the evidence afforded by the text of the 
Dialogus, the Pipe Rolls, and various other documents at the Public 
Record Office. Some of their inferences may be doubtful, more especially 
those which relate to the monetary system ; and it is probable that further 
research will throw fresh light on the history of the staff of the Exchequer. 
But they appear to have made good use of the material at their disposal, 
and their introduction is scarcely less valuably than their text. 

106 The Law Quarteriy Beview [No. Lxxiii. 

So much light has in recent jears been tfaxxnirii upon the history of the 
Exchequer as a fLnaocial depaitmant, that it b to be hoped tliat its history 
as one of the superior courts of eonnaon law maf now reoeiTe some atten- 
tion. Very much less is known of its proeedune and jurisdJction than is 
the case with the King's Bench and Common Pleaa. The editors speak of 
the Court of Common Pleas as originating in the Exchequer and not in the 
Curia Regis, a statement which needa some qualification. They proceed to 
suggest that this origin explains the subsequent position of the Exchequer 
Chamber is a court of appeal. But the jurisdiction in error of tiie 
Exchequer Chamber was purely statutory, so that this explanation can 
hardly be accepted as it stands. 

The chief defect of the book is that the introduction and seventy-eight 
pages of notes which follow the text are not indexed. The only index 
which it contains, a Glossarial Index to the text« is good, but it would 
haye been more couTenient if it had referred to the pages instead of the 

We haTe also reoetfed : — 

The Liemnng Act, 1902. By Joshua Scholefxelb and Gesabb R. 
Hill. London: Butterwortfi & Co. 1902. xv and 76 pp. {^s, 6d,) — 
This is an annotated edition of the Act, with an introduction to and 
summary of its proyisions. It is a small and handy book which comes 
in good time, having regard to the fact that most of the provisions of the 
Act came into force on January. Section 14 came into effect on the 
passing of the Act on August 8, 1902. The statute is a very important 
one in many respects, affecting many persons besides the keepers of 
licensed houses and those who frequent their premises. Habitual 
drunkards will now have tT^ control themselves, or they may be summoned 
by their husbands or wives, as the case may be, before justices, to show 
cause why a separation order, equivalent to a decree for judicial separa- 
tion, should not be made against thenu The comparatively harmless 
person who is found simply drunk in a public place or on licensed premises 
may be bound over to be of good behaviour. A drunk and incapable 
person, so found in a public place or on licensed premises, may be appre- 
hended. The habitual drunkard is not for three years from the date of 
conviction to be allowed to buy intoxicating liquor at licensed premises, 
or even at a registered club, without liability to penalties on the part of 
both the seller and purchsser of the drink. Premises habitually used for 
the purposes of a club, and in which any intoxicating liquor is supplied 
to members or their guests, must be registered. Enough has been written 
to show that, even outside the profession, a handy book on the new Act is 
likely to have a large circle of readers. 

jRednsB by Arbitraiion. By the late H. Foulks Lynch. Fourth Edition 
by D. F. Db L'Hobtb Ranking. 1902. London: £^9&ngham WihK>n. 
XV and 98 pp. (5«. net.) — Dr. Ranking only claims to have incorporated 
the most recent decisions in bringing up to date, in a fourth edition, one of 
the useful Legal handy books published by Messrs. l^ffipgh^Tn Wilson. The 
late Mr. Foulks Lynch's object was to provide a handy book for the use of 
arbitrators and students. Both these classes, and many full-blown 
lawyers, will benefit by a perussi of the ninety-eight pages which the book 
contains and which are not put forth as being exhaustive of the subject 

Jwi. 1903.] Reviews and Notices. 107 

dealt withy but gire references where iiece88a37 to larger works on the 
same subject. An arbitrator or umpire ma3r earry a little book like this 
in his pocket consistently with his dignity, and before his award or 
'umpirage' — the correct word, according to this work, when an umpire 
gives his decision — appears, he will have ample time to look up in bigger 
books any crooked points which are left untouched in ' Redress by Arbitra- 

A Practftal Exponiion cf the Principles of Equity^ illustrated hy the 
leading deeusions thereon. By H. Abthub Smith. Third Edition. 
London: Stevens 6l Sons, Lim. 1902. 8yo. Ixvi and 892 pp. (ai«.) 
—As this book has reached a third edition, we suppose it is found useful ; 
but as a rational introdueti<m to the prineiples of modern equity it leaTes 
much to be desired. The Jurisdiction to give relief, in important classes 
of cases, against misrepresentation or non- disclosure which may be, In 
a moral point of Tiew, perfectly innocent is lumx)ed in with Fraud after 
the manner of the old-fashioned books. We doubt whether the student 
would ever learn from Mr. Smith that there is such a thing as a contract 
ftberrimce fidei. Again, he will not learn here that AUeard t. Skitmer^ 
which is put off with one reference, and that only in the form ' and see/ 
IB really the leading modem case on Undue Influence ; nor that many of 
the so-called equitabls doctrines are and always were good common law. 
The total absence of any historical explanation of the jurisdiction of the 
Court 0/ Chancery and its relations to the King's Courts of Common Law i9 
also to be regretted. 

The Law relating to Contract of Sale of Goods, Six lectures delivered at 
the request of the Council of Legal Education. By William Willis, K.C. 
London : StoTens ft Haynes. 1902. 8vo. -viand 184 pp. — Judge Willis's 
semi-popular course of lectures on the Sale of Ooods is addressed only to 
commencing students, and seems well fitted to be useful to them. His 
Honour seems to have a strong opinion that s. 4 of the Sale of Goods Act 
altered the law by making agreements merely not enforceable which under 
the 1 7th section of the Statute of Frauds were wholly void. Now it is true 
that learned opinion varied a good deal about the effect of that section, and 
Judge Willis's opinion was perhaps the better supported one a quarter of 
a century ago. But has the learned judge referred to Lord Blackburn's 
very positive dictum the other way, Maddiscn v. Alderson^ 8 App. Ca. at 
p. 488 ? The draftsman of the Act was, we conceive, bound to follow 
Lord Blackburn as the latest and best authority. However, Judge W illis 
tells bis students to read and digest Blackburn on Sale, which is such 
excellent advice that it would be ungrateful to dwell on any little points 
of diSferenee. 

Riding Cases, Arranged, annotated and edited by Robebt Campbell. 
With American Notes by Ibyino Bbowne and Leokabb A. Jones. Vol. 
XXVI. Index and Table of Cases prepared by Edwabp Mansok. 
Revised by Johk M. Gould. London : Stevens & Sons, Lim. Boston, 
Mass. : Boston Book Co. 1902. La. 8vo. vii and 773 pp. (25*.) — 
This volume brings Ruling Cases to a close. It contains a full subject- 
matter index compiled on the usual plan of text-book indexes and 
separate tables of English and American Cases. There is also a short 
Preface by Mr. Manson. In his comparisons of English and American 
law Mr. Manson states that American law repudiates the maiming or 
killing of trespassers by traps or spring guns, but that under English law 

108 The Law Quarterly Review, [No.LXXiir. 

notice makes the difference. Has Mr. Manson forgotten that since 
7 & 8 Geo. IV. c. i8 (now repealed and substantially re-enacted by 24 & 25 
Vict. c. 100, s. 31) setting spring guns or man traps is a criminal offence 
in this country ? 

The Stamp LatoSy being the Stamp Acts cf iSgt ; with the Acts eoOending 
and amending the eame, induding the Finance Act, 1902. By NAthAnIel 
J. HiOHMOSE. Second Edition. London: Steyens & Sons, Lim. 1902. 
8yo. Ixiy and 380 pp. {los, 6d,) — Mr. Highmore's position as Assistant 
Solicitor of Inland Revenue enables him to speak with some authority on 
the working of the Stamp Acts, and his book is now the recognized work 
on the subject. Although most of the law is contained in the Stamp Act, 
189I9 and the Amending Acts, there are more than a hundred statutes in 
which some provision affecting the law of stamp duties is stowed away. 
Mr. Highmore has collected all these provisions and has set them out. 
In this edition too he accounts for the legislation and cases of the past 
three years, including decisions of Scottish and Irish Courts. 

The Sttidente* Conveyancing for the use of candidaiee at the Final and 
Honours Examinations of the Incorporated Law Society. Seventh Edition. 
By Albebt Gibson and Walteb Gbat Habt. London: *Law Notes' 
Publishing Offices. 1902. La. 8vo. Ixxxii and 640 pp. {25s,) — The 
last edition of this work (which appeared less than two years ago) was 
reviewed at some length in L. Q. R. xvi. 431. The present edition 
has been partly re- arranged. To quote from the Preface 'The long 
chapter on Conditions of Sale has been entirely rewritten, and those on 
the Capacity of Parties and the Abstract of Title have been largely 
recast.' A good many new cases have been added, but we cannot 
iind any reference to ffuntY, Luck [1902] i Ch. 428, C. A. (constructive 
notice) or Puckett dh Smith's Contract li go 2] 2 Cb. 258, C. A. (Rescission of 
Contract on Misrepresentation). Nor is there anything to show that the 
decision of Farwell J. in Whitbread v. Watt was affirmed by the C. A., 
[1902] I Ch. 835. On p. 324 there is a reference to Ewart v. Fryer in 
the C. A., but tiie decision in the H. L., Fryer v. Etoart [1902] A. C. 187, 
is not cited. Nor is there any reference to Fryer v. Etcart on p. 325, 
where one would naturally look for it in conjunction with Horsey Estate j 
Lim. V. Steiger. 

These may be small blemishes on a useful work^ but we do not think 
they should occur in the second edition of what the authors claim to be 
' an up-to-date manual of the law and practice of conveyancing.' 

La ragione ed il contemUo del ' Tort ' nd diritto inglese, Nota del dottor 
Mabio Sabpatti. Torino: C. Clausen. 1902. La. 8vo. 19 pp. — An 
interesting little study for the benefit of Italian readers. The learned 
author does not seem to be aware of the necessity for consulting the latest 
editions of text-books. If Pollock on Torts is worth quoting at all, it 
should be quoted in the current edition (the sixth) of 1901, and not in 
the original one of 1887, which is quite out of date, and would now be 
certainly misleading on many points. 

Digest of Public Health Cases. By J. E. R. Stephens. London : 
Sanitary Ptiblishing Co., Lim. 1902. 8vo. xxxv and 626 pp. (21*.) — 
The author states in the Preface that although there are many books on. 
Local Government and Public Health Law there has been no work 
previously published ' dealing solely with Public Health decisions in one 
volume and in alphabetical order of subjects on the lines of the present 

Jan. 1903.] Reviews and Notices. 109 

work/ The cases are brought up to the end of Easter Term, 1902. The 
book should be useful to all connected with Local Goyemment affairs as 
well as to lawyers. There is no index, but the alphabetical arrangement 
and full table of Contents are almost — if not quite— sufficient excuse for 
its omission. 

The Law of Burial : indvding the Bturial Acta , . the Cremation Aoty 1902 
and the Official RegulaHona of the Home Office and Local Government Boards 
with notes ofCaeee, Third Edition. By James Bbookb Littlb. London : 
Shaw & Sons; Butterworth ^ C!o. 1902. 8to. xl, 758 and 89 pp. 
(22«. 6(2.) — ^This edition incorporates the Local Goyernment (Joint Com- 
mittees) Act, 1897, the Burial Act, 1900, and the Cremation Act, 1902. 
The notes show legislatiye modifications of the law of burial and account 
for recent decided cases on the subject. 

Finland: tie PvJblic and Private Economy. By N. C. Fbebesicksek. 
London : Edward Arnold. 1902. 8yo. xi and 306 pp. — Chapter iii of 
this book is on the Land Laws of Finland. It appears that the acquisition 
of large estates by Russian landlords who took an extreme yiew of their 
rights gaye rise to an agrarian question which in the course of the nine- 
teenth century (no exact dates or particulars are giyen) was disposed of 
by a scheme of compulsory purchase. The rest of the work is chiefly 
economical, and not within the scope of this REyisw. 

A Comfcndivm of the Lhw of Torts : spedaUy adapted for the use of 
students. (Students' Series, No. 7.) By Hugh Fb^beb. Fifth Edition. 
London : Sweet & Maxwell, Lim. 1902. 8yo. xxiy and 218 pp. (8«.) — 
The utility of Mr. Fraser's Compendium is well established. In the present 
edition he says as little ais possible about Qwnn y. Leathem, which is 
certainly the safest course for an elementary writer, and perhaps the only 
practicable one. / 

The Origin of the Knowledge of Right and Wrong. By Fbanz Bbektako. 
English translation by Cboil Hague. [London] Westminster: A. Con- 
stable & Co., Lim. 1902. 8yo. xiy and 125 pp. ($«. net.) — As a 
consequence of his theory of the nature of good and of moral preference 
(which cannot be examined in this Review), the author accepts ius naiurale, 
in a limited sense, as the foundation of positive law. 

Who's Who, 1903 ; an annual Biographical Dictionary. Fifty-fifth year 
of issue. London: Adam & Charles Black. 1903. 8yo. 1532 pp. 
(5«. net.)^This work now consists almost entirely of biographies, the 
remaining tables, with one or two exceptions, having disappeared from the 

The Law and Practice of a Case staled by a Court of Summary Jurisdic- 
tion for the opinion of the High Cowrt with Precedents of a case, ^c» By 
A. C. F0B8TEB BouLTON. London : Butterworth & Co. 1902. 8yo. xx, 
154 and 16 pp. {6s.) 

The Yearly Supreme Court Practice, 1903. With practical notes. By 
M. MxTiB Maokbkzie, S. G. Lushikoton and Johk Chableb Fox, assisted 
by A. C. MoBabnet and Abghibald Read. In one volume. London : 
Butterworth & Co. 1903. 8vo, cli, 1086 and 156 (index) pp. {20s. 

The Prifote Street Works Act, 1892. A Practical Guide to the working 

1 10 The Law Quarterly Review. [No. Lxxiii. 

of the Act -with all necessary Forms and Precedents., By Jo0BT7A Schomb- 
FiBLJ> and OsbajcdR. Hill. London; Butterworth A: Co. 190a. xxi 
and 161 pp. (7#. td,) 

A Guide to Criminal Law intended for the %ue of Students for the Bar 
Final and for the Solieitors* Final Exafninations, By Chablbs Thwaitbs. 
Sixth Edition* London: Geo. Barber. 1902. Stov xi and 192 pp. (io«.) 

Introduction to Ae Study of the Law of the Conetituiion. By A. V* 
DxcxT, K.C. Sixth Edition. London: Macmillan & Co., Lim. New 
York : The Macmillan Co. 1902. 8to. xvi and 53.3 pp. {toe, 6d. net.) 
— RcYiew will follow. 

The AeU relating to the eupply of Oae and Water by ComipamiiB and Loctd 
Authorities. Compiled by Joseph Rbbsok. London : ButterwcMrtb & Go. 
190a. 8yo. XX and 818 pp. (21^. net.) 

The JBnglishvx)men*s Tear Book and Directory, 1903. Edited by Ekilt 
JoirsB. Twenty-third year (fifth year of new issue). London : Adam A 
Charles Black. 1903. 8to. xxxy and 340 pp. (2«. 6d, net) 

Principles of Eijuity, By Waltbb Ashbuskmb. London : Botterwcvtll 
& Co. 1902. 8yo. IyI, 729 and 49 pp. (2i«.)—ReYiew will follow. 

The Licensing Acts. By the late Jaicbb Patbbson. Fourteenth Edition. 
By William W. Maobxnzib. London : Shaw & Sons ; Buttcrworth & Co. 
1902. 8yo. c^ 498 and 88 pp. (iS^r.) 

The Law of Licensing in England. Second Edition. By Johk HntrcB 
WiLLiAMSOK. London : W. Clowes & Sons, Lim. 1902. 8yo. xlii and 
781 pp. (i8«.) 

SufpUmtnt to Montgomery's Licensing LawSj containing the InUOiieating 
Liquors {Sale to Children) Act, 1901, <A6 Licensing Act, r9»2. By R. M. 
MoNTGOMEBY. Loudou : Swoct & Maxwell, Lim. 1902. 8yo. xyI and 
116 pp. (3». 6d. net.) 

The Student's Guide to Procedure in the Swing's Bench Division and to 
Evidence. By John Iin)SBMAUB and Chables Thwaites. Third Edition 
by Chableb Thwaites. London: Geow Barber. 1902. 8yo. 140 pp. 

The Statutes of the Commonwealth of Australia {of Practical Utility). 
Tol. 1. 1 90 1. With Index. Compiled by H. M. Cockshow and 
S. Ebkbst Lahb. Melbourne and Sydney : Law Book Co. of Australasia, 
Lim. 1902. La. 8yo. xxxyIII and 310 pp. 

A Catalogue of notable Middle Temptars, with brief biographical notices^ 
By John Hutchinson. Printed for and at the expense of the Honourable 
Society of the Middle Temple. Sold by Butterworth & Co. 1902-. 8yo. 
xIy and 284 pp. {10s. 6d. net.) 

Taxation of Land Values : the case against. By Chbibtophbb T. Rhodes. 
Second Edition. London: Jordan & Sons, Lim. 1901. 8yo. y and 
176 pp. (2« 6d. net.) 

The Revised Seports. Edited by Sm F. Pollock, assisted by 0. A. 
Saundebs and Abthub B. Cane. Vol. LVH. 1 841-1843. (9 CI. & Fin. ; 
I Younge & Coll. C. C. ; 2 Q. B. ; 2 6. & D.). London : Sweet & Maxwell, 
Lim. Boston, Mass.: Little, Brown & Co. 1902. La. 8yo. xii and 
87^ pp. (25#.) 

Jan. 1903.] Reviews and Notices ill 

Der Eid: ein Beitrag zu deiner Geschickle, Von Rudolf Hibzel. 
Leipzig: Uirzel. London: Williams & Norgate. 190a. 8yo. 325 pp. 

Evwy Man^9 Own Lawyer. Fortieth Edition, carefully revised, including 
legislation of 1902. London: Crosby, Lockwood & Son. 1903. 8yo. 
XYi and 790 pp. (6«. Sd.), 

Comparative Principles of the Laws of England and Scotland : Courts 
and Procedure. By J. W. BsODiE-lNiirES. Edinburgh: Wm. Green & 
Sons. London: Stevens & Sons, Lim. 1903. La. 8to. cx and 868 pp. 

A Treatise on the Law of Contracts. By C. 6. Addison. Tenth Edition. 
Edited by A. P. Pebciyal Keep and William E. Gobdon. London: 
Stevens & Sons, Lim. 1903. La. 8vo. cxxiv, 1245 a^<^ ^^1 PP* (42«*) 
— Review virill follow. 

Hie Law of Emp^yen^ Liability and Workmen*s Compensation. Third 
Edition. By Thomas Beyen. London : Waterlow Bros. & Layton, Lim. 

1902. 8vo. Ixv, 570 and Iviii pp. 

The Taking of Evidence on Commission. By W. E. Hume- Williams 
and A. Romeb Magklin. Second Edition. London : Stevens & Sons, Lim. 

1903. 8vo. XX and 338 pp. {12s. 6d.) 

The Modem Latoyer^s Office ; being suggestions for improvements in the 
organization of Law Offices. By a Solicitor. London : Stevens & Sons, 
Lint 1902. 8vo. vii and 107 pp. {6s.) 

The Yearly County Cowrt Practice for 1903. By G. Pitt-Lewis, K.C, 
Snt G. Abnold White and Abchibald Bead. With a chapter on Costs 
and Precedents of Costs by Mobten Tubnbb. Two vols. Vol. I, General 
Jurisdiction and Jurisdiction in Admiralty. Vol. II, Enactments con- 
ferring Special Jurisdiction upon the County Courts. London: Butter- 
worth & Co. ; Shaw & Sons. 1903. 8vo. Vol. I, xcvii and 1004 pp. 
Vol. U, xxix and 584 pp. (25*.) 

The Lawyer^ s Eemembraneer and Pocket Book, 1903. By Abthttb 
Powell, K.C. London: Butterworth & Co. i2mo. iv and 150 pp. 
{2s. 6d, net.) 

Digest XVII. 2. Pro Socio. Edited with translation and notes by 
C. H. MoNBO. Cambridge : at the University Press. 1902. 8vo. vi and 
84 pp. 

CarsmCs Reed Property Statutes. Being a teiith edition of Sheiford's 
Real Property Statutes. By Thomas H. Cabson, K.C. and Habold M. 
BoMPAS. London: Sweet & Maxwell, Lim. ; Stevens & Sons, Lim. 1902. 
La. 8vo. cvi and 928 pp. (35«.) 

The Editor cannot undertake the retvm or safe custody of MSS. 
sent to lUm without previous communication. 



No. LXXIV. April, 1808. 


The Sale op Goods Act, 1893. 


THE second section of the Sale of Goods Act, 1893, is as follows : 
* Capacity to buy and sell is regulated by the general law con- 
cerning capacity to contract and to transfer and acquire property, 
provided that, where necessaries are sold and delivered to an infant 
or minor or to a person who by reason of mental incapacity or 
dnmkenness is incompetent to contract, he must pay a reasonable 
price therefor/ 

In order to ascertain the effect of this section and the liability of 
an infant for goods sold to him, it must be remembered that, by the 
Infants Relief Act^ 1874, all contracts entered into by infants for 
goods supplied or to be supplied, other than contracts for necessaries, 
are absolutely void, and not merely voidable as at common law^ 
and further that at common law the infant was bound by his 
contract for necessaries. The result therefore of the legislation 
is that all contracts with an infant for the sale of goods are void, 
but that where necessaries are sold and delivered to him, he is 
liable to pay a reasonable price therefor. In short the infant is 
not liable at all (m a contract for the sale of goods, but when 
the contract is for the sale of goods which are necessaries, and 
these are delivered to the infant, he is bound by statute quasi ex 
contractu to pay a reasonable price therefor. 

As regards persons incompetent to contract by reason of mental 
incapacity or drunkenness, they are at common law liable, on 
their contracts, unless the party contracting with them was aware 
of their incapacity. This rule is not affected by the second section 
of the Sale of Goods Act. The result therefore is, that a contract for 
the sale of goods to such incapacitated persons is valid and binding, 


114 The Law Qtuirterly Review. [No. Lxxiv. 

unless the one party was aware of the incapacity of the other, and 
that even when the seller does know of the incapacity of the buyer, 
the latter is liable to the former in respect of such goods (being 
necessaries) as have been delivered to him. He is not liable on the 
contract, but he is liable quaii ex contractu to pay a reasonable 
price for the goods delivered. 


I propose briefly to direct attention to sections 39 and 41 of the 
Sale of Goods Act, 1893, because they seem to me to be somewhat 
inaccurately framed and to be apt to mislead. 

When the property in goods which are the subject-matter of a 
contract of sale has not passed to the buyer, and still remains in the 
seller, the latter may do with them whatever he pleases ; he may 
sell, pledge, consume, or destroy them without incurring any 
liability whatever to the buyer for so doing. 

Although this proposition appears self-evident, it has not, I think, 
been always steadily borne in mind by text-writers or even by 
judges, and there has consequently arisen aome confusion in the 
statement of the law relating to the rights and liabilities of unpaid 
sellers. It is, for instance, for this reason that although the case of 
Valpif V. Oakeleji, 16 Q. B. 941 was rightly decided, the judgments in 
that case will, on cai*eful examination, be found to be far from 
satisfactory or consistent. 

It is, then, only when the property has passed to the buyer that 
the seller's power over the goods is limited, and it is only then 
that it can become necessary to define under what circumstances 
the unpaid seller may retain or resume possession of the goods or 
dispose of them. 

Now section 41 of the Sale of Goods Act treats of the unpaid 
seller who is in possession of goods the property in which has 
passed to the buyer, and states the circumstances under which he is 
entitled to retain possession and withhold delivery of those goods. 

Section 44 and the following sections relating to stoppage in 
transitu treat of the unpaid seller who is not in possession of the 
goods and who has parted with such possession in order to transmit 
the goods to the buyer, and they state the circumstances under 
which the seller is entitled to resume possession. Finally section 48 
shows in what manner an unpaid seller who has a lien on the 
goods or who has stopped them in transitu may deal with them. 

There seems therefore to be no necessity for the first subsection 
of section 39, which relates to the rights of the unpaid seller of 
goods, the property in which has passed to the buyer. It tends 
only to confuse the subject. 

April, 1903.] Notes. * 115 

As regards the second subsection, it is as follows: 'Where the 
property in goods has not passed to the buyer, the unpaid seller has, 
in addition to his other remedies, a right of withholding delivery 
similar to and coextensive with his rights of lien and stoppage in 
transUu when the property has passed to the buyer.' 

Now this enactment, relating as it does to goods the property in 
which has not passed to the buyer, cannot, for reasons already 
stated, be intended either to give the seller any power or to restrict his 
power over such goods. It has therefore no proper place in Part IV 
of the Act which is headed ' Rights of unpaid sellers apaitMl the goodi* 
The object of the subsection is evidently only to embody the law 
laid down in the well-known cases of Valpyy. Oakeletf, 16 Q. B. 941, 
Griffiths V. Terry, 28 L. J. Q. B. 204, and Ex parte Chalmers^ L. R. 
8 Ch. 289. 

Oriffiths V. Perry is entirely founded on Valjnf v. Oakeley^ and 
although the judgments in the latter case are not perfectly satis- 
factory or logically consistent, the decision was undoubtedly rights 
and it is unnecessary to discuss the reasons given in those judg- 
ments since the whole law on this subject is settled by the 
admirable judgment of Hellish L. J. in Ex parte Chalmers, These 
cases show under what circumstances the unpaid seller may, 
without incurring any liability for breach of contract, abstain from 
making delivery under a couti'act of sale, when the buyer becomes 
insolvent, and they also show what is the measure of damages, if 
the seller has committed a breach of his contract and the buyer 
afterwards becomes insolvent. It is therefore, I submit^ clear that 
the second subsection does not belong to Part IV of the Act which 
treats of the unpaid seller's right against the goods^ but ought to be 
placed either in Part V which treats of Actions for breach of the 
Contract, or in Part III which treats of the Performance of the 

Contract. ^ -, 

Arthur Cohen. 

After the observations of the Lord Chancellor, confessing him- 
self the draftsman of the Companies Act, 1900, we must take it 
that the decision in Hilder v. Dexter [1902] A. C. 474, 71 L. J. 
P. C. 781 — the option-under writing-commission-case — represents 
the intentions of theframers of the Act; but that the point 
was not free from difficulty is plain from the Court of Appeal 
having twice taken a different and unanimous view of the language 
of the section. The controversy really centred in the word * in- 
directly ' in s. 8 (ii). ' Save as aforesaid no company shall apply 
any of its shares or capital money either directly or indirectly in 
payment of any commission discount or allowance to any person 

I 2 

116 The Latp Quarterly Review [No. Lxxiv. 

in consideration of his subscribing or agreeing to subscribe either 
absolutely or conditionally for any shares in the company :' those 
are the words. What the company had done was to give every 
allottee an option to take up, within a year, for every £i share 
subscribed, another share^ at par. The shares rose to a premium 
of £7, I7#. 6d. and the option holder exercised his option and 
cleared more than £13,000. The question was whether thb was 
not applying the shares of the company ' indirectly ' in payment of 
commission. The Court of Appeal held that it was ; the Law Lords 
that it was not. No doubt it was not strictly a payment out of capital 
because the premium was problematical at the date of the bargain, 
but it resulted in a capital loss to the company of £13,000. The 
policy of the underwriting commission section was, while sanctioning 
such payment, to guard against abuse by letting intending subscribers 
know exactly from the prospectus and articles what is being paid 
in the way of commission. This is impossible when the commission 
takes the form of a speculative option. 

The judgment of the Court of Appeal in Read v. Friendly Society 
of Operative Stonemasons [190a] 2 K. B. 732, 71 L. J. K. B. 994, 
C. A. and the judgment of Bigham J. in the Glamorgan Coal Co. v. 
SoutA Wales Miners' Federation [1903] i K. B. 118, 71 L. J. K. B. 
looi (noted p. 2, above), are in no way inconsistent with one 
another, though they may at first sight pi-esent an appearance of 

Bead's case determines that if Z, for the promotion of his own 
interest, or for the sake of damaging A^ ' induces ' JV, in the strict 
sense of the word ' induce,' i. e. puts pressure upon N by way either 
of reward or of punishment, or of threat of punishment, to break 
N% contract with A^ X comes within the principle of Lumky v. Gye^ 
2 £. & B. 216, Bowen v. Hall^ 6 Q. B. Div. 333, Quinn v. Leathern 
[1901] A. C. 495^ and being guilty of a wrong to Al is liable to an 
action by A for any damage A may have suffered by Xs wrongful 
act, but that the wrongfulness of the act is taken away if X has 
any lawful justification for what he has done, 

The Glamorgan Coal Co. case, on the other hand, establishes, as far 
as the authority of that case can do so, that, if X having no interest 
in the matter, and not intending to injure A^ merely advises N to 
break and thereby in a certain sense induces him to break his 
contract with A^ X does not come within the principle of the line 
of cases which begin with Lumlsy v. Gye^ and having done no 
wrong to A^ is not liable to an action by A. Li other words, dis- 
interested advice is privileged. 

So far in fact from there being any necessary inconsistency 

April, 1903.] Notes. 117 

between JRead^g case and the Glamorgan Coal Co, case, the doctrine 
established by the latter is really the complement of the doctrine 
established by the former, and various diflBculties suggested by 
Lumley v. Gye and the cases which have followed it are removed by 
laying emphasis upon the difference between the interested induce- 
ment by which X leads -A'' to break a contract with A^ and the 
disinterested advice given by X to N^ which leads to the con- 
sequence that N breaks a contract with A, but does not otherwise 
induce him to do so. It was rightly held that an action lay 
against Gye for inducing Miss Wagner to break her contract with 
Lumley ; but no one supposes that, if Miss Wagner had consulted 
her solicitor, John Jones, and he advised her that she would gain 
more by breaking than by keeping her contract with Lumley, 
Lumley would have had a right of action against Jones. Literested 
inducement to commit a breach of contract is one thing, fair advice, 
which leads another to break a contract, is another and a quite 
different thing. Let it too be noted that not only is there no real 
inconsistency between Rea^a case and the Glamorgan Coal Co. case, 
but that they both rest upon one and the same principle, namely, 
that if X causes damage to J, he is prima facie guilty of a tort, 
though he may escape liability for a tort if he can show legal 
justification for an act which, in the absence of such justification, 
would be wrongful (see 18 L. Q. R. p. i). 

But, though there is no essential difference of principle between 
Bead's case and the Glamorgan Coal C0J9 case, yet the judgment of 
Bigbam J. in the latter case is open to criticisms of which more 
may be heard in the Court of Appeal 

(i) The use in the judgment of the ambiguous term 'malice' 
produces, as it always does, confusion. 

(a) The statement, or suggestion, that there was no intention on 
the part of the Miners' Federation to injure the masters, but only 
an intention to promote the interest of the workmen, appears to be, 
even if true, irrelevant. There certainly was an intention to inter- 
fere with the legal rights of, i. e. do an injury to, the masters by 
leading the workmen to break their contracts with the masters. 

(3) Was the position of the Miners' Federation, it may well be 
asked, merely the position of disinterested advisers? To this 
inquiry it would be difiScult to give an affirmative answer, but 
a negative answer would shake the whole basis of Mr. Justice 
Bigham's judgment. 

The two cases taken together, assuming them to be ultimately 
both upheld, suggest that the exceptions to the rule of liability laid 

118 The Law Quarterly Review. [No.LXXiv. 

down in Lundey v. Gye are analogous and parallel to the immunity 
of privileged communications in the law of defamation. But this 
can at present be put forward only as a speculatiye opinion. 

One of the most important of the cases recorded in the Law 
Beports of this quarter is assuredly Hawden v. Yorkshire Miners 
Association [1903] i K. B. 308, 7a L. J. K. B. 1 76, C, A. It establishes, 
as far as the judgment of the Court of Appeal goes, a broad principle 
which vitally concerns all trade unionists, namely that an action is 
maintainable by the individual member of a trade union for an 
injunction to restrain a misapplication of the society's funds for 
purposes not sanctioned by its rules, or rather in distinct contra- 
vention of these rules, and that such an action is not prohibited 
under the Trade Union Act, 1871 (34 & 35 Vict. c. 31), s. 4, sub-s. 
3 {h\ inasmuch as it is not a proceeding instituted with the object 
of directly enforcing an agreement for the application of the funds 
of the union to provide benefits to members. The Court of Appeal 
.in effect follow the judgment of Fry J. in Wolfe v. Matthews^ 
21 Ch. D. 194, and hold that it is in no way inconsistent with 
Rigby V. Connoly 14 Ch. D. 482, or with Chamberlaiti s Wharfs Ltd. 
V. Smith [1900] 2 Ch. 605, C. A. That this decision is in conformity 
with every one's notion of common fairness is obvious ; it cannot 
be just that a trade union or any other society, such for instance 
as an employers' federation, should be allowed to commit breaches 
of trust, and a careful consideration of the judgments pronounced 
by the members of the Court of Appeal will convince most persons 
that, though Howden v. Yorkshire Miners' Association undoubtedly 
raises a question of some nicety, the interpretation put by the 
C. A. on the Trade Union Act, 1871, s. 4, sub-s. 3 (i) is in con- 
formity with the letter as well as with the spirit of the statute. 

It is common knowledge that some trade unionists, or certainly 
some of their parliamentary representatives, are indignant at the 
various judgments which within the last year or two have proved 
that under the existing law trade unions, just because they are 
lawful societies, are not free from the legal liabilities which fall 
upon other associations. They have rights, but they have not 
privileges. The irritation of any man, whether an employer or 
a workman, at an interpretation of the law which imposes upon 
him liabilities common to other persons, from which he thought he 
was exempt, is natural, but it is not wise ; and we venture upon 
a caution, which is, probably, in the case of many artisans quite 
unnecessaiy, against the folly of claiming exemptions from liability 

April. 1903O Notes. 119 

condemned by common sense and common fairness. It is quite 
aiguable that the time has come for giving to trade unions the full 
rights (and duties) of corporations ; it is not arguable that a trade 
union should be allowed exemptions from legal liability which are 
not conceded to any individual or to any other body of indiv|dual& 

Clarke v. Army 8f Navy Co-operative Society [1903] i K. B. 155, 
^7, L. J. K. B. 1 53, C. A., is an interesting case. The Court of Appeal . 
has confirmed, and put on broader ]^ounds, the rule of caution 
imposed on dealers in dangerous or possibly dangerous wares by 
a decision of the Court of Exchequer given as long ago as 1869, 
in which the reasoning of the Court is not altogether satisfactory 
{George v. Skivington, L. R. 5 Ex. i, 38 L. J. Ex. 8). Here the de- 
fendant's company sold tins of a disinfecting powder, seemingly 
of an irritant nature, which for some unexplained reason was apt 
to fly in the faces of people who opened the tins without special 
care. The manager had been told of such accidents before the sale 
to the plaintiff^ who knew nothing of any such risk, and was injured 
by a ' sort of explosion ' in opening the tin. In fact the manager 
had given instinictions that no more of these tins were to be sold 
without warning, but the salesman disregarded them. The sale 
was on terms expressly excluding any warranty, and the Court 
did not decide whether this exclusion extended to the implied 
condition (Sale of Goods Act, s. 14) of goods being reasonably fit 
for the purpose for which they are supplied. Apart from any such 
question, the Court held that (in the words of Romer L.J.) ' there 
is a duty east upon a vendor, who knows of the dangerous character 
of goods which he is supplying, and who knows that the purchaser 
is not, or may not be, aware of it, not to supply the goods without 
giving warning to the purchaser of that danger.' It would seem, 
with great respect for some incidental expressions in the judgment 
of the M. B., that the duty is altogether independent of the con- 
tract of sale and arises merely irom the delivery of the thing, by 
a person who knows it to be dangerous, to one who does not know 
and cannot reasonably be expected to know the danger of using it 
in the ordinary course. If so, there appears to be no reason why 
the duty should not extend to the protection of a sub-purchaser 
from an innocent purchaser, as it was held to do, now half a century 
ago, in New York : Thomas v. Winchester, 6 N. Y. 397. It is extra- 
ordinary that no reference was made either in the principal case or 
in George v. Skivington to Dixon v. Bell^ 5 M. & S. 198, 17 R. B. 308, 
the strongest English case of this class, which has never yet been 
fully considered by a Court of Appeal, If it is good law, the facta 

120 The Law Quarterly Beview. [No.lxxiv. 

that it was decided in 1816, and that the instrument of accidental 
mischief was a flint-lock gun, do not make it obsolete. 

X and J are a firm of grain merchants; it is part of their 
business to obtain by legitimate means information with regard to 
contracts made with brewers or buyers of grains by competing 
firms. J obtains such information by bribing a clerk of ^'s, a 
competitor in business, and thus inducing the clerk to break his 
contract of service by dishonestly communicating to X knowledge 
obtained in the course of the clerk's employment. The whole of the, 
business is in fact left to the management of 7. Both X and T are 
responsible in damages to A for the conduct of T. This is the 
effect of ffamlyn v. Houston Sf Co, [1903] i EL B. 81, ^^ L. J. K.B. 
72, C. A. following in substance, though very few authorities were 
cited, a long line of decisions on the responsibility of the firm 
for wrongful acts of a partner about the partnership affairs. The 
case may seem, as regards X, who may have known nothing of 
J's dishonourable conduct, to be a hard one, but the principle on 
which it is decided extends to every kind of agency and is well 
settled. A principal is liable for the fraud or other misconduct of 
' his agent if it lies within the scope of his employment, or, in other 
words, within the kind of business in which he is employed, 
including manifest trespasses such as false imprisonment, and even 
assault, provided he is not acting for some private interest or * frolic 
of his own.' A matter simple in itself is often confused by the 
loose use of the word authority. In one sense an agent is hardly 
ever authorized or instructed to do an unlawful act; what he is 
instructed to do is to carry on a particular business; but the 
principal, in a case such as that under consideration the fellow 
partner, is responsible not only for the acts which the agent is 
authorized or instructed to do, but also for a very different thing, 
the wrongful acts which an agent is not instructed to do, but which 
are in reality done in the course of the authorized line of business. 
As regards liability, at any rate for a tort, the responsibility of a 
principal for an agent's wrongful acts depends not upon the agent's 
actual authority but upon the scope of his employment. 

In Ajlalo V. Lawrence A Bullen [1903] i Ch. 318, 7a L. J. Ch. 
107, the Court of Appeal had to construe one of the clumsiest 
sections of one of the clumsiest Acts of Parliament under which we 
suffer. The Copyright Act of 1842 is one of the latest examples of 
the bad old style of parliamentary drafting, and it would be hard 
to find a worse one. Section 18, dealing with copyright in con- 

April, 1903.] Notes. 121 

tributions to periodical, serial and encyclopaedic works, is peculiarly 
fitted to be taken as a warning by the young draftsman. Difference 
of opinion, therefore, is not surprising. Still Lord Justice Vaughan 
Williams's elaborate dissent does not shake our belief that in the 
present case Joyce J. and Romer and Stirling L. JJ. were right. 
The point of law decided is that, when a writer is employed to 
contribute to any such work as above mentioned, it is a question 
of fact in each case whether the employment is 'on the terms that 
the copyright . . shall belong to ' the person described in the Act 
as 'such proprietor, projector, publisher, or conductor,' and the 
mere employment, without further express agreement or special 
circumstances, does not raise any legal inference or presumption 
that the contributor intended to part with the copyright. The 
section makes an exception to the ordinary rights of an author 
if and when certain conditions exist, and it is for the proprietor or 
publisher who sets up a claim against the author to show that they 
all did exist in the particular case. ' The Legislature has expressly 
said that, in addition to employment and payment, it must be estab- 
lished that the employment was on the terms that the copyright 
should belong to the proprietor. It cannot be, therefore, that those 
terms must of necessity legally be implied from the facts of employ- 
ment and payment' (Romer L. J.). In order to take this view it 
was necessary for the Court to disagree with some of the language 
used nearly half a century ago in Sweet v. Benning^ 16 C. B. 459, 
a decision which may or may not have been correct on the facts. 
The practical moral is that the parties to such contracts ought 
to make the terms clear from the first ; but if not, contributora 
ought to be very careful as to the form of any receipts they sign. 

Morel Bro9, A Co. v. Earl of Westmoreland and Wife [1903] i K.B. 
64, 72 L. J. K. B. 66, C. A. illustrates the complexity added to the 
law as to the liability of a husband for his wife's debts by the 
possibility of a creditor, when supplying goods for a man's house- 
hold, giving credit at once to the husband and to the wife. The 
claim of Morel Bros. & Co. was originally a claim for payment for 
goods supplied against both the Earl and the Countess of West- 
moreland. Ultimately judgment was given against the Earl. 
On appeal by the Earl judgment was entered in his favour on 
grounds which, if the view taken by the Court of the facts found 
by the jury be correct, would appear to be clearly sound. They 
may, it is submitted, be thus summed up. 

(i) There was no adequate evidence whatever of joint liability. 

(2) The plaintiffs, having attempted to establish a joint liability 
against the defendants, could not, when they failed in this, be 

122 Tlie Law Quarterly Review. [No. LXXiv, 

allowed to turn round and charge against the Earl a separate 
liability, as contracting through his wife as an agent, which was 
absolutely inconsistent with his wife's joint liability. 

It is agreed on all hands that a husband's liability for debts 
incurred by his wife, unless when she is living lawfully apart from 
him, depends upon the law governing the relation, in matter of 
conti-act, of principal and agent. The husband is bound by the 
contracts of his wife if he has either in so many words or tacitly 
authorized, i. e., in popular language, instructed her to make them, 
or if he has held Aer out to a, third party as authorized to make 
them. . Why then, since all this is clear, are there constant questions 
in which the Courts take one view and the public are apt to take 
another as to the liability of the husband for debts incurred by the 
wife ? It is worth while to state what are the real answers to this 

(i) There is an essential difference of opinion between the judges 
and the public, especially the public of tradesmen, as to what 
constitutes * holding out.' 

The Courts clearly hold that the mere fact of two persons living 
together as man aud wife in the ordinary way does not of itself 
hold out the wife to a tradesman as authorized to incur debts on the 
husband's behalf for the ordinary household expenses {Jolly v. Seei 
(1864) 15 C.B. (N. S.) 62,8 ; Dedenkam v. Mellon (1880) 6 App. Cas. 
34; Morel Bros. A Co. v. Earl of Westmoreland and Wife [1903] 
I K. B. 64, ^2 L. J. K. B. 66, C. A.). 

Tradesmen as distinctly suppose that the husband does under the 
circumstances mentioned hold out the wife as authorized to contract 
such debts on his behalf. The difference is vital, because upon it 
depends the effect of a denial or a revocation of authority by the 
husband unknown to the tradesman. Such denial or revocation, 
in the view of the Courts, frees him from liability {JoUy v. Rees), 
but in the opinion of tradesmen it does not. Let it be noted that 
in Jolltf V. Rees^ Byles J., a judge thoroughly acquainted with 
business^ shared the opinion of men of business. The law is now 
well settled, but it is possible to regret that the judgment in Jolly y. 
Rees was followed in later cases. 

{2) There is apt to be a confusion in the mind of ordinary men 
between the right of a wife to bind her husband for necessaries 
supplied to her when lawfully living apart from him, which is 
really a right not depending at all upon contract, and her right to 
bind him as his agent when living witl^ bim. 

(3) The whole matter is now complicated by the possibility that 
any married woman may possess property of her own, and the 

April, 1903.] Notes. 123 

further possibility that a prudent tradesman may follow a course 
which may in a short time become customary, that is supply goods 
for the family upon the joint credit of the husband and wife. 

Rules of practice contain and establish principles of jurisdiction. 

This truism, the full bearing of which is not always recog- 
nized, is admirably illustrated by the Due d'Aumale [1903] P. 18, 
7aL.J.P. II, C.A. 

The case merely decides that under B. S. C, Order XI, r. i (g) 
a plaintiff, who has brought an action against a defendant who is in 
England, may issue a concurrent writ and serve notice thereof 
against other defendants, French citizens who are out of England. 

This seems a merely technical matter, but it shows that under the 
Order in question, as now judicially interpreted, the High Court has 
immensely extended its extra-territorial jurisdiction. A foreigner, 
who is not in England and who has never been in England, may 
now almost invariably be made co-defendant in an action wher- 
ever one of the parties is in England, and the action is properly 
brought against the defendant in England. Let the student note 
that in the case of co-defendants the common law principle that the 
Courts have no jurisdiction over any person who cannot be served 
in England with a writ is all but annulled, and this whatever be 
the nature of the action. 

For a solicitor to keep a gift from his client needs an almost 
Machiavellian astuteness, as Wright v. Carter [1903] i Ch. 27, 7a 
L. J. Ch. 138, C. A. shows. It is not merely that the Court starts 
with a presumption all but irrebuttable of undue influence on the 
solicitor donee's part so long as the relation of solicitor and client 
is subsisting, but even after the relation has terminated it recognizes 
that the influence may remain, and, if it does, no formal inter- 
position of a separate solicitor will make the gift good. The policy 
of English law is to secure the most complete confidence between 
client and solicitor. It is this policy which gives privilege and 
protection to professional communications passing between the two, 
and it is this same policy — ^not merely the quasi-fiduciary relation- 
ship or moral ascendancy as in the case of guardian and ward, 
doctor and patient, lady superior and novice — which is at the root 
of the jealousy with which the Court regards gifts by clients to 
their solicitors. Destroy disinterestedness on the solicitor's part 
(saving his legitimate remuneration) and you poison the confidential 
relation — sap the foundations of that implicit reliance which a 
client ought to place on his legal adviser ; it is impossible for the 
client to be sure that the advice is not tainted by some self-regarding 

124 The Law Quarterly Review. [No. LXXIV. 

motive. The practical result is that an unimpeachable sale from 
client to solicitor is difficult to accomplish, but possible ; an unim- 
peachable gift all but impossible. 

The Legislature has in s. 8 of the Companies Act, 19CX), sanctioned 
the payment of underwriting commission, but it has done so only 
on certain well-defined conditions : the company must be offering 
its shares or debentures to the public, and the prospectus must 
state the ' amount or rate per cent/ of commission and the articles 
authorize it. What was sought to be done in Booth v. New Jfrikander 
Gold Mining Co. ([1903] i Ch. 7a L.J. Ch. 125, C. A.) was to use the 
statutory power of paying underwriting commission for the purposes 
of a reconstruction. A gold mining company wants more capital — 
all its own is paid up : so it resorts to a not uncommon device of re- 
constructing by selling the business to a new company for shares 
in the new company to be allotted to the shareholders in the old 
company with 129. credited as paid up and 8«. therefore at calL But 
to make such a scheme successful it is essential that the shareholders 
of the old company should come in and take up the shares in the - 
new, and sanguine as is the shareholder's temperament you cannot 
always rely on his not 'jibbing.* So the New Afrikander Company 
met the difficulty by getting the capital of the new company under- 
written, and for this purpose the underwriters posed as an inter- 
mediary company which was to buy from the old company and sell 
to the new, and was to take the profit on the resale — some £ia,ooo 
— as commission for the underwriting risk. It was ingenious, and 
there was nothing wrong about it if the law allowed it, but did the 
law allow it? The Court of Appeal held it did not. By no artifice of 
construction could it be said that the new company was offering its 
shares ' to the public for subscription ' : it was equally impossible 
to say that the lump sum of £1 2,600 was a * rate per cent.' Possibly, 
as Stirling L. J. suggested, the plan might be altered so as to be 
brought within the section, but as it stood it was ultra virei. There 
seems no reason (except that the Legislature has said so) why under- 
writing commission should be confined to an offer of shares to the 
public. Public caprice is no doubt the most important contingency 
that promoters have to guard against, but it is not the only one. 

jDw Patquier v. Cadbury^ Jonfi Si" Co. [1903] i K. B. 104, 73 
L. J. E. B. 78, C. A. has an interest of a peculiar kind ; it illustrates 
for students the constantly forgotten fact that rules of pleading 
which are looked^ upon as purely artificial constantly turned upon 
real if subtle distinctions. The whole case depends upon deter- 

April, 1903.] Notes, 123 

minlBg the distinction between an action founded on tort and an 
action founded on contract, and further on deciding whether an 
action of detinue in which a plaintiff recovers the thing claimed 
in specie is an action founded on tort within the meaning of the 
County Courts Act, 1888 (51 & 5a Vict. c. 43), s. 1 16. There would 
seem to be no doubt that the Court of Appeal came to the right 
conclusion, that the section did not apply and that the plaintiff 
was entitled to costs on the High Coui*t scale. . Historically, as is 
now well known, detinue is neither an action in tort nor an action 
in contract, but a writ of right for chattels. 

The Life Assurance Companies Act, 1896, allowing companies to 
pay policy moneys into Court, where in the opinion of the board of 
directors no suflScient discharge can otherwise be obtained, has been 
a great boon to the insurance offices, but there are two sides to 
every thing, and the convenience to the offices presents itself in quite 
a different light to the people with claims. It means to the claimant 
the cost of a petition or summons to the Court to get the money 
out, and in the next place the necessity of proving his title strictly 
which involves more expense and which very likely is just what he 
cannot do. That the power maybe used oppressively is recognized 
l>y O. 54 (c) of the Rules of Court providing for the company paying 
the costs where it has acted unreasonably in paying the money 
into Court. In Harrison v. Alliance Assurance Co, [1903] i K. B. 
184, 7a L. J. K. B. 115, C. A, the difficulty was caused by the policy 
having been lost — a not uncommon occurrence. The policy holder 
had, however, notified the loss to the company and had gone on 
paying the premiums, and the company accepting them for twenty 
years, and no notice of any assignment had been registered. Under 
the circumstances it seemed to the claimant vexatious conduct on 
the part of the company to put him to so much trouble for so slight 
a risk. However, the Court of Appeal held that the company 
waa acting within its rights under the Act, and left the claimant 
to his problematic i-emedy of getting his costs out of the company. 
Why in such cases should not the company agree with the 
claimant to cover the risk by an insurance? The cost of doing 
so would be much less than of paying into and out of Court. 

The policy of our law as regards the bankrupt has been to take all 
his available property, distribute it as far as it will go among his 
creditors, and then let him start again a free man with the chance 
of becoming once more a self-supporting and useful citizen ; but a 
bankrupt who remains undischarged has not earned this privilege 
of emancipation from his liabilities ; what he acquires he acquires 

126 The Law Quarterly Review. [No. LxxiV. 

for his creditors, and the trustee may intervene and claim it : but 
he is not to be made the mere bond-slave of his creditors. Ex- 
tinguish hope, destroy the incentive of self-interest, and you snap 
the mainspring of industry ; and the law recognizing this makes 
an exception in favour of a bankrupt's personal earnings. This 
principle is now well recognized and the decision in Bailey v. 
Thurston and Co. ([i*9oa] a K. B. 397, 71 L. J. BL B. 800, affirmed 
[1903] I K.B. 137) — though it is a new point, and Phillimore J. 
seems to have had some doubts in deciding it — is really only a 
corollary from it. If an undischarged bankrupt is to have the 
benefit of his personal earnings he must have the means of enforcing 
his rights ; and when an action for damages for wrongful dismissal 
is analysed it merely means an action for the loss of future earnings 
under the contract of emplojrment, subject to certain equitable 
deductions as for payment of such earnings in a lump sum and of 
what the discharged servant has or might have earned. - The con- 
tract of employment in Bailey v. Thurston and Co. was prior to the 
bankruptcy, but the cause of action did not arise till after the 
bankruptcy, and, when it did arise, was a personal right of action. 

A policy of marine insurance contains this clause: 'General 
average payable according to foreign statement if so made up.' 
A the shipowner charters the ship thus insured to N. By terms 
of the charter-party it is provided that the ship may carry a deck- 
load of timber, and that ^in case of average . . . jettison of deck 
cargo for the common safety shall be allowable as general average.' 
The ship during the currency of the policy sails for Antwerp, and 
during the voyage in consequence of perils insured against jettisons 
part of the deck cargo. On arrival at Antwerp an average state- 
ment is made, and the average adjuster includes the jettison of deck 
cargo in general average. By Belgian law, apart from the special 
provisions of the charter-party, the jettison of deck cargo would 
not be the subject of general average, but Belgian law recognizes 
the express provisions of the charter-party. In an action by 
A against the underwriters for an indemnity in respect of the 
contribution he had to make for general average the defence is 
raised that the average adjustment was not made in accordance 
with the law of Belgium. Be Hart v. Compania Anonima de Seguros 
* Aurora' [1903] i K. B. 109, ^7, L. J. K. B. 64. The King's Bench 
Division have determined that the adjustment was made in accord* 
ance with the law of Belgium, i.e. in accordance with any rules 
which, whether part of the ordinary law of Belgium or not, Belgian 
Courts recognize and enforce. This decision is of importance as an 
illustration of the meaning which according to English Courts ought 

April, 1903.] Notes. 127 

to be given to the term ' law of a country/ a point as to which 
there is in reality a difference of opinion between writers on private 
international law. With our Courts at any rate it always means 
any rule which the Courts of a given country apply to the solution 
of a particular case (see Dicey, Conflict of Laws, p. 75). 

A company's memorandum of association now nearly always 
contains a power to sell the undertaking as a going concern for cash 
or shares, and such a power is found a very convenient one. It 
enables a syndicate to sell speculative property to a company which 
it has formed to buy it : it also enables a working company to 
reconstruct without the detriment to its credit involved in a 
voluntary winding-up ; and to reconstruct without conforming to 
the troublesome, if salutary provisions of s. 161 of the Companies 
Acty 1862. Whether the Legislature ever contemplated such an 
evasion of the statutory machinery of s. 161 may be doubted. 
Buckley J. owns he always had a difficulty in grasping the decision 
of Chitty J. in Cotton v. Imperial ^c. Agency Corporation [ 1 89a] 3 Ch. 454 
(which first sanctioned such a power, of sale), his view being that 
the powers in the memorandum must be confined to the living 
objects of the company ; but the true objection seems to be in the 
sale being for iAares in another company : if it were for cash there 
would be nothing against it, but compelling a shareholder to accept 
shares in a new undertaking is a different matter, and this is why 
the Legislature was careful in s. 161 to enact provisions for a share- 
holder who objected to join the new concern being paid out. A sale 
under a power in the memorandum 'must however be by the com« 
pany> not by its liquidator ; for in the latter case it becomes a sale 
by a liquidator upon terms not justified by s. 161 : Doughty v. Loma^ 
gunda Keefi Limited [1902] 2 Ch. 837, 71 L. J. Ch. 888. 

Assignments of expectancies are regarded with suspicion in this 
country as well as in the United States, as means whereby spend- 
thrift heirs may go on trafficking with an expected bounty — like 
Charles Surface on the ' little Nabob ' — making it a fund to supply 
the wastes of dissipation and extravagance. In In re JEUenborougA, 
Toiory-Zaw v. Bume^ 72 L. J. Ch. 218, however, there was nothing 
of this sort : nothing that was not meritorious. The lady for 
prudential reasons assigned her expectancy to trustees by way 
of voluntary settlement, but taking the lady's privilege she 
changed her mind before the expectancy — now become property in 
possession— had been transferred to the trustees, and then the 
question arose whether the trustees could coerce her into fulfilling 
her original design. Buckley J. held that they could not, and his 

128 The Law Qvtarterly Review. [No. Lxxiv. 

reasoning is unanswerable. The assignment of. the expectancy 
passed nothing; it operated in equity only as an agreement to 
assign when the time came, and this agreement was nudum pactum^ 
there was no consideration moving from trustees to suppor^.^t. 
The point, by the way, was not raised whether on the principle 
of the old case of Co^^s v. Bernard (which however was not really 
a case of contract at all) the confidence reposed in the trustees 
might not serve as a consideration to support the implied agree- 
ment to assign. In any case there is no ground for what is called 
in the last edition of White and Tudor's Leading Cases ' the better 
opinion' that Meek v. KeUletoell (i Ha. 464) is overruled by 
Kekewich v. Manning (i De G. M. & G. 176) ; and when we look 
at the rationale of the thing, why should not an intending voluntary 
settlor change his or her mind at any time before it is too late ? It 
is not even like an incomplete gift where expectation may be dis- 
appointed. Every one is not a prodigal needing to be protected 
against himself. 

Formalism, which the labours of Bentham and his disciples have 
more or less expelled from civil procedure, appears to be still potent 
in the realm of criminal procedure. This at least is a reflection 
likely to be suggested by such a case as Smith v. Moody [i 903] i K. B. 
^6^ 72 L. J. E. B. 43. Consider these plain facts. The Summary 
Jurisdiction Act, 1879 (42 & 43 Vict. c. 49}, s. 39, sub-s. i, enacts 
that in proceedings before Courts of summary jurisdiction Hhe 
description of any offence in the words of the Act . . . creating the 
offence, or in similar words, shall be sufficient in law.' Smith is 
under the Conspiracy and Protection of Property Act, 1875, s. 7, 
charged with and before the Court of Quarter Sessions for the 
County of Durham, convicted of the offence t&at he ' with a view 
to compel ' Moody ' to abstain from working for Messrs. J. B. & 
Partners, Limited, at F. Colliery,* which he had a legal right to do, 
wrongfuUy and without legal authority did injure the property ' of 
Moody. The words of the Act creating the offence, namely the 
Conspiracy and Protection of Property Act, 1875, s. 7, are precisely 
followed, yet the conviction is quashed by the King's Bench Division 
because it does not specify what property of Moody's had been 
injured. The decision, we doubt not, though Channell J. acquiesced 
in it with hesitation, is sound, i.e. is in accordance with precedent, 
but it is open to two criticisms. It runs directly against the 
obvious meaning of an Act of Parliament, the Summary Jurisdiction 
Act, 1879, s. 39, sub-s. I. There is a difficulty in believing that in 
the administration of criminal law technical formalism is conducive 
to substantial justice. 'Trover for bottles, without naming how 

April, 1903.] Notes.. 129 

many bottles, is ill : but for a pair of boots and spurs, without 
naming how many spura, it is well enough ; for it shall be intended 
of the spurs belonging to the boots, which is a pair/ (We quote 
fTv a memory, but are sure of the substance.) Such are no longer 
the principles of civil pleading ; but in criminal jurisdiction it seems 
to be otherwise. 

To sever an individual's personality — to ^part him from him- 
self/ as Tennyson says — savours to the layman of quibbling or 
casuistry. To the moralist an obligation in foro comcientiae is not 
divisible, but to the lawyer familiar with the doctrine o{ perionae 
no such difficulty presents itself. A, for example, being owner of 
Blackacre, grants JB a lease of a house on the property and covenants 
for quiet enjoyment of the property by £. Then A acquires 
Whiteacre and builds on it in such a way as to make £*s chimney 
smoke — an undeniable interference with JS's quiet enjoyment. 
Says £ to A,^ This is a breach of your covenant.' ' No I ' returns Aj 
* I covenanted with you as owner of Blackacre, not of Whiteacre. 
As owner of Whiteaci*e I am a different person with an independent 
title, and am not answerable for a legitimate user of my Whiteacre 
property because it makes your chimney smoke ' ; and this view 
was upheld substantially by Byrne J. {Davis v. Totm Properties 
Insurance Corporation [190^1] 2 Ch. 635, 71 L. J. Ch. 900). It would 
constitute a very serious extension of liability under the covenant 
if it were to grow as the covenantor acquired fresh property. 
HoUaway Brothers v. HUl {[igo2\ 2 Ch. 612, 71 L. J. Ch. 818), before 
the same judge, illustrates the other side. The question there was 
whether the word ' assigns ' in a restrictive covenant bound a lessee 
of the covenantor, and Byrne J. held it did. Indeed a lessee with 
notice in such a case may be restrained though assigns are not 
mentioned at all. 

King James I's description of a * crowd of statutes crossing and 
cuffing one another' has lost nothing of its appositeness since his 
day : the state of our modern statute law may well make ' the 
judicious grieve.' Here, for instance, is a bishop taking steps under 
the Clergy Discipline Act, 1892, s. 30, to vacate the living of one of 
his clergy {Sweet v. £isAop ofBly [1902] 2 Ch. 508, 71 L. J. Ch. 771). 
The clergyman in question had been convicted of persistent cruelty to 
his wife, and an order had been made against him by the Justices in 
Petty Session for a judicial separation under the Summary Jurisdic- 
tion (Married Women) Act, 1895. Now under the Clergy Discipline 
Act, if (^) an order for judicial separation is made against a 
clergyman in a divorce or matrimonial cause, or {e) a separation 
order is made against a clergyman under the Matrimonial Causes 


130 The Law Quarterly Review. [No.lxxiv. 

Act, 1878, the clergyman's pi*eferment is to be declared vacant. The 
bishop was therefore bound to take steps to vacate the living if the 
case fell within one of the clauses, and he naturally 'believed that 
it did ; indeed he was so advised, viz. that by force of the Inter- 
pretation Act, 1889, the refei'ence to the Clergy Discipline Act, 
1892, must be read as equivalent to a reference to the Summary 
Jurisdiction (Married Women) Act, 1895 ; but the Court was driven 
to the conclusion that neither clause of the section, construing it 
strictly as penal, fitted the case ; so the delinquent clergyman won 
the day, and the bishop was mulcted in costs. But how can any one, 
clerical or lay, tread safely in such a legislative quagmii*e as these 
Married Women's Property Acts and Married Women's Summary 
Jurisdiction Acts? 

Baldronn v. International Horse Agency and Exchange, Ltd. [1903] 
I E. B. 270, 72 L. J. E. B. 90, is a strange case in the fact that the 
circumstances giving rise to it are peculiar, but the principle on 
which it is decided appears to be clear enough and to be almost 
self-evident. P, the owner of a horse of the name of ' Pentecost/ 
instructs A, an auctioneer carrying on business at Paris, to advertise 
the horse for sale and sell it. P gives A a number of particulars 
with regard to the horse which are repeated in A'^ advertisement. 
Every statement made by P and advertised by ^^ is true. Owing 
however to the fact that a Frenchman, iV, owns a horse also called 
' Pentecost ' the description causes damage to N by decreasing the 
value of iV^s horse. N sues A in the French Court, and, on some 
ground which to an English critic is not very comprehensible, re- 
covers damages. A brings an action against P for indemnity. It is 
held by Bruce J. that A has no right to recover compensation from 
P, since the damage suffered by A was due to the judgment of the 
French Court and was not caused by any wrongful act on the part 
of P. The only ground on which, as it appears, exception might 
possibly be taken to the judgment of Bruce J. is that the action 
against P was not an action for any wrong done by P, but depended 
upon the general right of an agent to be indemnified by his principal 
against any loss the agent suffers, even when there is no fault on his 
part, by carrying out the instructions of his principal But most 
critics will incline to the conclusion that in the absence of the most 
distinct authority a judge would be rash to sanction so wide an ex- 
tension of a principal's liability to indemnify an agent against loss 
indirectly caused by his carrying out the orders of his employer. 

In that fine scene in Guinevere when the Sang takes farewell of 
his guilty Queen, not the least touching incident is where she hears 

April, 1903.] Notes. 131 

the King charge the nuns ' To guard and foster her for evermore.' 
It is part of Arthur's characteristic nobility of nature, but there are 
people to whom this tenderness for a guilty wife is unknown, as 
Aiherqft v. Aahcroft ([190a] P. 270, 71 L. J. P. 125, C. A.) shows, and 
who would leave her to destitution or starvation. Happily there is 
more humanity in our law, and the Court has jurisdiction under 
8. 32 of the Matrimonial Causes Act, 1857, to compel a husband, as 
a condition of making a decree of dissolution, to provide for the 
wife notwithstanding her misconduct and his own impeccability. 
There can be no grievance in a man with £750 a year paying 
a pound a week to a divorced wife in weak health, and incapable 
of earning a livelihood. Sufficient for such an one the privation of 
her children, and * the world's cold scorn.* 

The consequences of upsetting a person's will in a country like 
England, which allows such freedom of testamentary disposition, 
are so serious that the Court may well struggle to avoid such 
a result. The benevolent jurisdiction was, however, severely 
strained in In the Goods of Peverett [1902] P. 205, 71 L. J. P. 114. 
' Is it a will at all ? * was the question which Jeune P. had to ask 
himself about the documents propounded. The internal evidence 
went to show that it was, but there was no attestation clause, the 
alleged witnesses had signed above the testatrix's signature, and, 
both being dead, there was nobody to speak to the transaction. 
However, the Court saw its way, en the strength of In re Puddephait 
(L. B. 2 P. & D. 97, 39 L. J. P. 84) and Vinnicombe v. Butler (3 Sw. 
& W. 580, 34 L J. P. 18), to uphold the instrument. In the latter 
case Lord Penzance said that the Court ought, if possible, to act on 
the maxim 'Omnia praesumuntur rite acta esse/ In re Peverett 
goes, however, a step beyond In re Puddephait, as in the latter case 
there was an attestation clause. It is to be hoped that indulgence 
by the Court may not lead to laxity on the part of testators. 

Thomas v. Pritchard [1903] i K. B. 209, 72 L. J. K. B. 23, following 
Moore v. Smithy i £. & E. 597, in effect decides that the Crown may 
be \)ound by an Act in which the Crown is not expressly named, if 
from the nature of the enactment it may be reasonably inferred or 
implied that the enactment was intended by Parliament to bind the 
Crown. This conclusion is sensible enough, but raises the question 
whether the time has not come when the rule, that the Crown is 
not bound unless it be expressly or impliedly named, should be 
treated as obsolete. Such a rule of construction may have been 
proper in the time say of Edward YI, when there might really 
be an opposition between the personal interest of a king and the 

K 2 

132 The Law Quarterly Review. 

interest of the subject. It is inappropriate and misguiding in the 
reign of Edward VII, when the king represents in all proceedings 
the interest of the nation. 

A learned correspondent writes : — 

' X on Monday contracts with A to serve him for a year from 
Tuesday. The contract is not a contract which is not to be 
performed within a year, under the Statute of Frauds, s. 4, or, in 
other words, it is a contract to be performed within a year. Smith 
V. Gold Coait and Ashanti Explorers [1903] i K. B. ^85. In this 
instance^ as in every case which limits the effect of the Statute of 
Frauds, s. 4, justice was done as between the parties, but rules 
of law which ought to be perfectly clear are complicated by the 
introduction of undue subtleties. In spite of the dicta in Cawthome 
V. Cordrey (1863) 13 C. B. (N. S.) 406, and in Britain v. Romi^ 
(1879) II Q.B.D. 123 it may be doubted whether the best way of 
construing a statute is not to give to every word of it its obvious 
and natural sense. If X had contracted on the Monday to serve 
A for a year from the Wednesday then the contract would admittedly 
have been within the terms of the Statute.' We agree that many 
provisions of the Statute of Frauds do much more harm than 
good, but we cannot share our correspondent's scruples in this 
case. A year must be reckoned from some day, and the only 
question here was from what day it should be reckoned. 

Sir Robert Reid contributes an excellent address on international 
arbitration to the December number of the Juridical Review (Edin- 
burgh). He is thoroughly clear and sound on the two points of 
difficulty which lay enthusiasts almost always overlook. Before 
you can have an effective arbitration you must first have a definite 
matter in difference, as distinguished from a point of honour or 
conflicting national ambitions, and agi*ee upon the issue or issues 
to be determined, and then you must find an arbitrator or tribunal 
who will command the confidence of both sides. On the whole, 
however, Sir Robert Reid is hopeful, and we think rightly so. He 
states incidentally a truth which all lawyers know but few hi^ve 
the courage to proclaim. ' As a matter of fact the most technical 
persons of my acquaintance are laymen who dabble in law. No 
one is more troubled with the little things, and less regardful of 
the weightier matters.' 

It $eems eanvenierU to repeat in a eoMpiewnu place that it is not deHrabU 
to eend MS. on approval withovi previous communication with the Editor^ 
except in very special circumstances ; and thcU the Editor, except as aforesaid, 
cannot be in any way ansuferable for MSS. so sent. 



HOW far the steps recently taken against Venezuela were 
politically expedient, or diplomatically correct, are questions 
which cannot yet be fully answered. It must, however, be con- 
fessed that those steps were, from the point of view of International 
Law, anomalous, and perhaps open to the censure pronounced by 
Einglake, with reference to the events of 1853, ^pon acts ' which tend 
to throw down the great landmark between peace and war.' 

I. It is trite knowledge that unfriendly pressure, and that of 
a very serious kind, may be brought to bear upon a state, without 
going to war with it. Such pressure is described by the general 
term ' Beprisals/ which, in the language of Bynkershoek, ' locum 
non habent nisi in pace.' Beprisals may be, and have been, 
exercised in many ways; e.g. by occupying territory belonging 
to the offending state, by impounding its customs, by seizing its 
ships, and by blockading its coasts. The advantages of a resort 
to such measures rather than to war are considerable, especially 
when the state employing them is unquestionably superior in 
strength to the state against which they are directed. The pressure 
need not go beyond what is absolutely necessary to secure the 
object in view, so can be graduated and localized; it does not, 
except incidentally, interfere with the trade of other nations (we 
hear nothing of * Plrize Courts,' * Contraband,' or * Visit and Search ') ; 
and friendly relations can be promptly and fully restored between 
the disputiuit powers without any treaty of peace. The nature 
of the blockade which may properly be exercised by way merely of 
reprisals, described, therefore, as a *• pacific blockade,' after giving 
rise to much discussion, is now fairly settled. This species of 
pressure, first heard of in 1827, was no doubt on several occasions 
60 applied as to interrupt the commerce of powers taking no part 
in the quarrel ; in a way which would only have been justified, 
had those powers been placed, by the existence of a state of war, in 
the position of 'Neutrals.' According to the view almost uni- 
versally held in recent years^ though grudgingly, if at all, admitted 
by some German authorities, a ' pacific blockade ' can be enforced 
only against the flag' of the offending power. This view, supported 
as it is by the action of the British Government in the matter of 
the Formosan blockade of 1884, and of the allied powers with 
reference to the blockade of the coasts of Greece in 1886, was 

134 The Law Quarterly Eeview. [No. LXXIV. 

.formally adopted by the Institute of International Law, at its 
Heidelberg meeting in 1887, in a resolution which runs as follows : 
' L'^tablissement d'un blocus, en dehoi*s de T^tat de guerre, ne doit 
£tre consid^ comme permis par le droit des gens que sous les 
conditions suivantes: i. Les navires de pavilion stranger peuvent 
entrer librement malgr^ le blocus, &c. &c.' 

In the ultimatums delivered by the allied powers, before pro- 
ceeding to actively offensive measures against Venezuela, and in 
their public utterances while engaged in seizing the gunboats 
belonging to that State, or even in landing blue-jackets to enforce 
the release of their imprisoned fellow-countrymen, not a word was 
said which implied the existence of a state of wai*. The phraseology 
employed (* stronger measures,* * such steps as may be necessary,' 
'overt action/ * putting pressure,' ^measures of coercion') was that 
which is appropriate and customary when nothing more far-reaching 
than reprisals is in contemplation. First, the gunboats were to 
be seized, ' until the British demands are complied with.' Should 
this not produce the desired effect, ' it would be necessary to decide 
what should be the next step.' A pacific blockade would have 
been a next step eiusdem generis with those which had preceded it ; 
but, for reasons which have not been made public, an entirely new 
departure now took place, and language was used by members of 
the Government, both in this country and in Germany, which 
could only mean that war was imminent, if indeed it had not 
already commenced. 

n. On December 20, 1902, occuiTcd an unmistakable act of 
war. A blockade was proclaimed of the coasts of Venezuela, 
applicable to vessels of 'neutral' powers, as well as others. 

* Neutrality ' is, of courae, the correlative of * Belligerency.* The 
transition from reprisals to war was marked by no declaration, 
a formality which, though never strictly necessary, is often 
desirable; more especially so, when semi-hostile acts have 
previously occurred, having all the characteristics of reprisals only. 
Be this as it may, on December 20, Great Britain and Germany, 
one must suppose, were at war with Venezuela; although no 
notification to this effect appeared in the London Gazette, nor did 
any Power subsequently take the trouble to announce its neutrality. 
It is true that the Governor and Vice- Admiral of Trinidad, on 
December 22, issued a * Gazette Extraordinary,' to the effect that, 

* being satisfied thereof by information received by me, I do 
hereby proclaim that war has broken out between His Majesty 
and the United States of Venezuela.' The effect of this proclama- 
tion was, howevei*, merely, under the Colonial Courts of Admiralty 
Act, 1890, and the Prize Courts Act, 1894, to call into activity the 

April, 1903.] War Sub Modo. 136 

dormant commission of the Supreme Court, as a Colonial Court of 
Admiralty, to act as a Court of Prize. 

Thereafter not only were the usual rights of a blockading force 
exercised against neutral as well as enemy vessels, but enemy 
vessels were captured, as such, in large numbers. The Germans, 
indeed, seem to have made prize of fishing-boats, the capture of 
which, at any rate if they are engaged in the coast-fisheries, is, in 
modern practice, exceptional, and has even been declared by a 
recent judgment of the Supreme Court of the United States, in the 
case of the Paquete Habana^ to be forbidden by modem International 
Law. But further than this, except by the not yet fully explained 
action of German vessels, in bombarding forts Solano and San 
Carlos, hostilities were not carried. The allies refrained from the 
exercise of the unlimited licentia laedendi incident to belligerency. 
Hostilities were confined to the sea; and in two other striking 
particulars the noimal results of a state of war were absent. In 
the first place, on the cessation of hostilities, the ships, public and 
private, which had been captured were restored to the Venezuelan 
Government, and to their private ownera, respectively. Secondly, 
the war was brought to a close, not, as might have been expected, 
by a treaty of peace between the belligerent powers, but by an 
exchange of protocols; and it is curious, after all that had 
happened, to read in the British protocol, as a reason for the, as 
one would suppose, very necessary provision for the renewal of 
treaties, a recital to the effect that 'it may he contended that the 
establishment of a blockade of the Venezuelan ports by the British 
naval forces has, ip9o facto^ created a state of war between Great 
Britain and Venezuela, and that any Treaty existing between the 
two countries has been thereby abrogated.' 

The acts of reprisal which took place in the early part of 
December last were spoken of in some quarters as acts of war. 
The true nature of the state of things by which, on the 20th of that 
month, they were superseded seems to be left by the protocol an 
open question. Let us call it a state of ' war stib modo! 

The object of the preceding remarks has been to point out the 
ambiguous character of the steps taken to obtain redress from 
Venezuela, and the undesirability, if it can be avoided, of 
obliterating the dividing line between peace and war. It is of 
course possible, nay probable, that the allies were influenced 
throughout by good diplomatic reasons in the course which they 

T. E. Holland. 



[The International Congress of Comparatiye Law, which met in Paris 
in the Autumn of 1900, appointed a Commission to inyestigate the methods 
adopted by the Judiciary in yarious countries when awarding sentences 
for crime. The aim and composition of the Commission were defined in 
the following resolutions, which were passed at the closing sitting of the 
Congress : — 

(i) Une commission scientifique internationale, se reunissant k Paris, 
est charge de rechercher les id^s directrices qui pourraient 
§tre recommand^ auz juges dans la mesure des peines. 

(2) Cette commission pourrait etendre ses trayauz a I'^tude des 

peines, consid^r^es au point de yue legislatif (non plus seule- 
ment au point de yue judiciaire), et considerees au point de 
yue de leur nature (non plus seulement au point de yue de 
leur duree). 

(3) Comme moyen d'action, cette commission proyoquerait dans les 

Congr^s (intemationauz ou nationaux) I'ltude des propositions 
qui lui paraitraient desirables. 

(4) La commission se composera de I'auteur de la proposition, 

M. Crackanthorpe, d'un del^gue de la Society de Legislation 
Comparee, d'un delegue de la Societe Generale des Prisons, 
d'un delegue de I'Union Internationale de Droit P^nal. 

Each of the Associations mentioned in the fourth resolution nominated 
members of the Commission, the Society Generale des Prisons nominating 
two. The fiye Commissioners so appointed co-opted two others, making 
seyen in all. 

The first meeting of the Commission was held in Paris in May, 1901, 
when it was decided to communicate with the Judiciary, with the Bar, 
and with other experts in criminal administration with a yiew of 
ascertaining the extent (if any) to which sentences are, or should be, 
influenced by general conceptions of the object of punishment, or by 
matters bearing either on the offence itself or on the character of the 
indiyidual committing it. To this end circulars were issued in English 
and French propounding four main questions, yiz. : — 

Question i. — Does the judge, in fact, when awarding a sentence, act 
on any theory as to the object of punishment, such as retribution, 
expiation, example to others, reformation of the offender, or the 

Studies in Criminal Sentencing. 137 

Question 2. — Does the judge, in fact, keep the same end in view in 
the case of all offences, or does he make a distinction between 
one offence and another ? 

Question 3. — When he makes a distinction between one offence and 
another, on what is the distinction based? On the character 
of the punishable act looked at from a moral standpoint ? On 
the greater or less frequency of the crime in the district ? On the 
greater or less risk to which it exposes the community, or on any, 
and what, other circumstances ? 

Question 4. — When he makes a distinction between one individual 
and another, does the distinction turn on the offender's ante- 
cedents as shown by his judicial record, or on his degree of 
intelligence and education, or on any other, and what, circum- 
stance ? Is the age or sex of the offender taken into account, 
and if so, to what extent ? Is it desirable that any, and which, 
of the distinctions mentioned above should be made ? 

A large number of answers to these questions have been received in 
London and Paris. An interim Report on those received in London was 
prepared by Mr. Crackanthorpe,- K.C., and published last . November in 
the Nineteenth Century and After. A separate Report on the answers 
received in Paris will, we are informed, be published there shortly. 

The subjoined communications reached London too late to be noticed in 
Mr. Crackanthorpe's Report, and are here printed in extenao with his per- 
mission. They throw light not only on the practice of sentencing which 
obtains in Egypt and Denmark, but also on the constitution of the 
tribunals which administer criminal law in those countries. Probably 
some of our readers will envy the two Copenhagen Judges their mastery 
of a tongue which is not their own. — Ed.] 

(By a Judge of the Native Egyptian Court of Appeal.) 

BEFORE answering the questions in the circular, I ask leave 
to say a word about the field in which my experience of 
punishing has been gained^ and about the general subject dealt 
with by the Commission. 

The Egyptian Native Court of Appeal, of which I have been 
a member for six years, consists of twenty-two judges, ten of whom 
are Enropeans and the rest Egyptians. For purposes of work it is 
divided into chambers of three judges, except in capital cases and 
cases * in cassation/ when the number is five. Some time in the 
month of May the divisions (or chambers) are made up for the 
coming judicial year, and are assigned four to the Criminal and two 
to the Civil side. This arrangement remains in force for the whole 
of the judicial year, so that during that period a judge sits with 

138 The Law Quarterly Review. [No. Lxxiv. 

the same colleagues and does the same kind of work. He does 
not, as in England and elsewhere, sit sometimes in the Crown and 
sometimes in the Civil Court. 

The number of cases tried is very large. In 1901 the average 
for each of the three divisions of ' Petit Criminel ' (cases where the 
maximum penalty is fifteen years' penal servitude) was 680. This 
year the figures are even higher. It follows that in my four years 
on the criminal side I have taken part in passing about 2,000 
sentences. The cases which come before these divisions range 
from homicide (other than murder) to petty breaches of urban 
regulations ; but the great bulk of them are concerned with thefts 
of every degree of seriousness, and with acts of violence of all 
kinds, from common assault upwards. Forgeries are not un- 

The law administered is a code modelled upon the French Penal 
Code. It differs from its original in details, and almost always for 
the worse, being a hasty adaptation compiled with little regard to 
the circumstances of the country. A Commission is occupied with 
its revision. 

The population to which this code applies is mainly agricultural, 
and, for the most part, extremely ignorant. The percentage of 
men able to read and write is very small ; while the number of 
women who can do either is infinitesimal. Little or no stigma 
attaches to imprisonment or to punishment in general Religious 
prepossessions or prejudices are strong and universally entertained ; 
and they come to the surface in curiously unexpected places. But 
apart from this, public opinion in the sense understood in Europe 
does not exist. Society, the conscience of which is taken by some 
theorists as their starting-point, is represented by the injured 
person and his family, and in ninety-nine cases out of a hundred 
by nobody else. Among the Bedouin, of whom there are not a few, 
it was, and to a diminished extent still is, considered disgraceful 
to appeal to the Courts. The bulk of the people are divided in 
mind, and entertain with equal hospitality two apparently contra- 
dictory sentiments — an intense delight in legal proceedings, and 
a rooted suspicion of all government action. The first adds a gusto 
to the revenge which takes (only too often) the form of a lying 
accusation : the second manifests itself (among other ways) in an 
extreme disinclination to assist in the discovery or proof of crime. 
This must not be taken to mean that Egyptians shrink from giving 
evidence: on the contrary, to appear as a witness is one of the 
common offices of friendship. 

Until very recently the prison system left everything to be 
desired. Those condemned to penal servitude were made to work 

April, 1903.] Studies in Criminal Sentencing. 139 

at the face of the stone in conditions of unnecessary rigour. 
Prisoners sentenced to * detention ' (which corresponds roughly to 
the 'n^lusion * of French law) were set to work of a lighter kind. 
But the great bulk of the condemned — those undergoing simple 
imprisonment — were herded together in the prison yard without 
order or discrimination. They received their food and any com- 
forts which they could afford from their friends outside : they were 
subject to little or no discipline, and spent the term of their 
punishment in almost unbroken idleness. These conditions have 
been happily modified. With reasonable exceptions, all prisoners 
are made to work, and order has taken the place of disorder. 
But while acknowledging the magnitude of the change, I am bound 
to say that it is only a step, though a very great one, towards 
a sound administration ; and I cannot admit that our prisons are 
calculated to bring forth the fruits of repentance. 

This being the state of the case, it is difficult to hold with con- 
viction, still more to administer with consistency, any particular 
theory of punishment, or any particular amalgam of theories. 
The deterrent has no doubt many attractions. It seems to har- 
monize best with the intentions of the legislature as exemplified 
in the penalties of the code ; it possesses the simplicity common 
to partial statements ; and it lends itself to the illusion that you 
must succeed if only you are sufficiently severe. Yet as against it 
stands the fact that the number of recidivists is very large. How 
large I am unable to say, for complete and trustworthy statistics 
are things of yesterday : but in cases of theft and in certain large 
classes of assaults the proportion of prisoners who have served 
a previous term (and very often more than one) is extremely high. 
Where punishment has so little effect upon those who have expe- 
rienced it, with what confidence can we speak of its action upon 
those to whom it is unknown? Especially when, as has been 
said, it carries with it little disgrace, and, except in the case of 
penal servitude, the physical discomfort entailed is slight. 

The reformatory theory is so hedged about with difficulties that 
it would almost appear as if governments had tacitly agreed to 
ignore it in their dealings with adult criminals; while the pro- 
visions they make for juvenile offenders amount to little more than 
an admission that the theory may be held without extravagance. 
Egypt is no exception to the general rule. The machinery which 
this theory presupposes can hardly be said to exist. 

There remains the theory of expiation. I confess that I find the 
greatest difficulty in attaching any clear meaning to this formidable 
word : nor have I ever met a reading of it which could serve as 
a basis for actual practice. The conception has left its mark upon 

140 The Law Quarterly Review. [No.LXXiv. 

almost all penal systemB ; but it appears to me that its influence 
diminishes as the distinction between sins and crimes becomes 
clearer. This, however, is a question for the historian : what 
appears abundantly clear to the workaday mind is that the idea 
of expiation can be taken as a guide to action only when embodied 
in some religious or moral sanction universally accepted and held 
to with something of the tenacity of faith. There have been times 
and countries where these conditions were realized : it is not so 
with the Egypt of to-day. The Mahommedan religion, it is true, 
is not wanting in moral doctrines and precepts ; but the divorce 
of religion from conduct is even more complete here than in 
Christian countries. Social feeling with regard to crime does not 
exist. Exceptionally a particularly heinous offence arouses general 
indignation, or curiosity is excited over the fate of a prominent 
criminal : but the rule is indifference. 

I am sometimes tempted to think that we must be content to 
look upon punishment simply as a substitute for private war. 
People do their own justice far too often for me to suppose that 
they consider the alternative satisfactory : indeed it is sometimes 
ludicrously evident that a party has appealed to the law simply 
because he felt too weak to take the older and more congenial way. 
This view, like some others, has the merit of simplicity and the 
advantage of yielding at once a practical rule of conduct. But I 
fear it has too primitive an air, and I mention it only to illustrate 
the difficulty of forming any consistent doctrine which wiU apply 
to Egypt. 

There is another circumstance which I cannot altogether pass 
over. The Courts as they exist at present are no spontaneous out- 
come of the national development : and their sentences are not (as, 
to some extent at least, they are in Europe) the expression of the 
general conscience. Whatever their utility, they are no organic 
part of the social body, but a strange thing imposed from without. 
Furthermore they have no popular element. In Egypt there are no 
juries. The final appeal of the prisoner is to a tribunal, half the 
members of which are divided from him by race, faith, and 
language : while those judges who are his own countrymen have 
received a foreign education, and administer a foreign law by the 
light of foreign ideas and foreign precedents. In this respect, as in 
others, the situation is abnormal. 

Of course it may be said that all this does not and should not 
prevent a judge from holding his own theory of punishment and 
acting upon it. The observation is only partly justified. It over- 
looks the fact that a judge, no less than a general or a tailor, labours 
in a practical calling. He works in a material which he is powerless 

April, 1903.] Studies in Criminal Sentencing. hi 

to alter with tools which are none of his choosing. And his object 
is not to illustrate a theory or a wilderness of theories, but to abate 
crime in a particular community which will be different in many 
important respects from any and every other community. In his 
study he may aspire to share with the philosopher the freedom 
of the pure reason : it is othei*wise in the court-room. Here he 
must take the crime and the criminal, the law and the public, 
as he finds them : and in the problem of adapting means to 
ends the determining elements are just those over which he has 
no control. 

These are some of the difficulties which meet me and, I suppose, 
every other practitioner in the round of daily work. I mention 
them not for the sake of tilting at theories which wiser heads have 
thought out, but to justify or at least excuse the confession of faith 
which I shall shortly make. And here I leave the subject to return 
to it from a slightly changed point of vantage after glancing for 
a moment at the preamble of the circular ^. 

It seems there to be suggested that judicial aberration is more 
common in England than elsewhere, because a wider discretion is 
allowed to English judges than to those of other nations. It is 
incontestable that, if penalties were fixed and judges had no dis- 
cretion at all, the anomalies observed upon would disappear and 
others take their place. But having made this concession I must 
state my conviction that judicial aberrations have little to do with 
the greater or less degree of liberty which particular systems of 
law allow to the Courts. I believe, on the contrary, that the cause 
of them may almost always be traced to the men who administer 
the law and not to the law which is administered. Here are some of 
the penalties of the French and Egyptian Codes with the degrees 
of latitude conceded to the courts. 

French Pekal Code. 

Haximuxn. Minimum. 

Art. 19. ' Travaux forc& k temps ' . 20 years 5 years 

Art. 21. ' B^lusion ' . . . .10 years 5 years 

Art. 40. ' Emprisonnement ' • • 5 years 6 days. 

-^J^- 4^3 gives the rules by which penalties may be reduced 

* The preamble referred to was in these words; — 'In certain countries, for 
instance in England, the law prescribes a maximum punishment for each offence, 
but no minimum. The sentence is, in such cases, left almost wholly to the 
discretion of the judge, and this leads to striking anomalies. Similar anomalies 
exist, in a minor degree, in those countries where both a minimum and a maximum 
punishment are prescribed.' 

142 The Law Qtmrterly Review. [No. Lxxiv. 

when extenuating circumstances are 'found.' Taking it in con- 
nexion with those given above we arrive at these results : 
(i) ' Travaux forc& k temps ' may be reduced 
(q) to *r^u8ion/ 

(fi) to imprisonment with a minimum of % years. 
Latitude permitted 

From ao years' 'travaux forces' to 2 years' imprisonment, 
(a) ' R^lusion ' may be reduced 

to imprisonment with a minimum of i year. 
Latitude allowed 

From lo years' 'I'Aslusion* to i year's imprisonment. 
(3) Imprisonment uiay be reduced to 'police punishment/ 
i.e. to 

(i) imprisonment of i to 5 days, 
(ii) fine from i to 15 francs. 
Latitude admitted 

From 5 years' imprisonment to a fine of lod. 

Egyptian Penal Code. 



* Travaux forcAj k temps ' 

. 15 years 

3 years 

* Detention a temps ' . 

. 15 years 

3 years 


3 years 

8 days 

Article 352 gives the scale of diminution in the case of ex- 
tenuating circumstances. The results are : 

(i) 'Travaux forc& k temps ' may be reduced to 
(a) ' detention k temps/ 

(/9) imprisonment with a minimum of 2 years. 

From 15 years' * travaux forces ' to % years* imprisonment. 

(2) ' Detention k temps ' may be reduced to 

imprisonment with a minimum of 6 months. 

From 15 years' 'detention ' to 6 months' imprisonment. 

(3) Imprisonment may be reduced to 

a fine with a minimum of 5 piastres (i«.). 

From 3 years' imprisonment to a fine of one shilling. 

It therefore appears that even under systems of fixed minima the 
discretion allowed to the courts is moderately wide. Speaking 
only of Egypt, I am convinced that generous as it appea;r8 it is 

April, 1903] Studies in Criminal Sentencing. 143 

insufficient. But be that as it may, it will, I think, be found that 
the sentences which invite criticism do not in general approach 
either the maximum or the minimum penalty, and that ex eonverso 
the sentences which do approach those limits are for the most part 
thoroughly justified. When an English judge sentences a man to 
a day's imprisonment for bigamy, or when a French Court inflicts 
two years' imprisonment for an offence which Carries a maximum of 
twenty years' *travaux forc&* — in these and similar cases the judg- 
ment is usually a sound one. The principle is clear enough. It ought 
to be indifferent to the offender whether he comes before A. or B.: and 
if two offenders should be found whose cases are in all respects 
identical they ought to be certain of receiving exactly the same 
punishment. If this be so, there appear to be but two classes of 
anomalies sufficiently important to attract criticism. One is the case 
in which a judge (or tribunal) habitually takes a view of the 
proper quantum of punishment so different from the normal view 
that his sentences are either markedly higher or markedly lower 
than the average. In my younger days there were on the English 
bench two judges, one of whom was severe to the bounds of savagery, 
and the other lenient almost to weakness. This difference was 
observable over so long a series of years as to exclude the explana- 
tion that all the worse cases came before the one and all the less 
aggi*avated before the other. The other case was exemplified in 
the sentence passed some two years ago by a Scottish judge on the 
directors .of Pattisons'. It was, I think, of three years' penal servi- 
tude, and was generally criticized as unreasonably light and as 
showing, not so much that the judge had given undue weight to 
circumstances favourable to the accused, as that he had formed no 
adequate idea of the gravity of the offence which he was called upon 
to deal with ^. Now I submit that in all such cases (for I rule out 
casual blunders and extravagances of temper as evils beyond the 
reach of science) the presence or absence of a minimum is of no 
effect whatever. The sentence is always heavier than any minimum 
which is admitted by civilized systems of law — for in speaking of 
extenuating circumstances it must be remembered that the tribunal 
has unfettered discretion to find them or not as it pleases : they are 
part of the facts of the case and as such withdrawn from the con- 
sideration of the Court of Cassation. Sometimes they are * found ' 
on insufficient grounds. Nevertheless, the anomalous sentence 
occurs not in the extremes but almost always in the middle distance. 
If this be so, the cause of England's ' bad pre-eminence ' must be 
sought elsewhere than in the freedom permitted to her judges. It 
would be easy to assign several reasons : I mention one which is 

* Of course the error maj also be in the opposite direction. 

144 The Law Quarterly Review, [No.LXXlv. 

frequently brought home tome. In England the criminal judge 
usually sits alone : in other countries he doed not. It has been my 
fate to sit for a year with a colleague who has 4 peculiar horror of 
physical violence. He may of course be quite right : but I can 
safely affirm that if he had been sitting alone his sentences would 
have been very diflferent from those actually pronounced. This 
experience and many like it have brought me to the conclusion that 
the cause of the anomalies referred to lies not so much in the law 
as in the magistrate who administers it : and further that it has its 
roots in instinct and temperament itither than in conviction and 
theory. Two men with the same prisoner before them and the 
same speculative views of the object of punishment will often 
propose widely divergent sentences. This is with me an almost 
daily experience. Furthermore it sometimes happens that the very 
nature of the punishment is left to the discretion of the judge. In 
England flogging can be inflicted in a certain class of cases. 
In those cases, if my memory serves, it is almost always left to 
the judge to order it or not as he sees fit. Now one man regards 
the lash as a valuable arm against certain kinds of evil doing : his 
colleague considers it degrading, alike to the sufferer and the public- 
Here is a cause of variation, but it has little to do with the existence 
of a minimum. I incline to the view that punishments which 
involve great physical discomfort should be reserved for crimes of 
violence and lust : and I shrink from sending to the quarries the 
. village tax-gatherer who has embezzled a few pounds of the police 
cess. For anything I can tell, this disposition of mind may con- 
stitute an anomaly : but I can indulge the frailty, and yet keep far 
from the minimum laid down by the law. 

These reflections bring me back* to the point from which I 
digressed. Taken with what went before, they lead me to ask 
whether it be possible to frame any set of rules for the guidance 
of judges. I raise the question in all humility as becomes one 
who is so deep in the trees that his view of the wood is^ of 
necessity, limited. Yet, to my thinking, there are insuperable 
obstacles to anything which goes beyond a statement of general 
principles and general cautions -^illustrated and perhaps illumin- 
ated by typical examples drawn from the practice of eminent 
magistrates. Even with this restriction the field of labour is wide. 
Doctors are not agreed even upon first principles in such matters- 
as the treatment of the professional criminal, or of the ' casual * 
who lapses from time to time (and all too often) into crime. Even 
in the hurry of continual practice one is stopped again and again 
by a doubt as to the efficacy of the weapons which are put into 
the hands of justice. And that such a doubt affects the sentence 

April, 1903.3 Studies in Criminal Sentencing. U5 

which follows, no one, I think, who has felt it will be disposed to 
deny. Again, I find, not only among my colleagues but among the 
magistrates of other counti*ies, the most striking divergence of 
practice and feeling (for very often it is no more) with regard to 
the effects of severity as such. A luminous and general treatment 
of these and kindred topics would be an immense help to a clearer 
and more consistent practice. But at the same time I can hardly 
as yet accept the view entertained by some persons that the 
infliction of punishment is an art which can be reduced to rules 
and taught. The stronger analogies, I submit, are with such 
activities as statesmanship or business or conduct in general. No 
system of casuistry has stood the test of practice ; and although the 
fundamental rule of business— to buy and sell the right things at 
the right times and prices — can be put into a few words, there are 
no rules for making a fortune. At this point, however, I am 
touching upon the philosophy of the subject and invading the 
province of the Commission. I will therefore confine myself to 
suggesting a difficulty of a purely practical nature. 

Baldly stated, the question to which the practising judge must 
^ve an answer is this : How much shall I give him ? In the first 
place, every term of this question is individual and particular. 
In the second, one may ask : How much of what ? Clearly of the 
punishment which the legislature awards to this particular case. 
Now I often ask myself whether any consistent principle can be 
traced in the ' enactments of the legislature: and refiection and 
practice have not laid this doubt as completely as I could wish. 
I do not labour the point : it would be absurd to deny that the 
main purpose of punishment as at present organized is to deter. 
But it is equally evident that it is not the only purpose. Here 
and there and in varying degrees other objects enter upon the 
field and claim recognition. Furthermore, it is very possible (as 
was hinted before) to accept the deterrent theory, and yet to doubt 
whether the law you administer is well designed to effect its end. 
I visit with the same imprisonment, and with almost the same 
amount of it> the man who has stolen a turkey and the man who 
has defamed the German Emperor : I consign to the same quarries 
the armed burglar and the clerk who has forged a public document. 
Yet, if I may judge of those whom I deter by those whom I sen* 
tence (and no other criterion is open to me), I should say that these 
classes are affected in very different measures by the same dose of 
punishment. Modem legislation admits without doubt of punish- 
ments that differ in kind: and the Courts are not slow to avail 
themselves of the choice offered. Still we rely to a remarkable 
extent on purely quantitative differences. My belief is that we 


146 The Law Quarterly Review. [No. Lxxiv. 

do so too much — that our penalties have not enough variety. 
Herein we have perhaps one of the many indirect consequences of 
the general use of money. So large a portion of human motive 
and conduct is measurable with fair accuracy by a quantitative 
rule that we are apt to suppose that a common measure must be 
found everywhere. Of course it is not so. The judge who inflicts 
upon A. £.y accused for the third time of stealing a hen, a heavier 
sentence than on C. D.^ charged, but for the first time, with stealing 
a watch, does so for reasons which cannot be reduced to exact 
calculation and which to his equally able and experienced colleague 
may appear inadequate. Some of the punishments of an earlier 
time aimed at appropriateness of another kind. The thief had his 
hand cut off — an effectual way of preventing him from repeating 
the offence, and an obvious, if not always sufficient, warning to 
persons similarly tempted. Or it was an eye for an eye and a 
tooth for a tooth : or the slayer paid a sum of money to the family 
of the slain. If revolting in practice, these provisions were at 
least easily understood. Doubtless we are more merciful than our 
forebears : but our vision is sometimes less direct. Indeed one is 
sometimes tempted to suspect that the discretion enjoyed by the 
tribunals is a covert invitation to turn machinery, primarily de- 
signed for one use, to ends which the legislature recognizes but 
provides no direct way of compassing. 

In the second place it is clear that whatever theory the judge may 
adopt he should award the lightest punishment which will effect his 
object. K that be reformation and six months' imprisonment will 
turn the thief into an honest man, he is wrong in sentencing him 
to seven months. If three years* hard labour will render a district 
law-abiding (I do not discuss the abstract justice of beating Paul 
to keep Peter good), four years is unjustified and wasteful. This is 
a question about which, as I submit, it is impossible to lay down 
rules : yet it is the heart and kernel of the matter. In deciding it 
all sorts of factors enter into account—some legitimately enough, 
others in ways less easy to justify. The demeanour of the prisoner, 
his line of defence, his previous record, the state of crime in his 
neighbourhood, (sometimes) the relation of social or religious 
feeling to his offence — ^these are only a few of the elements which 
have to be considered. So far as I am aware no two people are 
affected by them in precisely the same manner or degree : probably 
no one looks upon them twice in precisely the same light. Yes ; 
but this is just what the Commission proposes to remedy : it is to 
reduce this element of arbitrariness that its efforts are bent. Be 
it so : I ask what, beyond a statement of general principles, can 
be said except this : * Give its due weight to every legitimate con- 

April, 1903.] Studies in Criminal Sentencing, 147 

sideration : exclude from your mind every unjustifiable influence/ 
I confess that when I come to this bed-rock of judicial work 
I despair of receiving help, except of the most genei*al kind, from 
the experience of any foreign magistrate. I have before me a man 
guilty of forging a will for the purpose of excluding his sisters from 
their share in their father's real estate. He comes from Upper 
Egypt, and acted under the influence of a prejudice ceuturies 
old against women becoming holders of land. He is unable to 
read or write, and, it may be, reverences a neighbouring snake. 
I give him the punishment which I think right. Very possibly I 
am disgustingly wide of the mark: but I fail to see how the 
experience of a brother who lives and works in Minnesota or Buda- 
pest win prove a lantern to my feet. 

To sum up, I think that in the aspects of it to which the Com- 
mission invites attention the infliction of punishment presents 
analogies rather with conduct than with science or art. Under- 
stood thus sentences may and should be itpifrixiva^ Xoyt^ ; but the 
\6yos is that of practical life, not of science : &s hv 6 </>/)oVifio9 6pi<r€i€v. 
To those to whom the penal law is a subject rather of scientific 
study than of daily application this may seem the negation of all 
principle — a casting forth into the outer darkness of the relative 
and contradictory. I hope and believe that it is not so. Be that 
as it may, I can as yet see no further than this — fi Kplan iv rois Ka$* 


I now pass on to the specific questions. 

Q. I. — Does the judge, in fact, when awarding a sentence, act on 
any theory as to the object of punishment, such as retribution, 
expiation, example to others, reformation of the ofleuder, or the 
like ? Is it desirable that he should do so ? 

What happens when you have a gi-eat number of cases and little 
variety is, I believe, this. A standard rapidly foims itself in the 
mind. This I may call the uormal offence : and it is visited with 
what I shall term the normal punishment. For example : Art. 300 
of the Egyptian Penal Code punishes simple larceny with an 
imprisonment which ranges from one month to one year. I find 
that two extremely frequent sentences are three months and six 
months. The one corresponds to the normal petty larceny, the 
other to the normal larceny of somewhat greater seriousness. In 
inflicting (or more strictly pi*oposing to inflict, for I do not sit 
alone) these punishments I make no conscious reference to any 
theory whatever. When the facts approach the normal types the 

L 2 

148 The Law (Quarterly Review. [No. Lxxiv, 

sentences follow almost mechanically. I notice however that when 
I return to work after the Long Vacation, I do not feel the same 
certainty of touch : I pass through a short period of hesitancy and 
tentativeness. But what I try to do during that period is not to 
re-think for myself and from first principles the considerations 
which should govern punishment. I try to feel my way back to 
a sense of the normal offence : and I find myself asking my col- 
leagues, * What do we generally give in this sort of case? ' So far 
as I can judge others do pretty much as I do : indeed I do not see 
how judges could deal with a large mass of work unless they had 
some such method of abridgment. Upon reflection I incline to 
think that the results thus obtained are no worse than those which 
would flow from a theoretical examination of each case. The 
method (if it deserves the name) has at least this advantage, that it 
tends to uniformity. The standard may be, doubtless is, too high 
in one case and too low in another: we may, and no doubt do, 
often overlook features which ought to secure for particular cases 
a special consideration. But still a standard of reference does exist 
which was originally fixed with some care, and which we are able to 
criticize in the light of subsequent experience. Of course oppor- 
tunities for testing it are not so numerous, and means for correcting 
it are not so adequate as might be desired: we work a good deal 
in the dark, knowing little of the previous or subsequent careers of 
those who come before us. Nevertheless means and opportunities 
are not wholly wanting. In the second place the standard tend* to 
become the common rule of the whole Court : and this by reason of 
the £EU$t that the composition of the chambers is altered every year. 
I say ' tends,' for it would be too much to claim that the process is 
complete. The standard is of necessity somewhat vague : and it 
happens from time to time that a strong judge with a personal 
bias in some particular direction is joined to two weak colleagues. 
But having made these deductions I think it is still true to say 
that this way of work makes for uniformity. So much for the 
normal offence. When circumstances special either to the offence 
or to the offender are remarked, they are taken specially into 
account aa will appear in the answers which follow. 

It is perhaps not fanciful to believe that in practice a good judge 
is guided by a sense of proportion and fitness which it is diflScult to 
refer to any theory — a kind of tact which experience and tempera- 
ment combine to produce. Possibly in the last analysis it is an 
unconscious balancing of all considerations. At any rate I have 
often been struck with the happy knack (if I may so term it) 
displayed by some of my abler colleagues — an appropriateness and 
adequacy difficult to attain, but when seen not to be mistaken. 

April, 1903.] Studies in Criminal Sentencing. 149 

I know of no analogue unless it be the peculiar sense which some 
men have in the management of a boat— a power almost instinctive 
and wholly denied to others of equal experience and theoretical 
attainmenta The sentences thus fixed might, I think, be defended 
in nearly all cases on grounds of strict theory : but the faculty 
operates without conscious reference to principle. 

I am unable to say whether the judge in sentencing ought to have 
some theory in his mind. If he has much to do he will be glad to 
leave some part of it to ' unconscious cerebration.' And if he is a 
sensible man, knowing his people, I believe he may safely do so. 
More than this I cannot say. 

Q. 2. — Does the judge, in fact, keep the same end in view in the 
case of all offences, or does he make a distinction between one 
offence and another ? Is it desirable that he should do so ? 

I never met a judge who approached all cases from the same 
standpoint : just as I have never met a person who observed the 
same demeanour in all societies. I should as soon expect to meet the 
second as the first. I have already given at considerable length the 
reasons for this opinion. They come to this — that the judge has 
a practical end in view and that circumstances determiue his choice 
of means. Sometimes he is obliged to make an example, at others 
to mark his sense of the enormity of the crime, at others he is free 
to attempt the reformation of the criminal. But whichever of 
these intermediate objects he may choose his ultimate purpose is to 
diminish crime. When I send a boy to a reformatory instead of to 
a prison, I do so (in the main) because I am afraid that he will come 
out of prison a hardened little sinner with nothing to hope or fear, 
whereas I hope the reformatory will turn out a good citizen and 
a master of a trade. I am not, of course, indifferent to the future 
of the wretched child ; but I select this means because I think the 
reformation of the particular delinquent a shorter cut to my chief 
object than any terror which impri&Tonment might inspire in other 
bad little boys. Were I of the opposite opinion I should send the 
lad to prison. 

Perhaps I may illustrate by a contrast. For reasons already 
adduced our judgments (to our great loss) are little, if at all, can- 
vassed by public opinion. But the Executive watches them with 
narrow scrutiny: and in the comparatively small community in 
which we live the opinion of each is generally known to all. Now 
I have never heard but two criticisms on a sentence: * Extra* 
ordinarily weakj what is the good of all our work if the Court of 
Appeal cannot be relied on ' and ' Capital : it will have an excel- 
lent effect in the districts.' These appi'eciations give the measure 

160 The Law Qtuirierly Review. [No.lxxiv. 

of the preoccapatioQs of the Executive. For it this point of view is 
natural and inevitable: perhaps entirely justifiable. But it is 
difficult to conceive a judge sticking to it with the persistence of 
a limpet. 

Q. 3. — ^When he makes a distinction between one offence and 
another, on what is the distinction based ? On the character of the 
punishable act looked at from a moral standpoint ? On the greater 
or less frequency of the crime in the district ? On the greater or less 
risk to which it exposes the community, or on any /and what, other 
circumstances ? 

All the elements mentioned in this question are taken into 
account : but in very different degrees by different people. Of 
nothing is this more true than of offences in which the members of 
different . sexes are involved. Offences against morality, in the 
narrow sense, are not the only ones to which I allude, though here 
there is a considerable divergence in the point of view of Europeans 
and Easterns. But take such a case as an assault by a husband on 
his wife : it is not unfrequent, though in general the harm done is 
slight. Now I observe that some of my colleagues are disposed to 
regard such acts as regrettable excesses in the exercise of a legiti- 
mate patria poUstaa: others look upon them as enormities to be 
marked by the full sense of the Court's displeasure. Oddly enough 
this difference does not entirely follow the line of cleavage of race. 
In fixing the actual penalty other considerations of a more humble 
character often overlay the moral appreciation. It is sometimes 
evident that if you give the husband what you feel he deserves you 
will leave his family, if not to starve (which is rare in the East), 
at least dependent upon the bounty of relatives. Again, there is 
a certain callousness — moral impudence if I may so name it — 
which almost always brings upon itself a punishment greater than 
would be visited upon an offence in all other respects similar. 
I have noticed that particularly in cases of theft. Speaking more 
generally, I think it true to sa5^ that the moral quality of the act, 
when sufficiently characterized to distinguish the offence from the 
normal type, almost always receives attention. I can remember 
larcenies which without constituting what is known as abu^ de 
confiance did in fact violate a trust, and cruelties practised in circum* 
stances which invited to pity. In such cases the punishment has 
been of unusual severity. ' 

We are not in general sufficiently informed of the * local character ' 

of the offence. In this respect the courts of first instance with 

their limited local jurisdiction have an advantage over the Court 

of Appeal Some districta are unfavourably known for particular 

.crimes : but, so far as I am aware, no very clear line of action is 

April, 1903.] Studies in Criminal Sentencing. 151 

followed with regard to them. One province is notorious for 
forgeries : but severity is tempered by the consideration that its 
inhabitants are particularly ignorant and the limits of their small 
holdings (these forgeries are mostly concerned with disputes about 
land) very doubtful. In Upper Egypt, while the sugar-cane is 
standing, robbery with violence and other like crimes are lament- 
ably common. The tendency is towards severity ; partly because 
of the frequency of the crime, partly because of the difficulty of 
tracing a criminal, who has a secure refuge in the sugar-canes. 
I am not clear how far this rather gambling reason approves itself 
to theory. It is the custom of the country to fire off guns at 
weddings : and people suffer not seldom in life and limb through 
the negligence of the shooters. The Courts have set themselves 
to put down this dangerous practice: but here again there is a 
difficulty in the way of being stem. The culprit meant no harm, 
and, which is more important, he almost always behaves most 
excellently after the mischief is done. There is a singukr and not 
unfrequent class of cases in which the men of a woman's family 
(not her husband) put her to death for unchastity. Curiously 
enough I have only once been called upon to deal with this offence : 
and I then considered very carefully the state of public feeling 
upon the matter. I know that my colleagues do the same : and 
I believe that I am founded in saying that the tendency (due 
perhaps to the European element in the court) is to a severity 
which deliberately rules popular prejudice out of court. I have 
not sufficient experience to judge of the wisdom of this policy, 
though the character and attainments of those who are chiefly 
responsible for it dispose me in its favour. I cite it as a good 
illustration of a difficulty which often meets us — that of deciding 
how far the penal law can usefully venture ahead of general 
sentiment in matters which engage men's passions because they 
touch religion or the social organization. 

Q. 4. — When he makes a distinction between one individual and 
another, does the distinction turn on the offender's antecedents as 
shown by his judicial record, or on his degree of intelligence and 
education, or on any other, and what, circumstance 1 Is the age or 
sex of the offender taken into account, and if so^ to what extent i Is 
it desirable that any, and which, of the distinctions mentioned 
above should be made? 

All the considerations set out in this question are taken into 
account. Some are provided for by the law itself: and though 
judges are not tied down to the exact text (by reason of the 
article which provides for extenuating circumstances and others) 
the provisions of Uw e|isu):e in general that these elements should 

162 The Law Qtmrterly Review. [No. Lxxiv. 

be kept in view. Previous convictions axe almost always remem- 
bered against a man — sometimes perhaps with insufficient vividness. 
But this is a question of great difficulty. We have not as yet a 
class of professional criminals such as appears to exist in more 
civilized countries. At the same time our information, imperfect 
as it is, suffices to show that the term * recidivist' covers very 
different categories of offenders. As soon as this is recognized, the 
problem of giving its due weight and no more to the judicial record 
becomes singularly complicated. My own conviction is that a special 
machinery is necessary for dealing adequately with habitual criminals. 

Beal ignorance always operates as a plea in abatement. Some- 
times it goes to astonishing lengths. I remember a case in which 
a boy was beaten to death by his father and brothers. He suffered 
from fits, and the family had consulted a wise man, who told them 
that the child was possessed of a devil which could only be ex- - 
pelled by fustigation. After solemn prayer, and with tears stream- 
ing down their faces, they proceeded to the cure, exorcising by the 
same means the evil spirit and the breath. When in the dock, 
they appeared to be overwhelmed with amazement that' they 
should be arraigned for doing their duty by their child. This (and 
some other elements mentioned) is of even greater importance when 
the question is that of guilt or innocence. 

Women almost invariably receive lighter punishments than men^ 
even when proved to have taken part in a common offence. The 
reasons are various — ^some legitimate enough, others, to my thinking, 
of very doubtful validity. There can be no question of women's 
greater ignorance, nor of the fact that in the great majority of cases 
they act under the influence if not the compulsion of their men 
kind. But the comparative immunity which here rests on solid 
ground is extended to cases where it is altogether unjustifiable. 
The reasons of this are not very clear. I think that the (until 
lately) very unsatisfactory state of the prisons has had considerable 
weight. Again, the fecundity of the race is great, and an immense 
proportion of the women prisoners appear in the dock with a child 
at the breast. One thing has often struck me. So far as my 
recollection goes there is no instance in my experience of a native 
judge showing a disposition to be unduly severe to women. On 
the contrary, they err (if at all) on the side of leniency. This may 
be due to a livelier sense and deeper knowledge of the true 
position of the women of their race: I believe also that in the 
depths of their nature exists the feeling (though education has 
modified their intellectual convictions) that for a woman to appear 
publicly at the seat of justice is in itself an outrage to her sex and 
to the honour of her men, as well as a removing of her from the 

April, 1903.] Stfidies in Criminal Sentencing. 153 

natural forum of the family. Be that as it may, women on the 
whole get off lightly. 

A prisoner's youth is taken into consideration by the law itself 
when his age does not exceed fourteen years. When that limit 
has been passed the age of the culprit fades from view, largely for 
the reason that we cannot effectively take it into account. The 
Reformatory institutions are of very limited accommodation and 
only recently set upon a rational basis. We sometimes forget that 
so new a thing exists at all ; and the prosecuting authorities are 
not always quick to remind us of it. In this connexion I may 
mention again sexual crimes. There is a tendency among my 
native colleagues to deal lightly with offenders who are just passing 
or have just passed from boyhood to manhood — unless of course 
there be circumstances of unusual atrocity. Europeans find it 
difficult to detect an extenuating circumstance in the fact of being 
a young man in the vigour of health and strength. At the same 
time I have repeatedly heard this urged in mitigation by two of 
my ablest native colleagues — men remarkable for high-mindedness 
and refinement. 

I observe a tendency to be indulgent towards crimes of 
acquisitiveness when committed on relations. The wisdom of the 
provision which makes a certain degree of relationship an absolute 
bar to prosecution for theft may very well be doubted. It colours 
ihe treatment of cases which do not come within the exception — 
often to a disastrous extent. On the other hand, the * undivided 
family' is so much the rule (land, for example, is often held in 
common during three generations) that it is easy to exceed the 
just measure of severity. In general it may be said, both in regard 
to this question and the last, that social customs and social organi- 
zation have to be borne constantly in mind. 

I think it will appear from the above that I think it not only 
desirable but essential that these and other distinctions should be 
made. For me the question here as elsewhere is, How much? 


Judffe of ike Native Court rf Appeal^ Egypt. 

154 Hie Law Quarterly Review. [No.lxxiv. 

(By two Danish Judges.) 

Befobe proceeding to answer specifically the questions proposed 
to us, we think it expedient to make some introductory observations. 

First, we may briefly advert to the organization and the methods 
of procedure of the Danish criminal courts. Both offer certain 
peculiarities which, if we are not mistaken^ go a long way to explain 
the tendency which, as we shall point out below, appears to us in 
the main to control criminal sentences in this country. 

In Copenhagen, all criminal jurisdiction is vested in the Criminal 
and Police Court of Copenhagen — a court consisting of fourteen 
members, the quorum being five except in the case of certain 
classes of trifling offences which may be dealt with summarily by 
a single judge. The rest of the kingdom is, for the purpose of the 
administration of justice, divided into some 130 districts, in each 
of which crimiual jurisdiction — as to any offences, grave or trifling — 
is exercised by a single judge (who, in all districts but one, also 
exercises jurisdiction in every description of civil proceedings). 
From the district judge there is an appeal to a * Superior Court,' 
the quorum in which is invariably five. From the Superior Court — 
there are two such courts, one for Sealand and the other islands, 
and one for Jutland — as also from the Criminal Court of Copen- 
hagen, an appeal lies to the Supreme Court (the ultimate appeal 
court both in civil and criminal cases), which consists of thirteen 
members, nine of whom form a quorum. 

There are no juries. The question of conviction or acquittal, no 
less than the awarding of punishment, is the business of the court ; 
and in both respects its decision is subject to appeal. For the 
present purpose the right of appeal — to the Supreme Court as well 
as to the Superior Court — may, without material inaccuracy, be 
said to be unlimited. It is open to the prosecuting authority, n6 
less than to the accused, to appeal. Thus, the object of an appeal 
may be to obtain a conviction, where there has been an acquittal in 
the court below, or to have a heavier sentence imposed. On the 
accused person declaring his wish to have his case submitted to the 
appeal court, the necessary steps for so submitting it are taken by 
the prosecuting authority. It is always in the discretion of the 
appeal court to alter the sentence, as it seems to it just ; thus an 
appeal brought solely at the request of the accused may result in 
a heavier sentence being imposed. 

The number of criminal appeals in the Supreme Court has 
during recent years averaged about 170 a year. Every judgment 

April, 1903.] Studies in Criminal Sentencing. 155 

of the Supreme Court is reported, along with the judgment appealed 
against; the latter invariably contains a more or less detailed 
statement of the fieicts of the case. 

The evidence on which the court — ^i.e. the trial court (if the 
word 'trial' be capable of such an extended meaning), or the 
appeal court — has to act, is entirely in writing. It always includes 
the examination of the accused person — whose confession, in the 
majority of criminal cases, forms the mainstay of the evidence. 
The evidence is regularly taken on the preliminary inquiry, which 
is conducted by the district judge, or, in the Criminal Court of 
Copenhagen, by one of the members of that court acting as 
' inquiring judge ' (alhd who, as a rule, will be one of the five judges 
by whom the case is afterwards tried) ; but the evidence taken at 
that stage may be supplemented, at any subsequent stage, by 
further evidence being taken, in the same manner, by the * inquiring 
judge.* Both in the courts of first instance (except in the case of 
such minor ofifences as are dealt with summarily) and (invariably) 
in the appeal courts, counsel are assigned to prosecute and defend* 
Counsel address the court by means of written arguments, except 
in the Supreme Court, where counsel are heard orally. 

Since 1866^ Denmark has had a Penal Code. With very few 
exceptions (the most important of which is premeditated homicide^ 
the punishment for which is death)^ each provision of the Code 
relating to a particular ofifence fixes a maximum and a minimum 
punishment. In a few of such provisions one or more circum- 
stances are mentioned which, if present, shall be held either to 
aggravate or to extenuate the offence. Besides this, some general 
principles which should guide the courts in awarding punishment 
within the statutory limits, are laid down in the Code. In its 
section 57 it is provided that ' in awarding punishment within the 
limits provided in this Act, the court shall take into consideration 
the more or less dangerous nature of the offence (regard being had 
to the tirhe and place at which it was committed, the means by 
which it has been accomplished, the importance of its object, and 
the extent of the damage caused by it), the greator or less firmness 
of purpose exhibited by the offender, the motives which actuated 
him, his education, age, and previous conduct, the relation in which 
he stood to the person against whom the offence has been com- 
mitted, and his subsequent conduct.' As subsequent conduct which 
should weigh in mitigation of punishment, one of the following 
sections instances the offender's having actively endeavoured to 
obviate, lessen or repair the injurious effects of bis act, or having 
voluntarily surrendered, making a full confession. Indirectly at 
least, another section of the Code appears to have an important 

166 The Law Quarterly Review. [No. Lxxiv. 

bearing in this connexion. Where a person is convicted of two or 
more offences, the Code provides (see section 62) that both or all 
of such offences should be made to weigh in settling the punish- 
ment, such punishment not to exceed the maximum punishment 
provided in the section under which such offences are punishable^ 
or, if they be punishable under two or more sections respectively, 
the highest maximum provided in any one of such sections 
(or, in special circumstances, such maximum increased by one 


The theory of the framers of the Code appears to have been that 
it is the duty of the court to so graduate its sentence, within the 
statutory limits provided in the case of each particular crime 
as to make the punishment, in each individual case, propor- 
tionate to the gravity of the case — including under this term the 
greater or less number of separate offences proved against the 
prisoner* — the maximum punishment being reserved for cases of extreme 
aggravation. Carried to an extreme, this view would, as it seems, 
prevent the court from ever applying the maximum punishment 
provided in respect of any given crime, as an imaginary case may 
always be put in which some aggravating circumstance is added, 
or in which a greater number of offences are provdQ against the 

The theory here stated — mitigated, it is true, to some extent by 
common sense — may be said to be the theory on which our courts 
act. Indeed, the maximum punishment provided in the case of 
any particular crime is rarely, if ever, applied, even where the 
court, were it to form its own independent estimate, would consider 
such punishment as no more — or, perhaps, as less — than adequate 
in the particular circumstances of the case. And, in the absence of 
si)ecial circumstances, the sentence will, as a rule, rather approach to 
the statutory minimum. Practically, the paramount consideration 
with a Danish court, in .awarding sentence, and which ordinarily 
controls any other, is that the punishment should be as nearly as 
possible similar to the punishment which has been awarded on 
former occasions by the court, or by a superior tribunal, for the 
same offence committed under similar circumstances, or propor- 
tionate to it, regard being had to any difference in the circumstances. 
It will be easily seen how well our paper system of procedure lends 
itself to this tendency of adhering to fixed standards — a tendency 
which may, perhaps, even be thought but the natural outcome of 
that system. Moreover, the fact that, in the Supreme and Superior 

' It may be proper to observe that it is usual to take evidence as to each of any 
number of crimes which can be raked up against the prisoner. Such a thing seems 
practicable only under a system of criminal procedure like ours. 

April, 1903.] Studies in Criminal Sentencing. 157 

Courts, and in the Criminal Court of Copenhagen, sentence is 
passed by a board of (at least) nine or five judges respectively is, in 
itself, a circumstance which makes for uniformity. And, it need 
hardly be said that, with, our system of appealing, any subordinate 
court will acquire a habit of regulating its own action, in this as in 
other respects, by that of the appeal court, as it naturally vdU not 
like to have its sentences constantly varied on appeal* 

Each of the three theories of punishment referred to in the 
circular — the expiatory, the deterrent, and the reformatory — has 
left its mark on the Code, and — as a matter of history — has had its 
share in shaping the system of penalties embodied in it. And, it 
could hardly be asserted that any single one of them, to the exclu- 
sion of the two others, is at the bottom of any of the above- 
mentioned provisipns of the Code by which it professes to guide 
the courts in the meting out of punishments. In one provision, 
however, which we may yet mention, the reformatory theo^ 
appears more conspicuously. Where (as is very often the case), 
by the terms of any section, there is an option between imprison- 
ment with hard labour (the minimum and maximum terms of 
which are eight months and six years respectively) and penal 
servitude (which may be inflicted for not less than two and not 
more than sixteen years, or for life) — the most obvious difference 
between which two modes of punishment, if awarded for the same 
length of time, is that in the case of the former, but not in that of 
the latter, the convict, as a rule, is kept in solitary confinement, 
his term being, in this case, reduced according to a fixed scale — 
this, by section 14 of the Code, is subject to a general proviso that 
penal servitude should, in such cases, only be awarded to older and 
more hardened offenders. On this rule the courts act — as, no 
doubt they would, if there were no enacted rule to that effect ; and 
so, in other cases where there is an option between two modes of 
punishment the one of which may, and the other may not, in the 
opinion of the court, offer some chance of reformation (the accused 
not being beyond hope of reclamation), the court, as hardly 
needs saying, will give the preference to the former. Again, 
a manifest increase in any given class of crimes — such as, for 
instance, offences against the person — may dispose the courts to 
greater severity in the case of such crimes ; they will, so fiEkr, be 
acting on the deterrent theory. And, as far as the controlling 
principle of uniformity (or proportionality) will admit of this, the 
court also, when occasion arises, will give effect to the object of 
ridding society for the longest possible time of a dangejcous 
criminal. But, beyond the narrow limits thus indicated, that 
principle or theory leaves the courts little or no scope for directly 

158 The Law Quarterly Review. [No.lxxiv. 

giving effect to either the reformatory, or the deterrent, or any 
other specifio theory. Thus, on the whole, we think that, whatever 
importance may, under Danish law, be attributed to any of the 
three theories, the aim which such theory, singles out as the object 
of punishment is apt> as far as the courts are concerned, to merge, 
to a very great extent at least, in the general aim of uniformity. It 
may be that — though the expiatory theory may not appear to most 
people to appeal in such a way to a modem mind as to be likely 
to make a judge (even if free to do so) consciously adopt it as his 
guide — the idea of expiation or retribution, rather than any 
other conception, is really at the bottom of that very theory of 
proportionality on which our courts act. 

It now remains for us to state our answers to the specific 
questions proposed in the circular. 

Q. 1. — As will appear from our above statements, there is, 
under the system at present in force in this country, but little 
occasion for a judge to act on any specific theory as to the object of 
punishment. But within the narrow scope thus left him, a Danish 
judge will, in awarding sentence, keep in view any of the objects 
of punishment which is not excluded by the circumstances of the 
case— including among such objects : the affording an example to 
others, or (what may be but another mode of expressing the same 
thing) maintaining ^e comminatory effect of the penal statute and 
giving support to the sentiment of detestation which prevails in 
the community in regard to crime, and also, as the case may be, the 
reformation of the offender, or his being prevented from doing 

We consider it as desirable that the court should have a some- 
what freer hand in awarding sentence and should be able, more 
than it is at present, to give effect to the view that punishment is 
a means for attaining certain ends — not excluding from the latter 
any of the objects just specified. At the same time we consider it 
as important that there should be a reasonable uniformity or 
proportionateness between the sentences awarded in different cases 
for similar offences. But we think that, in our present practice, 
the aiming at proportionateness has been carried to excess. In 
particular, we think it unreasonable that the court, where the 
maximum punishment provided in the case of any given crime 
appears to it to be (no more than) an adequate punishment in the 
case under adjudication, should feel prevented from awarding such 
maximum punishment by the consideration that some other case 
has occurred, or may be imagined, offering some additional aggra- 
vating feature, and in which, yet, no heavier punishment was, or 
would be, available. 

April, 1903.] Studies in Criminal Sentencing. 169 

■S— : rrrs r. ; j -. ; TTT T- 

Q. 2. — While, for instance, the object of deterring would-be 
offenders would appear to exist in the case of any class of offences, 
it seems obvious, on the other hand^ that reformation of the offender, 
as an object of punishment, necessarily presupposes some moral 
defect or depravation in the offender for which punishment is 
believed to be a likely cure. This element may, as it seems, be 
absent in the case of offences to which the opinion of a more or 
less important section of the nation attaches no moral blame, such 
as may happen in the case of certain offences of a political character ; 
it may, likewise, be absent in the case of offences of a trifling 
character, and is, generally, excluded, wherever the offender is 
believed to be incurable. 

Q. 3. — In answer to this question we may refer to the 57th section 
of the Danish Penal Code, the effect of which we have stated above, 
and which may be taken as a summary statement of the facts 
which a Danish court will take into consideration in awarding 
sentence (as, no doubt, it would, if the Code were silent on this 

Q. 4. — In regard to this question, also, we may refer to section 
57 of the Code. 

Previous conduct which will weigh against the prisoner is, of 
course, practically synonymous with one or more previous convic- 
tions. It should be added that it is not, in the case of all crimes, left 
to the discretion of the court, what weight should be attributed, 
in awarding sentence, to such convictions. In the case of some 
crimes — among which larceny holds the most conspicuous place — 
our Code provides a heavier minimum and maximum punishment 
in the case of a second (or later) conviction ; in the case of larceny 
it even further increases both the minimum and the maximum 
punishment in the case of a third and fourth (or later) conviction 

So, again, the age of the offender is not solely a matter for the 
discretion of the court. In the case of young offenders (between 
the ages of fifteen and eighteen) the Code, by a general provision, 
reduces by one half the minimum punishment provided in any 
section, and directs that a lighter punishment should be inflicted 
than would have been awarded if the accused had been a person 
above the age of eighteen ; it also fixes eight years' penal servitude 
as an absolute maximum in the case of such offenders. In the case 
of offences committed by persods under the age of fifteen — where 
such offenders are at all prosecuted — ^the Code provides a further 
reduction, dispensing with any minimum and making two years' 
imprisonment with hard labour an absolute maximum in their case. 
In the case of any offenders under the age of eighteen the Code, 

160 The Law Qtiarterly Jteview. 

within certain limits, enables the court to substitute corporal 
punishment for imprisonment. 

We may add, in conclusion, that we have submitted the fore- 
going observations to two of our colleagues who, both of them, 
possess great experience in criminal cases, and that they both 
concur, in substance, in all we have said. 

C. Thomskn, 
Member of the Superior Court of Copenhagen* 

C. UssiNO, 
Member of the Criminal Court of Copenhagen. 



WHERE the vendor has only an absolutely bad title, can the 
purchaser out of time with his objection recover the deposit? 
In other words, what are the limits of Want v. StaUihrasa^ L. R. 
8 Ex. 175, and is that case law? 

In that case the vendors sold expressly as trustees for sale, the 
abstract showed that the trust for sale did not arise till the death 
of a living person, the contract provided that objections should be 
taken within a limited time and in default should be waived. The 
purchaser took the objection out of time, but sued for and recovered 
his deposit on the ground that the title was absolutely bad. 

Kelly C. B. said in reference to the claim of the vendors to 
retain the deposit because the objection was out of time : — 

' This might have been so if the title disclosed had been merely 
a defective title, where, upon objection made, defects could have 
been supplied ; but where the abstract, which ought to set forth 
a prim& facie good title, shows in express terms that the vendor 
has no power to make a title at all, it is not a case for objection 
and answer, but the abstract at once enables the purchaser to say 
that the vendor has broken, or has no means of performing his 
contract, and that he is entitled to the return of his deposit.' 

The Chief Baron thus as it were struck the whole of the time 
condition out of the contract, the other members of the Court gave 
it a forced construction. Pollock B. delivering his own opinion 
and that of Martin B., after observing that if the vendors con- 
struction of the condition was correct, i. e. that the purchaser had 
waived all objections, then the purchaser must not merely forfeit 
his deposit * but accept and pay for the estate,' went on : — 

* Now the right of a vendee to a good title is a right not merely 
growing out of the agreement . . . , but is given by the law. This is 
affirmed by Lord St. Leonards in his work on Vendors and Pur- 
chasers^ ch. 9, s. I (14th ed., p. 337), and is supported by the case 
of Hall V. Betty ^ 4 M. & G. 410, and it would be putting a most 
unreasonable construction upon the conditions of sale to hold that 
the vendee, by failing to object to the abstract within the stipulated 
time, not merely waived any requirement as to further information 
or further security, which he might have properly enforced against 
a vendor who had a valid title or one capable of being made valid^ 


162 The Law Quarterly Beview. [No. LXXIV. 

but that he became liable to accept a title wholly bad, when the 
very basis of the contract, apart from the conditions of sale, was 
that the vendor was bound to give a good title/ 

Now the usual form of condition not only compels the purchaser 
to waive objections made out of time, but goes on to compel him to 
accept the title subject only to objections made in time. Far from 
Want V. StallibraM, so far as the construction of the condition is 
concerned, being an authority against, it seems to be some authority 
in support of the efficacy of such a condition, a point not noticed 
in the next two oases cited. 

In In re Tanqueray-Willaume and Landau^ 20 Ch. D. 465, a testator 
directed his executors, his wife and son, to pay his debts, and 
devised hia real estate to his executors upon trust for his wife for 
life, and after her death to raise certain legacies and subject thereto 
for his son. He died in 1871, and his executors sold in 1881, 
requiring objections to be delivered within a certain time, in 
default the purchaser *to be deemed to have accepted the title.' 
An objection was taken out of time that there was no charge of 
debts on the real estate and consequently no power to sell. The 
vendors said that there was a charge, and if not the objection was 
taken too late. 

It is to be noted that the purchaser's summons raised no question 
as to return of the deposit, but aaked merely (so far as is necessary 
for this statement) for a declaration that there was no charge. 

Kaj J. held first that there was no charge, secondly that the 
objection could still be taken : — 

*I think the condition in these conditions of sale does not 
prevent the purchaser from raising an objection of that kind 
oecause it goes to the root of the whole matter. If it should be 
the case, as I am at present inclined to think, that there is no 
implied charge of debts or implied power of sale at all, then the 
executors, who are professing to sell under that implied power, have 
no power to sell whatever, and that it appears to me is an objec- 
tion which the purchaser is at liberty to raise. In my opinion this 
is a title too doubtful for the Court to compel the purchaser to accept. 
The costs of the application must be paid by the vendors.' 

On appeal it was held that there was a charge, and so it became 
unnecessary to pronounce on Kay J.'s opinion, but on the argument 
that the objection was out of time. Jessel M. R. said, 'The objection 
goes to the root of title * or * the whole of the title ' ; 46 L.T. 544 — 
this part of the dictum is omitted, 51 L. J. Ch. 434, 436. ' Moreover 
it is raised by the summons and the agreed statement of /acts. The 
question is open.' 

Now it seems perfectly consistent with the summons and Kay J.'s 

April, 1903.] Tlie Limits of the Rule in Ward v. Stallih^ass. 163 

opinion, that he was not considering the matter at all in relation 
to the return of the deposit, but only in relation to the declaration 
asked for, and if he had refused to entertain the question on the 
ground of time specific performance would have been matter of 

In Sax6y v. TAomas, 63 L.T. N.S. 695, 64 L.T. N.S. 65, the 
authority of Want v. StcUlibrass was not impugned ; and Homer J. 
held that a purchaser out of time with his objection could recover 
the deposit where the vendor showed, as he held, an absolutely bad 
title, though the condition required the purchaser both to waive 
objections and to acc^i the title. On appeal it was held that the 
vendor had shown a good title and the decision below was reversed. 
Lindley L. J. remarked : — 

' This instrument * — on which the objection arose — * was set out 
on the abstract, and therefore it was ursed by Mr. Cozens Hardy, 
and very forcibly, that if there is any thing in this objection the 
fifth condition meets it, and the purchaser iStving been told by the 
abstract of this document and not having made anv requisition 
within the time limited by this condition he is precluded by his 
bargain firom raising it afterwards.' 

He then remarked that the cases at first sight looked hard to recon- 
cile, but it was unnecessary to go into them as the title was good. 

Having regard to Eay J. and Romer J/s opinions, though the 
point does not seem to have been brought to their attention, it 
might for the present be unsafe to assume that the words 'and 
shall accept the title ' have any greater operative force than ' shall 
waive objections ' even though both sets of words occur in the 

In Boyd v. Dickson, I. R. 10 Eq. 239, the vendor was suing for 
specific performance ; a deposit had been paid, but it does not 
appear whether it was ordered to be returned : probably not, see 
pp. 241, 253, 256. The decision went on the fact that taking the 
eighth and ninth conditions together the eighth condition was 
misleading, and the M. R. held that as the title was radically bad, 
and as the objection was to a matter sought to be covered by 
the misleading eighth condition, it did not lie in the vendor's 
mouth to say that the time clause was protective against that 
objection; he also relied to some extent on the shoi-t period of 
time allowed for objections. 

Whatever may be thought of the decision ^, it in no sense supports 

' In Boyd ▼. Dtefcwn the condition applied only to objections ' in respect of title or 
matter appearing on the abstract* : it did not go on to cover objections to * these 
conditions,' and went on, ' otherwise it shall be considered that all mich requisitions 
and objections are waived . . . and that the purchaser has accepted the title.' 

M 2 

164 Tlie Law Quarterly lieview. [No. LXXIV, 

the general theory sometimes supposed to be laid down by Want v. 
SfaliibraiSf viz. that whatever the form of the time condition the 
purchaser can recover his deposit when the title is absolutely bad, 
even if in fact the M. R. ordered return of the deposit in that case. 

In Pry re Jones v. Williams [1902] 2 Ch. 517, where the purchaser 
got a good equitable term and the legal term was outstanding, the 
vendor asked that the purchaser should pay the balance of his 
money into court ; the purchaser sued for his deposit Joyce J. 
observed that the objection was not to the root of the title but to 
its subsequent devolution, allowed the vendors and dismissed the 
purchaser's summons. The case was not of course the case of an 
absolutely bad title. 

It is submitted however on the preceding cases that the question 
is not merely whether the root of title but whether the title itself 
is bad. 

In Robinson v. Mnsgrove^ 2 M. & R. 92, a part of the property sold 
was non-existent or could not be found, and that was part of the 
ratio deci/fendi. 

In Soper v. Arnold^ 37 Ch. Div. at p. loi, Cotton L. J. seemed to 
treat Want v. Stallihrass as deciding no general principle, but as an 
authority only on the meaning of the condition in that case ; and 
in the same case, 14 App. Cas. 103, there are expressiona of Lord 
Herschell that may be read as antagonistic to the suj)posed general 
principle of Want v. Stallihrass, 

The writer has now cited and endeavoured to explain his view 
of all the cases known to him that can be claimed as supporting 
the view that the time condition does not mean what in plain 
English it says. 

Li Blackburn v. Smith, 2 Ex. 783, the vendor had contracted 
to deliver a full and sufficient abstract, objections to be taken 
within a month, otherwise title to be ' accepted.* An abstract short 
of sixty years and showing that the legal estate was outstanding 
was delivered, but the abstract showed all the documents in the 
vendor s possession or power. The purchaser without taking 
objections within time assigned for breach that a full abstract was 
not delivered and sued for and was refused return of the deposit 

Parke B. said : * The terms " full and sufficient abstract of title " 
cannot mean ''a full and sufficient marketable title,'' otherwise 
there would be no reason for the stipulation requiring all objec* 
tions to be taken within the month/ 

Piatt B. said : ' The parties provide that if no objection is made 
within the month the vendors are to be deemed to have accepted 
the title that must mean objectionable title.' 

Rolfe B. said: * Suppose a title is traced down to A. B. and 

April, 1903O ^^ Limits of the Rule in Want v. Stallibrass. 165 

then it is shown that A, B, died intestate and unmarried and 
that the vendor took possessioti as his illegitimate son, that would 
be a bad title but a perfectly good abstract. If a vendor fairly 
abstracts the whole title on which he relies, what more can he do ? ' 

In Rosenberg v. Cook, 8 Q. B. D. 16a, there is however the authority 
of Lindley J. and Brett L. J. to show that if the vendor sells free- 
hold and has not even possession, or if he has only a revocable 
licence the purchaser, though out of time, could recover his deposit. 

In that case the vendor sold as freehold the land over a railway 
arch, stating that it had been conveyed to him by the Railway 
Company^ offering inspection of the conveyance, requiring requisi- 
tions within seven days ; in default the title to be * accepted.* The 
purchaser out of time objected that the sale to the vendor was 
ultra vires the Railway Company, and sued for his deposit. It was 
held that the purchaser could not recover, as the vendor had a 
possession which he could pass to the purchaser. There are, 
however, expressions of Cotton L.J. tending to show that the 
Court proceeded on the fact that the purchaser in the circumstances 
learning that his vendor had bought from the Railway and being 
precluded from objection to his conveyance or the earlier title in 
fact bought only the possession. If this was the true ratio decidendi 
the remarks of the other members of the Court as to the purchaser 
being out of time were superfluous. 

In Life Interests 8fc, Corporation v. Hand in Hand Ins, Society 
[1898] % Ch. 230, the purchaser out of time requii'ed evidence that 
the vendors who were mortgagees had given the requisite notices 
enabling them to exercise their power of sale. Accordingly in 
court he asked the vendor s witness if notice had been given. The 
question was objected to on two grounds: first, that under the 
statutory powers the purchaser being jprotected on conveyance 
oould not ask the question ; second, that if he could have otherwise 
asked the question, his objection was out of time. Stii'ling J. held, 
first, that but for the time condition the question could be asked ; 
second, Hhe conditions of sale, however, contain the usual pro- 
vision limiting the time for making requisitions, and it is said 
that it is now too late to make such a requisition. The answer 
of the purchasers to that is, ** that may be so ; but we take upon 
ourselves the burden of proving the allegation in the defence, tiiat 
at the date fixed for completion the vendors were not in a position 
to selL If that be BO,%tAougA we may not he able to recover the deposit 
we can resist specific performance.'' I think that that view is 
correct, and that the question is admissible and relevant and 
ought to be answered.' 

Whether Want v. Stallibrass is to be considered as laying down 

166 The Law Quarterly Eeview. [N0.LXXIV. 

a rule of general principle, or as merely deciding the construction 
of the decision in that case, this decision of Stirling J. is in direct 
antagonism to Wanl y. 8tallibras%^ for in both cases the condition 
only compelled waiver of objections, and did not go on to compel 
acceptance of title. 

In Oakden v. Pike^ 34 L. J. Ch. 620, estates were limited to 
jR. 0, the elder for life, remainder * unto the sons of the said It. 0. (if 
he should leave any), to the eldest son, and if he should die without 
issue,' &c. E. 0. the elder and his eldest son contracted to sell. 
After the time limited for objections in default whereof the title 
was to be accepted, the purchaser objected that the son took only 
an estate tail contingent on his surviving his father ; the vendors 
then offered to disentail. Kindersley V.-C. decreed specific per- 
formance on the groimd that the objection was out of time, de* 
dining to go into the question of title at all though he thought 
the title good. This finishes the cases dealing directly with the 
time condition. 

Now it is to be noticed that the decision in Wanl v. Slallibrass 
is largely founded on the fallacy that unless the Court had refused 
the vendor's construction of' the condition, the purchaser would 
have been compelled to accept and pay for an absolutely bad 

The Court has always had a discretion as to giving or refusing 
the remedy of specific performance, and it is clear that though the 
purchaser cannot recover his deposit where the objection is covered 
by a condition general, fair, and not misleading, yet the Court 
will not compel him to pay for an absolutely bad title. This is 
made clear by Seoii v. Alvarez [1895], i Ch. 596, 2 Ch. 603, 
In that case the vendor sold expressly as mortgagee, and so even 
apart from stipulation w^uld have had to covenant only against 
encumbrances. The property sold was a lease granted in 1867. 
The condition stated that the title would begin with the lease, 
and omitting intermediate title as to which objection should not 
be made continue with an assignment of 1891, and that the 
purchaser should assume that assignment to have vested a good 
title in the assignee. 

The purchaser was able to show doubt and suspicion as to the 
intermediate title ; on his summons the Court below allowed the 
purchaser to recover the deposit. On appeal, the Court reversed 
that order on the ground that the objection was covered by the 
condition, declared that a good title was shown, and ordered the 
purchaser to repay the deposit. 

After that decree the purchaser discovered facts which enabled 
him to show that by reason of gross frauds in relation to the 

April, 1903.] The Limits of the Rule in Want v. Stallibrass. 167 

intermediate title the title was absolutely bad, not doubtful or 
suspicious, and he obtained leave to review the order of the C. A. 

On the vendor's consequent specific performance action, the 
Court below, holding the title absolutely bad, refused specific 
performance and ordered a return of the deposit. On appeal the 
Court held 

(1) That the title was absolutely bad, not a good holding title. 

(2) That the purchaser could not recover the deposit as the 
objection was covered by the condition, and he could show no 
breach of contract on the vendor* 9 part. 

(3) But the title being absolutely bad, specific performance would 
not be decreed. 

' But there are bad titles and bad titles ; bad titles which are 
good holding ones, although they may be open to objections 
which are not serious, are bad titles in a conveyancers point 
of view, but good in a business man's point of view ; and I 
do not know of any case in which a Court of equity has decreed 
specific performance of and compelled a purchaser to pay his 
purchase money for nothing at all when he shows the Court that 
the title he is asked to have forced upon him is bad in that 
sense, that he can be turned out of possession to-morrow.' 
Per Lindley L. J., who left it open whether a condition could be 
framed with such a consequence ; Kekewich J. and Lopes L. J. 
thought such a condition could be framed ; Bigby L. J. appears to 
have thought the contrary. 

The basis of the decision in Want v. Stallibrass being thus 
removed, is there any reason why the time condition should not 
receive its plain English construction? 

The writer submits : 

(i) That Want v. Stallibrass never did lay down a general pro- 
position that whatever the terms of the condition a purchaser out 
of time could recover his deposit where the vendor had only an 
absolutely bad title. That if it did so decide it is contrary to the 
express decisions in Li/e Interests tfc. Corporation v. Hand in Hand 
Ins. Society and OaJtden v. Piie, that it is opposed to the dicta in 
BlaclAum v. Smith and Saxby v. Thomas in appeal, and limited by 
the decision in Rosenberg v. Cooi, and opposed to proper canons 
of construction, Scott v. Alvarez and cases there cited, that its 
authority not being impugned in Saxby v. Thomas before Romer J. 
in the Court below, it derives no authority from his decision, that 
Tanqueray-Wittaume's case on the ground above suggested does not 
support it, and that it is not law. 

(2) That if it lays down no general principle, nevertheless the 
construction placed by the Court on the condition was wrong as 

les Tlie Law Quarterly Review. [Ko. LXXiv. 

shown by Life Interests ^"c. Corporation v. Hand in Hand Ins, Society ; 
and that constiniction, if right, cannot be extended to cases in 
which the condition either compels the purchaser to ' accept ' title 
simply, or to both ' accept ' title and waiye requisitions. 

Frederick Edward Farrer. 


I HAVE read Mr. Farrer's interesting argument upon the question 
whether a purchaser of land can recover his deposit where the 
vendor has an absolutely bad title and the purchaser does not 
make objection to the title within the time limited by the contract. 
I agree with him that the dicta^ if not the decisions, upon this point 
appear to be conflicting ; but I submit, contrary to his view, that 
the case of Want v. Stallibrass^ is good law and has never been over- 
ruled. I further suggest that it is the authority of the case of 
Oakden v. Pike ^ rather than that of Want v. Sfnliibrass ^ which is 
impugned by the decision in ScoU v. Alvarez ^ 

I think it will be well to examine the cases on which Mr. Farrer 
relies in order of the time of their decision. In the first place, 
however, I venture to remind the learned reader that the question 
of the recovery of the deposit on a contract for the sale of land is a 
question of purely common law, and has nothing to do with any of 
the equitable rules or doctrines applied by the High Court in 
exercising its equitable jurisdiction to order the specific performance 
of such contracts*. AJso, that in every contract for the sale of 
land there is implied a stipulation that the vendor shall show a 
good title, that is to say, that he shall prove that he has the right 
to convey what he has contracted to sell. And further, that this 
promise by the vendor to show a good title is an essential part of 
the contract ; it is vital to the contract, that is to say, its performance 
is a condition of the purchaser's liability under the contract, so that 
a breach of this stipulation discharges the purchaser from all duty 
to perform his part of the conti*act, entitles him to treat the contract 
as rescinded, and allowed him (under the old practice) to sue for 
the deposit in indebitatus assumpsit^. In the absence of special 

» L. R. 8 Ex. 175. " 34 L. J. Ch. 620. ' [1895] 2 Ch. 613. 

* This is nowhere more pointedly displayed than in Scott v. Alvarez, ubi sup. 

* DukB <^8t AWan's v. Shon, l H. Bl. 270, 278 ; Seaward v. WiUock, 5 East 198, 20a ; 
Souter V. Drakef 5 B. & Ad. 992, 39 R R. 715 ; Flight v. Booth, i Bing. N. C. 370, 375, 
376, 41 R. R. 599 ; Ellis v. Rogers, 29 Gh. D. 661 ; and see Anson on Contract, 294, 
395} 3049 305, gih ed. It is submitted that the suggestion made by Cotton L. J. in 
the last-mentioned case, that the right to a good title may be, not an implied term 

April, 1903.] The Limits of the Rule in T\^nt v. Stallibrass. 109 

stipulation the vendor is bound to show a good title to the fee 
simple in possession, free from encumbrances, of all the land which 
he has contracted to sell ^ Another part of the vendor's general 
obligation to prove that he has the right to convey what he has 
contracted to sell is his obligation to show, that he has in his 
possession or can procure to be handed over to the purchaser the 
whole physical property sold as described in the contract; for 
example, if the vendor has contracted to sell the Blackacre estate, 
comprising the substantial stone-built mansion house called Black- 
acre Hall with 6,oco acres of land adjoining, he must not only 
show a documentary title in fee simple to the whole of this property, 
but he must prove that there is such an estate physically existent 
and that he can convey the same to the purchaser. I mention this 
aspect of the contract for the sale of land because it seems to me 
that the construction placed by the Courts of common law upon 
special stipulations purporting to limit this part of the vendor's 
obligation has an important bearing upon the construction to be 
placed by these Courts on the usual special stipulation limiting the 
time for making objections to the title. Ever since the case of 
FliffAt V. Bootk 2 it has been established law (that is, common law) 
that where land has been sold by a particular description but with 
a special stipulation that any eiTor, misstatement or omission in 
the particulars shall not annul the sale but proportionate com* 
pensation shall be paid instead, the purchaser shall not be bound 
by this special stipulation if there is a misdescription which, 
* although not proceeding from fraud, is in a material and substantial 
point, so far affecting the subject-matter of the contract that it may 
reasonably be supposed that, but for such misdescription, the pur- 
chaser might never have entered into the contract at all V In such 
a case, it is held, there is, notwithstanding the special stipulation 
(which if read literally would apply), such a breach of the vendor's 

in the contract, but a collateral right given by the law, is unsound. Cotton L. J. 
cited a dictum of Grant M. R in C^ne v. Fo^/arwfte, 3 Mer. 53, 64, 17 R. R. 13, in 
support of this view : but on examining this dictum it appears that Grant M. R, 
meant to say nothing more than that in the particular case before him the pur- 
chaser's right to have a good title was not expressly provided for by the written 
agreement between the parties. If the obligation to prove title were strictly 
collateral to the contract of sale, a breach thereof would not discharge the pur- 
chaser from performing his part of the contract. Breach by the vendor of a stricay 
ixOatercU warranty upon a sale does not discharge the purchaser from the main con- 
tract, as in the case of a warranty of quality on the sale of specific goods, where the 
buyer has had the opportunity of inspecting them ; Street v. Blay, a B. & Ad. 456, 
36 R. R 626 ; Heywcrih v. Hutchinwn^ L. R. 3 Q. B. 447 ; Benjamin on Sale, 448, 74I1 
748, 749, and ed. ; Pollock on Contract, 484, 538, 7th ed. 

^ Hughes Y. Parker^ 8 M. & W. 244 ; Bower v. Cooper^ a Hare 408 ; PhiRips T. CcUddeugh, 
L. R. 4 Q. B. 159. 

• (1834) I Ring. N. C. 370, 41 R R. 599. 

' Flight T. Boothy i Bing. N. C. 370, 377 ; approved in Re Fawcett <l Holmes, 4a 
Ch. D. T50, and Jacobs v. Revell [1900J a Ch. 858, 864. 

170 The ^aw Quarterly Review. [No. LXXIV. 

obligation as discharges the purchaser fi*om performing his part of 
the contract, and enables him to sue for the recovery of the deposit 
as money had and received to his use. The like construction has 
lately been applied where land was sold under a condition that 
if any error, misstatement or omission in the particulars be dis- 
covered, the same shall not annul the sale, nor shall any com- 
pensation be allowed by the vendor to the purchaser in respect 
thereof, and there was a material misdescription falling within the 
rule in Flight v. Booth. In this case the purchaser was held to be 
entitled to rescind the contract and recover his deposit ; the point 
adjudged being therefore a point of commoh la^ ^. 

I mention these authorities on account of Mr. Farrer's statement 
that the case of Want v. Stallibra99 ^ is opposed to proper canons of 
construction ; as I think they show that Courts of common law, in 
construing special stipulations in a contract, will have regard to the 
intention with which it is to be presumed that such stipulations were 
made, and will not enforce strict adherence to' the letter of such 
stipulations if this would lead to a manifest violation of such 
intention. I will now proceed to examine the authorities which 
Mr. Farrer cites. 

In Bobinwn v. Musgrove ^ land was sold under conditions that errors 
of description should not annul the sale but compensation should 
be made therefor, and that all objections to the title not made 
within ten days from delivery of the abstract should be .considered 
as waived. The purchaser took an objection to the title within 
that time, and claimed to rescind on 'that account. But on the 
trial of the action to recover the deposit, the purchaser's counsel for 
the first time raised the objection that there was a material mis- 
description, that part of the property contracted to be sold was not 
to be found anywhere, and another part did not answer the 
description. Tindal C.J. directed the jury, ' If any substantial part 
of the property purporting to be sold turns out to have no existence, 
or cannot anywhere be found, that circumstance in my opinion 
entitled the plaintiff to rescind the contract in toto. Deficiency in 
the value may be fit mattei* for compensation, but not the total 
absence of one of the things sold.' This of course is an application 
of the iiile laid down by the same learned judge in Flight v. Booth ^. 
It is another instance of the doctrine that breach of the vendor's 
obligation to prove that he can convey what he sold altogether 
discharges the purchaser from observing his part of the contract 
It may be suggested that the vendor's failure to fulfil this positive 

1 JaeobB V. ReveU [1900] a Ch. 858. * L. R. 8 Ex. 175. 

' (1 838) a M. & R. 93. * See above, p. 169. 

April, 1903.] The Limits of the Rule in Want v. Stallibrass. in 

obligation on his part discharges the purchaser from the stipulation 
as to time. 

In Blackburn y. Smith ^ land was sold under express stipulations 
that the vendor should furnish a full and sufficient abstract, and 
that all objections to the title not made within one month from the 
delivery of the abstract should be waived, and that non-delivery of 
any objections within that time should be an acceptance of the title. 
The land sold was originally copyhold, but had been enfranchised 
twenty-nine years before the contract. The vendor delivered an 
abstrskct showing fifty years' previous title to the copyhold, but no 
title to the freehold earlier than the enfranchisement, and showing 
an apparent equitable title in the vendor. The purchaser made no 
objection to the title within the month. Afterwards he claimed to 
rescind the contract, and sued in iusnmpiU for his deposit. The 
particular breach of the contract which he assigned was, however, 
not a breach of the vendor's obligation to show a good title, but 
a breach of his promise to furnish a full and sufficient abstract. 
The vendor's contention was that a full and sufficient abstract must 
mean an abstract showing a sixty years' title to the freehold, and 
this was the whole point in issue. It is to this contention that the 
remarks of the judges cited by Mr. Farrer ' were directed, and their 
judgment was thus : — 

* We think that the abstract was sufficient within the meaning of 
this issue, as it must be taken to have been a fuU and fair abstract 
of all the muniments which the defendant had in his possession, 
power, or knowledge, though it did not go back for sixty years. 
Whether an abstract containing less than what this did would have 
been sufficient under this contract it is unnecessary to say.' 

It is submitted that this case is really of no authority on the 
point decided in Want v. Stallibrass ^. The question put in issue 
was, not whether the purchaser was barred by the condition as to 
time from making an objection which would otherwise have been 
good, but whether the vendor had discharged his obliglttion to 
deliver a full and sufficient abstract. The Court decided that he 
had. Nothing turned on the condition as to time. Besides which, 
it is established that an abstract may be perfect within the mean* 
ing of the rule, that time specially limited for making objections 
to title runs only from the delivery of a perfect abstract, although 
it disclose a defective title ^. 

In Oakden v. Pike *, the fex5ts were as stated by Mr. Farrer*, but 

* (1848) a Ex. 783. * See above, p. 164. * L. R. 8 Ex. 175. 

* I Dait, V. ft P. 143, 6th ed., approved Qraiy v. FovAtr, L. R 8 Ex. 249, 279. 

* (1865) 34 L. J. Ch. 630. • See above, p. 166. 

172 The Law Quarterly Review. [No.LXXlV. 

it should be mentioned that B. 0, the son had prior to the contract 
executed a disentailing deed with his father's consent. The title 
therefore stood thus : the father was entitled for life, and after his 
death the son was entitled in fee, either for a vested remainder, or 
contingently on his surviving his father, according to the true con- 
struction of the will by which their estates were conferred. The 
vendors therefore certainly had shown some title to what they 
sold. In these circumstances Kindersley V.-C. decreed specific per- 
formance by the purchaser ; and his judgment no doubt proceeded 
on the ground that the purchaser, having entered into the contract 
to accept the title shown, if no objection should be made within the 
time limited, was bound thereby and must take the consequences. 

The next case in order of time is Want v. Sfallihrass'^ itself. 
Mr. Farrer has stated the facts and the grounds of the judg- 
ment^. It is worth while noting how the case was put in the 
argument of the purchaser's counsel: If the vendors have no 
power of sale at all, the condition as to time ' does not apply, 
for the condition only has reference to imperfections in the 
title as deduced in the abstract,, not to cases where the abstract 
shows affiimatively that the vendor has no title to sell or 
convey. Such an abstract is merely illusory, and it is as if ^ 
purported to sell property, and furnished an abstract which showed 
a title in X; it would not enable the purchaser to prepare and tender 
a conveyance ®.' Kelly C. B. obviously adopted this argument in 
the passage cited from his judgment ^. As to that quoted ^ from the 
judgment of Pollock and Martin B6., I suggest that its true mean- 
ing is this : the stipulation that the vendor shall show a good title 
is vital to the contract, its obsei*vance is a condition of the pur- 
chaser's liability ; where on the vendor's own showing, on the face 
of his own abstract, he has no right to convey what he sold, the 
purchaser is altogether discharged from the contract, and is therefore 
no longer bound by the stipulation as to time. I suggest that 
there is an intimate connexion between the law laid down in Want 
V. SfalHhrass^ and the rule in Flight v. Booth *. A sells Blackacre to 
J?. A delivers an abstract showing a title to Blackacre in X, or 
showing a title in himself to Whiteacre. In either case that is no 
performance of his obligation to prove title, and the purchaser is 
ipso facto immediately discharged from the contract. And accord- 
ing to Flight V. Booth *, if A delivered an abstract showing title in 
himself to (say) half the acreage of Whiteacre, B would be dis- 
charged from the contract, even though he had agreed that any 
error of description should not annul the sale, but compensation 

^ (1873) L. R. 8 Ex. 175. • Above, p. 161. • L. R. 8 Ex. 178. 

* Above, p. 161. » I Bing. N. C. 370, 41 R. R. 599. 

April, 1903.] The Limits of the Bute in Want v. StaUibrass. 173 

should be allowed therefor. And it is worthy of note that the 
actual decision in Ni^At v. Booth ^ was upon a deficiency in a matter 
of right and not of physical content ; as the misdescription in that 
case was of the nature of the restrictive covenants subject to which 
the property was sold. This is surely very near akin to a mis-* 
description of the title, or quantity of estate sold ; as where a vendor, 
who has contracted to sell the freehold in fee, shows title to a short 
term only or to a copyhold estate. 

The decision and judgments in Want v. StaUibrass ^ do not how-* 
ever profess to extend further than the case of a failure by the 
vendor to show that he has any title at all to convey what he has 
contracted to sell. And I submit that in such a case the vendor's 
position would not be improved, if the condition as to time had 
expressly provided, not only that objections not taken within the 
time specified shall be considered to be waived, but also that in 
de&ult of any objections so made the purchaser shall be deemed to 
have accepted the title. If the purchaser is no longer at liberty 
to make any objection to the title shown, he is impliedly bound 
to accept the title, as is pointed out by Pollock B. in Want v. 
StaUibrass^. Sui:ely it can make no difierence if this obligation, 
instead of being left to the implication of law, is expressed in the 

As to Bot/d V. Dickson ♦ I agree with Mr. Farrer that it is no real 
authority for or against the rule in Want v. StaUibrass ^. It was a 
vendor's suit for specific performance, and the bill seems to have 
been dismissed on the like ground of misrepresentation in the 
conditions of sale as afterwards formed the basis of decision in the 
leading case of Re Banister^ Broad v* Munton *. 

In Rosenberg v. Cook^ it is remarkable that Want v. StaUibrass^ 
does not appear to have been cited by the purchaser's counseL 
Lindley J. and Brett L. J. appear to have distinctly recognized that if 
the vendor had only a revocable licence, he would be producing to 
answer the contract something distinctly different from what he 
had contracted to sell, and in that case the purchaser would have 
been discharged from the contract, notwithstanding the time stipula^ 
tion^« But the decision of the whole Court of Appeal proceeded 
on the ground that the vendor had in effect contracted only to give 
a possessory or disseisor's title— an estate by wrong, which, the 
learned reader will remember, is an estate in fee simple — and that 
he had shown such title as he contracted to give. It may be 

^ I Bing. K.O. 370, 41 R. R. 599. * L. R. 8 Ex. 175 ; see above, pp. 161, 162. 

* L. R. 8 Ex. 185. * (1876) 10 Ir. Eq. 239. » (1879) la Ch. D. 131. 

* (1881) 8 Q. B. D. i6j ; see above, p. 165. 

* I submit that this opinion shows the intimate connexion between the rule in 
Flight y. Booth and that in Want v. StaSLibroas^ 

174 Tfie Law Quarterly Beview. [Xo.LXXlv. 

observed, in answer to Mr. Farrer's remark, that this decision 
rendered the remarks of Lindley J. and Brett L. J. superfluous, 
for if the Court of Appeal had thought that the purchaser was 
barred by the time stipulation, no matter what title or want of 
title the vendor showed, it would have been quite unnecessary for 
them to consider what title he had promised to give, and whether 
he had performed that promise. 

In Re Tanqueray-Willanme and Landan^ the decision of Kay J. 
and the dictum of Jessel M. R. are of course founded on an acceptance 
of the rule in Want v. Stallibra^ ^ as good law : but, as Mr. Farrer 
points out, the return of the deposit does not appear to have been 
asked for in that case, so the proceedings would seem to have been 
analogous to an equitable action for specific performance rather 
than a common law action to recover the deposit. But accepting 
Mr. Farrer's view in this respect the point is that this decision and 
this dictum apply the principle acted on in Want v. Stallibrass^ to 
proceedings to obtain the specific performance of the contract, and 
therefore cast doubt on the correctness of the decision in Oakden 

The case of Soper v. Arnold ^ was this : The conditions in a contract 
of sale of land provided that the purchaser should pay a deposit, 
and that if he failed to comply with the conditions the deposit 
should be forfeited, and the vendors should be at liberty to resell. 
The purchaser paid the deposit and accepted the title, but when 
the time for completion arrived he could not provide the residue of 
the purchase-money. The vendors thereupon gave the purchaser 
notice that the contract was rescinded and the deposit forfeited. 
Three years afterwards the vendors having contracted to sell to 
another purchaser, it was decided that their title was bad, owing to 
a defect which had appeared upon the face of the abstract delivered 
to the first purchaser. The first purchaser thereupon brought an 
action to recover his deposit on the ground of mutual mistake and 
failure of consideration. It was held by Eekewich J., the Court of 
Appeal, and the House of Lords that, the title having been accepted, 
and the deposit having been forfeited solely in consequence of the 
purchaser's default, he was not entitled to recover the deposit. 
The case was distinguished from that of Want v. Sfallibran^ on the 
ground of the purchaser's express acceptance of the title, followed 
by his own default in completing the contract, the vendor's con- 
sequent rescission and the purchaser's acquiescence therein. I 
submit that there is nothing more in the case than this. No attempt 

* (1883) 20 Ch. D. 465 ; above, p. i6a * L. R 8 Ex. 175. 
' 34 L. J. Ch. 6ao ; above, pp. 166, 171. 

* O887) 35 Ch. D. 384, 37 Ch. D. 96, 14 App. Cas. 429. 

April, 1903.] The Limits of the Rule in Want v. Stallibrass. 173 

seems to have been made in argument to upset the authority of the 
rule in Want v. Stallibrass \ Both Kekewich J.^ and Cotton L. J.* 
considered that case to have been correctly decided; and it is 
submitted that in Lord Herschell's judgment there is really nothing 
antagonistic to the principle there laid down. 

In re Scott and Alvarezes Contract * land held by underlease was sold 
under a condition that the purchaser should make no objection or 
requisition in respect of the intermediate title between the under- 
lease and an assignment thereof in 1891, but should assume that 
such assignment vested in the assignees a good title for the residue 
of the term. The purchaser's solicitor nevertheless asked questions 
as to this intermediate title of the vendor's solicitor, who gave him 
certain information tending to cast suspicion on such title. The 
vendor's solicitor asserted that this was done without prejudice 
to the special condition. The purchaser maintained that, as the 
vendor had given information as to the intermediate title, he could 
not oblige the purchaser to accept the title shown without clearing 
up the suspicions raised. The purchaser took out a vendor and 
purchaser summons in support of this contention, which prevailed 
with Kekewich J., but was disallowed in the Court of Appeal. 
The Lords Justices held that, to enable the purchaser to escape 
from the stringent condition into which he had entered, it was 
not enough to show that the title was suspicious, but he must 
prove it to be bad ; and as it was made to appear to them that the 
purchaser's main objection was removed by the Statute of Limita- 
tions, they held that he had failed in such proof. After this, the 
purchaser discovered that gross frauds had been committed with 
respect to the intermediate title, and that several documents, on 
which the vendor s title depended, were forgeries ; and he declined 
to complete the purchase. The vendor, who was not in any way 
implicated in the frauds, then brought an action for specific per* 
formance, to which the purchaser by leave counterclaimed to 
review the order of the Court of Appeal made in the summons, 
on the ground of the subsequent discovery of fresh material facts. 
Kekewich J. not only dismissed the vendor's action for specific 
performance but ordered him to return the deposit. But, on the 
case being again taken to the Court of Appeal, it was considered 
that at law the purchaser was strictly bound by the contract into 
which he had chosen to enter, and could not therefore recover his 
deposit, as there had been no breach of contract by the vendor. 
But it was declared that the specific performance of the contract 
in equity depended on different considerations ; and on this point 

^ L. R 8 Ex. 175. « 35 Ch. D. 387, 388. « 37 Ch. D. lox. 

* [1895] I Ch. 596, 3 Ch. 603. 

176 The Law Quarterly Bevtew, [No. LXXIT. 

the judgment was affirmed for the reason that, as the vendor had 
no holding title at all, but was liable to instant ejectment, his title 
was not such as the Court would oblige an unwilling purchaser to 
take. As regards the common law aspect of this case, it is sub- 
mitted that it is entirely different from IFant v. SMlibrass ^. There 
the vendor was under an absolute and unqualified obligation to 
show a good title, and he failed to discharge this obligation. In Rt 
Scott and Alvarez the vendor had limited his obligation to show 
a good title by very stringent conditions, and it was considered 
that at law he had discharged the obligation which he had under- 
taken. He was not therefore in default as regards the performance 
of his part of the contract. The purchaser, however, was in 
default, for he had broken one of the special conditions of sale in 
calling in question the title during a period of time for which he 
had contracted to assume that it was good. And as regards the 
equitable rule laid down in Re Scott and Alvarez^ namely that the 
Court will not order a purchaser to perform his contract specifi- 
cally where he will not obtain a good holding title, even though 
the title offered be such as he had expressly contracted to accept, 
surely this is an express negation, so far as the doctrine of specific 
performance is concerned, of the principles as to the sanctity of 
contracts and the importance of holding people to their bargains 
enunciated in the judgment delivered in Oahden v. Rihe ^. 

In Saxhy v. Thomas^ the purchaser bought from a mortgagee 
selling under his power of sale. There was a question whether 
the mortg^gor had power to create the mortgage. The purchaser 
did not take this objection until after the time limited for making 
requisitions had expired. The purchaser's counsel contended that 
Want V. StaUlbrass ^ established that a purchaser out of time with 
his requisitions can nevertheless recover his deposit where the 
vendor shows no title at all. The vendor s counsel maintained 
that the rule in Want v. Stallibrass^ does not apply where the 
vendor has shown a good holding title. Romer J. held* that 
Want V. Stallibrass is an authority that the condition limiting the 
time for making requisitions cannot be used for the purpose of 
forcing a bad title upon a purchaser because he has not taken 
objection to the title within the time limited ; and assuming the 
law to be that the rule in Want v. Stallibrasi does not apply so 
as to preclude the vendor from retaining the deposit where he 
has shown a good holding title, the vendor was too late in raising 
this contention after the purchaser had claimed to rescind. In the 
Court of Appeal Homer J.'s decision was reversed entirely on the 

* L. R. 8 Ex. 175. ' 34 L. J. Ch. 620 ; see above, p. 171. 

' (1890) 63 L. T. N. S. 695, 64 id. 65. • 63 L. T. 698. 

April, 1903.] The Limits of the Mule in Want v. Stallibrass, 177 

ground that the mortgagor had power to create the mortgage, 
80 that the title was good. But Lindley L. J. said : * If it were 
necessary to decide that point, I should like to have a little 
further time to compare such cases as JTant v. StaUibrass on the 
one hand and Oakden ▼. Pike on the other, and Rosenierg y. Cook 
and the other cases which have been referred to by counsel for the 
vendor. I do not feel clear that all these cases are quite con- 
sistent I do not say they are not ; but off-hand I feel a difficulty 
in reconciling them alL' Lopes L.J. desired to express no opinion 
on the point as to time, it being unnecessary and there being 
decisions which it was difficult to reconcile. It is submitted that 
these dicta cannot fairly be represented as being opposed to the rule 
in Want v. StaUibraM * ; surely the intention of both these learned 
judges was to guardv against their judgments being taken as an 
expression of opinion on that point. 

In Life Interests Sfc, Corporation v. Hand in Hand ^c. Society ^^ the 
decision of Stirling J. was no doubt as stated by Mr. Farrer. But 
that action was a vendor's action for specific performance, and the 
defendants' counsel put their case no higher than this — that in 
resisting an action for specific performance, a purchaser is not 
precluded by conditions of sale in the form in this case from 
proving by any means in his power that the vendor's title is 
defective, though he may be precluded from obtaining a return 
of the deposits Want v. Stallibrass'^ was not cited. It appears 
from this that Stirling J. simply adopted the contention of the 
purchaser's counsel with respect to the question of the defendants' 
right to resist specific performance. This was the only question 
he was concerned to decide; and the mere repetition by him of 
the qualification put by the defendant.8' counsel in argument, that 
the purchaser might not be able to recover the deposit, cannot fairly 
be regarded even as an obiter dictum to that effect. It is submitted, 
therefore, that this case is not, as Mr. Farrer asserts, in direct 
antagonism to Want v. Stallibrass'^. It appears, however, to be in 
direct conflict with the case of Oakden v. Pike ^, and to be a con- 
crete application to facts like those in Oakden v. Pike ^ of the prin- 
ciple established in Re Scott and Alvarez^. But it should be 
mentioned that Oakden v. Pike ^ was not cited in argument. 

In Pryce Jones v. Williams ^ leaseholds were sold by the Court 
under the usual stipulations limiting a time for making objection to 
the title. The vendor showed a good equitable title to the property 

' L. R 8 Ex. 175 ; see above, p. i6i. ' [1893] a Ch. 230 ; see above, p. 165. 

• [18981 a Ch. 333. * 34 L. J. Ch. 6ao ; see above, pp. 166, 172. 

* [1895] a Ch. 603. • [1902] 2 Ch. 517. 


178 The Law Quarterly Review. [No.lxxiv. 

sold. After the time had expired, the purchaser took the objec- 
tion that the legal estate was outstanding. The vendor took out 
a summons claiming in effect specific performance ; the purchaser 
claimed rescission of the contract and a return of the deposit. The 
purchaser's counsel relied on the rule m-Want v. Stallibrass'^ and the 
dicta as to objections going to the root of the title in Re Tanqueraj/^ 
Willaume and Landau ^. Joyce J., after holding that the legal estate 
was outstanding in the Crown, made an order on the vendor's sum- 
mons and dismissed the purchaser's claim. He said : — 

' Now, the requisitions that were made with reference to the legal 
estate in those two leases were not as to the root of title, but as to 
the subsequent devolution ^ I come to the conclusion that those 
requisitions cannot be insisted upon, the vendors standing, as they 
do, upon condition 6, which stipulates that the requisitions must 
be made within a limited time. On consideration I see no reason 
why, in this case, the purchaser is not bound by the fact that his 
requisitions were not sent in in time. The purchaser will obtain 
possession of the property, and he will get a perfectly good equit- 
able title, and he cannot be disturbed ; and he will, no doubt, obtain 
the legal estate upon application to the proper quarter and upon 
payment of certain recognized fees, although I admit that the Crown 
eould not be compelled to assign the legal estate.' 

The learned judge did not question the propriety of the decision 
in Want v. Stallibrass *, but declined to apply the rule there laid 
down to the case before him. He seems to have decided the point 
raised before Komer J. in Saxby v. Thomas ^^ namely, that the rule in 
Want V. Stallibrass ^ does not apply where the vendor has shown 
a good holding title. It will be remembered that the decision in 
Want V. Stallibraas ^ did not profess to go beyond the case where the 
vendor had shown no title at all. Between showing no title at all 
and showing a good holding title there are many degrees of security 
or insecurity of title ; and it may be asked. If Want v. Stallibrass ^ 
and Pryce Jones v. Williams * were both well decided, at what point 
ought the line to be drawn between them ? It is submitted that 
the answer to this question should be found in the principle estab- 
lished in Fliffkl V. £ootA ®, and that if the vendor, on the face of his 
own abstract, shows a title so materially different from the descrip- 
tion of title which he had contracted to give ' that it may reasonably 

' L. R. 8 Ex. 175. ' 30 Ch. D. 465 ; see above, pp. 162, 174. 

' It is submitted, with great respect to Joyce J., that the expressions used by 
Kay J. and Jessel M.R. as to objections going to the root of the title do not bear this 
sense. They were alluding, not to objections to the instrument with which the 
title commenced, but to objections founded on a total failure by the vendor to dis- 
charge his obligation to show a good title. 

♦ 63 L. T. 695 ; see above, p. 176. " [190a] a Ch. 517. 

• I Bing. N. C. 370, 377 ; see above, p. 169. 

April, 1903.] The Limits of the Rule in Want v. Stallibrass^ 179 

be sappoeed that, but for such misdescription, the purchaser might 
never have entered into the contract at all,' then the vendor has on 
his o^v'n showing failed to discharge his obligation to show a good 
title, with the result that the purchaser is altogether discharged by 
this breach of contract from performing his part of the agreement, 
notwithstanding that he may not have objected to the title within 
the time limited for making the requisitions. This of course is no 
more than suggestion ; and it is hazardous to proceed to an example. 
But if a vendor have expressly or impliedly undertaken to show 
title to the freehold in fee, free from encumbrances, in land sold, 
does he discharge that obligation by showing on the face of his own 
abstract the right to convey no more than an estate for a short term 
of years or even for his own life ? And is not the title which he 
does show something so different from that which he contracted to 
give that it may reasonably be supposed that the purchaser would 
not have entered into the contract but for the representation that 
he should have the fee ? 

Finally, with regard to Mr. Farrer's contention ^ that the decision 
in Want v. Stallibrass ^ is largely founded on the fallacy that, unless 
the Court had refused the vendor's construction of the condition, 
the purchaser would have been compelled to accept and pay ft>r an 
absolutely bad title, but that it is dear from Be Scott and Alvarez * 
that the Court will not compel a purchaser to pay for an absolutely 
bad title. The last-mentioned case certainly decided that the Court 
will not enforce specific performance where the vendor can only give 
a title, which would subject the purchaser to instant ejectment ; but 
in its common law aspect this case is directly opposed to any 
doctrine that where the title is such as a court of equity will not 
oblige the purchaser to accept, the vendor cannot recover damages 
for breach of contract. It was distinctly laid down in Be^t v. 
Hamand^ that where the vendor has shown such title as he con- 
tracted to give and the purchaser contracted to take, then the 
vendor is entitled to recover damages at law from the purchaser 
declining to fulfil the contract, notwithstanding that the specific 
performance of the contract is impossible. BeH v. Hamand ^ was 
the first of the decisions ^ evolving the rule of common law laid 
down in Be Scott and Alvarez ' ; and these cases establish that at law 
a vendor, who has strictly complied with the letter of the obligation 
which he undertook with respect to showing title, is entitled to 
reap the fruits of the contract if the purchaser refuses to perform 

* See aboTe, p. i66. * L. R. 8 Ex. 175. 

* [1895] a Ch. 603. * (1879) 12 Ch. D. i, la. 

" Nottvngkam Ac, Co, v. Butler^ 16 Q. B. D. 778 ; Rb Davis to Car^, 40 Ch. D. 401 ; Bd 
Ifational Prov, Bank qf England A Marsh [1895] I Ch. 190. 

180 The Law Qzuirterly Beview. [No. Lxxiv. 

it. The measiu'e of the damages which he can recover depends on 
the question whether he has executed a conveyance to the purchaser. 
If not, he can only recover the damages he has actually sustained ; 
not the whole purchase-money ; but he is entitled to substantial 
compensation for his loss \ It seems that if the vendor in lie Scott 
and Alvarez \ instead of suing for specific performance, had tendered 
a conveyance to the purchaser, and on his refusal to accept it had 
sued at law for damages for breach of contract, he could have 
recovered substantial damages. 

T. Cypbian Williams. 


[We thought it proper to give Mr. Farrer the opportunity of 
making the following short reply to Mr. Cyprian Williams's obser- 
vations — Ed.] 

When in a contract there is inserted the usual condition as to 
the purchaser's right to an abstract, compelling him in default of 
objection within a time limited to accept the title, what in words 
does the vendor say and the purchaser agree to, but that if objec- 
tions shall not be taken within the time they shall be deemed 
non-existent ? 

Any other construction of the condition must be a forced con- 
struction ; is there any reason for applying a forced construction ? 

As regards the time condition and that alpne the purchaser 
is given the opportunity after contract of exercising his own 
judgment. Why should the sloth or want of skill of his advisers 
be a reason for saying that the condition shall not mean what in 
plain English it says ? 

It is true that the ordinary conditions giving or excluding com- 
pensation or making the purchaser take subject to easements &c. 
in general form, do not cover objections for an essential defect 

There is reason in these cases for saying that the purchaser is 
not to be bound by the express words of his contract and in 
giving to the condition a conventional meaning, for unless this 
was done the purchaser from the moment of his signing the con- 
tract would be absolutely bound by the condition without having 

> Laird r.Pim, 7 M. & W. 474 ; Sug. Y. & P. 338, 14th ed. 
* [1895] a Ch. 603. 

April, 1903.] The Limits of (he Rule in Want v. StalUbrass. 18I 

had opportunity to exercise his judgment on the specific defect 
objected to. The reason fails in application to the time condition ; 
the purchaser is given an absolute right to exei*cise his judgment 
on the abstract though the contract has already been signed. 

For the reasons given in my preceding article and in this 
short reply, I venture to disagree with the conclusions drawn in 
Mr. Cyprian Williams's learned article. 

Fredebick Edward Farrer. 

[But is it a question of constiiiction at all? Can parties stipu- 
late that a total failure of consideration shall have no effect ? — Ed.] 


Part XL 

BEFORE proceeding to discuss some of the recent cases bearing 
on the subject of conspiracy, it will be convenient to restate 
the circumstances under which agreements to work the hurt of 
another may be unlawful, although the means used to carry out 
the agreement be not unlawful apart from agreement. In order to 
attain a greater degree of particularity and perhaps of accuracy, 
we shall consider them with reference to the invasion of a right ; 
and in particular, agreements which are directed to the mental 
disturbance of the subject must be distinguished from those which 
are not. Thus 

(i) A combination may conceivably be unlawful because it 
directly contemplates an invasion of the general abstract right of 
the individual to the preservation of his interests consistently with 
the welfare of the community of which he is a member. K how- 
ever the agreement contemplate no more than an infringement of 
this genei*al right, it is only unlawful, if at all, when it is solely 
attributable to the fraudulent or injurious designs of several 
minds. Simultaneity of action without intent is nothing^. Or 
(a) a combination may be unlawful if it directly contemplates, as in 
the case of a strike by workmen, a disturbance of the abstract right 
of the individual to peace of mind. It is the intention of the law 
to protect individuals from being wantonly and unjustifiably ex- 
posed to that sensation of alarm which ordinarily arises from a know- 
ledge that two or more peraons are agreed to do, or in concert have 
actually done, soidething by the use of numbers which he does not 
like, provided there be in fact a common and direct intention to 
cause him mental unrest. This is the class of conspiracy which 
specially affects combinations of masters, combinations of men, and 
last but not least, trading combinations. 

The sole difficulty, therefore, to be met with in dealing with 
cases of this kind is that where there is no intent to disturb by 
utilizing numbers the equanimity of an individual, the position 
lacks sure authority ^. A possible factor of what Lord Macnaghten 
termed in Quinn v. Leaihem a ' malicious conspiracy to injure' may 

^ And vice vena, at least where the means are ptr se lawful. 

' Is it this common and direct intention to prejudice the peace of mind which 
forms a component part of the criminality and of the injuria of a harmful conspiracy, ' 
or is a knowledge of individual disadvantage enough ? Under ordinary circumstances 
an intention to alarm would be presumed (by presumptio jwris et de jure) from an 
intention to do that which is calculated to alarm. Consider on this point Barber 
V. LesUer, 7 G. B. N. S. 1 75, where there was neither simultaneity nor intent. 

Labour Competition and the Law. 183 

be the purpose^ not of Coercion but of Intimidation. By In^ 
timidation we mean the act of making a person afraid or mentally 
uneasy, whereas Coercion is the employment of intimidation for 
a specific purpose, namely in order to compel that person to pursue 
a course of conduct which he would not otherwise have pursued. 
The charge of conspiracy in Gregory v. Brunswick^ a case referred to 
with approval by Lord Macnaghten, was in substance a charge of 
unlawful and desired intimidation. Thus the declaration states 
that the ' defendants contriving and maliciously intending to injure 
and aggrieve the plaintifi', and to bring him into public scandal, 
shame, and disgrace, and to injure the plaintiff in his profession or 
occupation of an actor . . . and to oppress^ vex, impoverish and ruin 
the plaintiff . . . wickedly and maliciously did amongst themselves 
conspire &c.' The writer is unable to agree with the suggestion 
that the legal materiality of the. element of numerical strength lies 
wholly or necessarily within the realm of Nuisance. Speaking of 
the proposition that two persons may not lawfully do that which 
one may lawfully do, Mr. Haldane has recently said ^ that ' the 
test seemed to him to be, were a large number of people combining' 
together to do what one might legally do, so as to create a nuisance/ 
This would be, it is submitted, to confine the real issues within a 
compass far narrower than the authorities admit of. It is hardly 
necessary to remind the reader that Quinn v. Leathern and the Mogul 
case are leading cases, not on the law of nuisance or picketing, but 
upon the law of molestation in trading rights by means of and in 
pursuance of an unlawful agreement. A private nuisance (and 
acts of boycotting, at any rate, must be private nuisances or not 
properly nuisances at all) has always been understood to signify a 
disturbance of a right enjoyed in connexion with the ownership or 
occupation of specific property ^. It is not accurate to say that a 
man has a proprietary or quasi-proprietary interest in his trading 
expectations, at any rate where those expectations are not based 
upon any existing contract (AUen v. Flood [1898] A. C. i). Hence 
the action for a conspiracy to injure a man in his trade, which as 
we have suggested probably finds its origin in the qualified right 
of the subject to peace of mind^ is not a form of nuisance, although 
a form of trespass on the case. The true position^ I suggest, is 

' See Times, January ai, and Omtanporary Review^ March, 1903 [and cp. L.Q. R. 
xiv. 131.— En.]. 

' Priyate nuisance is defined in Blackstone^s Commentaries, Book iii. p. a 16, as 
'anything done to the hurt or annoyance of the lands, tenements, or heredita- 
ments of another'; [sc. not amounting to a trespass]. Bracton,it is true, describes 
the establishment of a rival windmill, whereby the owner of an existing miU 
loses his custom, as an instance of ^fum nocumentuniy but there is no reason to 
suppose that the damage referred to is not treated as suffered in respect of the 
ownership or occupation of the mill. For common nuisance see Bac. Abr. N. 

184 The Law Quarterly Review. [No. Lxxiv. 

ibis. The law may be supposed to say to bodies of persons allied 
together for a common object — ' If you use simultaneity against 
another for the purpose of gratifying ill-will, you will be liable to 
an indictment, and to pay compensation for any damage you 
occasion ; while if you intend to bring about in this way discomfort 
with a lawful object in view, that intention must be founded in 
reason having regard to the nature of such lawful object, and not 
only such intention itself, but all and every of the acts by which 
that intention is sought to be consummated. If you do by concert 
any unreasonable act of damage, it is presumed, at least with 
reference to such act, that your motives were those of hatred and 
ill-will, and you will be liable to an action at law, and unless covered 
by some Act of Parliament you may be indicted.' There must be 
a reasonable necessity to justify. This involves a reasonable 
efficacy underlying what is done, and also (for conduct may be 
efficacious without being necessary) a reasonable occasion. There 
must also be a lawful necessity or occasion. By ' lawful ' occasion 
I mean this. The whole principle of successful justification appears 
to depend upon a disclosure by the facts of the hypothetical 
existence of an antinomy or anttigonism of lawful interests. And 
a proposition further deducible, I think, from the authorities is this, 
that a lawful interest cannot be successfully set up as justification 
for the concerted interruption of a lawful interest of a different 
order, at any rate where the latter is that of pursuing a lawful 
calling. In other words, the opportunity to earn money in a lawful 
way is only to be legally disturbed by concerted intimidation, when 
that attack is made for the purpose of drawing money in some form 
or other into one's pocket, or securing the best return for one's 
outlay. The law does not forbid struggles of this character ; nay 
rather, it encourages them. For competition for the sake of money^ 
whatever form it take, tends to make a country rich, and withal 
promotes healthy effort and industry. Without the field of com- 
petition, concerted and intentional intimidation by intrinsically 
lawful means is criminal and illegal. The motive for toleration is 
gone. Abstract interests of morality or religion, unconnected with 
the right to acquire money or its equivalent in a lawful way, 
cannot be relied upon as excuse. So too, molestation of this kind 
cannot be resorted to, (as actually happened in a case to which 
I shall refer), as a convenient method of debt-collecting. Above 
all, anything in the nature of a blind and unreasoning attack even 
in the cause of competition is condemned. For an ulterior motive 
is imputed in every case, where sensible men would not have acted 
in the way complained of for the sake of their lawful advantage. 
Now let us apply these principles to facts and cases. It follows 

April, 1903.] Labour Competition and the Law. 186 

that every strike (and by strike we mean an agreement by work- 
men to throw up their employment simultaneously, or in such a 
manner as to affect prejudicially their employer's peace of mind) 
which is not calculated by reason of the circumstances to put 
money into the pockets of the strikers is unlawful, and apart from 
the Act of 1875 indictable. I lay aside cases of vicarious attack. 

The same is equally true of lockouts by various masters or firms 
acting in combination so as to alarm or punish certain workmen, 
save that s. 3 of the Act of 1875 affords no protection to masters. 
The position of joint employers is of course a different one. The dis- 
missal with proper notice of a particular servant by two or more 
persons possessing jointly the right to his services cannot ordinarily 
evidence an unlawful agreement ; for inasmuch as the servant's 
position is the same whether the right to conti'ol him and the 
liability to pay him is vested in one or a hundred, he feels no 
annoyance or alarm on the score of the numerical strength of the 
persons responsible for his dismissal. Taken by itself, therefore, 
such an act cannot evidence an agreement to disturb his peace of 
mind. So too, where A says to his master, *I shall leave you, 
if you do not dismiss X,' X will have no remedy if he is dismissed. 
But where A and JS go to their master and say, ' We shall leave 
together, if yotl do not dismiss X,' this conduct needs justification 
not only as regards the master but as regards the servant as well, 
noi necessarily, as regards the latter, because an agreement to alarm 
him is evidenced (though the circumstances may often justify that 
inference), but by reason of the character of the conduct pursued 
towards his master. 

Having then established the agreement to molest by employing 
the arm of numbers, it then remains for the Court, I suggest, to 
inquire, not what evidence there be of the actual existence of a 
proper or even a laudable motive, but what evidence there is, if 
any, from which such a motive ought to be legally presumed. 

In a case ^ of last year, the plaintiff, a joiner, had applied for 
membership of an union which resisted the practice of piecework ; 
but subsequently, being short of money and having a vdfe and 
children to keep, worked for a short time in a non-union shop and 
accepted piecework. On his applying to the union for admission 
to full membership, not only was his application refused, but the 
onion procured his then employer, who principally employed union 
men, to employ him no longer by a threat of a strike ; and in the 
result prevented him from obtaining work anywhere. In an action 
brought by Thomas against the union to recover damages in con- 

^ Thomas v. AmalgamaJUd Society of Carpenters and Joiners^ tried at Manchester Assizes, 
cor. Wills J.; reported Timts^ Monday, April 28, 1902. 

188 The Law Qtmrterly Review. [No. LXXIV. 

illustration of the broad principle that the law refuses to admit 
for the purpose of exoneration the existence of a proper motive for 
any act of folly or immoderation. The State can oniy treat the 
dangerous fool as it would the most accomplished emissary of 
Satan ; and it flatters him egr^iously when it sends him to prison 
or mulcts him in damages. It is true, no doubt, that an infinite 
possibility of consequence may attach to all kinds of conduct, but 
there must always be a degree to which harmful conduct may 
reach, where all reasonable men will be agreed as to its ineffective- 
ness or its excess, for the purpose of acquiring profit in a particular 
direction. And it is left to the judges, I maintain, to voice by 
their pronouncements on this branch of the law such consensus 
of reasonable opinion, which will thus become crystallized into 
precedent. Legal limits can be set to competition. 

It seems strange that the above principle should never have 
definitely suggested itself as a complete and (as I venture to think) 
an altogether satisfactory answer to the Labour problem. Direct 
and unambiguous authority, no doubt, is wanting at present for its 
recognition in this country, but the general trend of actual decisions 
is not against it. No doubt the principle has been much obscured 
by some remarks made in the Mogul case (to be mentioned hereafter), 
which may have been, not unreasonably perhaps, misunderstood. 

On the other hand, the following expressions of Lord Bowen 
with reference to the justification for the combination in the Mogul 
case (23 Q. B. D. p. 61) are compatible with such a rule. 'Such 
legal justification would not exist where the act was merely done 
with the intention of causing temporal harm without reference to 
one's own lawful gain, or the lawful enjoyment of one's own rights. 
The good sense of the tribunal which had to decide would have 
to analyse the circumstances and to discover on which side of the 
line each case fell.' And the following passages in the judgment 
of Fry L. J. in the same case seem to recognize the principle, at 
least as involving strong evidence of actual malevolence. 'The 
damage to be inflicted on the plaintiffs was to be strictly limited 
by the gain which the defendants desired to win for themselves ' 
(23 Q. B. D. p. 622). This consideration of whether or no the 
damage be limited to the requirements of self-interest, as a test of 
justification, appears to have been adopted literally by Holmes L. J. 
in Leathern v. Craig ([1899] 2 1. R. 777). And the following passages, 
if we understand the expressions ' object of harm ' and ^ object to 
injure ' therein to include not merely a primary object of inflicting 
harm for the sake of producing mental uneasiness, but a secondary 
object of gratifying ill-will, seem directly to support the present 
contention. * There was not only no malice or indii-ect object in fact, 

April, 1903.] Labour Competition and the Law. 189 

6ui the existence of the right to exercise a lawful employment, in the 
pursuance of which the respondents acted, negatives the presumption 
of malice which arises when the purposed infliction of loss and 
injury upon another cannot be attributed to any legitimate cause, 
and is therefore presumably due to nothing but its obvious object 
of harm ([189a] A. C. p. 59, per Lord Field). And Lord Hannen 
says (ib. at p. 59), ' If several persons agree not to deal with a 
particular individual, as this could not, under ordinary circum- 
stances, benefit ^e persons so agreeing, it might well lead to the 
conclusion that their real object was to injure the individual.' It 
is evident, therefore, that both these judges thought that the 
element of malevolence is material in some sense in these cases. 
Lord Hannen speaks of a ' conclusion ' of fact, it seems ; but Lord 
Field clearly refers to a • presumption ' of law. 

And the principle seems to have been in a manner present to the 
mind of Lord Esher in giving judgment in Temptrion v. Russell^ : 
' These trade unions appear to have agreed together that certain 
rules, which they thought to be for their benefit, should be observed 
by tiie master-builders of Hull,' and * The trade unions . . . seem to 
have come to the concltision that a certain mode of carrying on 
building operations . . . was detrimental to their interests or those 
of their constituents.' 

Mark too the language of Lord Campbell in R. v. Hewitt (to be 
presently referred to): 'No doubt the defendants may have been 
under a delusion that they were doing what they were entitled to 
do, but they must be instructed that the law must be obeyed, and 
that they cannot be permitted to injure their neighbours in carrying 
out that* which they may consider to be a protection to themselves,* 

The remote or illusory character of the advantage sought to be 
gained in Temperton v. Russell may be usefully compared with the 
characteristics of a strike against the refusal to pay a fine as in 
R. V. Hewitt ^ : to procure the reinstatement of a dismissed fellow- 
workman (the Gas Stokers^ case ^) ; to procure the dismissal of 
fellow-workmen merely because they were working under a general 
declaration not to strike {Walsby v. Anley*)^ the useless (in any 
reasonable sense) and unnecessary ' punishment ' of persons anxious 
to join a union {Q,uinn v. Leathern) ; kinds of conduct all of which 
have been at various times held unlawful. And, on the other hand, 
the facts in Temperton v. Russell may be contrasted with a strike or 
threat of it in order to gain over a workman from a rival union 
(Gibson v. Lawson ^) ; or to procure the dismissal of non-union men, 
and so acquire the monopoly of labour in a port for a particular 

» [1893] 1 Q.B. 715. • (1851) 5 Cox, 163. • (187a) la Cox, 316. 

* (1861) 30 L. J. M. C. ia6. » [1891] a Q. B. 545. 

190 The Law Quarterly Beview, [No. Lxxiv. 

union (Cnrran v. Treleaven ^) ; conduct which has been held to be 
at least not criminal ; and again with a shipowner's combijiation 
to influence shippers and others to deal only with the combine by 
a method of procedure necessary to secure the monopoly of the 
tea-caiTying trade, and thus to compel a rival firm to leave the 
field {Mogul case). And with similar conduct on the part of a 
society trading in meat {Glasgoto Fleshers^ case ^). And, lastly, with 
the threat of a strike in order to secure protection from encroach- 
ment by others on a particular class of labour in which the persons 
combining were dii*ectly and exclusively interested {Allen v. Itood^); 
conduct which was positively held lawful in each instance so far 
as the question of civil liability was concerned, except in the last 
case — where the legality of the strike was merely conceded by 
counsel as unquestionable. We shall have occasion later on to 
question the accuracy of the legal view upon which this admission 
appears to have been based. 

It may be observed here that different considerations arise in 
such cases as these with reference to the damage threatened to 
or inflicted on third persons with the object of securing an end 
which is in itself lawful though injurious to the person ultimately 
aimed at; and here it becomes important to inquire whether the 
conduct towards such third persons was reasonably nece^ary in 
every way, and not merely effective, in order to attain the lawful 
object? Under those circumstances only will the lawfulness of 
the ultimate object operate in law to invest with legality the 
immediate object of injury^. When once a course of harmful 
conduct has been shown to involve an adequacy of result, it does 
not seem to be less ^ necessary ' because the harm it inflicts is out 
of all proportion to the advantage gained. But where the damage 
is excessive in the sense that certain harmful conduct would have 
recommended itself to a reasonable man as being clearly sufiicient, 
any additional or misconceived damage will be inflicted unlawfully. 
Upon this principle it follows that where the injury of one person 
would suffice, the injury of another or others as well is unlawful. 
But we may notice that upon the present test, the accuracy of that 
part of the decision in LyotM v. WilkinH^ where the boycotting of an 
outworker for a manufacturer by an union was held unlawful, may 
be doubted ; seeing that (as one of the judges sitting in the Court 
•of Appeal expressly stated or admitted in his judgment*) the 

» [1891] a Q. B. 545. « 35 S. L. R 645. * [1898] A. C. i. 

* Wherever a man commits an unlawful act intending a third person's harm or 
even knowing that it is calculated to injure a third person, such third person has 
a right of action (rorteton v. WOaxdeyy 1 Peake N. P. G. 370, 3 R R. 689 ; Garret v. 
Taylor, Gro. Jac. 567 ; Riding v. Smith, i Ex. D. 91 ; Levet^s case, Gro. Eliz. 289). 

* Lord Lindley (then L. J.) [1896] 1 Gh. at p. 82a. 

April, 1903.] Labour Competition and the Law. 19 1 

conduct towards the outworker was necessary to make the strike 
' effective/ In this case the defendants, who were officials of a trade 
union, procured to be boycotted not only the manufacturer, but 
also the outworker in order to prevent him supplying the former 
with materials for his trade. But their real and ultimate object 
was to force the manufacturer to grant a rise of wages. It was 
admitted by the judges that the boycotting of the manufacturers 
was legal, both as regards the strikers and the union. It seems 
in fact only possible to support the case, if at all, on the ground 
that the union, which the defendants represented, had not the 
adequacy of interest which the strikers possessed, and upon this 
question reference may be made to -ft. v. Botolands ^, where members 
of a trade union were successfully prosecuted for conspiring to 
procure a strike of men who were not members of the union. 
Sheer altruism is certainly no excuse. But if Lywis v. Wilkins 
is to be supported on this ground, it would follow that all procure- 
ment of strikes by a trade union comprising amongst its members 
persons other than the strikers, would be absolutely illegal. But 
in truth it would seem more accurate, upon this question, to 
regard the trade union and its officials as agents for each and every 
of the members ; appointed, that is to say, by each one (in effect), 
upon his admission to the union, to act in his behalf and to further 
his interests. 

We may next make two observations upon some expressions 
employed in the Mogul case. First, although Fry L. J. said in the 
course of his judgment in that case, ' to draw a line between fair 
and unfair competition, between what is reasonable and unreason- 
able, passes the power of the Courts/ and Lord Bowen and Lord 
Bramwell also made observations to a similar effect, those judges 
were merely dealing with the specific contention raised in the case 
that the offering of reduced rates by the defendants was ' unfair/ 
and perhaps also with the notion that the defendants might have 
stopped short of a complete annihilation of their rivals so far as 
a locally limited enterprise was concerned. They did not lay 
down, and one can hardly think they meant to lay down,, that 
a judge has no ' power ' to distinguish conduct which is within 
from conduct which is without the category of acts in the course 
of competition in ti'ade or labour. Observe, at any rate, that the 
doctrine cannot be successfully impugned on the ground that it 
admits in the courts an arbitrary discretion capable of working 
hardship in the hands of a biased or prejudiced judge. Every 
case of this kind can be decided, under the test indicated, upon the 

« (1851) 16 Q. B. 671. 

192 The Law Quarterly Beview. [No. Lxxiv.^ 

addacement of reasons and upon logical deductions based thereon. 
No decision based on reason can be truly said to be arbitrary. 

Secondly, while the dicta (previously referred to) of six judges in 
the same case as to the insufficiency of the element of restraint of 
trade for the purpose of constituting a ground of action in tort, are 
not only of binding authority, but historically speaking of un- 
questionable accuracy, and that, whether by resti-aint of trade be 
denoted an unreasonable restriction or a mere restriction placed 
upon trading capacities and possibilities, those statements do not 
touch the liability for inflicting a damage depending for its 
illegality upon the element of injuiy effected by combination with 
the object of inflicting harm or annoyance. In other words, though 
in the result the test of the illegality in question may incidentally 
depend upon the reasonableness of the agreement operating in 
restraint of trade, in respect of which and in furtherance of which 
the damage is inflicted, the gist of the illegality and the injuria is 
the harmful or alarming combination and not the unreasonable 
restraint of trade. 

The main principles however, herein contended for, do not seem 
to have been followed by Walton J. in the recent case of Oiblan v. 
National Amalgamated Labourers* Union of Oreat Britain and Ireland 
and others'^. The facts were these. The treasurer of an union 
became in arrear with his payments due to the union to the extent 
of some £38. He was sued in the County Court and judgment 
was given against him by consent, for two monthly payments of 
£5, and the remainder to be paid by monthly instalments of £1. 
He paid £4 and no more. A judgment summons was then issued 
claiming £1 1, which at the time was more than was due under the 
terms of the judgment, and the summons was consequently dis- 
missed with costs. Thereupon Williams, the general secretary, 
and Toomey, a local secretary of the union, wherever the plaintiff 
obtained employment, compelled his employer for the time being 
to give him notice to leave, by threatening that their men would 
be made to strike ; with the result that in the end the plaintiff was 
unable to find work and ceased to do any work at all. He brought 
an action against Williams, Toomey, and the union for damages, 
alleging a malicious conspiracy to injure him in his calling. 
Walton J. left the following questions to the jury: — 

1. Did the defendants Williams and Toomey acting together 

or individually call out the union men or threaten to call 
them out unless the plaintiff was stopped ? 

2. If they or either of them did, did they or he do so to 

* Tried at Cardiff Assizes, 19P2 (Ttmes, March 38, p. 10) ; 18 T. L. B. 500. 

April, 1903.] Labour Competition and the Law. 193 

*■ ■ ■ ■ ■ ■■ ■ ,. ■ . 

prevent or endeavour to prevent the plaintiff from 
getting employment or retaining his employment? 

3. Was this done in order to compel the plaintiff to pay the 

arrears of his defalcations ? 

4. Was it done in order to punish the plaintiff for not paying 

such arrears ? 
Certain alternative questions were also submitted to the jury in 
the event of their answering the above questions in the affirmative. 

5. Was what the defendants Williams and Toomey did only 

to warn the employers that union men would leave in 
consequence of union men being unwilling to work with 
the plaintiff? 

6. Was this done in consequence of the union men objecting 

to work with plaintiff? 

7. What damages, if any ? 

The jury answered the first three questions in the affirmative, 
and the fourth also as regarded Williams, but in the negative as 
regarded Toomey. Their replies to the alternative questions were 
in the negative, and they assessed the damages at £100. 

The learned judge gave on these findings judgment for Toomey 
on the ground that his object was, as the jury found, merely to 
compel repayment of the defalcations, and for the union on the 
ground that Williams was not acting within the scope of his 
employment as general secretary. But he gave judgment against 
Williams for £100 with costs. 

* Putting aside that part of the decision regarding the liability of 
the union ^ as irrelevant to the present purpose, an applicatioir 
of the principle suggested would seem to demand a somewhat 
different result from that actually arrived at, as to Toomey's 

It was held that Toomey was not liable, because his object was 

^ This part of the decision is baaed apparently on the fact that the rules did not 
expressly authorize the general secretary or the executive council to order strikes other 
than those set on foot with the object of improving or regulating the conditions of 
labour. It was, however, admitted that the gaperal secretary had powers identical 
with those of the executive committee ; andoy Rule III, 4, the executive com- 
mittee * is to take every means to further th9 objects of the imion and to protect its 
funds from misappropriation.' By Rule I, 3, one of the objects of the union is 
declared to be ' to protect the interests of all classes of labourers of either sex/ 

Under these circumstances one might have thought that in view of the finding 
of the jury that Williams had partly, and Toomey wholly, acted in order to compel 
payment of defalcations, i. e. ' to protect the interests ' of the union, the defendants 
had been placed by the union ' to do a class of acts in their absence ' within the 
meaning of the dictum of Willes J. in Baifity v. Manchester Bailway Go. (L. R. 7 G. P. 
41 5) ; and were (also in view of the finding of the jury) acting in their master's 
{acil, the union's) interests, within the principle of Limpus v. London O^nercU OmnibuB 
Co. (i U.& C. 526 ; 3a L. J. Ex. 34). In the latter case the act complained of, so 
far from being not expressly autJiorized, had been actually forbidden. But the 
master was nevertheless held liable. 


194 The Law Quarterly Review. [No.lxxiv. 

not to punish but to compel repayment of the defaJcations, and the 
learned judge said that Toomey's conduct was within the principle 
of the Mogul case, because his object was to obtain repayment of 
what was due to the union. It is humbly submitted that this was 
not of itself sufficient to exonerate Toomey from the legal liability 
for the conspiracy in which he took part. 

It may be useful, in the first place, and not perhaps altogether 
hypercritical, to point out that this case is not exactly parallel with 
the facts in the Mogul case. The blow or series of blows struck in 
the Mogul case were in the course of the give and take of trade 
rivalry and antagonism. There the primary intention was to 
jostle the plaintiffs out of the market by destroying their trade 
and thus to enrich themselves at the expense of the plaintiffs. 
Here, too, the primary object was to prevent the plaintiff from 
working, but the secondary object was to recover what was lawfully 
due to the union, to obtain for the union their own. It may be 
conceded that if — besides the fact that Toomey's (secondary) 
object being what the jury found it solely to be, namely the 
recovery of the money due — ^the course of action which Toomey 
proceeded to put into execution would reasonably have been under 
all the circumstances calculated to effect that object, the correctness 
of the decision as regards Toomey could not be gainsaid, assuming 
a true analogy in other respects to the Mogul case. His case would 
have been analogous in this respect, at least, to that of the 
defendant shipowners ; and if the analogy were complete in other 
^, respects, he would rightly have been held legally irresponsible. 

But suppose that the defendants in the Mogul case had done 
something financially injurious to the plaintiffs and in pursuance 
of their preconcerted scheme to drive the plaintiffs out of the 
carrying trade, but which could not fairly or reasonably be said to 
have furthered or have been calculated to further their cause in the 
least, would the defendants have been held under those circum- 
stances not liable for that damage? 

Applying now this consideration to GiblatCs case, how, it may be 
fairly asked, can preventing a man in Giblan's position in life 
earning his living and acquiring money be said to be reasonably 
calculated to ensure the satisfaction by him of his just liabilities? 
It is plain that if Giblan had been a man possessing sufficient 
means to pay, and for some reason or other refused to pay, such 
a course of aggression might prove highly efficacious for the purpose 
of extracting the money which he owed. But Giblan was pre- 
sumably not a rich man or even a well-to-do person. He was 
the officer of a trade union. The matter for which he had been 
sued was one of some £38, payable in two instalments of £5, and 

April, 1903.] Labour Competition and the Law. 195 

the remainder in monthly instalments. Is it conceivable that if he 
had had the means to pay, he would not have done so, at least 
when he found himself displaced from every employment he was 
able to obtain, and indeed face to face with ruin and starvation f 
May it not be fairly assumed that he would have paid what he 
owed if he could, and that he did not pay because he could 
not pay ? 

The case seems in fact a modem but apt illustration of the fable 
of the goose and the golden egg. In point of fact, the course which 
Williams and Toomey embarked upon was not only ineffectual for 
the purpose they had at heart, but was directly fatal to its success- 
ful accomplishment. It is therefore suggested that judgment, on 
this ground alone, might probably have gone against Toomey as 
well as against Williams. 

But again, is the principle of the Mo^l case applicable to any 
' antinomy ' other than the antagonism of lawful interests of the 
same kind 1 Does it touch cases other than those where the purpose 
of earning or producing money or its equivalent exists in two 
persons or sets of persons so as to constitute what is known as 
competition? Does it authorize persons to employ this form of 
molestation as a substitute for legal process 1 In Gregory v. 
Brunswick ^, where the defendants were alleged to have conspired 
to prevent the plaintiff from earning his living by hissing him off 
the stage, the plea that he was of immoral character and had edited 
a paper containing obscene and scurrilous libels was held no answer 
to the charge of conspiracy. The language of the judges in that 
case, when considered together with the objections fom^ulated in 
the demurrer, favours the inference that the plea was held to 
be no answer to the conspiracy, because the damage complained 
of was not in itself (i.e. objectively speaking) connected with or 
referable to the lawful object alleged to have been ultimately 
contemplated by the agreement, viz., the promotion of morality 
and the suppression of papers such as the plaintiff had edited'. If 
the plaintiff had offended the law, the law could take care of itself, 
and had provided a remedy. There was, in short, no such antinomy 
or conflict of interest as the law could recognize. 

It does not appear what evidence there was to justify the finding 

* 6 M. & G. ao5, 953 ; 6 Soott N. R. 809. 

' There is mudi to be said for the supposition that if the case had been presented 
as one of defamation (as it was not), the plea -vrould not even then have been held 
a good one ; for laudable as may have been the actual motive, the privilege accorded 
by the law to theatre-goers of condemning a piece or actor on its or his merits, 911a 
piece or actor, would seem to have been abused for the purpose of accomplishing 
an ulterior object. A plea alleging that the play or the actor's performance lacked 
merit would (sem52e), if the case had been presented as one of defamation, have 
been held a justification. 

O 2 

196 The Law Quarterly Beview. [N0.LXXIV. 

of the jury in GiblarC^ case that Williams was actuated by the 
additional desire to punish the plaintiff for not paying his debts to 
the union, or how his case was otherwise distinguishable from that 
of Toomey ; and one may be inclined to assume, rightly or wrongly, 
that it was proved that he had some personal animosity against the 
plaintiff, or that at least he knew that the plaintiff could not pay 
and that therefore what he (Williams) was doing would under the 
circumstances be ineffectual and consequently oppressive. 

The assumption of such a knowledge, however, would be scarcely 
consistent with the finding of the jury that Williams was actuated 
by {ifUer alia) a desire to make Qiblan pay his debt. 

If we assume, then, that evidence of this or a similar charact^ 
was absent, the case could be said, by reason of the apparent 
reductio ad ahmrdum^ to suggest the danger as well as the difficulty 
involved in leaving it to the jury to say on the whole case whether 
the intention of one defendant or more was to ' punish ' another or 
to further lawful interests, or as was found in this case to do both. 
Or indeed of invoking the services of a jury at all in cajses of this 
character except for the purpose 

{a) of finding that the damage had been inflicted in pursuance 
of an agreement entered into with the primary and specific 
object of causing loss to the plaintiff. 

{b) of finding facts, if any, from which the judge may properly 
infer privilege ; and, 

((?) where necessary, of showing that the defendants or defen- 
dant have or has abused a position to which privilege 
prima facie attaches. 
It must be admitted that this distinction between legally pre- 
sumed motive and actual motive, and the corresponding functions 
of judge and jury, has not hitherto been clearly recognized in any 
recent case. One can only say that it is a distinction likely to be 
definitely evolved from the present chaos, and if and when adopted, 
likely to find support and approval on the score of reason and 
justice. * I think/ said Lord Herschell in Allen v. Flood, speaking 
of the motive of the ironworkers, ' the term punishment has proved 
misleading.' In that case the plaintiffii who were shipwrights had 
previously worked on iron, a practice which the defendants' union 
resisted as conflicting with the interests of ironworkers. Con- 
sequently, when the members of the defendants' union refused 
to work with the plaintiffs and threatened to strike if the latter 
were retained in the same employment with themselves, the iron- 
workers and Allen acting in their behalf as their spokesman, 
messenger, or agent, were, it was said, merely upholding the 
competitive rights of ironworkers as a class. And Lord Herschell 

April, 1903.] Labour Competition and the Law. i9r 

certainly appears to have thought that the actual motive underlying 
the conduct of Allen and the ironworkers was a proper one. One 
may at least say that there was no reason to suppose that the 
predominating motive underlying AlletCi conduct was that of ill-will 
rather than the desire to protect the interests hi ironworkers from 
the encroachment of shipwrights. But the propriety of the motive 
of the ironworkers themselves, to be inferred in law from considera- 
tions of the possible benefit to be derived from their striking, is 
a different question entirely ; and it appears to the writer that the 
legal position of the ironworkers and of Allen respectively should 
be distinguished. 

It seems, however, to have been admitted by the respondent's 
counsel that the ironworkers would have been doing a lawful and 
justifiable act in striking; and Lords Watson, Herschell and 
Macnaghten certainly dealt with the case on this assumption. It 
is believed that this admission was a false step on the part of the 
respondents, although for a reason which we shall notice later on, 
it does not in any way concern the correctness of the decision 

Was, then^ the act of the ironworkers, which Allen truly said 
would result on a given contingency, reasonably calculated to advance 
their interests or benefit their pockets 1 Would the ultimate object 
of the strike, the dismissal of Flood and Taylor, operate in any 
reasonable sense to the advantage of the ironworkers ? Herein lies 
the difficulty at first sight of recognizing the accuracy of the 
decision in Allen v. Flood. The shipwrights were not working at 
the time on iron, though they had done so previously in a different 
yard. If they had been doing so at the time, and it had appeared 
that there were certain of the ironworkers' union ready and anxious 
to fill the posts occupied by Flood and Taylor, and also that the 
Company's men had a general authority to act in the interests of 
such ironworkers, an antinomy capable of vicarious prosecution ^ 
might have arisen. But the antinomy, if antinomy there might 
once have been, had ceased with the altered conditions. The 
shipwrights had not only ceased to offend, but had left the scene 
of their offending. The chapter was closed, and there had been no 
fighting. The occasion for attack was gone. For the Company's 
men it had never existed. All that the dismissal of Flood and 

^ I asBumd that what I and JC may lawfdlly do by the weapon of combination, 
but which by reason of the circumstances we are unable to do, we may 4epute to 
Y and Z to do for us ; and Y and Z may shelter themselves under our privilege. 
The very life of trade unionism seems to hang on this principle. It is defensible 
on two grounds, (1) that the law encourages competition as far as it can, and (a) the 
honaflde exercise of an authority to conduct a vicai^ioua attack rebi^ta the presump- 
tion of malevolence as against Y and Z. 

198 The Law Quarterly Review. [No.lxxiv, 

Taylor could achieve would be a warning to any shipwright who 
might hear of the matter, not to act with reference to any 
ironworker, as certain shipwrights had acted towards certain iron- 
workers in the past; ironworkers who had actually made no 
objection at the time either for themselves or for other people. Was 
this an adequate interest as regards the Company's men ? 

Fortunately, however^ we are saved from the inference that 
Allen V. Hood is a conclusive authority for the proposition that 
persons may combine to alarm another person by the use of 
numbers, in order to injure a third person, merely because that 
third person has done something in the past which not only he has 
specifically ceased to do, but which by reason of altered conditions ^ 
no longer concerns, save on a forced basis, the persons combining, 
either personally or as authorized representatives of kindred 
interests. For in the first place, the judges in the House of Lords 
expressly refused to consider (see per Lord Watson [iSpSJ.A. O. 
p. 99) whether a case of unla¥7ful intimidation and coercion had 
been made out, as that question had been raised too late. For 
this purpose it is suggested that the question whether the threatened 
combination of the ironworkers would have been justifiable or no, 
would have been a material element for consideration; but here 
again it is to be observed that the judges throughout expressly left 
out of consideration any question of conspiracy either as a main 
or even, it seems, an incidental feature of the case. This is no 
doubt to be largely accounted for by the fact that Kennedy J. 
directed the jury that there was no evidence of intimidation, 
coereion, or conspiracy. But this seems properly applicable only 
to Allen's conduct and not that of the ironworkers. It is true that 
Lord Watson said that in his opinion the employers had not been 
coerced in any proper sense, but had merely followed their own 
interests in the course which they took; but it is difficult to 
support the reasoning contained in this statement, and literal 
importance ought not to be attached to the language of Lord 
Watson, which he had himself relegated to the category of obiter 
dieta^ and whereof he had disarmed criticism by declaring that the 
question was raised too late, and that he did not intend to deliver 
any decision thereon one way or the other. Similarly, although 
Lords Watson, Herschell, and Macnaghten certainly expressed 
opinions to the effect that the ironworkers were at liberty 
to strike against Flood and Taylor, this had been admitted 
by the respondents' counsel ; a contrary view of the law had not 
been presented to the noble and learned judges for their considera- 

^ I oonoeivd every competitive antinomy to be potentially limited both aa Tdgarda 
time and spaoe according to the eircumstances, not only in labour, but in trade. 

April, 1903.] LahofUT Competition and the Law. , 109 

iion ; and it does not appear that the question of conspiracy was 
even present to their Lordships' minds. Thus at p. 99 Lord 
Watson says that the ironworkers were ^not under any continuing 
engagement to their employers, and if they had left their work and 
gone out on strike, they would have been acting within their rights 
whatever might be thought of the propriety of the -proceeding/ 
thus rendering it certain that his Lordship had in mind merely the 
ironworkers' rights as against their employers under the terms of 
their employment, without adverting to the fact that such a strike 
might be unlawful as a conspiracy to harm the employer, set on 
foot in order ultimately to reach Flood and Taylor. 

Consequently, if a similar case were to come up for discussion, 
it would still seem open to a court of first instance to decide, and 
especially so since Quinn v. Leathern^ that conduct like that of the 
ironworkers as distinguished from that of Allen, would amount to 
an unlawful threat. Moreover, if the threat instead of remaining 
outstanding were actually carried out, it still seems open to the 
Courts to decide that the employer or the servant, alternatively, 
would have a cause of action, according as the employer stood firm 
or yielded to the pressure. The truth indeed seems to be that the 
Glengall Lron Company, though in a sense coerced by the conduct 
of the ii'onworkers and Allen alike, were illegally coerced by the 
ironworkers, scUicet through the legally innocent agency of Allen. 
Flood and Taylor, on this view, could have alleged against the 
ironworkers an obstruction by unlawful conduct towards an inter* 
mediary, i.e« the employers, and in addition they might have 
charged an unjustifiable agreement to alarm them, but as regards 
the latter averment, the jury would have to find (sembie) a specific 
desire to alarm Flood and Taylor, upon the principle laid down at 
the commencement of this Paxt. 

And we get some distinct and important expressions of opinion 
in Quinn v. Leathern that the conveyance by one person to the mind 
of another of an impression or belief that an unlawful act would be 
done by third persons upon a certain contingency to that other, 
does not necessarily amount to unlawful intimidation. < Truly,' 
said Lord lindley, speaking of Allen v. Floods ' to inform a person 
that others, not under the control of the informant, will annoy or 
injure him unless he acts in a particular way cannot of itself be 
actionable whatever the motive or the intention of the informant 
may have been,' And this rule seems founded on reason and 
general expedience. 

If, however, Allen had been one of the ironworkers themselves, 
or if the ironworkers had been making a mere idle threat, and 
Allen knew that they did not intend to carry out what they 

200 The Law Quarterly Review. [No. Lxxiv* 

threatened, the position of Allen would in either case become 
identified with that of the malcontents, and the case no doubt would 
have been different. 

We are therefore led to the conclusion that the respondents were 
rightly held to have no cause of action against Allen ; but that if 
they had sued the ironworkers, in person or by means of a repre- 
sentative suit, they would (in view of Quinn v. Leathern) probably 
have succeeded ^ 

Under these circumstances it became a serious question in Quinn 
V. Leathern as to the precise extent to which Allen v. Flood was 
a binding authority. 

True, it had been conceded in the earlier case that a strike on 
the ironworkers' part would have been perfectly legal. But, as 
we have seen, this was never actually decided, and reasons have 
already been adduced for thinking that that concession was based 
on insufficient grounds. And it certainly does not follow that, 
because a person merely acting as an independent agent or mouth- 
piece for a body of men, and not acting as one of their number, 
and not otherwise identifying his legal position with that of the 
body, was held in one case to have acted lawfully in communicating 
the intentions of the body, that case must be considered a binding 
authority for holding such body of persons in similar drcum^ 
stances justified in agreeing upon and actually committing that 
injury, as was the case in Quinn v. Leathern, The legality of the 
communication rests under those circumstances independent of 
the legality of the contemplated act whereof communication is 
made. The act of the agent and the intended act of the principals 
are obviously diverse in character. Allen had no doubt the 
interests of the ironworkers at hearty but to make him liable, it 
was necessary to show not only (i) that the ironworkers were 
threatening an illegality, but (2) that Allen had actually encouraged 
them in that course. He would have to be not the mere medium 
of the wrong but an actual party thereto. 

Both these conditions were held by the Lord Chancellor to be 
fulfilled in Allen v. Flood^\ the first in point of law and the second 
on the evidence. The first of these contentions is, it is submitted^ 
confirmed by the decision in Quinn v. Leathern ; on the second point) 
the Chancellor's view was outweighed by that of the majority. 

Viewed in the light of these considerations, the following passage 
in the Chancellor's judgment seems particularly apt 'A case is 
only an authority for what it actually decides. I entirely deny 

^ ^ It is clear that the ironworkers' union could not have been made responsibla 
in any case, since the ironworkers were acting wholly Independently of their union. 
* See his judgment in Qutnn v. LeaXham. 

April, 1903.] Labour Competition and the Law. 201 

that it can be quoted for a proposition that may seem to logically 
follow from it. Such a mode of reasoning assumes that the law 
is necessarily a logical code ; whereas every lawyer must acknow-' 
ledge that the law is not always logical at all.' This passage seems 
to have been understood by some critics as tending to detract from 
the value of precedent as a guide to the decision of analogous cases^ 
and also to have created consternation on the score that it does not 
tally with the (statement of Sir Edward Coke that ' reason is the 
life of the law, nay the common law itself is nothing else but 
reason.' But (taking each point in order) the law indeed cannot 
always be logical. Its hands are tied by historical considerations 
and the express or tacit authority of precedents. It is however 
logical in this, that while it consistently follows authority deciding 
that conduct presenting certain essential characteristics is actionable < 
it as consistently refuses to be wholly fettered by considerations of 
morality or justice, where those considerations directly conflict 
with positive or negative inferences of an obvious character, 
derived from the language of judges or from the trend of actual 

The cases of Allen v. Flood and Quinn v. Leathern^ if we consider 
them as they were actually presented, are in no true sense analo- 
gous except that the character of the damage in each case was 
similar. A judicial decision as to the legality of conduct apart 
from agreement can have no bearing on a decision as to the legality 
of entering into an agreement. Taken as presented to the Lords, 
these cases were as analogous to one another as the injury caused 
by a murderous assault is analogous to that caused by the negligent 
swinging of a stick. 

The true suggestion rather would seem to be that to distinguish 
between these remarkable cases is to emphasize, if anything, the 
value of precedent as furnishing grounds for drawing legal in- 
ferences. An inference from precedent, be it observed, may be 
none the less direct because^ that inference is not positive in 
character but negative. The second ground of criticism may be 
met in the reflection that human thought and speech are apt to 
be coloured by the occasion of which they are begotten. The 
language of Coke indeed in the passage cited (Co. Lit. 97 b) 
contrasts strangely with his answer to James I, on the question 
of the king's right to sit hi person and try causes. This is the 
remark which the king hazarded: 'My Lords, I have always 
thought, and by my saul, I have often heard the boast, that your 
English law was founded upon reason. If that be so, why have 

^ As was the case in Alien v. Flood with reference to the procurement by a single 
indiridual not to make contracts. 

202 The Law Quarterly Review. 

not I and others reason as well as you, the Judges ? ' And this is 
what Coke C.J. replied :'...! crave leave to remind your Majesty 
that causes which concern the life or inheritance, or goods or 
fortunes, of your subjects are not to be decided by natural reason, 
but by the artificial reason and judgment of law \' It was Lord 
Bowen' who wittily observed upon another utterance of Coke, 
'Does not Lord Coke in one respect resemble the enemy of man- 
kind, in that he can always quote Scripture when it suits his 

So much for the doctrine of legally presumed motive. Lastly, 
as to the actual state of mind necessary to supplant the presump- 
tion of a proper motive. In the case of defamation, the ulterior 
motive must, it appears, govern the conduct in question of the 
defendant or dominate his mind to such an extent that he may be 
said to have abused his privileged position, and to have acted not for 
the purpose of exercising his lawful rights, but for the sake of 
a purpose foreign to that with which the law would otherwise 
credit him ^. It may be so with conspiracy also ; but a plaintiff 
will always find some difficulty in persuading a jury that a man 
has not acted chiefly with a view to his own temporal advantage, 
when there is a presumption in his favour that he has so acted. 

D. R. Chalmers-Hunt. 

* Campbell's Liyes of the Chief Justices of England, vol. i. 272 ; 12 Coke» 64. 

' The Mogul case, in arg. 

' See [1898] A. C. p. 19, per Lord Brampton (then Hawkins J.)* 



WORDS, acts, or writings which are admitted as part of the 
re9 gestae are circumstantial evidence of an original and 
proximate nature. Such evidence is necessarily circumstantial, 
because its function is to vary, qualify, or explain the main fact. 
It is even more obvious in the case of res gestae than in the case of 
other circumstantial evidence, that there must be an open and 
visible connexion between the principal fact and the evidentiary 
fact. Evidence which is admitted as part of the res gestae must be 
fact, not narration ; must be original and not second-hand evidence. 
^Bes gestae is in truth original evidence, though treated under the 
head of hearsay ^' Best also considers res gestae to be Hhe original 
proof of what has taken place ^.' Best points out that the least 
reflection will show that it consists of words as well as acts. On 
an indictment for treason in leading on a violent mob, evidence of 
the cry of the mob is not hearsay, and is as original as any 
evidence can be ^. Perhaps the best definition of res gestae is that 
the expression includes ' every thing that may be fairly considered 
an incident of the event under consideration^.' The res gestae are 
'the whole of the evidentiary facts, that is the details of fact 
which compose the facts directly in issue, which are evidence 
as part of the history of the case ^.' In Campbell's Buling Cases, 
the doctrine of res gestae is thus stated : ' Words and declarations 
are admissible when they accompany, or immediately — and so 
that there is no time for reflection — follow (and tend to set a 
character upon) some act or event the nature of which is the subject 
of the inquiry ®.' It is, however, clear from Taylor and Best that 
many cases have decided that the doctrine of res gestae extends 
to acts and writings as well as declarations. An unpublished 
writing, even on an abstract subject, is admitted in evidence when 
it is in furtherance of a design of conspiracy ''. It is also considered 
that \i ]& BA res gestae that old leases are admissible as acts of 
ownership against parties in no way privy to them ^. The doctrine 
of res gestae extends to acts as well as declarations and writings. 

* Taylor on Evidence, vol. i. p. 391. ' Evidence, p. 4ii> 

' Case of Daanaree and PimtAom, Foster, Cr. Law, 3x3 ; 15 How. St. Tr. 52a ; R, v. 
tord Qwrge Qcrdon, 21 How. St. Tr. 5x4. 

* Tajlor, vol. i. p. 376. ' Encyd. Laws of England, Art. Evidence. 

* Ruling Gases, vol. xi. p. 281. ^ R, r. WaUm (18x7) 32 How. St. Tr. 82. 
' Briitouf v. Cormiean (1878) 3 App. Oas. 641, 653, 668. 

204 The Law Quarterly Review. [No. Lxxiv. 

On an indictment for treason, when the evidence showed that the 
prisoner was a member of the directing body of a conspiracy, and, 
after his arrest, an insurrectionary movement, the result of the 
commands of the directing body^ broke out in several places in 
Ireland, it was held that those acts of war were receivable 
in evidence against the prisoner^. This case is cited in the 
elaborate discussion on the admissibility of evidence as part of the 
res gestae that is found in Taylor on Evidence ^. It would follow 
from Campbell's definition of the rule that words are admitted 
as part of the res gestae^ when they 'immediately follow' the subject 
of the inquiry. At a trial for murder, a minute or two after the 
prisoner was seen going into a house, the victim of the crime came 
suddenly out with her throat cut so severely that she died within 
a quarter of an hour. On coming out the victim said something, 
pointing to the house. The words so uttered, immediately after 
the event, were excluded by Cockbum C. J. at the tiial on the 
ground that they did not form part of the res gestae ^. This case* 
and the correspondence between Lord Chief Justice Cockbum and 
His Honour Judge Pitt-Taylor that ensued on the admissibility 
of evidence, will be referred to later. But as the whole event 
transpired within a few minutes, it seems impossible to conceive 
a case where it could more aptly be said that the words ^ im- 
mediately followed ' the act which was the subject of the inquiry ; 
and, if Uie rule as thus stated in CampbelVs Buling Cases was 
correct, the evidence would have been admitted in R, v. Bedingfield, 
In Best on Evidence, it is considered that the Chief Justice had 
the best of it in the correspondence that took place on his rejecting 
the evidence. According to the reasoning with which Lord Chief 
Justice Cockbum supported his ruling, where the act has been 
fully consummated, words that ' immediately follow * do not form 
part of the res gestae. In that case the action was fully consum- 
mated, because the prisoner had made a determined attempt at 
suicide immediately after the attack on the woman, so that she 
could have nothing further to apprehend from him. In Russell 
on Crimes, evidence which is admitted as part of the res gestae is 
considered under the head of hearsay evidence, and seems confined 
to evidence of declarations and complaints^. It is observed in 
Roscoe's Nisi Prius Evidence : ' The res gestae in each case is original 
evidence ; and the accompanying declai*ation, being part of it, is also 
original evidence^.' Archbold states : 'When hearsay is introduced, 

» R. V. M*Cafferty (1866-7) ^' ^ep- » 0. L. 363. 
' Taylor on Evidence, vol. i. at p. 385 (9th ed.). 
» J2. V. Bedtnaj'feW(i879) 14 Cox, C. C. p. 342. 

* Russell on Crimps, vol. iii. pp. 384-6. 

* Roscoe's Evidence at Nisi Prius, vol. i. p. 53. 

April, 1903.] Specially Admissible Evidence — Ees Gestae, 205 

not as a medium of proof to establish a distinct fact, but as being 
part of the transaction in question, it is admissible . . . This kind 
of evidence is usually described as res gestae ; and it does not seem 
quite accurate to describe it as hearsay ^/ A declaration made by 
an agent, acting at the time within the scope of his authority, 
is part of the res gestae, and the hearsay evidence given of such a 
declaration is not regarded as second-hand or derivative evidence \ 

But that the subject is one of great difficulty may be inferred 
from the statement in Taylor on Evidence, that it is not easy to 
explain of what the res gestae consists. Lord Blackburn is credited 
with having observed that if one tenders inadmissible evidence, he 
should^ if it is in chief, say that it is ' part of the res gestae^ and if 
it is in re-examination, ^ that it arises out of the cross-examination.' 
In R. V. Kershaw^ at the Liverpool Winter Assize, 1902, Bucknill J. 
alluded to * the mysterious doctrine of the res gestae' It must be 
remembered that the propriety of excluding evidence was more 
demonstrable formerly when parties to neither criminal nor civil 
proceedings could give evidence on oath. When, therefore, it was 
sought to tender hearsay evidence of the declarations of a defendant 
in equity, or of a prisoner, such evidence was open to the objection 
that attaches to all second-hand evidence, that there was no oppor- 
tunity for cross-examination. But now by the Evidence Act, 1851 
(14 & 15 Vict. c. 99), 8. 1, a party to a suit is a competent witness in 
civil proceedings ; and by the Evidence in Criminal Cases Act, 1898, 
a prisoner is allowed to give evidence on his own behalf. Sub- 
stantive law is said always to arrive at its perfection before adjec- 
tive law. The rejection of the evidence of the declarations of a 
defendant in equity was justifiable before 1851 on the general 
principle that derivative or second-hand proofs are not receivable 
as evidence in causa. But the objection to receiving such evidence 
disappeared after that date, when a defendant in equity could offer 
responsible testimony. The same applies to criminal proceedings 
after 1898. In the correspondence that ensued on R, v. Redingfield^ 
Lord Chief Justice Cockbum indicated that even the all but inflex- 
ible rule, tha^ no statements are admissible against a party ohai^ged 
which were made in his absence, might be relaxed if a prisoner was 
allowed to give evidence on his own behalf, and even said that it 
would be advantageous and in the interests of justice that it should 
be removed in that event ^ 

Best observes that the technical rules regulating the burden of 
proof cannot be followed out in all their niceties when they press 
against accused persons. As an instance of the generalization, there 

I Archbold*8 Grimical Practice, Pleadings and Evidence, p. 392. 
« -R. V. SaU, 8 C. & P. 358. • Law Journal, 1880, p. 16. 

206 The Law Quarterly Review. [NcLXXiv. 

can be cited a case in criminal proceedings where evidence of inten- 
tion has been rejected, while in civil cases, on questions of domicil, 
declarations as to the intention with which a person goes to a place 
are admissible. Where on a trial for murder it was proposed by 
the prosecution to ask a witness what the deceased said on leaving 
her lodgings, that being the last occasion on which she was seen 
alive, Cockbum C.J. refused to allow the question to be put, saying, 
' it was no part of the act of leaving, but only an incidental remark. 
It was only a statement of intention which might or might not 
have been carried out^.' But upon an action to establish a French 
domicil, where a testator had made a will in the English form, so 
that if his domicil was not English the will could not have taken 
effect, the testimony of witnesses was admitted who had heard 
^ some declarations (of the testator) in casual conversations,' that 
he had intended to return to France (Doucel v. Geoghegan (1875) 
9 Ch. D. at p. 455). In another case, which also involved the question 
of domicil, the Court stated that, though hearsay evidence of verbal 
declai-ations of the intentions of a testator about his domicil 
' have been considered by many authorities the lowest species of 
evidence,' especially when encountered by conflicting declarations, 
yet * there was no doubt that such declarations are admissible 
evidence in these questions of domicil ^.' 

Sir James Stephen says, ^ the term res gestae seems to have come 
into use on account of its convenient obscurity ^' Lord Chief 
Justice Cockbum seemed to have thought the meaning of the term 
obvious, when he alluded to ' the much abused term res gestae which 
lawyers persist in using as though there were no English equivalent 
capable of expressing its meaning^.' In the correspondence 
referred to, Lord Chief Justice Cockbum expressed the opinion that 
the term was not found in the reports till long after Ix>rd Holt's 
time. It is submitted with some confidence that the first occur^ 
rence of the term res gestae in the reports is where it is used by 
Lord Ellehborough, in Aveson v. Lord Kinnaird (1805) 6 East, 
at p. 193. In that case, evidence was admitted of the declarations 
of a wife as to her state of health, made shortly before effecting a 
policy of life insurance, with a view to show the policy had been 
obtained by fraud. In a subsequent decision it was observed that 
the declarations in Aveson v. Lord Kinnaird were received on the 
principle of the res gestae^. But Lord Chief Justice Cockbum 
observed of Mr. Pitt-Taylor's citing Aveson v. Lord Kinnaird, that 

» R, Y. Waimaright (1875) 13 Cox, at p. 17a. 

* Hodgton Y. Le Beavcheine (1858) la Moo. P. C. 325. 

* Sir James Stephen's Digest of the Law of EYidence, p. 161. 

* Law Journal, 1880, p. 15. 

* Per Bayley J. in Doe d. Ridgeway {1^20) 4 B. & Aid. at p. 55. 

April, 1903.] Specially Admissible Evidence — lies Gestae. 207 

that ease had about as much to do with the doctrine of res gestae 
as 'an Odo of Horace or one of ^sop's Fables.* In Taylor on 
Evidence the case is cited among those where hearsay evidence can 
be tendered of expressions of bodily and mental feeling, and is not 
expressly alluded to among the cases where evidence was admitted 
as part of the res gestae. But the cases where hearsay evidence is 
received of a person's mental or bodily feelings are explicitly 
declared to fall under the principle of res gestae in Taylor on 
Evidenced Mr. Pitt-Taylor could, therefore, with complete con- 
sistency cite Aveson v. Kinnaird when discussing the admission of 
evidence as part of the res gesf^ae^ without incurring the reproaches 
that Lord Chief Justice Cockbum addressed to him, as Junius 
addressed Blackstone, for the inconsistencies between his deliver- 
ances as an author and as a controversialist. And the observations 
of Bay ley J. in 1820 constitute an additional vindication of Mr. Pitt- 
Taylor's contention that Aveson v. Lord Kinnaird was a case where 
the declarations were admitted as part of the res gestae. It is diffi- 
cult to understand how Lord Chief Justice Cockbum could, after 
this, have contended that Aveson v. Kinnaird bears about as much 
on the doctrine of res gestue as an Ode of Horace or one of ^sop's 
Fables. But the case is clearly to be distinguished from R. v. 
BedingfieU as one where the declaration admitted as part of the res 
gestae was made before^ and not after, as in the latter case, the 
subject of the inquiry. But as this difference between the times of 
the declarations is essential, it is at least as difficult to understand 
how Mr. Pitt-Taylor could have thought Aveson v. Lord Kinnaird, 
though it clearly appears to be a case where evidence was admitted 
as part of the res gestae, supported his protest against the rejection 
of an ex post facto declaration as not forming part of the res gestae. 

The presumed derivation of the term res gestae fi*om the Civil 
Law does not appear to have been insisted on in any reported case, 
and was not alluded to in the correspondence between Lord Chief 
Justice Cockbum and Mr. Pitt-Taylor. The Roman Law of 
Evidence is not one of the most valuable portions of the Civil Law. 
A distinction was pointed out in Mason v. Mason (1816) i Mer. at 
p. 312, between the value of adducing, in an English Court of 
Justice, legal principles and mere presumptions of fact derived 
from the Civil Law. It was said in that case by Sir W. Grant that 
the English Courts have never adopted presumptions of fact from 
the Civil Law, such as the presumption that a person lives for 
a hundred years after he is last heard of alive. But presumptions 
of this kind constitute an integral portion of the law of evidence. 

» P. 391. 

208 The Law Quarterly Review. [No. lxxiv, 

Again the phrase rei gestae as applied to the subject of judicial 
inquiry is not, correctly speaking, derived from the Civil Law. 
A transcript from Pomponius in the Digest shows that the Romans 
designated the subject of judicial inquiry as res gestae. Cf. Dig. 22, 
5, II. Even a person who has not been summoned as a witness is 
expected to observe good faith as regards the res gestae. Dirksen 
gives gestum as equivalent to factum^ and gesta as equivalent to 
public monuments and records. 

While the first occurrence of the term res gestae seems to be the 
use made of it by Lord EUenborough in Aveson v. Lard Kinnaird-^ 
where it occurs in a remark Lord Ellenborough addressed to counsel, 
and not in the judgment — the principle can be traced to Lord Holt's 
time. Li an action for assault brought by the husband and wife 
at Nisi Prius, Lord Holt allowed the declarations of the wife, made 
immediately upon the hurt received, and before she had any time 
to devise anything to her advantage, to be received. in evidence ^. 
Lord Chief Justice Cockbum pointed out that the meagre report in 
Skinner prima facie refutes Lord EUenborough's explicit statement 
in Aveson v. Lord Kinnaird^ that Lord Holt admitted the evidence as 
part of the res gestae. It is curious to note that the notion that 
Lord Holt used the term res gestae may have been induced by the 
reporter's note to B. v. Foster (1834) 6 C. & P. at p. 325, where 
the obiter dictum of Lord Ellenborough about Thompson v. Trevannion 
is given totidem verbis, but without the implicit acknowledgment of 
inverted commas. This footnote therefore seems to induce the 
notion that Lord Holt must have used the term res gestae. In Doe 
d. Eidgeicay (1820) 4 B. & Aid. at p. 54, in the proof of a pedigree, 
the dying declarations of the servant of the person last seised, as 
to the relationship of the lessor of the plaintiff to such person, 
were held not receivable in evidence- The doctrine of res gestae 
was pronounced not to apply to this evidence. But in^ the argu- 
ment, counsel cited caseis where second-hand evidence had been 
received ^. Abbott C.J. said, * The cases cited are, I believe, the only 
exceptions to the general rule of not receiving evidence, unless upon 
oath, and with the opportunity for cross-examination. I am not 
aware of any other ^' Bay ley J. said, *Li Aveson v. Kinnaird, the 
declarations were received upon a very different principle. There 
they were part of the res gestae *.' It therefore seems that, accord- 
ing to the King's Bench in 1820, Aveson v. Lord Kinnaird was the 
first case of the admission of specially admissible evidence as part 
of the res gestae. The other two cases cited in the argument in Doe 

^ Thxmp$on v. Tretannum (1694) Sk. 40a. 

' Wright dem. C2yni«r v. LUUe (1761) 3 Burr. 1244; Lrvmmond's case, i Leach, Cr. 
Cas. 378; Tinlder's case, i East, PI. Cr. 
' 4 B. & Aid. at p. 54. « 4 B. & Aid. at p. 55. 

April, 1903.] Specially Admissible Evidence — Res Gestae. 209 

d. Ridgeway (i8ao) have no more to do with the doctrine of resgestae^ 
to employ the language of Lord Chief Justice Cockbunx^ ' than an 
Ode of Horace or one of iEsop's Fables.' Tinkler' 9 case (178 1) was 
a case of a dying declaration — wrongly referred to by Bayley J. in 
Boe d. Sidgeway, as a confession * by a party who had taken the 
poison/ Brummond^s case decided that the declaration of a convict 
at the moment of execution cannot be given in evidence as the 
declaration of a dying man ; for, being attainted, his testimony 
could not have been received on oath. This case is of purely 
historical interest. 

But in another case cited in the argument in Boe d. Ridgetoay^ that 
of Wright dem. Clymtr v. Little (1761) 3 Burr. 1^44, Lord Mansfield 
allowed the dying declarations of a subscribing witness to a forged 
instrument to be given in evidence impeaching it. Nothing was 
said as to the declaration forming part of the ren gestae ; Lord 
Mansfield merely saying that the evidence was proper to be left to 
the jury^ as the declaration in question was *a confession of great 
iniquity^ and as he could be under no temptation to say it, but to 
do justice and ease his conscience ^.' This case is of no importance 
at the present day, when it would certainly not be followed. Dying 
declarations are now confined to the single case of homicide, ' where 
the death of the deceased is the subject of the charge, and the 
circumstances of the death the subject of the dying declaration'.' 
It was, however, approved as late as iSao by Bayley J. in Boe d. 

It is as res gestae that old leases are admissible as acts of owner- 
ship, although they are res inter alios acta. This rule is directly 
traceable to Lord Mansfield, according to Lord Blackburn in Bristow 
V. Cormican (1878) 3 App. Cas. at p. 668. Lord Mansfield said, and 
the whole Court agreed with him, 'that these old leases were proper - 
evidence to show that at that time the lord of the manor did in fact 
demise the ground ^.' It is thus possible, and seems a vindication 
of historical consistency, to regard Lord Mansfield as the founder of 
the admissibility of evidence as part of the res gestae. But he can 
only be regarded as having implicitly done so, because he does not 
employ the term itself. In order that res gestae should be admissible in 
evidence, it must be shown that they are relevant to, and connected 
with, the event under consideration. ' The acts by whomsoever 
done are res gestae^ if relevant to the matter in issue. But the 
question remains, what are relevant?^' This question, it is 

^ 3 Burr, at p. 1255. * R. v. Mwd (1824) 2 B. & C. at p. 6o8 ; a6 B. R. 486. 

* 4 B. & Aid. at p. 55. 

* OorAson ▼. WoodhouM (1782) 3 Doug, at p. 191 ; and 5 T. R 412 n. 

* Per Parke B. in Wright v. J>O0 d. TfXtham, 7 A.'& £. 355. 


210 Tfie Law Quarterly Review. [No.LXXiv. 

observed by Sir James Stephen^ goes to tbe root of the whole 
subject^. If tbe acts are irrelevant, both the acts themselves and the 
declaration qualifying or explaining them wiU be rejected ^. For 
instance, in an action against a town for injuries sustained through 
a defect in a highway, the declaration of a surgeon, since deceased, 
made at the time of his examining the plaintiff's wounds, have been 
rejected as evidence of the nature and extent of the inquiries, since 
the fact of the surgical examination would itself have been im- 
material, and the declaration were no more than the mere hearsay 
expression of a professional opinion; Lund v. TyngAormgh (1851)^. 
In Wright v. Doe d. Tatham (1837) (7 A. & E. 313) the question 
was whether a testator had been of sound mind. Three letters 
were sought to be tendered in evidence, addressed to the testator 
as if he were an intelligent man. These letters were held 
not admissible, as not being relevant to the inquiiy whether the 
testator was of sound mind. The letters would have been admis- 
sible if they had been connected with any act of the testator; 
if, for instance, he had acted on them by answering them. Taylor, 
commenting on this case, says : — 

' For such a letter, if admissible at all, must be so, either because 
the act done in writing and sending it is evidence in itself, or 
because the opinion which is inferentially expressed by it being 
done is evidence. But the act done ^that of writing and sending 
the letter) is . . . obviously immaterial to the strict issue (that of 
sanity or insanity) ; and where the declaration per se cannot be 
received, no case has yet established that the union of the two 
things (the irrelevant act and the accompanying declaration) will 
render them admissible ^* 

In an action for the infringement of a patent, what a third party 
relates of an isolated conversation he held with a deceased person, 
who sold him some of the product subsequently to the date of the 
patent, is not admissible in evidence as part of the re* gestae ^. The 
act and declaration need not concur in point of time with the event 
under consideration, but must not be subsequent. Thus entries in 
booliu made in furtherance of a conspiracy are adlnissible, but 
memoranda of payments made after the fraud by one conspirator 
to another are not*. If on a charge of conspiracy to annoy a 
broker who distrained for church rates, it be proved that one of the 
defendants (the other being present) excited the persons assembled 
at a public meeting to go in a body to the broker's house, evidence 
that they did so go is receivable, although neither of the defendants 

^ Law of Evidence, p. 161. ' Taylor on Evidence, p. 379. 

' 9 Gush. 37 (an American case). 

* Evidence, pp. 379, 380. ' Hyda ▼. Pcdrntr (1863) 3 B. & S. 657. 

* R, V. mak9 (1844) 6 Q' B. ia6 ; 13 L. J. M. C. 131 ; 8 Jur. 666. 

April, 1903.] Specially Admissible Evidence — Res Gestae. 211 

went with them ; but evidence of what a person who was at the 
meeting said some days after, when he was himself distrained upon 
for church rates, is not so ^. In this last consideration, the words 
spoken were sought to be as tendered in evidence as a narrative of an 
event that transpired subsequently to the event under consideration. 
Neither is evidence of a conversation admissible as part of the res 
gestae which was overheard between men apparently returning 
from a meeting, held within an hour before, about half a mile off, 
though it be offered as evidence, not only of the general nature of 
the meeting, but of the effect that was likely to be produced by the 
language there emploj'ed ^. In Sawson v. Haigh (1824) 2 Bing. 99, 
letters written one or two days after a man departed the realm> but 
before the date of his commission of bankruptcy, were held ad- 
missible in evidence and sufficient to establish an act of bankruptcy 
by showing with what intention he departed the realm. In this 
case Parke J. said : — 

' It is impossible to tie down to time the rule as to declarations : 
we must judge from all the circumstances of the case : we need not 
go the length of saying that a declaration made a month after the 
fact would of itself be admissible ; .but if, as in the present case, 
there are connecting circumstances, it may even at that time form 
part of the whole res gestae V 

The connexion between the leaving the realm and the dispatch 
of the letters was that the absence from the realm continued after 
the dispatch of the letters. In a similar case, Denman C. J. said, 
' the absenting himself from home by the bankrupt was a con- 
tinuing act, and the letter was written during its continuance^.' 
But in Ridley v. Gyde, declarations made by a trader a month after 
the giving a security were admitted ; 9 Bing. p. 349. The conduct 
of the party was considered to have constituted the connexion in 
this last case. In the Aylesford Peerage case, letters written in 1876 
were admitted, as part of the res gesf^ae^ to prove the legitimacy of 
a child bom in 1881 ^. In certain cases the declaration will not be 
admitted, unless it was made contemporaneously with the event 
under consideration. The statements of a servant, employed by a 
horse-dealer or livery-stable keeper to sell a horse, will only be 
admitted respecting the horse when made at the time of sale^ 
The declarations of a wife at the time of her elopement that she fled 
from terror of personal violence from her husband seem to be 

* R. V. Mvarphy (1837) 8 C. & P. at p. 305. 

* A V. O'ConiuU, (1843-4) Arm. k T. 163. * Ramon v. Haigh^ 2 Bing. at p. 104. 

* R<mch V. Qreat Western Railtoay Company (1841) i Q. B. at p. 61, 55 R. R. aoo.' 

* 1 1 App. Gas. p. 9, per Lord Selborne. 

* Howard v. Shewird (^1866) 36 L. J. C. P. 4a. 

r 3 

212 The Law Quarterly Review. [No.lxxiv. 

evidence against him ^. It has always been considered that when 
a woman leaves her husband's house, whether she is turned out or 
goes voluntarily, her own declarations at the time are part of the 
res gestae and admissible, not as conclusive proof but as evidence of 
adultery ^. 

In cases of conspiracy, ' a prisoner cannot be responsible for acts 
or writings of his fellow conspirators which possibly may not have 
existed until after the common enterprise was, so far as he was 
concerned, at an end ; but if their previous existence be established, 
either by direct proof or by strong pr^umptive evidence, no 
objection to their admissibility can prevail *.' The authority that is 
there given for the first part of this proposition is iZ. v. Hardy (1794) 
24 How. St. Tr. at p. 704. It must be remembered that the trial 
of Thomas Hardy for High Treason occupies more than five hundred 
closely printed pages. But the locus given in Taylor does not 
support the text A witness was there being examined as to con- 
versations that seem to have occurred before Hardy's arrest, which 
was on the 12th of May, 1794. Eyre C. J. refused to admit these 
conversations on the ground that they were hearsay evidence, sayings 
* We ought to be always very correct when collecting what people 
said. I think you had better not press it^.' The passage in 
Taylor seems founded on a dictum of Eyre L. C. J., at a different 
stage of the trial, where he said, ' The only ground upon which any 
paper is objected to as evidence, found after the apprehension of 
the party, is that by possibility the .paper might not have existed, 
or might not have been in the hands of the person till after his 
apprehension^.' But these very papers were admitted^ as suffi- 
ciently appears in the summing-up, because it was proved, the 
Court considered, that they existed before Hardy's arrest, on the 
12th of May, though they were not both found till the close of the 
month. Eyre C.J. siiid, 'The next witness, Schaw, produces a 
paper, found upon Thelwall, and Nost produces a paper, found 
upon Martin ; these two papers are proved to have been in Martin's 
handwriting; they were found after Hardy's apprehension; but 
they become evidence even in this case, against Hardy, from the 
circumstance of their having been proved, by two witnesses, to 
have been in Martin's possession before Hardy was apprehended ; 
they were therefore papers that existed before that time*.' Lord 
Chief Justice Eyre went on to say that these papers were of a more 
direct and violent cast than some others, because they pointed 

^ Per Lord EUenborough C. J. in Acemm y. Lord Kinnaird (1805) 6 East, at p. 193. 
' Cf. observations of Lord Blackburn in the Ayle^fcrd Peerage caae (1885) 
1 1 App. Gas. at p. 3. 
' Taylor on Evidence, pp. 384-5. * 24 How. St. Tr. 704. 

• 24 How. St. Tr. pp. 865-^. • Hardy' t case (1794) 24 How. St. Tr. at p. 1347. 

April, 1903.] Specially Admissible Evidence — Res Gestae. 213 

immediately to the person of the king, and directed them to be 
read to the jury. The case of Thomas Hardy ought clearly to 
be dted in support, not of the rejection, but of the admission of 
papers, found after the arrest of a conspirator. The case would 
clearly support the last part of the above-quoted passage in Taylor. 
But in the text it is cited in support of the second. It seems 
suggested that it was established by presumptive evidence in R. v. 
WaUon that certain papers existed before the arrest of the prisoner. 
But in that case the prisoner had taken away five-and-twenty 
copies of a placard ; and the only question was whether he could 
be presumed to know its contents. There could have been no 
possible question that the paper had existed before the prisoner's 
arrest; iZ. v. Watson (1817) ^7, How. St. Tr. at p. 8a. Hardy' % case 
is also cited by Taylor as an authority for the proposition that 
mere narrative cannot be tendered as forming part of the re% 
gestae^. Here again the. reference to the page does not support 
the statement in the text. But a letter of ThelwaU was rejected 
in that case by Eyre C.J., on the ground that it was 'a corre- 
spondence of a private nature, a mere relation of what had been 
done ' — * a very different thing from a correspondence in furtherance 
of the plot ^.* This letter was referred to by Lord Denman C. J. in 
£. V. Blahe (1844), where the entry on a counterfoil of a cheque 
was rejected on the similar ground that the conspiracy was fully 
effected before that was done^ In jB. v. WCafferty supi-a, the 
Irish Law Officers of the Crown quoted the passage in Taylor 
cited above. This may possibly account for the fact that in 
delivering judgment in the Court for Crown Cases Reserved, 
George J. said that Hardy s case and WaUorC% case ' proceeded upon 
the ground that the papers and other matters offered in evidence 
were not proved to be in existence prior to the arrest ^' But in 
the summing up of Eyre C.J. in Hardy 9 case, it was explicitly 
stated that the letters were ' proved by two witnesses to have been 
in Martin's possession before Hardy was apprehended ; they were, 
therefore, papers that existed before that time ^.' Again, Deasy B., 
in 5. V. MCafferty (1867), said, *But what is the rule in Hardy's 
case, and has it any bearing on the admissibility of the evidence in 
the present case? There a paper found in the possession of a 
conspirator after the arrest of Hardy was excluded, because there 
was no evidence that it existed before his arrest *.' The report of 
Eyre's C. J. summing up in Hardy s case is paged to the evidence, ' 
and makes no doubt possible that the letters in that case were 

• Evidence, p. 383. • Hard}f$ case (1794) ^4 How. St Tr. at pp. 455-75. 

• 6 Q. B. at p. 137. * R. V. ifCafferty (1867) Ir. Rep. i a L. at p. 384. 

• Uwd^M case (1794) 24 How. St. Tr. p. 1347. * ^Wd. at p. 39a, 

214 The Law Quarterly Beview. [No.LXXiv. 

proved to have existed before the prisoner's arrest, and were there- 
fore admitted. The conclusion of law is not affected by the mistake 
of fact. But it is submitted that Taylor on Evidence contains as 
implicit a misstatement of fact as Lord Chief Justice Cockbum 
pointed out existed in Mr. Pitt-Taylor's version of the facts in 
B. V. Bedingfield. 

Lord Chief Justice Cockbum complained at the commencement 
of the correspondence that Mr. Pitt-Taylor misapprehended the 
facts as given in evidence in iZ. v. Bedingfieldy and this ' in a par- 
ticular eminently material to the question.' Mr. Pitt-Taylor repre- 
sented the deceased woman as ' running away from an assailant.' 
But Lord Chief Justice Cockbum was satisfied that the woman 
was engaged in obtaining assistance with reference to her wound ; 
and that the occurrence was at an end> as far as the prisoner was 
concerned, and that the woman knew this. It is impossible to 
impugn the account given of the evidence by the Chief Justice. 
If the facts only were in issue between the two distinguished con- 
troversialists, there could be little doubt that most persons, whether 
lawyers or not, would accept without reserve the account of the 
evidence which was given by the judge who tried the case. The 
argument of the Chief Justice seemed directed to proving that 
there was only an issue of fact between Mr. Pitt-Taylor and him- 
self. Both, in fact, agreed that the words uttered by the woman 
could not be accepted as a dying declaration, though, in view of 
the severity of the wound, arguments that were certainly plausible 
were adduced by a ' Barrister who was present in Court,' to show 
that the woman must have believed herself to be dying. But the 
words the woman uttered were rejected by the Chief Justice as 
a dying declaration because she gave no intimation that she was 
conscious of approaching dissolution. It appeared that the Chief 
Justice considered that the mai*ginal note to B, v. deary {% Foster 
and Finlason, p. 851), declaring the law to be that consciousness 
of death was a question of inference from the nature of the 
wound, was incorrect in view of Erie's C. J. language. This must 
be considered a question of some doubt, after the letter written to 
the Law Times by the learned reporter of B. v. Cleary^. 

Another literary opponent of the Chief Justice^ who, as Home 
observed of Junius, 'existed only in the newspapers,' under the 
nom de gutrre of * Long Robe,' criticized the ruling of the Chief 
Justice by quoting him as showing that the evidence ought to have 
been admitted. But ' Long Robe ' lacked the directness,- though he 
employed an artifice of Junius. 'Long Robe' overlooked the 
essential point that the passage he quoted from the letter of the 

' Law Times (1880), p. 304. 

April, 1903.] Specially Admissible Evidence— Res Gestae. 215 

Chief Justice was expressly limited to the case of 'a continuing 
action' on the part of the accused. But this deprived 'Long 
Robe's ' criticism of any aptness, as the Chief Justice laboured the 
point that his ruling in R. v. Bedingfield proceeded on the ground 
that when the woman uttered the words he rejected the transaction 
was at an end as far as the accused was concerned ^. . 

But the cases quoted by Mr. Pitt-Taylor show that there wfU3 an 
issue of law, as well as of fact, between him and the Chief Justice. 
In Taylor on Evidence it is laid down that a narrative of past 
events is inadmissible as part of the Te% gestae^. But Mr. Pitt- 
Taylor quoted cases in his controversy with the Chief Justice where 
a declaration was admitted as part of the res gestae, though it was 
made ex post facto and was only a relation of a past event. 

The rejection of the evidence in R. v, Bedingfield was explicitly 
founded by Lord Chief Justice Cockbum on the case of R. v. Osborne ^, 
where the particulars of a complaint in a charge of rape were 
excluded because Hhe violence was over and the prisoner had 
departed.' The particulars of the complaint in such cases, accord- 
ing to Stephen, are excluded on the ground of irrelevancy. But 
* the present rule as laid down by the Court of Criminal' Appeal in 
1896 in R. V. lAllyman^ 2 Q. B. 167, is that upon the trial of an 
indictment for rape or other kindred offences against women, the 
particulars of a complaint made shortly after the alleged occurrence 
may be given in evidence, not of the facts complained of, but of the 
consistency of the story told by the woman in the witness-box, and 
as negativing consent on her part *.' * After very careful considera- 
tion,' Lord Brampton (then Hawkins J.) observed, * We have anived 
at the conclusion that we are bound by no authority to support the 
existing usage of limiting evidence of the complaint to the fact that 
a complaint was made, and that reason anfl good sense are against 
our doing so *.' This rule is, at all events, the rule which is gene- 
rally observed *. But the fiust that Lord Chief Justice Cockburn 
based his decision in R, v. Bedingfield on the law as it then stood as 
r^ards the rejection of the particulars of a complaint, explains 
why in summing up he pressed upon the jury that the deceased 
woman ran out to make complaint or outcry ^. According to the 
principle contained in the case he relied on, the fact of a complaiht 
is admissible while the particulars of that complaint are inadmis- 
sible. In Campbell's Ruling Cases it is considered ^ curious ' that the 
Lord Chief Justice should have pressed upon the jury the fact that 

* Ct < Long Robe's' letter, Law Times, 1880, p. 177. * Vol. i p. 381. 
' I C. & M. 622. * Best on Evidence, p. 41a. 

• U. T. XtUyman, a Q. B. at p. 177. • Cp. Steph. Dig. Et., 5th ed., 1899, note v. 
' 14 Cox, C. C. at p. 345. 

216 The Law Quarterly Review. [No.LXXlv, 

the wondan came out to make a complaint, while he formallj 
rejected her evidence ^. Bat it is clear that in admitting the fact, 
but rejecting the particulars of the complaint, Cockbum C.J. was 
essentially consistent with the law as it then stood, and with the 
authority on which he relied. 

The research of Mr. Pitt-Taylor provided him with an Irish 
circuit case, in which it was held by Monahan C.J. that statements 
made by the deceased to the first person who comes up after he 
has been wounded are admissible as part of the res gestae ^ It was 
observed of this case in the Law Times that ' it would be difficult 
to find a more parallel case to the one under discussion than that 
we have just cited, and the conclusion to be derived from the two 
is that if Chief Justice Monahan was right in the one case, the 
•Lord Chief Justice is wrong in this, and vice versa ^ But Lord 
Chief Justice Cockbum pointed out that the learned editor of the 
last edition of Russell on Crimes, in citing iZ. v. Lunny^ appended 
to the statement of the case the remark, that * this case requires 
consideration.' This adverse comment on £, v. Lunny survives in 
the (now) last edition of Russell on Crimes that was issued in 1896. 
Mr. Pitt-Taylor quoted another case, B. v. Foster (1834) 6 C. & P. 
3^5, where the Court, on a charge of manslaughter, admitted an ea 
post facto statement as part of the res gestae. The prisoner was 
charged with manslaughter in killing a man by driving a cabriolet 
over him. A waggoner saw the cabriolet drive by, but did not see 
the accident, and immediately afterwards, on heaiing the man 
groan, went up to him, when the latter made a statement as to how 
the accident happened. It was held that this statemeAt. was receiv- 
able in evidence. PM*k J. considered the case of Aveson v. Lord 
Kinnaird bore strongly on the point. This would clearly warrant 
Mr. Pitt-Taylor's citing \t. But Roscoe considers that this case ' is 
difficult to reconcile with established principles ^' Lord Chief 
Justice Cockbum was not slow to avail himself of Roscoe*s dis- 
approval. But under the circumstances he gained little advantage 
by appealing to it. The Law Times observed : — 

* Mr. Pitt-Taylor has by his pamphlet made more than one 
decided hit. Perhaps the most amusing is his retort upon the 
Chief Justice, who relied upon Roscoe*s rule as having questioned 
the two cases, quoted by Mr. Taylor, of iZ. v. Foster and Thompson 
V. IVevannian, and spoke of Roscoe as being as distinguished as 
Mr. Taylor. It so happens that the disapproval of those cases was 
not the disapproval of Roscoe but of his editor, Mr. William 
Markby, who at the time he wrote was a junior barrister of five 
years' standing. " Just one of those tyros," says Mr. Taylor, ** whose 

' Ruling Gasei, toI. zi. p. 303. ' R, y. Lunny (1854) ^ ^^t ^* ^' *^ P* 477- 

' Law Times, Nor. aa, 1879, at p. 59. * Crim. Evidence, p. 93. 

April, 1903.] Specially Admissible Evidence — Bes Gestae. 217 

self-snflBciency and inexperience have elicited your Lordship's con- 
temptuous disapproval K* ' 

This last innuendo requii'es to be explained in the light of a 
reference made to an anonymous critic of his rejection of the 
evidence in R. v. Bedingfield^ as to whom Lord Chief Justice Cock- 
bum expressed the opinion, that 'from the positive and self- 
sufficient manner in which he lays down the law, he must be 
sought for among the very youngest members of the profession — 
self-confidence being one of the happy attributes of youth and 
inexperience V But Mr. Pitt-Taylor qualified any advantage he 
might have gained by this discovery by characterizing the style of 
his protagonist as ' slap-dash ' — an expression that seems rather to 
want finish, if it does not altogether £^1 below the level of the 
controversy. The oratorical and literary honours of the contest 
clearly remained with Lord Chief Justice Cockbum, one of the 
most eloquent, probably, of aU the Chief Justices. 

It is submitted that the result of the decisions warrants the 
following general propositions on the subject of the res gestae : — 

(i) Words, act8> and declarations form part of the res gestae when 
they occur before or during the continuance of the act under 
consideration which is the subject of the inquiry. 

When the act is a continuing one, such as an act of bankruptcy 
arising from absence from home, it is of course consistent with this 
generalization that letters written during such an absence, explain- 
ing the motion of such absence, should be admissible as part of the 
res gestae. The declaration is in such cases made during the con- 
tinuance of the act. 

But the cases in which an ex post facto declaration has been 
admitted as part of the res gestae^ when the act is not a continuing 
one, present great difficulty. In such a case the ex post facto 
declaration is connected with the previous main fact by the conduct 
of the party. It might be contended, perhaps, that such cases 
might be brought within the above proposition on the principle 
that * omnis ratihabitio retrotrahitur et mandato priori aequiparatur.' 
But such cases seem more clearly to fall within the rule as laid 
down by Lord Brampton in R. v. Zillyman, where an ex post facto 
statement was admitted on the ground that it showed consistency 
of conduct, though it was conceded that the statement did not form 
part of the res gestae \ But it seems this cannot be insisted on, 
since the evidence of an ^ post facto declaration was admitted in 
all the above cases on the ground that it foi*med part of the res 

* LawTimeB, 1880, p. 181. ' Law Journal, 1880, p. 6. 

■ Ridky v. Oyde, 9 Bing. 394 ; R, ▼. Limny, R. v. Fatter; cp. supra ; Ayluford 
Pm-offt case (1885) it App. Cas. i. 

218 I7ie Law Quarterly Review. [No. LXXIV 

gestae. If it be assumed that these ex post facto declarations were 
rightly so admitted^ of course the above generalization could not 
stand. But from the observations of Lord Brampton (then 
Hawkins J.) in B. v. LUlyman it seems clear that a statement made 
after the main fact which is the subject of the inquiry may be 
.admitted as part of the history of the parties and the case, to show 
consistency of conduct, while it is conceded that the ex post facto 
declaration cannot be part of the res gestae. In R, v. LiVyman 
Lord Brampton said that he agreed with the ruling of Cresswell J., 
that in JZ. v. Osborne (1842) C. & M. 622, the statement of the 
prosecutrix — made, it will be remembered, after the alleged out- 
rage, and as she was returning home — ^ did not form part of the res 
gestae ^' But in the discussion on the rejection of the evidence in 
/?, V. Bedingfield as not forming part of the res gestae^ Lord Chief 
Justice Cockburn explicitly stated that the analogy as regards the 
admissibility of evidence between iZ. v. Osborne and the former 
case was complete, ' and that the ruling of Cresswell J. was directly 
' in point.' It is clear^ therefore^ that the rejection of the evidence 
in R. V. Bedingfield^ was implicitly approved by Lord Brampton and 
the Court of Criminal Appeal in 1896. But it seems equally 
necessaiy as a consequence of iZ. v. Lillyman^ to introduce another 
class of cases where specially admissible evidence may be tendered 
to show the history of the case and the consistency of conduct. In 
view of the distinction clearly drawn by Lord Brampton between 
evidence of the former character, and evidence which is rendered as 
part of the res gestae^ it seems difficult to concur in Archbold's state- 
ment that the declarations of a person robbed, made immediately 
afterwards, are evidence of the same principle as the res gestae^. 
Again, Archbold seems to treat R. v. Lillyman as the authority for 
admitting the fact of a complaint, but not the particulars of it, in 
evidence. But that case is the authority for admitting the par- 
ticulars of the complaint made by a prosecutrix on a charge of 
rape ^, 

Finally, words, acts, and declarations, in order {%) to form part 
of the res gestae must be relevant, that is, connected with the act 
or declaration of a person whose conduct, either active or passive, 
is one of the subjects of (he inquiry; Wright v. Doe d. Tatham 
(1834) I A. & E. 313. 

Lord Chief Justice Cockburn, in his correspondence with Mr. Pitt- 
Taylor, admitted that 'the American decisions have no doubt gone 
still further^.' Mr. Chamberlayne is of opinion that the rule of 

' R, T. ZtSyman, a Q. B. at p. 175. 

' Pleadings, Eridence, and Practice, at p. apa. * a Q. B. at p. 175. 

* Law Journal, 1880, p. 8. 

April, 1903.] Specially Admissible Evidence— Bes Gestae, 219 

res gestae 'has received extended development in this country 
beyond the limited English rule/ and that 'the principle recog- 
nized, more or less clearly, by the American authorities is this : 
Oral or written declarations, by whomsoever made, accompanying 
and assisting to constitute facts in issue or evidentiary thereto, are 
competent evidence, provided such declaration be contemporaneous 
with the fact which it assists to constitute, and so limit, explain 
or characterize such fact as in a just sense to be a part of it and 
necessary to its complete understanding ^' Greenleaf says, ' If th^ 
declaration is connected with or grows out of the act, though not 
contemporaneous with it, but happening after some lapse of time, 
it is admissible as part of the res gestae V In his comment on this 
passage. Lord Chief Justice Cockbum said : — 

<To me, I must say with the greatest possible respect for 
American jurists, it seems that this extension of the doctrine of 
res gestae appears to involve a serious departure from principle, 
amounting in effect to a making or remodelling of the law, alto- 
gether beyond the authority of those whose province it is to 
administer the law and not to make it. I am certainly not pre- 
pared to act upon this view of the law till it shall have received 
the authoritative sanction of a Criminal Court of Appeal in this 
country ^' 

The writer of the American Notes to Campbell's Ruling Cases 
states that the rule given at p. 281 'correctly expresses the doc- 
trine of res gestae held in this country *.' It would seem equally 
clear that the rule so given does not correctly express the doctrine 
of res gestae by the law of England, either as it is to be inferred 
from the decision of Lord Chief Justice Cockbum in R. v. Beding- 
field, or from the observations of Lord Brampton, delivering the 
judgment of the Court of Criminal Appeal, in R. v. lAllymany in 
1896. It is curious to note that while the whole current of authority 
is to the effect that the doctrine of res gestae has received a more 
extended development in America than in England, yet ante- 
cedent declarations have been rejected in America, even when 
only made just before the subject of the inquiry ; Alabama Jcc. R. Co. 
V. Hill, 90 Alabama, 71. In the Aylesford Peerage case (1885) 
letters were admitted, as part of the res gestae, which were 
written in 1876, on a question of legitimacy, when a child was 
bom in 1881 ^ Again, in this case letters were admitted, at the 
instance of the Earl of Selbome, that were written ex post facto in 
18821, the ground of their admission being that they were part of 
the res gestae •. Lord Selbome explicitly suggested that the ground 

' Notoa on American Cases in Campbell's Ruling Cases, vol. xi. p. 291. 
' EYidence, p. 131. ' Law Journal, 1880, p. 15. 

* Campbell's Ruling Cases, vol. xi. p. 290. ' 1 1 App. Cas. at p. 3. 

* 1 1 App. Cas. at p. 1 7. 

220 . The Law Quarterly Review. [N0.LXXIV. 

of the admission of the letters written after the birth was that 
they formed part of the ret gestae ; but in the last edition of Pitt- 
Taylor on Evidence this case is not treated as one where the 
evidence was admitted as part of the res gestae^ but as a case where 
hearsay evidence was received on a matter of pedigree. It is 
however impossible to avoid incurring the conviction, rendered 
necessary by Lord Selbome's words, that the evidence, in the 
Jylesford Peerage^ of letters written long anterior and subsequent 
to the subject of inquiry, were admitted as part of \he res gestae. 
But no case in America could have instanced a more extended 
development of the doctrine of res gestae than this. 

In spite of the current of authority to the effect that the doctrine 
of res gestae has received a more extended application in America 
than* in England, it is difficult to exclude the conviction that 
Mr, Pitt-Taylor may have had material grounds, for the purposes 
of his argument in the discussion on the rejection of the evidence 
in R. V. Bedingfield, in not referring to the American cases. This 
renders it necessary to question whether there is, in fact, any clear 
rule in America. Mr. L-ving Browne, in his notes to Campbell's 
Ruling Ca.8es (vol. xi), admits that the American cases are ' utterly 
irreconcilable ' on the essential point whether it is necessary that 
a declaration, in order to be admissible as part of the res gestae^ 
should be contemporaneous, that is, made during the Qontinuance 
of the main fact which is the subject of the inquiry^. But this 
was substantially the whole issue between Lord Chief Justice 
Cockbum and Mr, Pitt-Taylor. Mr. Irving Browne quotes several 
cases where a declaration was rejected although made at brief 
intervals after the act. In one case a declaration was rejected 
when made only five minutes after the subject of the inquiry, which 
was a railway accident ; Lurkee v. Cetit, P. Ry. Co.^ 69 CaJifomia, 
533- It is hardly necessary to point out how such a ruling favours 
the arguments of Lord Chief Justice Cockbum in the discussion 
that ensued between him and Mr. Pitt-Taylor. In 1880 there were 
no American cases quoted in the then current edition of Taylor on 
Evidence. But in the last edition, the rule in America, as illus- 
trated by the case of Enos v. Tuttie (182^0), is stated to be that 
a declaration or a circumstance, in order to be admissible as part 
of the res gestae^ must have been made 'at the time of the act done V 
If this reference had appeared in the earlier editions, it would have 
proved very embarrassing to Mr. Pitt-Taylor, and an unexpected 
relief to Lord Chief Justice Cockbum. Assuming the ruling of 
Chief Justice Hosmer in Enos v, Tuttie to correctly define the 

> CampbeU's Buling Gases, vol. xi. p. 391. 
' Taylor on Evidence (9th ed.), p. 380. 

April, 1903.] Specially Admissible Evidence — Bes Gestae. 221 

doctrine of res gestae as it is recognized in America, it is essential to 
conclude that that doctrine is maintained there only in the limited 
and restricted sense for which Lord Chief Justice Cockbum con- 
tended in his discussion in 1879 with Mr. Pitt-Taylor. But enough 
has been said to show that the cases, alike in this country and 
America, are * utterly irreconcilable ' on the essential point whether 
a declaration or a circumstance is only admissible as part of the 
res gestae when it is made contemporaneously during the con- 
tinuance of the act under consideration ; or whether, even when 
made ex post facto, it may be admitted as part of the res gestae, 

* Qui juris nodos et legum aenigmata solvat.* — Juvenal, viiL 50. 

It seems extraordinary that none of the text-books should appeal 
to what must be considered the final authority, the ruling of the 
House of Lords in the Aylesford Peerage case (1885) 11 App, 
Cas. 1-19. In that case the subject of the inquiry was the legiti- 
macy of a child bom in 1881 ; and letters were admitted as part 
of the res gestae that were written in 1882^. The ground of the 
admission of the letters was expressly stated by the Earl of Selborne 
and by Lord Bramwell to be that they were part of the res gestae^. 
The rules of evidence are the same in civil as in criminal cases, 
and it should therefore seem that the Aylesford Peerage soase has 
decided that an ex post facto declaration or circumstance may be 
part of the res gestae, overruling even the ruling of the Court of 
Criminal Appeal in E. v. LUlyman in 1896^ so far as Lord Brampton 
(then Hawkins J.) held that an ex fost facto declaration did not 
form part of the res gestae. But neither Best, Taylor, nor Campbell 
notice the important admission of the letters in the Aylesford 
Peerage case on the doctrine of the res gestae, Boscoe, who alludes 
to the case when discussing the subject, does not notice what seems 
the all-important point, that a subsequent circumstance or decla- 
ration may form part of the res gestae, since the House of Lords 
admitted the letters in that case. The effect of the admission of 
the letters clearly implies that according to a ruling of the House 
of Lords, a large construction of the doctrine of the res gestae 
prevails no less in this country than in America. 

N. W. Sibley. 

* II App. Cas. at p. la. ' Ibid., at pp. 7, 11, i6« 



CAN one member of the army or the navy bring an action 
against another member of the army or the navy for acts done 
in the ordinary course of professional duty, if such acts have been 
done maliciously and without reasonable and probable cause ? The 
Dreyfus case in France, and the less notorious cases of Marten and 
Hickel in Germany, show that abroad this question possesses a 
practical importance ^ It is perhaps of some interest to inquire 
what is the answer given to it by English law. It will be seen 
that the answer given partakes of the uncertainty which is cha- 
racteristic of much of that part of the common law which is 
concerned with constitutional topics. The leading case on this 
subject is the case of Sutton v. Johnstotie'^ decided in 1786. The 
facts of that case were as follows: In 178 1 Sutton was the captain 
of His Majesty's ship his ; and Johnstone was the commander of 
the squadron. In the April of that year there was an engagement 
between the French and English fleets, in which the Isis was 
damaged. The French sailed away ; and Johnstone ordered the 
English ships to slip their cables and pursue. Sutton, owing to the 
condition of his ship, did not obey these orders. Johnstone in con- 
sequence put Sutton under arrest for disobedience to ordei-s, and 
sent him to England for trial by a court-martial. In 1783 he was 
honourably acquitted by the court-martial. He then brought an 
action for malicious prosecution against Johnstone. The defendant 
pleaded the general issue. The jury found for the plaintiff. The 
defendant then moved in aiTest of judgment in the Court of 
Exchequer on the ground that no action for a malicious prosecution 
would lie for a subordinate officer against the commander of a 
squadron for improper conduct while under his command. Eyre 
C. B. and the whole Couii refused to arrest judgment. This 
decision was reversed in the Exchequer Chamber and the House 
of Lords, not upon the broad gi*ound that no such action would 
lie, but upon the narrow ground that an action for malicious prose- 
cution did not lie in the present ca&e, because there was reasonable 
and probable cause for the prosecution. Lords Mansfield and Lough- 
borough, ' however, expressed themselves very strongly in favour 
of the bi-oad proposition contended for by the defendant. This 
proposition goes the length of saying that a member of the army 

* The Times, May 3, 190a. • i T. R. 493, i R R. 257. 

The Case of Sutton v. Johnstone. 223 

or navy 'forfeits or voluntarily surrenders all the civil rights 
belonging to other subjects, when the injury proceeds from a 
superior officer, under colour of discipline ; even although the act 
done be admitted to have been done in opposition to discipline, 
in violation of moral duty, maliciously and without cause ^' In 
expressing this opinion Lords Mansfield and Loughborough were 
careful to add that the case was one of first impression, that it was 
doubtful, and that it remained open for decision. 

Li tracing the subsequent development of the law upon this 
point we shall consider 

(i) How far the question is concluded by authority : 
(2} To what conclusion considerations based upon public 
policy, or the general principles of common law should lead us. 

(i) At the outset we must distinguish cases which have been 
sometimes confused with the present case. It is quite clear that 
a couri-martial acting within its jurisdiction can not be prohibited 
by a court of common law ^ ; nor can a conviction obtained before 
such a court acting within its jurisdiction be brought up before 
a court of common law by writ of certiorari ^ It is quite clear that 
judges, parties, and witnesses are absolutely privileged in respect of 
what is said in the course of legal proceedings, whether such legal 
proceedings take place before a court-martial or before any other 
court ^. The present question, whether one member of the army or 
the navy has a right of action against another member of the army 
or the navy if he can prove malice and the absence of reasonable 
and probable cause, is quite distinct. 

There are two cases in which the dicta in Sutton v. Johmtone are 
clearly followed. In the case of Dawkim v. Lord Rokehy ^ the plaintiff 
sued for damages for false imprisonment and malicious prosecution. 
Willes J. ruled that there was no cause of action even assuming 
the presence of malice and the absence of reasonable and probable 
cause. In the case of Dawkins v. Lord Paulet * the facts were as 
follows: The plaintiff was an officer in the Coldstream Guards. 
The defendant was his superior officer. The defendant wrote to 
the adjutant-general of the army a letter which refiected upon the 
character and capacity of the plaintiff. The plaintiff sued him for 
libel. He pleaded privilege. The plaintiff replied that the letter 
was written with express malice. The defendant demurred. The 
majority of the Court of Queen's Bench gave judgment for the 

^ Sutbm T. JoknBkmB (argament for the respondent), i T. R at p. 534. 

* Grant ▼. Qwdd (179a) a H. BL 69, 3 R. R. 54a. 

* lUManMsrgh (1861) I B. & 8. 400. 

* DaiOcina v. Lord Roktby (1873) L. R. 8 Q. B. 355 ; 7 H. L. 744. 

» 4 P. & P. (1866) 806, 833. • (1869) L. B. 5 Q. B. 94. 

224 The Law Qmrterly Review. [No. LXXIV- 

In this case Mellor J. considered that the rule rested upon 
grounds of public policy similar to those upon which the rule 
giving absolute privilege to those engaged in legal proceedings is 
based ^ The analogy between the two classes of cases is not 
close ; and, in fact, in Sutton v. Johfutone Lords Mansfield and 
Loughborough had stated that * there is no principle to be drawn 
from the analogy of other cases ^.' The argument to be drawn 
from the existence of this analogy (such as it is) is considerably 
weakened by the subsequent case of Dawkins v. Lord Bokeby. In 
that case the Court of Exchequer Chamber approved the decision 
in Datciins v. Lord Paulet^ ; but the House of Lords carefully 
guarded itself from the supposition that it decided anything else 
except the absolute privilege of a witness giving evidence before 
a military court of inquiry. * I feel sure,' said Lord Calms, ' that 
your Lordships would not desire your decision upon the present 
occasion to go farther than the circumstances of this particular case 
would warrant *.* What was said in the Exchequer Chamber upon 
the general question cannot therefore be regarded as anything else 
but sti'ong dicta. These dicta may perhaps be said to be balanced 
by the dictum of Lord Penzance in the same case ^. ' If/ he said, ' by 
any process of demonstration, free from the defects of human judg- 
ment, the untruth and malice could be set above and beyond all 
question or doubt, there might be ground for contending that the 
law of the land should give damages to the injured man.' It will 
be observed that the state of the pleadings in the case of Sawiins 
V. Lord Paulet was such that the conditions postulated by Lord 
Penzance were present. 

So far as the majority of the Court of Queen's Bench can decide 
the question it is no doubt decided by the case of Datokim v. Lord 
Paulet, But from that decision Cockbum C.J. dissented; and he 
relied upon a line of cases which if they do not in terms decide the 
question in the other way assume that the law is otherwise. We 
shall now examine these cases, most of which are cited by Cockbum 
C.J. in chronolo^cal order. 

' 5 Q. B. at pp. 1 16, 117. • I T. R. at p. 5C0. 

' li. R. 8 Q. B. 355. The Court of Exchequer Chamber cited the following 
cases in fayour of the proposition that no action would lie i—K$ighly v. Bt^ (4 F. 
& F. 763), in which there was held to be no evidence of malice ; In rt Mansergh 
(1 B. & S. 400) and QrarU v. Gould (a H. Bl. 69), in which the question at issue was 
whether the court-martial had jurisdiction ; Barwia v. JTtf^ipel (1766, a V7ils. 314), 
in which 4ihe point was not ftiUy argued : the Court said that if the plaintiff*s 
counsel wished to speak more fully on the point they would hear them. In Sutton 
V. JohnstoffM the Court referred to Banos v. Keppel on another point (1 T. R. at p. ijl%) ; 
but they dearly did not regard it as an authority on the geiieral question, as they 
stated that ' there is no authority of any kind either way ' (at p. 550). The Court 
of Exchequer Chamber however recognized that this general question did not arise 

for their decision in the case before them (at p. 372). 
* L. R 7 H. L. at p. 754. > Ibid, at p. 


April. 1903.] 2%6 Case of Sutton v. Johnstone. 225 

In the case of Wall v. McNamara (1779)^ an action for false 
imprisonment was brought by the plaintiff, a captain in the African 
corps, against the defendant, the lieutenant-general of Senegambia. 
There was a verdict for the plaintiff, with £1,000 damages. The 
direction of Lord Mansfield to the jury was in striking contrast to 
his judgment in Sutton y. Johiutone. He told the jury that * In 
trying the legality of acts done by military officers in the exercise 
of their duty, particularly beyond the seas, where cases may occur 
without the possibility of application for proper advice, great lati- 
tude ought to be allowed, and they ought not to suffer for a slip of 
form if their intention appears by the evidence to have been 
upright; it is the same as when complaints are brought against 
inferior civil magistrates, such as Justices of the Peace, for acts 
done by them in the exercise of their civil duty. Then the prin- 
cipal inquiry to be made by a court of justice is how the heart 
stood. And if there appears to be nothing wrong there, great lati- 
tude will be allowed for misapprehension or mistake. But on the 
other hand, if the heart is wrong, if cruelty, malice, and oppression 
appear to have occasioned or a^ravated the imprisonment or 
other injury complained of, they shall not cover themselves with 
the thin veil of legal forms, nor escape . . . from that punishment 
which it is your power and your duty to inflict on so scandalous 
an abuse of public trust.' It was admitted that the plaintiff was 
in £ault for leaving his post. ' But supposing it to have been the 
defendant's duty to call him to a military account for his miscon- 
duct, what apology is there for denying him the use of the common 
air in a sultry climate, and shutting him up in a gloomy prison, 
when there was no possibility of bringing him to trial for several 
months . . . from these circumstances malignant motives may be 
presumed which would destroy any justification.' In the case of 
Swinton v. Molhy (1783) ^ the plaintiff, the purser of the Trident 
man of war, brought an action against the defendant, his captain. 
It was held that under the circumstances of the case the action 
would lie. In the case of Warden v. Bailey^ (i^'^) & sergeant in 
the militia brought an action against his adjutant under the follow- 
ing circumstances : The colonel had given an order that sergeants 
and corporals should attend at school in order to leam reading and 
writing, and pay M, a week. This order was invalid. The 
plaintiff was put under aiTest for .using mutinous words about the 
order. He was ultimately acquitted by couit-martial. It was 
held by the Court below that the order was invalid, that thei'e was 

^ Cited I T. R. at p. 536 ; cp. the charge to the jury in WaJta case (i8oa) a8 & T. 
at p. 176. 
» Cited I T. R. at p. 537. 
' 4 Taunt 67 ; S. C. on appeal, 4 H. ft S. 400, 13 R. R 560. 


226 The Law Quarterly Review. [NcLXXiv. 

no evidence of mutinous words, and that therefore the plaintiff had 
a good cause of action. On appeal it was held by Lord Ellen- 
borough that there was no cause of action because there was 
sufficient evidence of mutinous words to justify the arrest and 
imprisonment. It would appear that the Court thought that an 
action would lie had there been no reasonable and probable cause 
for the imprisonment^. As Cockbum C.J. said ^ 'it can hardly 
' be supposed that, had the Court been prepared to adopt the reason- 
ing of Lord Mansfield in Sutton v. Johmtone, they would not have 
disposed of the case on the question of law instead of going into an 
elaborate investigation of the evidence.' In the case of Dkhon v. 
The Earl of Wilton (1859) '> ^^^ plaintiff sued his commanding officer 
for a libel contained in a lettcur to a superior officer, and obtained 
a verdict. The cases of Diekfon v. Fucount Combermere (1863)*; 
Freer v. Manhall (1865) »; and Keighly v. Bell (1866) • were all 
actions of members of the army against their superior officers 
aUeging express malice. In all of them the question of the exist- 
ence of express malice was said to be a question for the jury; and 
this clearly assumes that if the jury had found that it existed the 
action would lie. The case of Keighly v. Bell is remarkable, because 
it was tried by Willes J. who, as we have seen, decided in I)awiin$ 
V. Lord Rokebjf ^ that, even assuming the existence of express malice, 
no action would lie. In Keighly v. Bell^^ after consulting with the 
other judges of the court, he said : * There remains to be considered 
the question arising upon the first count, as to false imprisonment, 
and also upon the second count for malicious prosecution, and upon 
the third count for libel. In my judgment the question upon all of 
them is whether the acts so done by the defendant were acts done 
not in the ordinary discharge of his military duty, but acts done 
without any reasonable or probable cause, and merely for the 
purpose of injuring the plaintiff. And in my opinion Uiere is no 
evidence of the afiirmative of that question. If it were a question 
merely on the weight or effect of the evidence I should have left it 

^ Lord EUenborough said (4 M. h S. at p. 413) 'though it (the oourt-martial) 
terminated in the acquittal of Warden, it does not deprive the parties of the same 
justification which they would have had in another event of the trial, iflhere vxu 
a TwsonabU and probable caum for the original impriaonment of the plaintiiF Warden, 
until trial could be had.' 

* L. R. 5 q. B. at p. 106. In Dawkina v. Lord Rokeby (L. R. 8 Q. B. at p. 37a) the 
Court explained the case of Warden t. Bailey by saying that the order was simply 
illegal, *as if an officer had ordered a soldier to be imprisoned in a debtor's prisou 
for non-payment of an alleged debt.' But, if the order was given under colour of 
military authority, would the soldier even in such a case have a right of action 
against the officer in the ordinary courts? According to the dicta in Suikn 
T. Johntkne it would appear that the soldier's only remedy against his officer is by 
recourse to a military tribunal (i T. R. at p. 549). 

» I F. & F. 4x9. * 3 F. & F. 537. 

• 4 F. & F. 485. • Ibid. 763. 

' Above, p. 333. ■ 4 F.& F. at pp. 799-801. 

April. 1903.] 2%e Case of Sutton v. Johnstone. 227 

to the jury ; but I think there is no evidence on which a conclusion 
could be drawn that there was such an absence of probable cause, 
or such sinister and indirect motive, and abuse of the office and 
power of the defendant, as could sustain the action.' 

We may therefore perhaps say that though this question is 
concluded by the decision of the Court of Queen's Bench in Dawiins 
V. Lord Pauletf, the effect of that decision is weakened by the 
dissenting judgment of Cockbum C. J., and by the line of cases 
pointing to the contrary conclusion. Though the general question 
could not be raised in a court of first instance it could still be raised 
in the Court of Appeal or the House of Lords. 

(2) In their judgment in Sutton v. Johnstone^ Lords Mansfield and 
Loughborough called this question a question of ' mixed law and 
policy.' The arguments based upon policy could not be more 
forcibly expressed than in their dicta on the one side, and in the 
dicta of Eyre C. B. and in the judgment of Cockbum C. J. on 
the other. 

Lords Mansfield and Loughborough pointed out that until the 
present occasion it had never entered into any man's head that such 
an action could be brought. The code of military law provides for 
the regulation of the duties of the navy. Commanders necessarily 
have great discretionaiy powers to arrest or put seamen and officers 
on their trial before a court-martial. The rules of this code provide 
against the abuse of these powers. A commander who arrests or 
puts a man on his trial without reasonable and probable cause 
is guilty of an offence against these rules ; but the same jurisdiction 
which tries the original charge must try the probable cause ; which 
in effect is a new trial. And every reason which requires the 
original charge to be tried by a military jurisdiction, equally holds 
to try the probable cause by that jurisdiction. Discipline is 
essential to the fleet The first, second, and third part of a soldier's 
duty is obedience. Commanders in a day of battle must act upon 
delicate suspicions. They must give desperate cominands. A 
military tribunal is capable of feeling all these circumstances. But 
what condition will a commander be in, if, upon the exercising of 
his authority, he is liable to be tried by a common law judicature ? 
Upon an unsuccessful battle, there are mutual recriminations, 
mutual charges, and mutual trials. The whole fleet takes sides 
with great animosity. If every action is to be followed by & trial 
it is easy to see how endless the confusion, how infinite the mis- 
chief will be \ 

Eyre C. B. and Cockbum C. J., on the oth^r hand, drew the 
distinction between acts falling within the powers given by the 
1 I T. R. at pp. 548-5a 

228 2%6 Law Qtmrterly Review. [No. Lxxiv. 

code of military law and acts which are an abuse of these powers. 
ActeHione under such powers are lawful acts; but there is a wide 
difference between indulging to situation a latitude touching the 
extent of power, and touching the abuse of it. Cases may be put 
of situations so critical that the power ought to be unbounded. It 
is impossible to state a case where it is necessary that it should be 
abused. An officer whose conduct is liable to be so questioned is 
no doubt in a difficult situation. But it must be presumed that 
the established jurisdictions of this country will be equal to their 
duty. To situations which require indulgence, they will- show it; 
but be the risk more or less, all men hold their situations in this 
country upon the terms of submitting to have their conduct 
examined and measured by that standard which the law has 
established. No doubt a jury would be advised to presume every- 
thing in favour of the legitimate exercise of military authority^ 
and to require cogent and conclusive evidence of its abuse. If the 
question turned upon nice points of naval or military tactics the 
jury would be advised to presume in favour of the naval or military 
au^ority. But in cases of manifest wrong and proved malicious 
motives no tribunal is better qualified to form a fair judgment than 
a jury. It is not incompetent when assisted by professional 
evidence to form a fair opinion in professional matters. Special 
juries are doing this every day, and their decisions are on the whole 
satisfactory. Even if this were not so, it may be fairly questioned 
how far a court of law is justified, in the absence of positive law or 
previous decision, in refusing redress in a case of admitted wrong, 
merely upon the ground of public convenience ^ 

Such are the arguments adduced on either side of this question. 
The paramount importance of the preservation of discipline, and the 
necessity of freedom from the fear of vexatious actions at law, are 
the great arguments in favour of the views of Lords Mansfield and 
Loughborough. These arguments are admitted by those who take 
the contrary view ; but it is contended that a right of action 
existing only when malicious intent can be proved would not be 
detrimental to discipline and would be in harmony with the 
principles of the common law. 'I cannot,' said Cockbum C. J., 
' bring myself to believe that officers in command would hesitate 
to give orders which a sense of duty required . . . from any idle 
apprehension of being harassed by vexatious actions. Men worthy 
to command would do their duty . . . and would trust to the firm- 
ness of judges and the honesty and good sense of juries to protect 
them in respect of acts, honestly, though possibly erroneously done 
under a sense of duty ^.' That this is the case can be seen from 

» I T. R at pp. 503, 504 ; L. R. 5 q. B. at pp. 107-111. * L. R. 5 Q. B. at p. 108. 

April, 1903.] 2%6 Case of Sutton v. Johnstone. 229 

the fact that magistrates and others do not as a rule hesitate to 
employ force to suppress disorder, although they may be sued, not 
merely if they act maliciously, but if they fail to hit the exact line 
between excess and defect. 

Human nature^ whether military or civilian, is much the same. 
A technical atmosphere and professional traditions sometimes, all 
unconsciously, produce moral blindness. Nothing wrong can be 
seen in the trade custom till the court of law boldly terms it a 
fraud. It may be that a possibility — even a remote possibility — 
that it will be necessary to explain and justify acts before a tribunal 
not composed of men with the same professional sympathies as our 
own, may exercise a check not the less salutary because it is im- 
palpable. If the dicta in Sutton v. John9t<me are ever oveiTuled it will 
probably be on some such grounds as these. In the meantime it 
must be admitted that the question is in 1902, as it was in 1786, a 
doubtful question and 'fit to be settled by the highest authority^.' 

* I T. E. at p. 550. 



[Short notices do not neceBsarily exclude ftOler review hereafter.] 

Introduction to the Study of the Law of the Constitution, By A. V. 
Dicey, K.C. Sixth Edition. London : Macmillan & Co., Lim. 
New York: The Macmillan Co. 190a. 8vo. xvi and 533 pp. 
(io#. 6d. net.) 

Thb sixth edition of Professor Dicey's well-known, one may almost say 
classical, work contains considerable additions to the Appendix. There 
are new notes on Australian Federalism, on Droit Administratif in France, 
and on Martial Law. The first of these is a Tery clear and concise account 
of federalism in Australia according to the Commonwealth Constitution 
Act .(63 & 64 Vict. c. 12). In the main the founders of the Commonwealth 
are shown to haye followed the example of the United States rather than 
that of the Dominion of Canada. But they followed modem English 
practice in important points, and in one partictdar the Australian ministry 
has more power than the English cabinet, for it can dissolve not only the 
House of Representatives, but the Senate. Considerable flexibility is ' 
maintained, and by an ingenious device amendment of the constitution 
is made easy, while it can hardly be rash. Altogether Professor Dicey 
takes a very hopeful view. Notes X and XI concern French droit ckdmim- 
stratify and Professor Dicey overthrows two important misconceptions of 
its nature with such ease and lucidity that one almost wonders how they 
could ever have been fostered. As every one knows. Professor Dicey's special 
art lies in making the reader imagine that with a little thought he could 
have himself easily mastered the matter in hand unaided. In the latter 
of these two notes we have an extremely interesting account of the evolu- 
tion in the nineteenth century of droit administratif, which is ' case-law ' 
and cannot in the belief of French lawyers be codified, and a most 
instructive analogy between the treatment of droit administratif in France 
in the nineteenth century and that of English equity in the seventeenth. 
In Note X the question whether droit adminisiratif has been introduced 
into England is answered with a decided negative. 

Note Xn, on ' Martial Law,' contains perhaps the most interesting and 
debateable portion of the new material. Professor Dicey 's view is that martial 
law is bom of * Immediate Necessity ' and not only cannot exist in time of 
peace, which is admitted by ally but is confined to the locality of actual 
war and to the local defence of the peace against the king's enemies. The 
most important and, as he admits, plausible theory opposed to this is that 
the necessity need not be in his sense immediate, but that the use. of what 
is called martial law is legally justifiable when exercised for reasonable 
and probable cause. This he terms the ' Doctrine of Political Necessity or 
Expediency ' (though the necessity would seem to be ultimately political, 
whether more widely or less widely circumscribed). It may be admitted 
that from a lawyer's point of view the use of martial law is solely to 

Reviews and Notices. 231 

preserre or to restore the king's peace^ broken through the failure of 
ordinary ciyil jurisdiction and authority. Now what Professor Dicey says 
is in effect this : because at one time certain operations sufficed for this 
purpose and martial law extended to them and no further, therefore now, 
when those operations are no longer sufficient, martial law cannot be- 
extended to include any others which would or might be so. Surely this 
is to defeat the Tory object of martial law ; for if it does not vary with the 
conditions of the age, it is useless. In the eighteenth century the only 
acts which could haye direct effect on military operations were, those 
confined to the locality of fighting. The area of martial law was therefore 
de facto confined to tiiat locality. Nowadays telegraphic communication 
has given an extreme importance to acts so far from the seat of war that, 
while they might have a great effect on military operations, the place 
where they were committed might yet enjoy perfect peace and the courts 
there remain open. The prevention of these acts which cannot be secured 
by the course of legal procedure is exactly the purpose of martial law. 
The necessity in such cases is in fact as immediate in the strict sense of 
the word as if it arose from acts committe(^ at the seat of war, for all that 
the person or persons causing the necessity by their acts may be remote in 
space from the site of the hostile operations procured or assisted by them, 
which it is the end of martial law to prevent. If then martial law is to 
be effective at all, it must be held to cover such cases, and take cognizance 
of acts which, though committed far from the seat of war, may nevertheless 
have an immediate effect on warlike operations. The question in fact 
seems to be one not so much of authorities as of common sense. The 
authorities are scanty and ambiguous. If * martial law ' is a part, though 
an exceptional part, of the Goxnmon Law, is it not entitled to share in the 
presumption that the law is founded in common' sense ? 

The nature of Acts of Indemiiity is also debated between Professor 
Dicey and other learned persons. It is not open to doubt that one object 
of such an Act is to justify, ex post facto^ various things which it would be 
for various reasons impossible or difficult to justify in a court of law. 
But at the same time it is a measure of grace and prudence, passed to 
remove doubts and quiet consciences. That this is true cannot but be 
plain to any one who is acquainted with, e.g., the Act of Oblivion and 
* Indemnity passed at the Restoration. Professor Dicey seems to underrate 
the importance of providing for really doubtful cases. He admits that 
some extraordinary measures are justifiable at common law in time of 
war. As it has never been decided exactly how far the justification 
extends, and there is in fact great difference of opinion, it is obviously 
proper for an Act of Indemnity to be framed in language of abundant 
caution. We do not see why tiiis should prejudice the discussion of the 
pure legal question, except on a presumption, for which there is no 
authority, that Parliament always knows all the Ck>mmon Law. The 
fact that Acts of Indemnity always are framed in comprehensive terms 
does obviously tend to prevent the exact question as to the extent of 
common-law powers from b^ing effectually raised. In any case we may 
hope that martial law and Acts of Indemnity will now be of merely 
speculative interest for many years. 

In Chapter VII, on the Right of Public Meeting, and the very learned 
Note y thereto in the Appendix (which to a lawyer is even more interesting 
than the text) there are several new passages due to the need for consider- 
ing the recent decision of the K. B. D. in Wise v. Dunning [1902] i E. B. 
167, 71 L. J. E. B. 165. Mr. Dicey finds it possible, though not altogether 

232 The Law Quarterly Review. [No.LXXlV- 

easy, to reconcile this with Beatty y. Oillbanka^ g Q. B. D. 308, and adheres 
to the principle 'that a meeting otherwise in every respect lawful and 
peaceable is not rendered unlawful merely by the possible or probable 
misconduct of wrongdoers who to prevent the meeting are determined 
to break the peace'; which is quite consistent with a more extensive 
discretion in requiring sureties of the peace. 

Roman Private Law in the times of Cicero and of tie Antoninei. 
By Henry John Roby. Two vob. Cambridge : at the Univer- 
sity Press. 190a. 8vo. Vol. I, xxxii and 543 pp.; Vol. II, 
xiii and 560 pp. (30*. net.) 

In this important work Dr. Roby has set forth the Antonine law with 
a belief, or hope, that much of it is also of Cicero's time. His arrange- 
ment resembles that of the Institutes, but inheritance is brought into close 
relation with family law and obltgatio is drastically treated. Dissatisfied 
with the artificial symmetry of Gains, the author recasts the whole system 
and classifies obligations on a scheme based on the character of the 

Dr. Roby has taken infinite pains, justified by the result. The matter 
is handled with enviable certainty of touch : the statements of law are 
exact and clear, and the book contains a wealth of illustrations from lay 
writers. As was inevitable, the Digest has been largely drawn upon. This 
has involved the weighing of countless texts in order to determine how far 
they represent Antonine law. The learning, patience, and acumen needed 
for this task he will discover who attempts it with a single title of the 
Digest. Dr. Roby has been very successful. To test the work fully would 
be to do it again — with the same resourdes. * Non cuivis contingit.' But 
no passages have been noted in which Byzantine rules are certainly 
antedated, and few that are even doubtful. If at times principle seems 
sacrificed to detail, this is probably due to the fact that it is in matter of 
principle that the Digest is least to be trusted. 

Dr. Roby gives us Roman Law, pure and simple. He avoids modernism 
in thought, if not always in expression, and, warned by the example of 
some predecessors, he keeps his feet on the ground. He never speculates • 
and, without textual authority, rarely even explains. Indeed to most 
readers more commentary would probably have been welcome even at the 
cost of detail. Dr. Roby has avoided ' bottomless controversy,' not for lack 
of power, and the mere lawyer will regret that some cruces of the law have 
not been allowed to shfure the acute analysis bestowed on the ' Pro Caecina ' 
(ii. 510 sqq.) and even on the foolish Buculeius (i. 534 sqq.). The author 
does excellently in taking his reader to the texts, but is perhaps too much 
inclined to leave him there. 

The rapidly changing law of persons is clearly stated. It may be noted 
that the author's references do not justify the statements that ' grant of 
Latinity to a whole community carries with it the Roman pow^ over 
children ' (i. 63), and that one to whom hi? peculium is given on release 
acquires it only by usucapion (i. 56, 78). 

There seems no authority for the view (i. 529) that a completed gift, by 
way of datio, beyond the Cincian limit was revocable throughout the 
donor's life. 

Dr. Roby seeks to reduce the various cases of iussus (' adire hereditatem, 
cum servo contrahere, liberum esse,' etc.) to a common principle. They 

Aprn,i9O30 Beviews and Notices. 233 

differ so much in nature that the experiment seems hazardous. Thus the 
unwary reader may suppose that a gift of liberty by will was ' revoked by 
the death of the giver' (ii. 122, 123). 

The arrangement of Tort, based on a classification of actions, is of 
doubtful convenience. Is anything gained by calling Aquilian damage 
and *arborum furtim caesarum' semi-delictal and grouping them with 
the duty to pay a ' legatum certi per damnationem ' ? (bk. 5, ch. 5). 

Upon Possession (i. 451 sqq.) one may sympathize with Dr. Roby's 
desire to avoid controversy. But here, as indeed in some other places, 
one feels that the reader will never guess from the authors exposition 
what doubtful questions are involved. It may also be noted that too 
much stress is laid on the ' lawful ' origin of possession, and the statement 
that possession is good against all but the owner, though it is true, may 
mislead a reader who forgets that title was no reply to * uti possidetis.' 

It is doubtful whether even Dr. Roby's authority will rehabilitate the 
view that the * vis ' forbidden by that interdict may have occurred before 
its issue. He gives no text suggesting such a possibility in any purely 
prohibitory interdict. Several seem to negative it (e.g. D. zliii. 13. 1. 12). 
'Si vim non faciat' (G. iv. 170) is fatal. It is therefore proposed to read 
'si vim faciat' (ii. 447). This is to alter the whole purpose of the 'inter- 
dicta secundaria,' which were plainly designed to compel the taking of 
certain procedural steps. The explanation of this formal ' vis,' which, in 
view of its peculiar nature. Dr. Roby is surprised not to find at the end of 
170, would come more naturally before. It was presumably contained in 
the fifty illegible lines a little before 1 70, some of which lines were certainly 
occupied with the discussion of the procedure in this interdict. 

The few verbal slips and misprints which have been noted are not 
important. We have to thank Dr. Roby and the Cambridge University 
Press for a valuable addition to the list of English books on Roman Law. 

A Treatise on the Admiralty Jurisdiction and Practice qf the High Court 
of Justice^ the Vice^Admiralty Courts^ and the Cinque Porte, ^c. 
Third Edition. By E. S. Boscoe and T. Lambbbt Meabs. 
London : Stevens & Sons, Lim. 1903. 870. liii and 716 pp. 

This, the third edition, of Roscoe's Admiralty Practice is considerably 
larger than previous editions. The Introduction and Part I, which may be 
called the body of the book, show an increase from 139 pages in the second 
to 296 pages in the present edition. For the increase Dr. Mears is mainly 
responsible ; it is stated in the Preface that the Introduction and Chapters 
I-IV are entirely his work. The Introduction (77 pages as against 1 1 pages 
in the second edition) contains the best account which has yet appeared of 
the history and growth of the Admiralty jurisdiction. If it does not add 
mnch to what has been in recent years collected from original sources by 
Sir Travers Twiss and other writers, it presents in a consecutive and 
useful form the result of their work, and contains besides a variety of 
historical and antiquarian information which has never before been 
collected together. Dr. Mears' knowledge of Roman law has stood him in 
good stead in dealing not only with the history but also with the peculiari- 
ties of the law and practice of the court. The busy practitioner would 
perhaps have preferred that more space had been allowed to the chapters 
relating to wages, bottomry, necessaries, and matters with which he is 
more immediately concerned, and in this respect there is a certain want 

234 The Law Quarterly Review. [No. Lxxiv. 

of proportion in the book ; but the chapters on salvage and collision are 
full, and the latter (Chapters III and IV) contain in their 90 pages the 
substance of the law upon the subject. Chapter IV sets out the regulations 
for preyenting collision, and illustrates them by a copious citation of cases 
in the notes. This chapter, one of the longest in the book, appears to be 
entirely new ; it is a useful and necessary addition to the rather meagre 
chapter III of the previous edition. Legal literature upon the subject 
of collision grows rapidly. Part II, which deals with the rules and orders 
applicable to Admiralty practice, is also full and apparently complete. 
The official position of the principal author specially qualifies him to deal 
with this branch of the subject. 

Notwithstanding its increase in bulk, the book is still compact, and yet 
seems to contain all that is necessary for the practitioner. In the historical 
Introduction secondary authorities (e.g. Clowes' History of the Navy) are 
cited apparently for no special reason ; and to the statement (p. 5) that the 
Duke of Clarence was assisted in his office of Lord High Admiral by a 
council it should be added tl^at one of his predecessors, Prince Geoi^e of 
Denmark, was assisted in like manner. 

Principles of Equity. By W. Ashbuhnbr. London : Butterworth & 
Co. 1902. 8vo. Ivi, 729 and 49 pp. (%i9.) 

This book contains the most extraordinary statement that it has ever 
been our fate to read. At p. 673 occur the following passages: 'The 
restraint upon anticipation can only operate during coverture. It follows 
that if an interest is given by will to a married woman subject to a 
restraint upon anticipation, and she is discovert at the testator's death, 
she is [i. e. in an otherwise appropriate case] put to her election (6).' In 
footnote (6) we read : ' Kekewich J. has decided to the contrary. Hayma 
v. Fo^er [1901] i Ch. 361.' No other authority is referred to. Surely 
a decision which must have been reported about eighteen months before 
the present work was in print ought to have been dealt with in a different 
manner, apart from any question of the discourtesy involved in the 
observations. We also think that such a footnote as that at p. 234 
n. (g) should have been embodied in the text, or the subject-matter left 
alone. There are four or five other notes to which the same remark 

The author's statement of the effect of a sale in market overt (p. 68) is 
inconsistent with sections 22 and 24 (i) of the Sale of Goods Act, 1893. 
As the author refers only to the Case of Market Overt (1595) 5 Rep. 83 bi 
in support of his statement, we can but infer that he is not familiar with 
the provisions of the statute. He cannot, however, plead ignorance of the 
existence of the Trustee Act, 1893, which he has referred to in eleven places. 
If he had read section 14 he would have found that .his sixth illustration 
at p. 561 was no longer correct. As most of our reisers are aware, the 
law respecting the effect of depreciatory conditions on sales by trustees was 
first altered some fourteen years ago. The author also ignores the Bills of 
Exchange Act, 1882, and the Partnership Act, 1890, and we certainly 
think that a short reference to the provisions of the Married Women's 
Property Acts, 1870 and 1874, would not have been out of place in 
Chapter XII. At p. 133 we have the unmeaning phrase 'military will.' 
The author might, advantageously have followed the language of section 1 1 

April, 1903.] Reviews and Notices. 235 

of the Wills Act, 1837, which reads, 'any soldier being in actual military 
serrioe, or any mariner or seaman being at sea/ and have pointed out that 
the right is limited to personal estate. 

We are told (p. 128) that 'the owner of a chattel can only make 
a complete gift by delivery/ A gift by deed is equally effectiye ; Iron* y. 
SmdUpiece (1819) 2 B. & Aid. 551; 21 R R. 395 ; and see 2 Man. & G. 691, 
n. (a) ; 58 R. R. 533, n. (10). Mr. Ashbumer has also not considered the case 
where the donee already has custody or possession : see per Wills J. [1896] 
2 Q. B. at p. 289, and Kilpin t. BcUley [1892] i Q. B. 582. At p. 290 we 
read that ' the most important term which is imposed upon a mortgagor 
who comes into equity to redeem is his liability to account/ This statement 
is not supported by a reference to any authority, nor does the author 
favour us with his opinion respecting the items to be included in the 
mortgagor's account. At p. 296 we read that * a mortgagee is entitled, 
as part of his right of indemnity, to his general costs of suit, as between 
party and party, in an action for redemption or foreclosure.' We can find 
no reference to Farter y. Laoy^ Hartlani 4* Co. (1885) 31 Ch. D. 42, and 
this probably accounts for the failure to discriminate between the costs 
which a mortgagee recovers as an ordinary litigant, and the costs 
imposed as a term of redemption. More recent authorities than 
those referred to at p. 475, n. (c) show that the critical time for testing 
the right to a mandatory injunction in the case of interference with 
ancient lights is the date when the plaintiff first complains, and not the 
date of the issue of the writ: Smith y. Day (1880) 13 Ch.D. 651 ; Law* 
rence y. Uorton (1890) ^9 L. J. Ch. 440. The author seems to have 
imperfectly stated the law (p. 132) when, referring to documentary 
evidence to satisfy the provisions of the Statute of Frauds, he writes, ' the 
date of the writing is immaterial.' This is only partly correct, because it must 
also have been in existence at the date when the action is brought : BiU v. 
BamifU (1841) 9 M. & W. 36; Lucas v. Dixtm (1889) 22 Q. B.D. 357. 
The author also fails to notice that if a married woman ' had an ample 
provision for maintenance secured to her ' she could not assert her equity 
to a settlement: see QiacomeUi v. Frodgera (1873) L. R. ^ ^^' 33^* 

Mr. Ashburner's exposition of the jurisdiction to give relief against 
Mistake is not satisfying. It would have been better if he had grasped 
the fundamental principle, common to law and equity, thai in communica- 
tion between parties either is bound by that sense which his words were 
reasonably fitted to convey to the other, not necessarily by what he, or the 
other, thought they meant. 

Turning to more controversial matters, exception may be taken to the 
third of the author's five leading distinctions between private trusts and 
charitable trusts (see p. 154). As we read the decisions, in the case of 
charitable trusts, as well as in private trusts, it is a question of construc- 
tion whether the donee is entitled to the property given to him subject to 
the discharge of certain obligations, or whether he is merely to fulfil the 
office of trustee for others, and the charity cases seem to find a close analogy, 
if not a parallel, in such cases as Croome v. Croome [H. L. 1889] 61 L. T. 
814, referred to by the author at p. 143. Exception may also be taken to 
the statement (p. 415, n. {h)) that the language of Farwell J. in FoweU 
Y. FoweU [1900 J z Ch. at p. 246 is not consistent with the authorities. 
It is undoubtedly an advance from anything uttered before, but in Satfery 
Y. King (1856) 5 H. L. C. 627 it was held that there was not sufficient 
independent advice, and the observations of Lord Cranworth (5 H. L. C. at 
PP* ^55) 656) upon which the author relies as justifying his challenge, 

236 The Law Quarterly Beview. [No. Lxxiv. 

even if they amounted to an attempt to define what amounted to sufficient 
independent advice, would have been spoken obiter. Since the publication 
of the work under review the observations of Farwell J. (which could very 
well stand on their own merits) have been approved in Wright v. Carter 
[1903] I Ch. 27 by Stirling L. J., whose accuracy and caution are not 
generally disputed. In apparent reliance upon some very old cases, we 
are told (p. 74 and n. {h)) that the critical times in a plea of a purchase 
for value without notice are, at and before the respective dates of the 
contract for purchase and the payment of the purchase money, and not 
at and before the respective dates of the execution of the conveyance and 
payment of the consideration. The latter is the plea sanctioned by Lord 
Lyndhurst in Jackson v. Eowe (1828) 4 Russ. 514; 28 R. R. 168; which 
the author does not refer to. 

In the historical introduction some reference to the older reports was 
unavoidable, but there seems little point in preserving Anon, (1697) Salk. 
126, when we have the recent decision of the House of Lords in London 
Joint Stock Bank v. Simmons [1892] A. C. 201.. There are other instances 
in which the learned author has given references to cases which one rarely 
hears cited in court, when later and more recognized authorities exist. It 
is difficult to appreciate why he has made use of 'Cases in Chancery/ 
* a book of notoriously doubtful authority * (see Wallace, Reporters, fourth 
edition, p. 481) and * Equity Cases Abridged/ which the practitioner seldom 
cites without misgivings. Newspaper reports, to two of which the author 
refers, are clearly inadmissible. We fail to understand why the author 
should base a statement (p. 321) respecting conveyancing forms on books 
of precedents published in 1632, 1650, 1652, and 1674. It is perhaps 
this familiarity with ancient and obsolete precedents which has induced 
the learned author to refer (p. 273) to the effect of a tender in the case of 
a mortgage which does not provide for reconveyance, but that the * feoff- 
ment ' shall be void upon payment on the appointed day. The curious 
may read the history of this legal mummy in the judgment of Chitty L. J. 
in Durham Brothers v. Roberts [1898] i Q. B. 765. 

In a book intended primarily for students, it is difficult to object to the 
omission of any particular case, but there are at least two (both in the 
House of Lords) which we think might have been referred to, namely 
Beeve v. Lide [1902] A. C. 461, and Walter v. Lane [1900] A. C. 529. We 
also think the author might have supplied (at p. 507) the well-known 
cases sanctioning his statement that covenants for title, even on a con- 
veyance in fee, run with the land. The author has failed to notice that 
Skip's case was affirmed upon appeal, sub nom. Downes v. Ship (z868) 
L.R. 3H.L. 343. 

On the whole we regret to have to say that, although there is much to 
recommend the book, it seems to us to contain too many pitfalls to be a safe 
road for the student. 

The Winding-up of Companies and Recofistruction, By His Honour 
Judge Emdsn. Sixth Edition by Hekuy Johnston. London : 
Clowes & Sons, Lim. 190a. Svo. xxvi and 586 pp. 

Thb method of annotating the sections of an Act ^nd the rules under it 
is one that commends itself to English lawyers inspired as they are by 
a constitutional reverence for the oracular utterances of the legislature. 
But there comes a time when this n^ethod is no longer practicable, when 

April, 1903.] Beviews^and Notices. 237 

Acts upon Acts and Rules upon Rules — alii niper alios acervaiarum legum 
eumuLi make a chaos only mitigated by eternal cross-references. This is 
the present state of company law, and the author and editor of the book 
have wisely recognized that the only way out of it is to deal with the 
subject rationally and chroAologically in a series of chapters — the Petition, 
the Order, First Meetings, Gontributories, the Liquidator, and so on. The 
result is great gain in clearness and comprehensibility, and incidentally 
a considerable saying of space. This last edition, the sixth, is also the 
smallest — a record surely in legal literature. How closely packed the 
matter is is shown by the fact that between 3,000 and 4,000 'authorities 
are referred to in some 360 pages of text. 

The treatment of yoluntary winding-up deserres special commendation. 
It is not suf&ciently realized by text-book writers that this branch of the 
subject is the one which most concerns practitioners. Of the whole 
number of companies which came to be wound up more than 90 per cent, 
are wound up yoluntarily, and eyen in the case of those which are wound 
up by the Court the official receiver — who is a person not in need of 
instruction in these matters — generally acts as liquidator. There is one 
slight blemish in this excellent work. The sub-headings in the index 
are not given in alphabetical order — a mechanical detail, but worth 
rectifying in a future edition. 

A Compendium of Sherif and Execution Law. By Philip E. Mathxe. 
Second Edition. London : Stevens & Sons, Lim., and Sweet 
& Maxwell, Lim. 1903. La. 8vo. lix and 708 pp. (30^.) 

The profession will welcome a new edition of Mr. Mather's excellent 
book. The author has personal knowledge of the requirements of under- 
sheriffs, and in all that directly pertains to their duties and to the privi- 
leges and duties of sheriffs he has given such minute and practical 
directions as are seldom to be found in a law-book. Matters of etiquette, 
such as the ordering of processions at Assizes, and even down to the seat 
which an undersheriff should occupy in the judges' carriage, and all sorts 
of details as to the summoning of juries, provision of judges' lodgings, and 
so forth, are fully dealt with. 

Other portions of the work treat of the law of execution in all its 
various forms, of bills of sale, interpleader and assessment of damages 
and compensation. In these portions of the work practical directions 
are given, and full references are made to the leading authorities and 
text-books, so that the work whilst containing all that an undersheriff 
is likely to want forms also an admirable digest for lawyers generally. 

The chapters on Civil Execution, particularly in relation to Bankruptcy 
and on some collateral topics, have been considerably expanded in this 
edition, and Mr. Mather is quite justified in adding the words ^and 
execiUum* to the title of the work. It now comprises a useful treatise 
on the law of execution generally. 

Upon the subject of assessment of compensation we look in vain for the 
effects of an a>Yard for a lump sum for two or more claims, one of which is 
bad (see Long EaUm^ 6fc. Co. v. Midland Railway Co, [1902] 2 K. B. 574, 
57g^a matter upon which an undersheriff may well require guidance. 

238 ITie Law Quarterly Beview. [NcLXXIV. 


Pleas of tie Crown for the hundred of Swtneehead and the toumehip of 
Brutal , . . in theffih year of the reign of King Henry the Third^ 
A.D. 1 221. By Edward James Watson. Bristol: W. Crofbon 
Hemmons. 1902. La. 8to. 174 pp. 

The record here edited is a small one, as tlfe learned editor says. The 
vrork has been very well done, much on the same lines as the Pleas of the 
Crown for the County of Gloucester with which Mr. Maitland first made 
his reputation as a legal historian. Mr. Watson has prefixed an excellent 
introduction which should be interesting even to many readers who do not 
care to go through the text. We find the inefficiency of criminal law in 
the first quarter of the thirteenth century amply confirmed. There are 
scTeral entries of gang robberies and murders, corresponding exactly to 
what is known as dacoity in India, followed by the lame conclusion ' nullus 
inde male creditur ' or ' nescitur qui fuerunt.' Accidental death, mostly by 
drowning or the upsetting of a loaded cart, with the consequent deodand, 
figures as prominently as in the Gloucester rolls. There are many traces 
of the extortions, apparently quite open and shameless, of Gerard of Ath^e, 
one of the worst of King John's sheriffs and a Tillainous person in eyery 

We have very few critical remarks to make. At p. 146 the jurors of 
Bristol refuse to present certain new quays as purprestures. They say 
they are made according to ancient custom and Uiere is no damage to the 
king, or to the navigation, or to the neighbours ; ' and their franchise is 
such that they may well build on the water's edge provided they do no 
such damage as aforesaid.' Mr. Watson gives a translation which we 
cannot follow. At p. 148 the constables are presented for an abuse, 
seemingly introduced or allowed by Gerard of Athee, of taking 2«. for 
every last of herrings, ' et solebant habere 4 messas 2 [denar.] minus quam 
alii emptores.' This fruMta is surely the ' mease ' of herrings still familiar 
all round the coast of Somerset and Devon. .Mr. Watson gives 'messes,' 
which fails to make sense ; but perhaps this is only a misprint. Finally 
we regret that Bracton is cited only by the paging of the uncritical and 
worthless Record Office edition. 

A Treatise on the Law relating to Debentures and Debenture Stoch^ 
issued by Trading and Pub/ie Companies and by Local Authorities^ 
with Forms and Precedents, By P. F. Simonson. Third Edition, 
London: Effingham Wilson; Sweet & Maxwell, Lim. 1902. 
8vo. Ixii and 522 pp. 

DEBEKTTTnEB and debenture stock have grown with the growth of 
company law — some 400 millions is said to be invested on these forms 
of security — and they now present a formidable body of law, which is 
constantly receiving new additions from the ingenuity of the draftsman 
and the exigencies of business. A floating security — which is characteristic 
of company borrowing — lends itself from its very nature to complications 
with competing mortgagees and general creditors, and the fact that it is 
not recognized as legitimate in most foreign countries helps to furnish — 
now that companies trade so much abroad — nice problems for the jurist. 
The legislature, by the provisions as to registration of mortgages and 
debentures in the Companies Act, 1900, has further opened a new and 
almost endless vista of perplexing questions. In all these Mr. Simonson's 
book will be found to be a safe and excellent guide. One useful feature 

Aprils 1903.] Reviews and Notices, 239 

of it is that he deals not only with the debentures and debenture stock of 
trading companies, but debentures and debenture stock issued under 
the Companies Glauses Act, 1845, ^^® Railway Securities Acts, 1866 and 
1867, and the Local Lpans Acts. This is the sort of information which 
the inquirer finds it yery troublesome to hunt up and collate for himself. 

TAe Law relating to Auctioneers^ House Agents and Valuers^ and to Com- 
mission. By Hbbbb Hart. Second Edition. London : Steyens 
& Sons, Lim. 1903. 8vo. xzxix and 532 pp. (15*.) 

Ik this edition Mr. Hart has considerably extended the scope of the 
original work. He has added a useful disquisition on the law ' of 
commission, a subject which, though it presents no great difficulties, has 
not been adequately treated of in any other work with which we are 
acquainted. Upon this topic Mr. Hart has written fully, clearly and 
accurately. Indeed the same qualities characterize the greater part of the 
book. Perhaps the least satisfactory part is the chapter on conditions of 
sale as used in auctions of goods. We find no mention of the submission 
of disputes to the arbitration of tJie auctioneer. This condition is a usual 
one, but in the form in which we haye met with it it is not easy to 
construe. Mr. Hart would haye done good seryice if he had discussed its 
yalue and giyen a better form than that commonly used. Upon the 
condition that the sale is not to be inyalidated by faults or non-compliance 
with the description in the catalogue the author is not at his best. He 
fails to distinguish between warranty and condition, and the line of cases 
of which the leading examples are Sh^>herd y. Kain (5 B. & A. 240) and 
Taylor y. Bvllen (5 Ex. 779) might with adyantage haye been more care- 
fully considered. 

A Practical Guide to the Licensing Acty 1 902. By Charlbs L. Bothbra. 
London: Jordan & Sons, Lim. 1903. Syo. xx and 157 pp. 
(3#. 6d. net.) 

The author has attempted the difficult task of coping with the modem 
method of legislation by reference and at the same time of indicating the 
powers which are yested in the licensing . authority as' discretionary 
administrators of our licensing system. Thus the book, being written 
by a lawyer, may be used as a work of reference by lawyers who will find 
that the preyious law has been carefully brought forward and the modifica- 
tions introduced by the new law haye been indicated, while the licensing 
justice may find suggestions that will help him to appreciate the general 
theory underlying our anomalous licensing system. 

The yarious important decisions and leading cases haye been judiciously 
selected and their effect and tendency noted, but the references to the 
cases cited require reyision — many of those in the table of cases being 
particularly inaccurate. The judgments deliyered by the judges in the 
Court of Appeal on the Famham case are giyen yerbatim in the appendix, 
together with yarious suggested forms of notices, magisterial regulations, 
and Home Office circulars, and the book is well indexed and cross-* 
referenced. It should take a good place among the many works that 
haye appeared on the new Act. 

240 The Law Quarterly Review. [No. LXXIV- 

Revue GSnSrale du DroU^ etc, Janvier-P6vrier, 1903. Paris : 
A. Fontemoing. 

Pbof. Edouabd Lambebt, of Lyons, concludes in this number a series 
of articles in which he attacks the authenticity and received antiquity of 
the TweWe Tables. He regards them as a custumal of the second century 
B. G. embodying material of very different dates and origins, and seems not 
to belicTe that there were any such persons as the Decemvirs. The notes 
to this article show that M. Lambert's opinion has already, as might be 
expected, been vigorously disputed by some of his learned brethren in 
France; and there appears to be every promise of a mighty pretty 
controversy, which we commend to the not too numerous class of English- 
speaking Romanists. 

Stances et travaux de ricadSmie des Sciences Morales et Politiques 
(Institut de France). Mars. Paris, 1903. 

M. Dabsstb has communicated to the Academy of Moral and Political 
Sciences a most interesting account of the most ancient law-book known 
to us, the code of the Babylonian King Hammourabi, discovered among 
the cuneiform records of Susa, and of a date about 2000 b. 0. This paper, 
which is also printed in the Journal des Savants^ is founded on a forth- 
coming translation by Father Scheil of the £cole des H antes Etudes. It is 
impossible to give an account of the contents in the space at our disposal. 
Suffice it to say that they prove the existence of an elaborate though 
archaic civilization, and offer many striking analogies not only to other 
ancient Asiatic laws but to the oldest known customs of the Germanic 
tribes. There does not appear to be any mention of Abraham. 

We have also received ; — 

The Law of Employer^ Liability and Workmen's Compensation. Third 
Edition. By Thomas Bevsn. London: Waterlow Bros, and Layton. 
1902. 8vo. Ixv and 570 + Iviii (index) pp. — Mr. Beven's book is 
certainly, in our opinion, the most learned commentary on the Acts 
yet produced, and also the most compact and orderly presentment of the 
whole subject, including common-law rules as well as statutes. In the 
present edition the part dealing with the Workmen's Compensation Acts, 
about five-eighths of the whole, has been rewritten to keep pace with t£e 
increase of decisions. The learned author refuses, quite rightly, to 
apologize for being critical. People who are no lawyers and pass Acts in 
haste must expect lawyers to criticize them at leisure. In this case some 
of those who were responsible for the Acts as legislators have been fore- 
most to censure them as judges. We regret that Mr. Beven has thought it 
necessary to cite newspaper reports, and occasionally County Court cases. 
A County Court decision is really of no authority at all even in its own 
court, and ought not to be professionally cited for any purpose. That 
some County Court judgments are better than some reported High Court 
cases we do not doubt; but so also are some merely private opinions. We 
have already too great a burden in the regular reports without adding 
County Court decisions to them. 

A Treatise on the nature and seoj>e of the Science of Law, By Sysd 
Karamat Huseik. Allahabad: City Press. 1902. 8vo. 252 pp. — 
More than two-thirds of this volume consists of appendix, setting out 
copious extracts from various authors, presumably for the use of Indian 

April, 1903.] Reviews and Notices. 241 

readers not having access to a library. The text is an experiment in 
classification. Every student of law vfiW admit that there is an art as 
well as a science of law. The * artificial ' framing of a deed or an Act of 
Parliament, to nse the classical English term, is a work of art, though 
there must be science to guide the artist. It is not so easy to say exactly 
what are the respective provinces of the science and of the art. The 
Sayyid endeavours to make an exact division of the science into Deontology 
and Nomology. Deontology being pretty much what is commonly called 
the Theory of Legislation, and Nomology covering General, Historical and 
Comparative Jurisprudence. Positive Law, on the other hand, considered 
as a system of imperative and operative rules, belongs, in the author's 
view, not to science but to art. The argument is ingenious and neatly 
turned, and will interest those who have time for such exercises. 

The Finance Act, 1894, and the Acts amending the same so far as they 
relate to the Death Duties and inore especialh/ the new Estate Duty, By 
J. E. Habmax. Second Edition. London: Stevens & Sons, Lim. 1903. 
8vo. xii, 189 and 14 pp. (65.)— This handy little book can be recom- 
mended as a reliable guide to an Act which depends to a great extent on 
the definitions of its expressions. The Introduction refers to the old death 
duties and explains at length the effect of the new Act. The notes to the 
various sections of the Act are excellent, and the references to the cases 
cited fairly accurate. Forms in use as to Estate and Settlement Estate 
Duty, and the Rules affecting the Act, together with the Finance Acts, 1896, 
1898 and 1900 are included in the Appendix. The difference of opinion 
among the judges as to the effect of section 9 of the Act with regard to 
property which does not * pass to the Executor as such ' is set out. 

The Law of Copyright. By Thomas Edwabd Scbutton, K.C. Fourth 
Edition. London : Wm. Clowes & Sons, Lim. 1903. 8vo. xxv and 
33 * PP- (15*) — We agi-ee with the caustic but thoroughly justified 
remarks in Mr. Scrutton's preface to this edition on the indolence and 
ineptitude of Parliament in dealing with the chaos of our copyright law ; 
which, we fear, only reflect the incapacity of the British public at large 
for taking literature or art seriously. We do not agree with the criticism 
of Walter v. Lane^ see L. Q. R. xvi. 6, xvii. i. 

The Licensing Acts^ being the Licensing Acts 1828 to 1902 . . with 
introduction, notes, and forms, and reports of Sharp v. Wakefield, &c. By 
the late James Patebson. Fifteenth Edition by William W. Mackenzie. 
London: Shaw & Sons; Butterworth & Co. 1903. 8vo. c, 498 and 
88 pp. (i5«.) — The fourteenth edition of this work was exhausted within 
two months of publication. A book that sells so rapidly stands in no 
need of commendation. 

The Question of English Divorce : an Essay. London : Grant Richards. 
1903. 8vo. 175 pp. (2«.) — A plea for the assimilation of English 
divorce law to that of other Protestant countries, supported by statistics as 
well as argument on principle. 

The Annual County Cowrts Practice, 1903. Edited by Ilis Honour 
William C. Smyly, K.C, assisted by William James Bbooks. Two vols. 
Vol. I containing the Jurisdiction and Practice under the County Courts 
Act, the Bills of Exchange Act, the Employers' Liability Act, and the 
Workmen's Compensation Acts, with rules, forms, &c. Vol. II containing 
the Jurisdiction and Practice under Acts not dealt with in Vol. 1. 
London: Sweet & Maxwell, Lim.; Stevens & Sons, Lim. 1903. 8vo. 
Vol. I. xxxii, 1036 and 116 pp. Vol. II. xiii, 525 and 55 pp. (25*.) 


242* The Law Qtuirtefly Review. 

A Treatise an tJie Specific Performance of Contracts. By the Right Hon. 
Sir Edwabd Fbt. Fourth Edition. By W. Donaldson Rawlins, K.C. 
London: Stevens & Sons, Lim. 1903. La. 8vo. liii, 685 and 98 pp. 
(36«.) — Review will follow. 

The History and Law of Fisheries. By Stuabt A. Moobe and Hubbbt 
Stxjabt Moobb. London: Stevens & Haynes. 1903. La. 8vo. xliii 
and 446 pp. — Review will follow. 

A Handy Book of the Fislwry Laws. By Geobgb C. Okb. Third 
Edition. By J. W. Willis Bund and A. C. McBabnbt. London: 
Butterworth & Co. 1903. 8vo. xxiv and 369 pp. (i6«.) 

The ConsttttUion of the Commonwealth of Australia. By W. Habbison 
Moobb. London: John Murray. 1902. 8vo. xix and 395 pp. (i6«. 
net.) — Review will follow. 

Education Law, incorporating the Education Acts, 18 70-1 902, and other 
Acts relating to Public Education. By T. A. Obgan and A. A. Thobias. 
London: Butterworth & Co.; Shaw & Sons. 1903. 8vo. x, 599 and 
34 pp. (i2«. 6d. net.) 

Stone's Justices* Manually being the Yearly Justices' Practice for IQ03. 
Thirty-fifth Edition. Edited by J. R. Robebts. London : Shaw & Sons; 
Butterworth & Co. 1903. 8vo. cxxvi and 1187 pp. (25«.) 

The Principles of Procedure, Pleading and Practice in CivU Act -^ns in 
the High Court of Justice. By W. Blakb Odgebs, K.C. Fifth Edition. 
London: Stevens & Sons, Lim. 1903. 8vo. Ixiv and 504 pp. {12s. 6d.) 

The Yearly Digest of reported Cases for the year 1902. Edited by 
Edwabd Beal. London : Butterworth & Co. 1903. La. 8vo. Ixxvi pp. 
and 564 columns. (15^.) 

Statutes of Practical UtiUty passed in 1902. With notes, &c. By J. M. 
Lely. London: Sweet & Maxwell, Lim.; Stevens & Sons, Lim. xxii 
and 196 pp. 

The Municipal Corporation Acts, &c. By the late Sir C. Rawlinson. 
Ninth Edition by John F. P. Rawlinson, K.C., and J. A. Johnston. 
London: Sweet & Maxwell, Lim. 1903. La. 8vo. Ixvi, 602 and 
106 pp. (426.) 

The Law relating to Electric Lighting, Traction and Power. Third 
Edition. By John Shibess Will. London : Butterworth & Co. 1903. 
La. 8vo. XXX and 511 pp. (25*.) 

The Education Act, 1902, with notes. By Montague Bablow and 
H. Maoan. London: Butterworth & Co.; Shaw & Sons. 1903. 8vo. 
viii, 188 and 12 pp. (3*. 6d. net.) 

The Trustee Acts, including a guide for trustees to investments. By 
A. L. Ellis. Sixth Edition. By L. W. Btbne. London: Stevens 
& Sons, Lim. 1903. 8vo. xii, 175 and 19 pp. {6s.) 

The Editor cannot undertake the return or safe custody of MS8. 
sent to him without previous communication. 



Wo. IiXXV. July, 1908. 


WE have again to state that Oxford is not the place of publica- 
tion of this Review, and the Editor does not live there ; 
and to request that correspondence and book parcels may not be 
addre^ed to Oxford. The Editor's address is 13 Old Square, Lincoln's 
Inn, London. 

T was from the time of her birth to her death a British subject ; 
she was bom out of wedlock in Malta ; at the date of her birth 
her father was an Englishman domiciled in England, her mother 
was a Maltese subject domiciled in Malta. They afterwards 
intermarried in Malta. T quitted Malta in 1832 and died in 1894 
domiciled at Freiburg, in Baden. She executed a will which 
admittedly was valid. Under her will she gave certain legacies 
and appointed executors, but she made no residuary bequest. She 
left movables situate partly in England and partly in Freiburg 
more than sufficient to pay the legacies. She died therefore as 
to some of the movables intestate. As T had never been natu- 
ralized in Baden, the legal succession to that part of her movables 
which was not disposed of by will was, according to the law of 
Baden, governed by the law of the country of which she was a 
subject at the time of her death. Her executors by an originating 
summons asked for an inquiry, who were the persons entitled to 
the movable property of the testatrix undisposed of by will, and 
for directions as to distributing it, and for administration if 
necessary. It was held by Farwell J. that the undisposed of 
movables must be distributed according to the law of Malta, i. e. 
the law o{ T*s domicil of origin: In re Johnson [1903] i Ch. 8a 1. 

This decision is, if it stands, by far the most important which 
for years has been delivered by an English Court on any 

VOL. XIX. s 

244 The Law Qtmrterly Review. [No.lxxv. 

question connected with the conflict of laws ; it incidentally cuts 
through that much agitated question of the retivoi, on which, after 
long discu^Hion, the opinion of eminent jurists still remains divided. 
It directly lays down a new rule with regard to the thorny point, 
how the principle adopted in many continental countries, that 
succession to the movables of a deceased person is to be governed 
by the law of the deceased's nationality, ought to be applied when 
the deceased dies domiciled in a country, e.g. Italyl where such 
principle prevails, but is the subject or member of a state, such 
as the British Empire, which consists of countries, e. g. England, 
Scotland, the Isle of Man, &c., governed by different systems of 
private law, and where the principle is maintained that succession 
to movables is to be determined by the law not of the deceased s 
nation, but of his domicil at the time of his death. Mr. Justice 
Farwell's solution of this difficult problem is that, at any rate in 
the case of a person dying intestate, succession to his movables is 
(in the circumstances supposed) to be determined by an English 
judge in accordance with the law of the deceased's domicil of 

It is impossible within the space of a note to deal with or even 
to state the many and difficult questions raised by In re /oAnson 
or, to use a short popular name, by the Maltese case ; they, it may 
be conjectured, will be the subject of more than one article in future 
numbers of the Law Quarterly Review. 

All that a critic can do, writing so to speak on the spur of the 
moment, is to point out several reasons for doubting whether the 
principle of the Maltese case can, until affirmed by the House of 
Lords, be considered part of the law of England. 

(i) The principle of the Maltese case is not suppoi*ted by any 
decision of the House of Lords or of the Privy Council. There 
is always rashness in the assertion of a negative proposition, but 
one would probably not go far wrong if one asserted that the 
Maltese case was not supported by any reported decision of any 
English Court. 

(2) The doctrine of In re Johnson is in the most distinct manner 
opposed to the doctrine universally laid down in English cases and 
in English text-books of authority that succession to & man's movable 
property is governed by the law of his domigU jtt the time of his 
death. No doubt the words .*law of his oroiicir are from one 
point of view ambiguous (see Dicey, Conflict of Laws, pp. 75-78), 
but whatever they may mean, they do not mean the law of the 
deceased's domicil of origin as such. 

(3) The rule that succession is to be determined by the ' law of 

J%, 1903.] Notes, 246 

the deceased's domicil ' at the time of his death has, as interpreted 
by English Courts, always, it is submitted, been understood to 
mean that succession is to be determined in accordance with that 
law, whatever it is, which the Courts of the country where he dies 
domiciled would, if the deceased's movables were in their hands, 
apply to it, whence it has been infeiTed by so eminent a lawyer 
as Lord Westbury that the whole duty of the English Courts and 
Euglish executors is, after satisfying the debts, &c. in England, to 
hand over the movables of a deceased person to those who represent 
him under the law of his domicil {Enohin v. Wylie, 10 H. L, C. 1). 
The inference, it is true, has been disputed [Emng v. Orr Ewing, 
9 App. Cas. 34 ; 10 App, Cas. 453), but the premises from which 
it is drawn have never been questioned (see Collier v. Eivaz, 2 Curt. 
855i 1 Williams, Executors, 9th ed, p. 304). 

(4) In re Johnion is oddly enough in accordance neither with 
the views of the jurists who attack the doctrine of the renvoi^ 
nor with the views of equally eminent jurists who support it. 
The judgment in the Maltese case involves at least two most 
dubious assumptions. It assumes that the question of a man's 
domicil is a question of law, whereas the whole tenor of the 
English doctrine is that domicil is a question not of law but 
of fact. It assumes, and without any adequate ground, that 
the Baden Courts in effect would have disclaimed jurisdiction, 
whereas what they really would have done was not to disclaim 
jurisdiction, but to assert for the choice of law a different rule from 
the rule adopted by the English Courts. 

(5) Two considerations explain and almost justify what to many 
critics will appear to be the* errors involved in Uie judgment of 
Farwell J. More than one authority which might have influenced 
the Court was not brought before it. A matter of more consequence 
is that the argument against the application of the law of the 
Maltese domicil took a most unfortunate turn. The unsustainable 
contention seems to have been much laboured that succession to the 
property of a British subject dying domiciled in the Grand Duchy 
of Baden must, of necessity, be determined in accordance with the 
local or territorial law of England, whereas, it is submitted, the right 
contention was that an English Court must apply to the movables 
left by a British subject dying domiciled in Baden the rules, what- 
ever they are, which in the particular case would have been applied 
to the movables of such intestate by the Baden Courts. The 
principle, in short, to be adhered to was that the goods of the 
deceased in England ought to be distributed in the same way in 
which the Baden Courts would have distributed or rather did 
distribute the goods of the deceased situate in Baden. 

s 2 

246 The Law Quarterly Review. [No. LXXV. 

The English Court might, in the first place, have directed that 
the movables in England should be handed over to the persons, 
whoever they were, entitled to represent the deceased under the 
law of Baden, in which case the distribution of these movables 
would have been carried out under the direction of the Baden 
Courts, and the English movables of the deceased would have 
been distributed in the same way as the movables which she left 
in Germany ; this is the course which Lord Westbury held to be 
the only proper one, and though not now held imperative upon is 
still apparently open to the representatives in England of an 
intestate dying domiciled abroad. The English Court might, in 
the second place, have ascertained according to what law the 
movables of the deceased would be distributed by the Baden Courts 
if left in their hands, and have distributed them in accordance 
with that law, whatever it might happen to be. The ascertain- 
ment of this fact in the particular instance apparently presented 
no difficulty; all that was necessary was to ascertain what was 
the law in fact applied to the distribution of the deceased's 
movables which were situate in Germany. The result of either 
of the courses suggested would have been the same. The movables 
of the deceased would have been distributed in obedience to a well 
established doctrine of English law, according to the law of her 
domicil, viz. Baden, at the time of her death. The only possible 
way in which it can be maintained that Farwell J. gave effect 
to this rule is to contend that the deceased had not acquired 
a Baden domicil ; but as the acquisition of a permanent home or 
domicil is, speaking broadly, a matter of fact, not of law, the 
contention that she did not die domiciled in Baden all but 
contradicts the admitted facts of the case. 

It is greatly to be hoped, though perhaps hardly to be expected, 
that the Maltese case will be carried to the House of Lords. The 
questions which it raises are constantly in one form or another 
brought before specialists versed in the conflict of laws. It is 
to be regretted that English law contains no method by which, when 
a case raises points of great genei-al importance, the House of Lords 
can, at the public expense of course, call the case before the House, 
and give a final decision on a matter of principle. 

A. V, D. 

We differ with great hesitation from our learned contributor, 
but we cannot follow his objections. It appears to us that the 
judgment of Farwell J. was perfectly right, though different 
minds may put different degrees of value on the several reasons 
given for it. Farwell J. admits that in the first instance we 

July. I903,] Notes. 247 

have to see what the German Court will do (we say German^ 
because the law of Baden is now merged in the general law 
of the (German Civil Code, which had not been passed at the 
date to be considered in this case). Now the German Courts 
know nothing of our rules of domicil, and go by the law of the 
nationality. Thereupon Farwell J. says that, as we are bound to 
regard domicil, we get no assistance from the German Court, and 
may treat it as disclaiming jurisdiction or refusing to allow a 
German domicil to be acquired. Thus the Maltese domicil was, 
for the purposes of our jurisdiction, never effectually lost. Such 
is the learned judge's first way. We confess that we think it 
rather involved. But he puts it another way too. Take it that 
our business is to do what the German Court would have done. 
That Court would administer the goods according to the national 
law of the deceased, whose nationality was British. But there is 
no such thing as a national private law of the British Empire, 
or for that matter of Great Britain, which alone is recognized in 
international relations. (The fact that the law of nations knows 
nothing of England or Scotland seems to have been strangely over- 
looked in the argument.) The German Court (taking judicial 
notice or being otherwise informed of this) would therefore have 
to inquire what private law would be applied by a British (not 
necessarily English) Court. The answer to that inquiry would be, the 
law of the domicil. Now this cannot be, for the present purpose, 
German law, for that would involve us in a vicious circle. There- 
fore, on the principles adopted by English Courts, and we believe 
by all Courts in the British Empire, we have to fall back on the 
domicil of origin, viz. Malta. So the result of both lines of 
reasoning is the same. Does our learned correspondent think them 
both wrong ? And what would his practical solution have been ? 
He takes us to the German Court and leaves us there. What 
ought that Court to have done? We can agree, however, in 
holding that the Continental rule of nationality, leaving as it does 
in so many cases a further question which of several local laws is to 
be applied, has added great difficulty to the subject without any 
visible countervailing advantage. 

The decision of the House in Starkey v. Bank of England [1903] 
A. C. 114, 72 L.J. Ch. 40JZ, afiirming Oliver v. Bank of England 
[1902] I Ch. 610, 71 L.V. Ch. 388, puts an end to the attempts 
that have been made to shake the authority of Collen v. Wright^ 
8E. & B. 647, %*j L. J. Q. B. 215, or to confine it to cases 'where 
the transaction entered into with the supposed agent was in the 
nature of a contract.' The rule of a professed agent's implied 

248 The Law Quarterly Beview. [No. Lxxv. 

warranty of his authority * extends to every transaction of business 
into which a third party is induced to enter by a representation 
that the person with whom he is doing business has the authority 
of some other person': per Lord Davey [1903] A.C. H9. It is 
also immaterial . . . whether the supposed agent knew of his 
defect of his authority or not.* Indeed one object of the rule is to 
exdude the need for proving anything about his state of mind. 
The rule in CoUen v. Wright has been disputed as repugnant to the 
spirit of the Common Law. Such artificial limitations of it as were 
proposed in argument would make it far more so. But we do not 
admit any repugnancy. 

It is seldom that judicial differences are so accentuated as in 
Bradley v. Carritt (7a L. J. K. B. 471), the recent House of Lords 
cajse on ' clogging/ This dry doctrine of Equity has, like Aaron's 
rod, been blossoming of late with remarkable vigour : the worst is 
that the more the cases multiply the more distracting is the state 
of disquietude they induce in the mind of the lawyer finding himself 

'The fell incensed points of mighty opposites.' 

Yet the question in Bradley v. Carritt^ stripped of its accessories, 
resolves itself into a very simple one. A, a shareholder, mortgages 
his shares to B and agrees to use his best endeavours as share- 
holder to secure that B shall have the sale of the Company's teas 
as broker. Is this term as to brokerage a * clog ' on A'^ equity 
of redemption and as such void ? Why ? It does not prevent in 
any way i^edemption on payment of debt, interest and costs. 
It survives— or may survive — redemption, but if it does it is as 
a contractual obligation only, personal to the mortgagor, not 
affecting his right to have the security reconveyed. Santley v. 
WUde ([1899] 7, Ch. 474, 68 L. J. Ch. 681, C. A.) is distinguish- 
able in a very material particular. There the property mortgaged 
was a theatre, held for a short term of years, and it was made 
security, first for money borrowed and interest, and secondly for 
the performance of an agreement entitling the mortgagee to a 
share of profits earned by the mortgagee during the lease, even 
though the loan might have been repaid. The result was to burden 
the property with more than the loan made upon it, and to that 
extent redemption was ^ clogged.' However, under the dogma of 
the House of Lords* infallibility delivered by Lord Campbell and 
reverentially received by Lord Halsbury, Bradley v. Carritt must 
stand as unimpeachable law. 

July, 1903.] Notes. 249 

By the courtesy of correspondents we have the full text (much too 
long for republication or even useful extracts) of the protests made 
on April 25 by the Chief Justice of New Zealand and two members 
of the Court of Appeal against the language used by the Judicial 
Committee in reversing a judgment of that Court (WallUv.Sol.-Gen' 
for New Zealand [1903] A. C. 173, 7a L. J. P. C. 37) and also against 
the ignorance of New Zealand statutes, conveyancing, and practice 
alleged to be shown not only in this but in other specified judg- 
ments of their Lordships. It is admitted that such a protest is 
altogether extraordinary, and to be justified only by extraordinary 
reasons. We have neither space nor inclination to discuss the 
controversial questions of manner and taste which are involved ; 
but we cannot believe that their Lordships intended to treat the 
Courts of New Zealand with contumely, or supposed that their 
judicial censure of proceedings which they thought erroneous 
would .produce that impi*ession. As to the charge of ignorance, we 
submit that their Lordships cannot in fact be expected to have 
judicial knowledge of all the statutes of every colony in the 
Empire, any more than of the original text of the Koran or the 
Mitakshara ; that it is the business of counsel, or rather of those 
who instruct them, to see that all the local materials for forming 
a proper judgment are sufiiciently and accurately laid before the 
Judicial Committee ; and that if this is not done, it is not their 
Lordships who can be held answerable for any consequent in- 
convenience. A Board of English learned persons hearing appeals 
from an English-speaking self-governing colony must inevitably 
assume, so far as not informed to the contrary, that the law and 
practice of that colony generally resemble those of England. The 
remedy, as one New Zealand journal has pointed out, is that the 
colonial Bar should be adequately represented at the argument of 
such cases; but this is not within the control of the Judicial 
Committee. We are glad to see, as we go to press, an authori- 
tative declaration that their Lordships had no intention of being 
personally offensive to the New Zealand Court. 

Wi9e V. Perpetual Tnitiee Co, [1903] A.C. 139, 7a L. J. P.C. 31 
is a warning to trustees of clubs and a security to their members. 
Trustees must be careful, when they incur liabilities on behalf of the 
club^ to see that the dub funds available for the purpose of indemni- 
fying them are sufficient ; for they have nothing else to look to. 
The most effectual method, of course, is to limit the remedy of the 
^ external creditor himself to the club funds, which is quite possible 
in law and sometimes practicable in fact ' Clubs are associations 
of a peculiar nature. . . . They are not partnerships ; they are not 

260 The Law Quarterly Bevieto. . [No, LXXV, 

associations for gain; and the feature which distinguishes them 
from other societies is that no member as such becomes liable to 
pay to the funds of the society or to any one else any money 
beyond the subscriptions required by the rules of the club to be 
paid so long as he remains a member. It is upon this fundamental 
condition, not usually expressed but understood by every one, that 
clubs are formed; and this distinguishing feature has been often 
judicially recognised' In the particular case an attempt was made 
to show that certain members had ^ratified' the action of the 
trustees so as to undertake personal liability ; but this failed, and 
was indeed abandoned in argument. It would seem that such an 
undertaking as was suggested cannot in any case be a ratification, 
since the trustees never purported to be agents for the individual 

Cunningham v. Tomey Hamma [1903] A. C. 151 is a short case^ but 
of no small constitutional importance. It decides that naturaliza- 
tion in a British colony does not carry voting power as a necessary 
incident. Consequently a Province of the Dominion of Canada, 
though it cannot legislate on naturalization, a subject reserved to 
the Dominion Parliament, can refuse the franchise to any class of 
persons not being natural-bom British subjects, without any excep- 
tion in favour of such of them as may be naturalized under the 
law of the Dominion in that behalC 

It was a curious situation which arose in In re Coley^ HoUinshedd 
V. Coley [1903] % Ch. loa, *j% L. J. Ch. 50a, C. A. The testatrix gave 
her Residuary estate upon trust for her son for life, and after his 
death for his ^ wife ' for life. At the date of the will the son had 
a wife with whom the testatrix was on terms of intimacy and 
affection. At the testatrix' death this wife was dead and the son 
had married another wife, who claimed to answer the designation. 
Prima facie in such a case the gift is to be treated as a gift to the 
wife living at the date of the will. It is for the second wife to 
displace this presumption, and this her counsel ingeniously essayed 
by trying to make out that the will, looked at as a whole, showed 
a scheme to benefit generally those dependent on the testatrix' son, 
whether a first or a second wife or a first or a second family ; but 
the ailment failed to convince the Court. One is struck in these 
cases with the wealth of case law on wills. However peculiar the 
situation or set of circumstances, there is always a parallel to be 
found for it in testamentary annals. In In re Coley there were four . 
at least — In re Lyne'9 Trust, L. R. 8 Eq. 65 ; Firth v. lielden, aa W. R. 
6aa,and Boreham v. Bignall, 8 Ha. 131, and In re Drew [i 899] i Ch. 336. 

July, 1903.] Notes. 261 

Learned persons who are interested in the working of the Land 
Transfer Act should carefully consider Capital and Counties Bank v. 
Rhodes [1903] I Ch. 631, 7a L. J. Ch. 336, C. A., whereby it appears 
that there is nothing in law to prevent I'egistered land, and the legal 
estate therein, from being dealt with wholly outside the register by 
any of the accustomed forms of conveyancing, and nothing in fact 
io prevent a whole chain of unregistered deeds and titles from being 
formed, except the risk of an overriding disposition by the registered 
owner — overriding merely by virtue of an anomalous statutory 
power. * The register of proprietors is not material for the purpose 
of ascertaining where the legal estate is' (Cozens-Hardy L. J.). 
We do not presume to say whether this was intended by the 
framers of the Act. Whatever they intended, they have in fact — 
like many other well-meaning reformers — made matters rather 
more complicated than they were before. 

A document purporting to be a joint and several promissory 
note is not the less a valid promissory note within the meaning of 
the Bills of Exchange Act, i88z, s. 83, sub-s. (i) by reason that it 
contains the following clause: 'No time given to, or security 
taken fi-om, or composition or aritrngement entered into with, 
either party hereto shall prejudice the rights of the holder to 
proceed against any other party'; Kirkwood v. Carroll [1903] 
I K. B. 531, *J2 L. J. K. B. ao8, C. A. overruling Kirkwood v. Smith 
[1896] I Q. B. 582, a;nd approving of Tales v. Evans (189a) 61 L. J. 
(Q. B.) 446. Thus is finally determined, as far as the Court of 
Appeal can settle the matter, a point of some little difficulty. The 
principle of the decision seems to be given in the words of Lord 
Halsbury L. C: ' The addition to this promissory note does not 
qualify it, and I doubt whether the addition is in any proper sense 

The law will imply a contract on the part of a corporation to 
pay for work done or other services rendered * in respect of matters 
for the doing of which it was created,' no less than in the case of 
like work or services done for a natural person. La other words 
a corporation cannot order and accept a man's work, and refuse to 
pay for it — the work being properly incident to corporate purposes 
— merely because there was not a contract under seal So the 
Court of Appeal has held in Lawford v. Billericay Rural Council 
[1903] I K. B. 772, 72 L. J. K. B. 554, disposing of a long standing 
'conflict between co-ordinate authorities of various dates. It would 
seem that it now makes no difference, or no substantial one, 
whether the corporation is engaged in trade or not. Observe that 

252 The Law Qtmrterly Review. [No. Lxxv. 

the contract is, in this case, described as ' implied ' for a particular 
reason. The orders in question were given by a statutory com- 
mittee which admittedly had no authority to bind the corporation 
by an express contract. 

Be TdUmache [1903] i Ch. 955, 7a L. J. Ch. 539, tells us with the 
authority of the Court of Appeal what, we venture to think, most 
members of the Equity Bar knew before, that the Court will not 
sanction a breach of trust merely because it appears that it would be 
for the benefit of the parties interested. To justify extraordinary 
interference there must be a real emergency, something like a neces- 
sity for averting ruin from the trust estate. It is difficult to under- 
stiuid how the application was thought capable of succeeding before 
either Kekewich J. or the Court of Appeal. We fear the result of the 
case being reported may be that judges sitting at Chambers will 
feel embarrassed in the exercise of their beneficial summary juris- 
diction ; for a rule of practice always looks stronger when it is 
formally laid down. A few rash trustees may be restrained, but it 
is more likely that many prudent ones will be made over-cautious, 
and will not be blessed by their ce^tnU que trust. 

Leave cannot be given for service of a writ out of England under 
Order XI, r. i (e) in an action to enforce an order charging a 
judgment debtor s interest in shares with the amount due on the 
judgment under the Judgments Act, 1838, i & 2 Vict. c. no. This 
is decided by Kolchmann v. Meurice [1903] i K. B. 534, 7 a L. J. 
K. B. 289, C. A. The case is remarkable, not as determining a 
matter of any great doubt, but as an instance of the extreme 
difficulty felt by plaintiffis or their advisers, in realizing two fftcts. 
The one is that the High Court does not as a general principle 
exercise jurisdiction outside England. The other is that Order XI, 
r. I taken togethei* with Order XLVIII. A. r. i strictly defines the 
exceptional cases in which the Court will exercise extraterritorial 
jurisdiction, and is in effect exhaustive. 

Whatever the lay people may suppose, litigation is not^ always 
due to the faults of the law. Thus the law cannot be held answer- 
able for the heroic determination of the plaintiff who was so strong 
in his opinion that a skylight is not a kind of window as to carry 
it to the Court of Appeal, and be, for his pains, rebuked by Stirling 
L. J; out of a school dictionary : Easton v. hted [1903] i Ch. 405, 
72L. J. Ch, 189. 

Juljr, 1903.] Notes. 253 

The English company, Kodak Ltd., which carries on business in 
the United Kingdom, has purchased and owns 98 per cent, of the 
shares of an American company, which may for shortness be called 
the Eastman Co., and thereby has acquired a preponderating in- 
fluence in the control, election of directors etc., of the American 
Eastman Co. ; the remaining 2 per cent, of the shares are held by 
independent shareholders, and the Kodak Ltd. has not attempted 
to control or interfere with the management of the foreign company 
and has no power to do so, otherwise than by voting as share- 
holder. The question has come before the King's Bench Division 
and the Court of Appeal {Kodak Ltd. v. Clari [190a] 2 K, B. 450, 
[1903] I K. B. 505, 72 L. J. K. B. 369) whether the Kodak Co. is 
assessable on the whole of the profits accruing to it from the American 
Eastman Co. or only on such part of those profits as was received in 
the United Kingdom 1 Fhillimore J. and the Court of Appeal have 
both held that the business of the foreign company is not carried on 
by the Kodak Ltd., and that the Kodak Ltd. is not assessable upon the 
full amount of such profits. It seems further to have been decided, 
though the point is a minor one, that as the dividends due from 
the Kodak Ltd. were partly retained in America, and were as to 
the rest paid in America to American shareholders of the Kodak Ltd., 
no part thereof is actually received in the United Kingdom, whence 
the practical result is iliat the Kodak Ltd. is not assessable to 
income tAX at all in respect of the dividends accruing to it from the 
Eastman Co. 

This case, which is an excessively important one, gives rise to 
three observations. 

First. — The Kodak Ltd. is to be congratulated upon the ingenuity 
with which it has contrived, while being an English company, 
resident in England, to derive profits from an American business 
without becoming assessable in respect thereof to English income 

Secondly. — It is a curious question, which we presume will come 
before the House of 'Lords, whether the Kodak Ltd. will retain the 
advantage of its ingenuity. Can it be maintained, as a matter of 
common sense, that the position of the Kodak Ltd differs in sub- 
stance from that of the Peter Schoenhofen Brewing Co. which in 
Apthorpe v. Peter Schoenhofen Brewing Co. (1899} 4 Tax Cas. 41, was 
held by the Court of Appeal to be assessable on the whole of the 
profits of an American business ? 

Thirdly. — Have not half the intricate questions as to the country 
where a business is carried on which since 1889 have perplexed the 
Courts, the Commissioners of Inland Revenue, and the taxpayers, 
in reality arisen from Colquhoun v. Brooks (1889) 14 App. Cas. 493? 

264 The Law Quarterly Review. [No. Lxxv. 

In that case the House of Lords admittedly came to a decision 
which may well have been right, but which assuredly was incon* 
sistent with the most obvious interpretation of the language of 
Schedule (D). For their Lordships saw fit to hold that though 
under Schedule (D) a person residing in the United Kingdom is 
assessable on profits or gains accruing to him from ' any profession, 
trade, employment or vocation, whether the same ber carried on in 
the United Kingdom, or elsewhere^ yet that a person residing in 
England was not liable to be assessed on profits accruing to him 
from a trade carried on elsewhere, viz. in Australia, in so far as the 
same were not received in the United Kingdom. 

Under the Licome Tax Act, 1853, s. 54, a person who has made an 
insurance on his life is entitled to deduct the amount of the annual 
premium paid by him for such insurance from his income assessable 
to income tax. T effects an insurance on his life for an annual 
premium of £60. Under the insurance he pays annually in cash 
£30 only, but the insurance company agrees to make him annually 
a loan of £30, which is a debt from him to the company, on whidi 
interest is due from him to the company, and which, together with 
the interest, becomes a first charge on his policy. Is T entitled to 
deduct the whole £60 or only the £30 which is paid in cash ? The 
K. B. D. hold that he is entitled to deduct the whole £60 ; the 
Court of Appeal, reversing the judgjnent of PhiUimore J., hold that 
he is entitled to deduct only the £30 : Hunter v. Rem IJ903] i K. B. 
514, TX L. J. K. B. 230. There is something to be said for either 
view ; it is, we submit, clear that if T had borrowed £30 annually 
from a bank on the same terms on which he borrowed it from the 
insmtince company, and then paid it over to the company, he could 
have deducted the whole £60, but, on the other hand it is one thing 
to make a payment, another thing to incur a debt. The K. B. D. 
may keep nearest to the spirit, but the Court of Appeal seem to 
keep closest to the letter of the Income-tax law. 

A person chargeable with income tax on the profits of an office 
under Schedule (E) is entitled, under the Income Tax Act, 184a, 
8. 146, 1st Rule, to deduct from the profits assessable Hhe amount 
of duties or other sums payable or chargeable on the same by 
virtue of any Act of Parliament, where the same [i. e. such duties 
or other sums] have been really and bona fide paid and borne by 
the party to be charged.' 

X is the Deputy Town Clerk of Manchester and receives from 
the Corporation of Manchester a salary of £800, the whole of 

July, 1903.] Notes. 255 

which is admittedly prima facie assessable to income tax under 
Schedule (E), but by a scheme framed under a local Act the 
Corporation is empowered to create a fund to which X, in common 
with other officers, must make yearly contributions on the terms 
that upon his retirement from his office the whole amount of his 
contributions is to be repaid with interest to himself, and should 
he die whilst in the service of the Coi-poration, such amount with 
interest is to be paid to his representatives. Under the local Act 
the contribution due from each officer is deducted by the Corporation 
from his salary. X claims the right to deduct the amount of his 
annual contribution to the fund from the £800 salary assessable 
to income tax. 

Is X entitled to the deduction ? The decision of the Court of 
Appeal, which does not follow Beaumcnt v. Bowers [1900] 2 Q. B. 
ao4, is that he is not entitled, Hudson v. Grihble, Bell v. Gribble 
[1903] 1 K. B. 517, 7a L. J. K. B. 24a, C. A. Nor does it make 
any difference whether X came into the service of the Corporation 
after the scheme was established, or, having come into the service 
of the Corporation before the scheme was established, voluntarily 
submitted to it. 

The grounds of the decision are twofold. 

(i) The amount contributed was not in strictness payable or 
chargeable by virtue of an Act of Parliament. 

(2) The amount contributed was not really and bona fide paid 
and borne by the party to be charged, i. e. X. 

The Crown was under a contract made in 1849 between the 
East India Co. and the Great Indian Peninsula Co. entitled at 
the expiration of fifty years to purchase the railway of the 
company for a lump sum of money to be determined in the manner 
provided by the contract. The Crown also acquired an option 
under the contract either of paying such lump sum down at the 
time of the purchase, or of paying to the company *an annuity' 
for ninety-nine years, the rate of interest to be used in calculating 
the annuity to be determined as specified in the contract. It was 
admitted that as a matter of fact the * annuity' represented in 
part an instalment of the price payable to the company and, as 
to the residue, interest on the amount of the price for the time 
being unpaid. The annuity was payable to ceiiAin trustees on 
behalf of the shareholders. 

Is that part of the annuity which represents not yearly interest 
but the annual payment of instalments of purchase money asses- 
sable to income tax 7 This is the question in substance raised in 

266 The Law Quarterly Review. [STo.LXXV. 

Scoile V. Secretary of State in Council for India [1903] i K. B. 494, 
7 a L. J. K. B. 215, C. A. It was answered in the affinnative by 
the EL B. D., and in the negative by the C. A. 

Most critics will, it is submitted, hold that the judgment of the 
Court of Appeal is right. Liability to taxation ought not to be 
increased or diminished by the mere language in which a payment 
is described. Whether the £900 on which the trustees claim to 
escape assessment was really interest or was the payment of 
instalments of purchase money ought to be treated as a matter of 
fact. If a debtor who has borrowed money on mortgage pays 
to the mortgagee £20, of which £5 is payment of interest, and 
£15 is payment in reduction of the mortgage debt, it would seem 
iperfectly plain that the £15 is not income or prolBts as regards the 
mortgagee and is not assessable to income tax, and if this be so it 
can make no real, difference that the £20 is paid by the Crown to 
a company, or that the whole payment is called an annuity. The 
judgment of the Court of Appeal seems to be strictly in accordance 
with Foley v. Fletcher (1858) 3 H. & N. 769. It lays down, or 
rather reaffirms, a clear and intelligible principle. 

The case oi Haringtou v. Semlall [1903] 1 Ch. 921, 72 L, J. Ch. 396, 
leaves an interesting question ox>en for discussion. Assume that 
a club, such as the Oxford and Cambridge University Club, were 
to change its rules so as to obtain a general power to amend or 
alter the same ; could the club, by a resolution passed at a general 
meeting, raise the annual subscription^ say of ten guineas, against 
any member who had paid the entrance fee, e. g. forty guineas, at 
a time when the subscription amounted to ten guineas ? Of course 
a general power to change the rules would include the power to 
raise the rate of the annual subscription as regards future members, 
but no rule can give a club or any other body a right to break 
a contract, and we are driven back on the inquiry, what is the 
contract made with a person who, being elected a member of 
the Oxford and Cambridge University Club, pays his entrance fee 
of forty guineas, and is always ready and willing to pay the annual 
subscription of ten guineas ? It may at least be argued with some 
plausibility that such a man on entering the club pays the forty 
guineas in consideration of his being allowed the advantages of 
belonging to the club as long as he pays the annual subscription 
of ten guineas, and does not render himself liable to expulsion 
under the rules. No one, it is submitted, could deny that if a 
member were allowed to compound for future annual subscriptions 
by paying down the sum of one hundred guineas, no resolution of 

July, 1903.] Notes. 267 

the club could, by raising the subscription to fifteen guineas, compel 
him to pay an annual subscription of five guineas. 

We believe that the correctness of the decision in the principal 
case is itself doubted, or more than doubted, by several learned 
persons in Lincoln's Inn. But if it were held that the majority of 
a society have an implied power to alter the rules in the absence 
of an express one, there must be some limits to that power. They 
could not, for example, totally change the purposes of the society. 
The task of fixing the limits would seem to exceed the func- 
tions of a court of justice; it would in fact be supplying omitted 
legislation by conjecture. 

On a marriage in Scotland between H, an Englishman domiciled 
in England, and JF, a Scotswoman domiciled in Scotland, JT's 
property is conveyed to trustees who are also trustees under an 
English settlement of the husband's property and who are all subject 
to the jurisdiction of the English Court. The Scotch settlement 
creates in the case of JT dying before ff, an event which has in fact 
occurred, an inalienable trust in favour of H for his maintenance. 
Such a trust is valid according to Scottish law, but is opposed to the 
policy of the law of England. Under these circumstances an 
English Coui-t will not enforce such an inalienaible trust: In re 
Fitzgerald [1903] i Ch. 933, 7a L. J. Ch. 430. The point decided is 
more or less a new one and must be determined on principle rather 
than authority. The principle followed by the Chancery Division^ 
as enunciated by Joyce J., is that an English Court will not, at any 
rate as regards transactions in England, enforce a trust for the 
benefit of a domiciled Englishman which is opposed to the policy 
of English law. The Court did not express any opinion on the 
question whether the Scottish marriage contract or settlement 
ought to be construed according to Scottish or according to English 

W^ an Englishwoman, marries a Frenchman domiciled in France, 
and thereby acquires a French domicil and French nationality, 
both of which she retains till her death. Under an English settle- 
ment she has a general power of appointment as to certain 
personalty which is exercisable by will. She executes a will by 
which she appoints H her general and universal legatee^ and 
bequeaths to him all the movables and immovables which shall 
belong to her at her decease and which compose her estate. The 
will, being a holograph will, is in a form valid according to French 
law, but does not fuliSl the requirements of the English Wills Act. 

268 The Law Quarterly Review. [Xo. LXXV. 

On the death of W the question arises whether the will is an 
execution of the power ? That it is a valid will and duly admitted 
to probate is not disputed; the only matter for decision is, in 
substance, whether it does or does not come within the Wills Act, 
1837, 8. 27? This inquiry is answered by Buckley J. in the 
negative: In re D'Este^s Settlement Trusts [1903] i Ch. 898, y% 
L. J. Ch. 305. This reply may be logically right. It is certainly 
difficult to maintain that the Wills Act, 1837, s. 27, which appears 
to lay down a rule of construction, is applicable to a foreign will 
containing no express reference to the execution of the power. 
From a practical point of view the answer is unsatisfactory. The 
distinction between In re Price [1900] i Ch. 44a, 69 L. J.Ch. 225 
and In re ItEste's Settlement Trusts is real, but it is a distinction 
which any ordinary testator would probably to perceive, and it 
is almost certain that the judgment of Buckley J., however sound 
logically, does not give effect to the intention of the tentatrix, who, 
being unacquainted with the niceties of the English law as to 
powers of appointment, no doubt meant to bequeath to her husband 
the very property as to which she has in the eye of the law not 
executed her power of appointment. 

Mr. Hayes Fisher was an unfortunate fly entangled in the cobwebs 
of Equity. He was a member of a syndicate formed to experiment 
with a valuable patent. He subscribed £iocx> in cash to it, and if 
he had stopped there all would have been well, but he and the other 
directors of the syndicate accepted by way of bonus 2000 fully paid 
shares apiece from the patentee- vendor. Of course if it had been 
the case of a company inviting the public to subscribe its shares, 
the acceptance of such a present would have been highly improper, 
but in the Telescriptor case ([1903] 2 Ch. 174, 72 L. J. Ch. 480) the 
syndicate was a private one : none of the shares were to be sold, and 
as the members of the syndicate knew all the transaction there was 
no fraud on anybody. The situation entirely changed however 
when one of the members in breach of good faith sold some of his 
shares in the market: the public was then introduced on the scene 
and Mr. Hayes Fisher and his colleagues found themselves placed 
in a false position — technically liable at the instance of the liquidator 
to account to the Company for the secret profit in the shape of 
bonus shares. Mr. Justice Buckley was perfectly justified therefore 
in refusing to stay the winding-up proceedings, with the investiga- 
tion incidental thereto into the affairs of the Company, but looking 
at the circumstances — the entire absence of fraud and that Mr. Hayes 
Fisher was * more sinned against than sinning ' — it is to be regretted 
that the learned Judge should have used language conveying an 

July. 1903-] Notes. 259 

undeserved stigma on Mr. Hayes Fisher. The technicalities of 
Equity are not, after all^ the measure of business morality. 

ScoU V. Coulsan [1903] i Ch. 453, 7a L. J. Ch. 223, is really a very 
plain case. A agrees with B to sell to £ a policy of assurance on 
the life of Jf , whom A and B believe to be living. X is in fact dead 
at the date of the agreement. A policy on an existing life is 
essentially a different thing from a policy which has, in the current 
phrase, become a .claim ; and the result is that either there is no 
contract^ on the ground of common mistake, or, which may be the 
more elegant way of stating it in our law, there is a contract 
subject to a condition, and the failure of the condition prevents 
any obligation from arising. If an agreement made in such 
circumstances has any effect at all, it can only be by estoppel, and 
there was no suggestion of estoppel in the present case. It is not 
a question of a contract voidable for misrepresentation, which is 
valid until rescinded ; there is no subsisting contract at all. That 
being so, the subsequent execution of an assignment can make no 
difference unless the parties have entered into a new contract with 
knowledge of the I'eal facts ; and in order to arrive at this con- 
clusion it is not even necessary to consider that a policy of 
assurance is a chose in action, and there is no question of a legal 
estate passing. The argument for the defendant was made to look 
plausible only by confounding the rules applicable to contracts 
voidable for fraud and the like with the quite distinct rules 
applicable to transactions that are wholly void. It was treated by 
the Court, we venture to submit, with more respect than it deserved. 
The decision has been affirmed by the Court of Appeal, W. N. 88. 

On April 27 Lord Justice Vaughan Williams took the judgment- 
seat at a meeting of the Cray's Inn Moot Society. This was, we 
believe, the first occasion of a member of the Court of Appeal 
presiding. The question argued was an interesting little point on 
the measure of damages for wrongful dismissal, apparently not con- 
cluded by any precise authority. The Lord Justice commended the 
arguments for their realism, and said they came ' very near the real 
thing.' Three of the counsel in the imaginary case were actual 
barristers. Perhaps it would be better, for purposes of education, 
if the leader on each side were a barrister and the junior a student. 
Now that judicial approval is so frankly given to the revival of the 
ancient practice of Moots, and the law schools of our own colonies 
as well as of the United States have taken it up for years past with 
excellent results, will the Council of Legal Education persist in 
treating lectures and examinations as a sufficient road to knowledge 


260 ITie Law Qtmrterly Review. [No. Lxxv. 

of the law ? or rather examinations alone, for attendance at the 
lectures is optional, and many men, aided by the ingenuity of coaches 
or otherwise, pass the Bar Examination without having heard a 
single lecture. Mr, Justice Walton, who presided at a Gray's Inn 
Moot a few months earlier than Lord Justice Vaughan Williams, 
lamented the decay of the ancient system. 

The splendid volume of facsimiles of medieval charters in the 
British Museum lately issued by the Trustees is hardly a subject 
for an ordinary book review : we choose this place, therefore, to 
commend it alike to experts and to novices in re diplomatica. No 
one can be an accomplished English lawyer without knowing 
something of medieval formulas and conveyancing, and any one 
who makes acquaintance with these will very soon want to know, 
at least, what an original charter looks like. These reproductions, 
extending in the present volume from the Conquest to the reign 
of Bichard I, will enable him to satisfy his curiosity in the most 
convenient manner and with the best possible critical help. 
Mr. G. F. Warner and Mir. H. J. Ellis are to be heartily congra- 
tulated on their editorial work. Beal property lawyers will note 
with special interest the early example of a fine made in Henry II's 
court at Oxford (no. 55). It is rather sad to see the gradual 
degeneration of handwriting already becoming apparent before the 
close of the twelfth century. 

We are very glad to see that an independent English translation 
of the dooms of King Hammurabi {c, b. c. 2250) has been produced 
by Mr. C. H. W. Johns of Cambridge (The oldest Code of Laws in 
the World, etc. Edinburgh, T. and T. Clark, 1903). The translator 
has wisely abstained from commentary at this stage, and given 
what will be more useful, a very full index. Some amendments in 
this may be suggested from a lawyer's point of view. Thus §§ 9-139 
which offer a most interesting analogy to early Germanic law, 
should be indexed under ' Sale,' ' Voucher,' and ' Warranty,' as well 
as * Witnesses.' The Germanic refinement of vouching over to the 
second and third hand, so as to make out a chain t)f title if necessary, 
does not seem to have been known in Babylon. We cannot find 
any obvious clue to the order of the code. Magic (with cold water 
ordeal for the accuser, not the accused — ^rather practical this), 
intimidation or corruption of witnesses, falsification of judgment, 
warranty, theft, enticing of slaves, dacoity, neglect and abuse of 
public offices and official property, agricultural contracts, mercantile 
agency (danger of King's enemies on journeys is specially provided 

July, 1903.] Notes. 261 

for), distreBB and pledge (these sections assume knowledge of customs 
not disclosed by the text), deposit, marriage, divorce and in- 
cidental effects on property, adoption, retaliation (with fixed fines 
or compositions in some cases ; one wonders whether a custom of 
private composition was growing up behind the severe old law), 
negligence of medical men, builders (jerry-building was a dangerous 
trade under King Hammurabi : * from his own goods he shall rebuild 
the house that fell '), navigation (vessel under way running down 
vessel at anchor is liable for whole damage), hiring of and injuries 
to and by cattle, an assize of wages and hiring : there is not much 
system here. No light is thrown on procedure. However it is 
certain that ^ there dwelt a man in Babylon ' to some purpose. Sir 
Toby Belch sang more wisely than he knew. 

In the review of Mr. Ashbumer's ' Principles of Equity' in our 
last number, it was suggested that the final decision in Reeve v. 
Zutle [190a] A. C. 461, 71 L. J,Ch. 768 should have been cited. 
We supposed, as nearly as we could guess from the dates of the 
report in the House of Lords and of the bobk^ that there was time 
to insert a reference before the printing of the book was complete ; 
but we are informed that there was not, and accordingly we 
regret not having done justice to the learned author on this point. 

We take this occasion to add that we should perhaps have called 
mo^e distinct attention to the merits of Mr. Ashburner's treatise, 
especially in arrangement and in the use of historical material still 
neglected in the common text-books of the subject, some of which 
continue to repeat fables without excuse. Mr. Ashburner will 
probably become the preferred guide of a large number among the 
more intelligent kind of students, and for that very reason, judging 
his work by a high standard, we thought it proper to point out in 
some detail a certain number of errors and oversights which appeared 
to us likely to be dangerous to his readers if they remained uncor- 
rected. A reviewer's most pleasant office is to commend thoroughly 
good work ; sometimes he may have to expose absolute incompe- 
tence, and need not feel any compunction about it ; sometimes, as 
here, he feels bound to regret that work in which there is much 
good is not better. 

In the document copied loj Mr. Whitwell at p. 8 of this volume, 
the word * lens ' in- line 20 is correct, and means * therein ' ; the 
sense is * the merchants within London/ as opposed to merchants 
' dedens vile et dehors.' 

T 2 

262 The Law Quarterly Beview. 


P. i8a above (April number), last line, /or * malicioas con- 
spiracy to injure ' read ^ conspiracy to injure/ 

P. 185, line 9, far * save that s. 3 of the Act of 1875 affords no 
protection to masters * read * and it is to be observed that s. 3 of 
the Act of 1875 affords a protection to capitalists (considered as 
employers of labour and not as traders) precisely equal to that 
which it confers upon workmen.' 

P. ao8, lines 4 and 6, for *res gestae * read * res gesta^ 

It Beems convenient to repeat in a eonspictums place that it is not desirable 
to send MS. on approval unthoui previous cotnmunieaHon with the Editor^ 
eae^tin ven/ special circumstances ; and thai the Editor ^ except as aforesaid^ 
earmot he in any way answerable for MSS. so sent. 




FOR judicial purposes^ France is divided into twenty-five dis- 
tricts, for each of which there is a Court of Appeal. They 
are called resaorts de Cour d'Appd. Eadh of these districts includes 
several dSpartemenU. There is in addition a Court of Appeal for 
Corsica and one for Algiers. 

Below the Court of Appeal in the judicial hierarchy comes the 
Court of First Instance. Every arrandtMement has its tribunal de 
premiere instancey which sits at the chief town of the arrondiisement. 
To the general rule there is one exception : the d^partemeni of the 
Seine, although it has three arrondisaemenU, has only one Court 
of First Instance which sits at Paris. 

There are in France three hundred and fifty-nine Courts of 
First Instance. 

Below them come the Courts of Justice of the Peace. Every 
arrondissemeni is divided into cantons, and each canton has its 
Justice of Peace Court. 

The large towns, however, are specially divided into districts or 
wards, each of which has a Justice of Peace Court. Paris, for 
example, has twenty of these courts. 

Besides these three classes of courts, which form a complete net- 
work over the whole of France, there are two other courts which 
stand in a somewhat different position, and are composed of laymen 
and not of lawyers. These are the Commercial Courts and the 
Boards of Umpires. In important centres of commerce the govern- 
ment has power to create iribunaux de commerce^ or, as they are 
often called, tribunaux conaulairee. 

And in manufacturing towns the government may also create 
Boards of Umpires — cotueiU de pru^hommea — to deal with trade 
disputes between masters and workmen belonging to certain 
specified trades. 

In Paris there are four such boards ; one for weaving-trades, one 
for chemical trades, and two for different divisions of the building- 

Mens. Oarsontiet, in his Traitd de Proc^ure Civile, draws atten- 
tion to two points in which this organization is peculiar. 

' The references D. P. are to the reports published under the name Dalloz, 
Reeneil P^riodique. 

264 The Law Quarterly Beview. [No. Lxxv. 

1. There are no circuits. 

The courts cannot sit except at the permanent seat, and in 
the court-house. The justice of peace may hold a sitting in his 
house at the chief town of his canton, but if he does so, the doors 
must be open to the public ^. 

2. Nearly all the courts are composed of several judges *. 

The only real exception is the Justice of Peace Court, which is 
conducted by a single judge. 

No judgment of a Court of First Instance can be rendered by 
a court composed of less than three judges, and no arrSt, as a 
judgment of a Court of Appeal is called, can be pronounced by less 
than five judges. 

The Commercial Courts must also have at least three members, 
and the Board of Umpires must have at least five members before 
the court is complete. 

These numbers are the minimum. In practice there are fre- 
quently more judges present than the law requires. 

4 moment's reflection will show what a contrast there is in this 
respect between the French courts and those of England, or of 
those countries like the United States and the Colonies which have 
formed their judicial system upon the English model. In England, 
Scotland, Ireland, Canada, Australia^ the Cape, and in the whole of 
the United States, all civil actions, however important, are disposed 
of in the first instance by a single judge. The appeal is in most 
cases to a court of at least three judges. Instances might be given 
of appeals to courts of fewer than three judges ; but, I think, it is 
a pretty general rule in the Anglo-Saxon world that there is an 
ultimate appeal provided in all cAses of importance to a court of 
at least tiunoe judges. 

An enormous number of cases such as would come in France 
before a Court of First Instance are disposed of in England or 
America by a single judge, and are not carried to appeal. This 
makes it possible to administer justice in these countries with a 
very much smaller number of judges than the French system 
requires. In England, especially, the judges have always been few 
in number, and paid upon a much higher scale than in France. 

The efiect of this is that the leaders of the Bar look forward to 
a seat on the Bench. A judge appointed to the High Court is 
seldom younger than fifty, and often considerably older. He has 
in almost all cases had a large practice at the Bar. In France a 
young man takes up the judicial career from the beginning, as 
I shall explain more fully later. And the scale of remuneration 
is so low that it is difficult for a man without private means to 

' See Civ. rej., 13 Jan. 1892 ; D.P. 9a, i. 271. ' Oanonnet, t. I, p. X47. 

July, 1903.] The Organisation of Jtistice in France. 266 

keep up the dignity of the position. It is, therefore, a career 
generally chosen by young men possessed of some fortune or in- 
fluence, rather than, as in* England, a prize gained by years of 
successful pleading. France could not afford to pay her army of 
judges anything like the £5,ocx) a year which a judge of the 
English High Court receives. France has produced, and still pro- 
duces, eminent judges worthy to compare with those of any country ; 
but it is easy to see that the ordinary court in France is hardly 
likely to contain any lawyer of the same rank in the profession 
as that of the English judges of the High Court. A judgeship in 
France is not, as in England, one of the great prizes of the profession* 
For this reason it may be said, without the risk of being misunder- 
stoodj that it is possible that a single judge selected on the English 
plan is as likely to arrive at a sound decision as the three French 
judges whose abilities have not been so sevei'ely tested. 

Upon the continent of Europe generally there is the same 
distrust of a court consisting of a single judge. It is somewhat 
singular that this should be so in the very countries whose laws 
are based upon that of Borne. In the Roman system it was a rule, 
almost without exception, that cases should be disposed of by a 
single judge. The Roman law went even much further in this 
respect than the English, for during the Republic and a consider- 
able part of the Empire there was, generally speaking, no right of 
appeal. The judgment of the judge before whom the case came 
in the first instance was final. 

There are in France, so far as I can calculate, 2,218 judges, not 
counting the jupes ^uppIeanU in the Courts of First Instance. 
These will be three or four hundred, so that we may reckon the 
number of French judges at 2,500. This is an enormous number 
from the English point of view. 

The scale of remuneration is very low, according to our standards. 
The premier President of the Cour de Cassation, whose position 
may be said to coiTespond in dignity with that of the Lord Chief 
Justice of England, receives a salaiy of 30,000 francs (£1,200), as 
compared with the £8,000 received by the English Chief Justice. 

An ordinary conseiller of the Cour de Cassation receives 18,000 
firancs (£720}. A judge of the High Court in England receives 

A conseiller of a provincial Cour d^Appel has 7,000 francs (£280), 
yet this is a position of dignity and importance, and frequently 
the reward of years of judicial service. The Courts of First 
Instance are divided into three classes: the first class includes 
towns with a population exceeding 80,000. Excluding Paris there 
are ten in this class. The president of a court of the first class 

266 ITie Law Quarterly Beview. [NcLXXV. 

receives 10,000 francs (£400), and an ordinary judge 6,000 francs 

In the second class, in which fall towns with a population 
between 20,000 and 80,000, there are sixty-one courts. The scale 
of remuneration is, for the president 7,000 francs (£280), and for an 
ordinary judge 4,000 francs (£160). But the great majority of the 
Courts of First Instance are in places where the population is under 
ao,ooo. There are, I think, »88 courts in this class. This figure 
may not be absolutely accurate, but it is pretty nearly so. 

Li this class the president of the court receives 5,000 francs 
(£200), and an ordinary judge receives 3,000 francs (£120). In 
England or America it would be utterly impossible to find men of 
good character and satisfactory legal attainments to accept posi- 
tions for which they received the pittance of a cleric, while they 
had to keep up the social credit of a judge. 

But we have to bear in mind that the scale of living in France 
is in many ways more modest than it is in England or America. 
And, further, it has to be r^nembered that young men of the class 
from which judges are drawn are in France seldom without some 
private resources, and very rarely marry wives who are not able to 
bring them a reasonable dot. But, according to a recent writer, 
heiresses are less easy to secure than formerly. The provinces are 
full of judges who vegetate up to forty or fifty years of age, living 
unmarried in out-of-the-way towns. They pass their time in 
hotels and clubs in a sort of perpetual student existence K 

There is one unfortunate result of the low salaries paid to French 
judges : they are obliged to be always on the look-out for promo- 
tion. This makes them very anxious to please the government of 
the day. Mr. Bodley says, * The French judges, though incorruptible 
in the ordinary sense of the word, are necessarily amenable to 
political influences, as they are ill-paid functionaries dependent on 
the good- will of politicians for their promotion \* 

In this respect the English system is preferable. With us, in 
nine cases out of ten, a judge remains in the position to which he 
is first appointed. He is generally an elderly man when he is put 
upon the bench, and the chance of promotion is so slight that it 
may be disregarded. It is almost unknown with us that a judge 
should be suspected of giving a biassed decision in order to curry 
favour with the government. 

Another striking feature of the French system is what is called 
the rule of the two degrees of jurisdiction. In all cases in which 
an appeal is allowed the judgment of the second court is final. 
One appeal, and one only, is to be permitted. Thus there is an 

' Huguds Le Booz, Nos FUa, p. 141. * France, p. 510, note. 

July, 1903.] The Organization of Justice in France. 267 

appeal from the Justice of Peace to the Court of First Instance, and 
an appeal from the Boards of Umpires to the Commercial Courts. 
Upon such appeals the Court of First Instance or the Commercial 
Court, respectively, pronounces a judgment which is final. Simi- 
larly, there is an appeal to the Court of Appeal in cases which 
originate in a Court of First Instance or in a Commercial Court. 
It is urged that, considering the fallibility of human nature, there 
ought to be a right of appeal, except in trifling cases. On the 
other hand, there is every probability that a second court will 
do complete justice, and to allow a further appeal would be to 
encourage protracted and ruinous litigation. This was one of the 
evils of the old regime where there were five or six degrees of 
jurisdiction ^. 

In the present system it is true that upon questions of fact there 
is only a single appeal. As regards questions of law, the method 
of bringing the judgments of the courts under the review of the 
Court of Cassation, in the way which I shall describe presently, 
makes the rule of double degree of jurisdiction more apparent than 
real. French writers insist that the review of the Court of Cassa- 
tion is not a second appeal. This may be so, but as regards the 
delay and expense the name makes little difference to the litigant 
I shall point out when I come to describe the peculiar system of 
review in the Court of Cassation that whereas with us the judg- 
ment of the highest court, which is generally the third court, is 
always final, in France, on the other hand, a case which reaches 
the Court of Cassation and is disposed of there may still have to 
come before three courts. An obstinate or vindictive litigant has 
BtUl a fair opportunity in France of protracting a litigation until 
both litigants are ruined. 
^ Another noticeable point of the French system is that in civil 
cases there is no jury. A jury-system upon the English model has 
on many occasions been advocated in France, but has always been 
rejected. M. Oarsonnet argues strongly against it, and suggests 
that in England and the United States the civil jury is regarded 
with less favour than formerly. He cites the Code of Civil Pro- 
cedure for Lower Canada as an illustration of the anxious care 
which the legislature felt was necessary to protect litigants against 
the mistakes of juries, by creating numerous remedies by which 
an erroneous verdict might be set aside ^. 

The three most important points in which the French system 
differs from ours are : ( i ) The presence in civil cases of a legal official 
representing the government — U ministere pvlUc ; (2) the peculiar 
functions of the Court of Cassation; and (3) the existence of 

^ Garsonnet, p. 78. ' Op. cit $ 43. 

268 The Law Quarterly Beview, [No.LXXV- 

separate courts for the trial of administrative cases ; i. e. the recog- 
nition that le droit administratif is withdrawn from the ordinary 
tribunals. Of the minutere public^ and of the Court of Cassation, 
I shall speak later. The droit administratif mnat be reserved. 

I now turn to describe the organization of the courts which have 
been already mentioned, and to indicate, in a broad way, the limits 
of their jurisdiction. 

I. Tie Justice of Peace Court. 

The name was borrowed from England, but the institution has 
very little similarity with the courts of Justices of the Peace in 
England. The English justices sit in a bench of several. They 
have a very multifarious set of duties, but their principal business 
is criminal. The French ju^e de paix sits alone, and has a very 
considerable and important jurisdiction in civil as well as in 
criminal matters. Like his English prototype he is very often 
a country gentleman. In the rural cantons it is usually the most 
influential man of the community who is m^A^juge depaix. But 
he must not be a priest or minister of religion, an advocate, a 
government official, or a retail trader. In the towns he is generally 
a man who has had a legal training. But the remuneration is so 
slight— generally 2,700 francs or £108 a year — and the chance of 
promotion so small that a young lawyer of any ambition will not 
accept the position of Justice of the Peace. But very often a retired 
lawyer, either an avocat or avon^, who is too old for practice, accepts 
the position oijuge de paix ^ Unlike the judges of the higher courts, 
he does not enjoy security of tenure. His commission may at any 
time be revoked by the government. In addition to the juge de 
jmiaSf two 9uppUant9 are always appointed, one of whom is to replace 
the juge if he is unable to sit. The suppliants are unpaid. The 
Juge de paix is a soil of legal maid of all work^ Many new duties 
have been thrown upon him from time to time by statute, and his 
jurisdiction has been largely increased. The original idea in the 
revolutionary period when the office was created was to bring to 
the doors of every one a simple and inexpensive court presided 
over by a man of good sense who could settle in an equitable way 
the little disputes of the neighbourhood. He is not strictly tied to 
the law, and his first duty in every case is to try to bring the 
parties to an agreement. 

The Juge de paix is competent to try all suits for money or mov- 
ables up to the value of 200 francs. His judgment in actions below 
100 fn^cs is final. But commercial questions and some others are 
specially withdrawn from him. He can also try questions between 

> Oaraonnet, op. oit $ no. 

July, 1903.] The Organijsation of Justice in France. 269 

innkeepers and their guests, or carriers and travellers or landlord 
and tenant, and several other classes of actions in which the 
amount may exceed 200 francs, subject always to appeal when 
the amount exceeds 100 francs. He has a criminal jurisdiction 
for petty offences. The finality of his judgments up to 100 francs, 
and the accepted principle that he is not tied to the letter of the 
law, enables the juge de paix to protect poor debtors against the 
harshness of their creditors. He often refuses to give judgment 
even when the legal claim is cleai*, and compels the creditor to 
allow time for his debtor to pay. He has also a number of extra- 
judicial duties, of which that of presiding over the family councils 
called together to choose tutors to minors and interdicted persons 
and for other purposes, and that of making an inventory of the 
property of absentees may be taken as examples. 

In'cases where the jtige de paix is competent to pronounce final 
judgment, his decision cannot be brought tinder the review of the 
Court of Cassation. That court can only cast a judgment of a 
juge depaix when he has travelled outside his jurisdiction {exces de 
pauvair), Excis depouvoir is narrower than * incompetence.' It means 
such acts as the invasion of the sphere of the administrative courts^. 

2. The Cometh de Prud^hommes. 

These boards consist of an equal number of employees and 
employed. The masters elect the prud*hommes patrone, and the 
workmen elect the prud^Aommes ouvriera. Authority to create such 
boards has to be obtained from the government upon the recom- 
mendation of chambers of commerce and of the municipal councils. 
These latter councils have to engage to help to defray the expenses. 
The boards are competent in disputes between masters and men 
as to matters relating to the employment. Up to 200 francs their 
judgment is final. Above that amount there is an appeal to the 
commercial court. They have a limited police jurisdiction as to 
misconduct of apprentices, and offences which tend to disturb the 
good order of workshops. They have also the important duty of 
acting as Boards of Conciliation in trade disputes, and of reporting 
to the proper authorities contraventions against the laws regu- 
lating factories and workshops when a complaint is lodged. The 
members of the boards are entitled to a small remuneration. 

TAe Commercial Courts (Tribunaux de Commerce) *. 

These courts are created by order of the Government in towns 
held to be of sufficient commercial importance. The number of 

* See Pandeetes Fran^aiaes, B.y. Cassation Civile, Nos. 671-696, and Cass. 29 juin 
X901 ; D.P. 1901, 1.57. 
' See Code de Commerce, art 61$, 

270 The Law Qtutrterly Beview. [No. Lxxv. 

members, never less than three, is fixed by the decree which 
creates the court. The members are elected by business men from 
their own number. There are certain restrictions and qualifica- 
tions too minute to be specified here ^. 

Where such a court exists, it has exclusive jurisdiction in 
commercial cases {affaires commerciales). As to what are commercial 
cases see Code de Commerce, Art. 631 seq. 

* Commercial matters ' are the following : — 

Disputes relative to engagements between merchants, traders, 
or bankers. 

Disputes between partners relative to partnership business. 

Disputes as to actes de commerce between any parties; dctes de 
commerce include every purchase of produce or goods, either to sell 
again in the same form, or after manufacture, or to let out on hire. 

All business contracts to manufacture, to buy and sell on com- 
mission, or as to the carriage of goods by land or water. 

All business contracts to procure and deliver goods. 

Business contracts of agency ^ contracts as to sales by auction, 
or as to public entertainments. 

Banking, stock-exchange and brokerage transactions. 

All operations of public banks. 

All obligations between merchants^ traders, and bankers. 

Bills of exchange between any parties. 

All business contracts for building ships, and all purchases, sales, 
and resales of ships, whether for deep sea, coasting, or inland 

All contracts for shipment by sea. 

Buying and selling of rigging, ship's furnishings, or ship's stores. 

Charter-parties, bonds of bottomry. 

Contracts of maritime insurance and other maritime contracts. 

All arrangements and bargains with regard to the salary or 
hiring of crews. 

All agreements of seafaring people to serve on a trading-ship. 

Actions against mei*cantile agents, clerks, or servants of traders 
for acts done on behalf of the trader whom they represent. 

Bills drawn by receivers, paymasters, tax-collectors, or other 
persons responsible for public monies. 

Everything concerning bankruptcies (Code de Commerce, Arts. 

I have translated the word ' enterprise ' by ' business contract,* 

1 For details see Simonet, Traits iSl^mentaire de Droit Public, s. 325. 

' Agencies, burwiia d^ctffairesj is difficult to translate. An agent ^affaires in 
France may perform verj varied services, such as debt-collecting, making inquiries 
as to the credit of individuals, assisting inventors to obtain patents, and many 
others. They generally specialize in some branch. 

July, 1903.] The Organization of Justice in France. 27i 

• ■ .1 ■ 

because it implies that the act is not an isolated one. It must be 
an act done by one whose business is to perform such acts ^. 

Commercial cases include therefore a very large number of the 
most ordinary transactions. The merchants and business men 
who are competent to decide in the commercial courts upon dis- 
putes arising out of these transactions are more skilled than an 
English jury. On the other hand they have not the advantage 
of being directed by a judge. Up to 1,500 francs their judgment 
is final. Above that amount there is an appeal to the Cour d'Appel. 
In places where no commercial courts exist, commercial cases are 
tried by the ordinary Court of First Instance. 

Tie Courts of First Instance (Tribunaux de premiere instance). 

Every arrof/dissement has its Court of First Instance. 

A Court of First Instance consists of a President, of one or more 
vice-presidents, of ordinary judges {jv^es titulaires)^ and of assistant 
judges {juges suppliants). ThQJuges suppliants are generally young 
men who are preparing themselves for the judicial career, and 
waiting for vacancies on the Bench. Until 1900 the juges suppliants 
were all unpaid. In that year salaries of 1,500 francs (£60) were 
voted for one hundred of these positions, and this has been continued. 
The other Juges suppliants are still unpaid^. 

It is usual for the senior members of the court to throw 
upon the Juges suppliants the most uninteresting and disagreeable 
duties which have to be discharged. One of them is frequently 
designated by the President to act osjuge d'instructionyi.e. to aid the 
prosecution in criminal cases by the private examination of the 
prisoner, and in other ways to aid in discovering evidence of his 
guilt. The successful conduct of affairs of this kind may help to 
establish a claim to appointment as an ordinary judge. 

The size of the courts varies according to the importance of the 
place. By far the largest of them is the Tribunal de la Seine, 
which sits at Paris. It is composed of the President, twelve vice- 
presidents, seventy judges, and twenty assistant judges. They 
are divided into eleven chambers. The courts of Lyon, Mar- 
seilles, and Bordeaux have each a President, three vice-presidents, 
eleven judges, and six assistant judges, and are divided into four 
chambers ^ 

The courts in the less populous arrondissements vary in size, 
having from three to eleven judges, divided in all but the smallest 

* For a fuU oommentary on those articles see Lyon-Caen and Renault, Traits de 
Droit Oommercial, 3rd ed. vol. i. pp. 89-186. 

' Art. 25 de la loi de flnanoes du 13 avril 1900. 

' See, for full details of the ptnonnil of the Courts of First Instance, Table B 
annexed to the loi du 30 ao&t 1883 (D. P. 83, 4. 70). 

272 The Law Quarterly Beview. [No.lxxv. 

into two or more chambers. Where there are only two chambers, 
one takes the civil work {chambre civile), and one the criminal 
work {chambre eorrectionnelle). There cannot be more than six judges 
in a chamber. All the judges except the President pass succes- 
sively through all the chambers, according to a scheme of rotation 
{tableau de roulement) prepared annually by the President, the vice- 
president or vice-presidents, and the senior judge, who is called 
le Boyen^. This has the great advantage of making each judge 
familiar with all kinds of cases, civil and criminal. In the larger 
courts, especially Paris, certain classes of cases are as far as possible 
always assigned to the same chamber. The cases on the roll are 
distributed among the different chambers by the President, and 
if one chamber is overloaded with work, he may send to another 
cases which do not belong to the class with which it is generally 
occupied. But, on the whole, each chamber has its special kind 
of work. 

The roulement is also supposed to have the advantage that it 
prevents a judge stronger or more imperious than his colleagues 
from obtaining a permeuient ascendency in a chamber. When one 
or more of the judges who form a chamber is unable to sit, so that 
the quorum of three is not made up, his place is made up if possible 
by taking a judge or assistant-judge who can be spared from 
another chamber. Where this is impossible, the senior advocate 
present, or, if no advocate can be got, the senior avouiy may be 
called on to make Up the court. Very precise rules are laid down, 
and in many cases a judgment has been annulled if the advocate or 
avoud so summoned was not the senior present '. 

The Court of First Instance is the competent court in all matters 
not falling within the jurisdiction of the juge de paix^ or of the 
commercial court where one exists. In actions relating to mov- 
ables, where the amount is below 1^500 francs (£60), or in actions 
as to immovables worth less than 60 francs (£2 8«.) a year, its 
judgment is final. In other cases which originate in the Court 
of First Instance, there is an appeal to the Court of Appeal. 

The court has also an appellate jurisdiction. It deals with 
appeals from the juge de paix, and then its judgment is fiinal, 
according to the rule of double degree of jurisdiction. Its criminal 
jurisdiction is also partly original, as when it deals with d^litei and 
partly appellate, as when it deals with appeals from the juge de paix 
or other police-courts {tribunaux de simple police). 

A good many of the duties which with us would be dischai^ed 
by a judge in chambers are in France specially assigned to the 
President For example, in actions of separation it is his duty to 

' Garsonnet, t. 2, $ 675. ' Casa. civ. 28 juin 1865 ; D.P. 66, i. 87. 

July, 1903.] The Organizdtion of Justice in France. 273 

bring the spouses before him in chambers and to try to e£fect 
a reconciliation. But many other duties in non-contentious pro* 
oeedings are performed in France by a Chamber of the Court 
sitting in private, and called the ehambre du conseU, It is composed 
of judges who belong to one or other of the ordinary chambers, 
specially appointed for that purpose. 

The Courts of Appeal (Cours d^Appel). 

These courts are the successors of the old French parlements^ with 
the addition of a number of courts of more modern creation. The 
court consists of a Premier President, who is the head of the whole 
court, of a President for each Chamber, and of conseillers. The 
judges are always called councillors — conseillers. All but seven of 
the Courts of Appeal are divided into chambers, and that of Paris 
has as many as nine chambers. (See, for the personnel^ Tableau B, 
in D. P. 83, 4. 58.) The composition of each chamber is changed 
annually by the roulement. The civil chamber or chambers of the 
Courts of Appeal have for their principal function to review the 
judgments of the Courts of First Instance and Commercial Courts 
within their jurisdiction. Certain cases receive a full-dress hearing 
caUed audience solennelle. This means that two chambers sit together. 
There must be at least nine judges present. They wear red robes 
for the solemn audience. The principal classes of cases which have 
to be taken in this way are— 

(i) Cases i-emitted to the Court of Appeal by the Court of 
Cassation, according to the system to be explained shortly. 

(2) Cases affecting civil status ; e. g. questions as to nationality, 
filiation, demands for interdiction, and requests for permission to 
adopt a child. 

Actions of separation and divorce are not heard in audience 
solennelle, it being thought undesirable to give them greater publicity 
than is necessary. 

In the Courts of Appeal, as in the lower courts, an advocate or 
avouS may be called upon to make up a quorum. But in the 
Court of Appeal this very rarely happens, as the number of 
councillors is generally large enough to allow of a few absentees, 
and to permit the quorum of five to be made up from judges of 
another chamber. From the Courts of Appeal there is in the 
ordinary sense no right of appeal. Their judgment upon any 
question of fact is final. But their deeisions on points of law may 
be brought under review of the Court of Cassation. I shall try to 
indicate more precisely in speaking of this great court the cases 
which it is competent to review. 

274 The Law Quarterly Beview. [No.LXXV. 

The Assize Courts {(hur^ (f Assises) which try * crimes ' are not 
permanent courts. They are made up of canseiUers of the Cour 
d'Appely or in departments in which there is no Cour (PAppel^ they 
may be partly made up of judges of the Court of First L^tance. 
The court always consists of three judges and a jury. 

The Court of Cassation. 

The court consists of a Premier President, three presidents^ and 
forty-five councillors. It is divided into three chambers — the 
Chambre des Requites, Chambre Civile, and Chambre Criminelle — 
each composed of fifteen councillors and a president. When the 
Premier President sits he generally presides over the Civil Chamber, 
so that if all the members were present that court would consist of 
seventeen judges. 

The minimum number which can pronounce a judgment is 
eleven, including the President. Unlike the lower courts in this 
respect, the system of roulement, or rotation of judges from one 
chamber to another, is not followed. The judges are presumed to 
have completed their education before reaching this exalted tribunal. 
Moreover, the principal object of the Court of Cassation being to 
bring about uniformity injudicial decisions, it is thought that this 
is more likely to be secured by having the greatest possible per* 
manence in the personnel of the chambers. Historically the Court 
of Cassation has grown out of the powers possessed by the Conseil 
du Roi^ to annul a judgment contrary to law. It is clearly laid 
down for the first time in an ordonnance of Henri lY in 1597 ^. 

It was an exti-aordinary remedy^ analogous to the appeal in 
England to the King's Privy Council in certain cases where the 
remedy to the King in Parliament was not available. Out of that 
right of petitioning the Crown has grown the jurisdiction of the 
Judicial Committee of the Privy Council. Out of the analogous 
right in France has grown the jurisdiction of the Cour de Cassation, 
But the latter court performs the duties which in England are 
divided between the Judicial Committee and the House of Lords. 

Although the power of the Conseil du JRoi to annul a judgment 
was admitted, at least as early as 1597, ^^^7 ^^ ^^^ ^^^^ ^ h^ve 
been exercised in any systematic or satisfactory way under the 
ancien regime^. The practice, however, was irregular, and the 
principles of cassation ill-defined until the Bevolution. 

The present Court dates from 1791. After long discussions in 
the AssembUe Constituante^ it was decided to create a tribunal de 
eassation, and the main rules were laid down which still guide the 

^ See Pandectes Fran9ai8es, s.v. Cassation, Cour de, s. 25. 
* See Esmein, Hist, du Droit Fran9., p. 433. 

July, 1903.] The Organization of Jtistice in France. 275 

practice of the court. The new court was installed in the ancient 
hall of the Parliament of Paris the aoth of April, 1791. 

The Court of Cassation can review the judgment of any of the 
courts, civil or criminal, provided that the judgment was final, i. e. 
not appealable by any ordinary process of law. Thus it can review 
a judgment of a Court of First Instance or of a Criminal Court, but 
not if that judgment was one which could have been appealed to 
the Court of Appeal. And it may even review a final judgment of 
Ajuffe dejjaix, but only on the gitltind of exc^8 de pouvoir. 

With regard to military and naval courts, there is a distinction. 
A soldier or sailor cannot request review by the Court of Cassation. 
But a judgment of one of these courts can be brought under the 
review of the Court of Cassation by the government, acting through 
the procureur gSnhal, And a civilian (subject to certain excep- 
tions) against whom a military or naval court has given a judgment, 
may bring the matter before the Court of Cassation on the gi'ound 
that the lower court was incompetent or exceeded its powers. 

The bulk of cases dealt with by the Court of Cassation are 
naturally those in which the judgment attached has been rendered 
by the Courts of Appeal. For the most important and keenly 
contested actions will generally be such as are carried to those 
courts^ and their judgments, as already stated, are not subject to 
appeal in the ordinary sense. The request for review by the Court 
of Cassation is called a pourroL It is better to avoid the word 
' appeal,' as the rules applicable to ih^pourvoi are so difierent from 
those of an ordinary appeaL There are two cai'dinal rules which 
govern the practice of the Court of Cassation : 

(i) It cannot interfere witli the judgment attacked unless in that 
judgment there has been a violation or an erroneous application of 
the law. 

(2) The Court of Cassation cannot give a judgment on the merits 
of the case. All it can do is to * cass ' the judgment found to be 
contrary to law, and then remit the case to be tried over again in 
a lower court. I will explain later the conditions of this remit or 

One of the most delicate duties of the Court of Cassation is to 
decide the question of its own competence. This is the sole function 
of one of its chambers ; viz. the Chambre des Requeues, 

Every paurvoi in a civil case has to come first before the Chambre 
dee Requetee. That chamber has merely to consider if, on the 
statement of the party attacking the judgment, the court below 
seems to have violated the law. If no prima facie case is made out, 
the Chambre dee Req%ieiee rejects the pourvoi, giving its reasons, and 
there is an end of the matter. If the Chambre dee RequStee thinks 

VOL. XIX. u 

273 The Law Quarterly Review. [No. Lxxv. 

the pourvoi ought to be admitted, it issues an arr^l admitting it, 
but giving no reasons, and remits the case to the Chambre Civile to 
be there debated and disposed of. This preliminary inquiry has 
been severely criticized as causing unnecessary delay and expense, 
and also as rather tending against that harmony of judicial 
decisions, to create which is one of the main functions of the Court 
of Cassation. It has happened sometimes that the Chambre dei 
RequSU8 taking a certain view of a point of law has invariably 
rejected pourvois in which the opposite view was contended for, 
although it may be known that the Chambre Civile was not of the 
same opinion as the Chambre des RequStes, But so far the Chambre 
des Bequetes has sui^vived all attacks ^ 

As an instance of an important question upon which there is 
a conflict between the decisions of the Chambre des RequStet and 
those of the Chambre Civile^ I may refer to the cases as to the 
validity of the mairiage of an ex-priest of the Catholic Church. 
Up to 1878 it had been held that the civil law admitted the 
doctrine oif the canon law as to the indelibility of orders. ' Once 
a priest always a priest.' The Chambre des Requetes reaffirmed this 
traditional view in a famous case in that year. Eeq. %6 fev. 1878 ; 
D. P. 1878, I. 113. Ten years later the question came before the 
Chambre Civile. That court held that as there was now complete 
religious liberty in France, a priest might if he chose renounce 
his orders, and that no law then prohibited him from contracting 
a valid marriage (Cass. civ. 25 janv. 1888 j D. P, 1888, !• 97). The 
result of this conflict is curious. It leaves any Court of Appeal 
free to decide the question either way with the practical certainty 
that its judgment will be final. 

Suppose the Court of Amiens prefers the old view, and holds 
a marriage null which has been contracted by an ex-priest. If 
a pmirvoi is presented, the Chamhre des Requites will reject it, as it 
agrees in the law followed by the Court of Amiens. On the other 
hand, suppose the Court of Paris declines to annul a similar 
marriage. If a pourvoi is presented the Chambre des Requites will 
admit it, as it holds that this view is unsound. But the Chambre 
Civile will reject the joowrtw when it comes before them. In either 
case the judgment of the Court of Appeal will stand. It is, to say 
the least of it, unsatis£a>ctory that such an important question may 
be determined in opposite senses according as it happens to arise 
in one jurisdiction or in another. (See Beudant, Cours de Droit 
Fran^ais, Vol. i. No. 245.) 

In criminal matters this preliminary inquiry by the Chambre des 
RequStes does not exist. The pourvoi comes directly before the 

* See Garsonnet, Tr. de Proc. t. i. § 97. 

July, 1903.] The Organization of Justice in France. 277 

Chambre Criminelle, which disposes of it finally. The question of 
competency in civil cases upon which the Chambre de9 Belief has 
to pronounce in the fii'st instance is one upon which there are 
a great many decisions not always very easy to reconcile. In 
general it may be said that the court is competent — 

(i) When the court below has violated some substantial form 
of procedure. 

(2) When it has exceeded its competence. 

(3) When it has taken a wrong view of a lot. 

We must bear in mind that loi means an act of the legislature. 
The court must have overlooked or misapplied an aiiicle of one of 
the codes or a statute. 

A court which decides a point contrary to previous decisions is 
not necessarily a violation of a loi. The Court of Cassation is not 
competent to re-examine any finding of fact, or any finding as to 
the intention of the parties to a contract. But it may review the 
judgment as to the legal nature and effect of the contract. 

E. g. the findings of the court below that a testator was of sound 
mind, or that a party to an action of separation has been guilty of 
cruelty (exch^ sdvices, ou injures graves)^ or that from the terms of 
a deed of partnership its object was contrary to public order, or 
tliat the word enfants in a deed includes grandchildren, or that the 
consent to a contract was induced by fraud, are a]l examples of 
findings which the Court of Cassation cannot review. But the 
Court of Cassation may review a judgment holding that such and 
such facts establish fault for which reparation is due, or that 
certain facts proved constituted novation, or that a clause in a 
deed constitutes a potestative condition. For in such cases the 
real point at issue is what is the legal result of certain facts ^. 

The Remit (Renvoi). 

Assuming that in a civil case a request for casBsXion—pourvoi — 
has been admitted by the Chambre des Requetes^ it is sent to the 
Chambre Civile. There it is debated. It is then either rejected, in 
which case the court pronounces judgment of rejection, stating its 
reasons, and there is an end of the action, or else the Chambre Civile 
decides to ' cass ' the judgment attacked. Having done so it remits 
the case not to the couH which pronounced the judgment cassed, 
but to that court of the same rank in the judicial hierarchy which 
lies nearest to the court whose judgment has been cassed. Thus if 
the judgment cassed is that of a Court of First Instance, the remit 
is made to the nearest Court of First Instance. IP an arrit of 

' See, for these and many other instances, Pandectes Fnin9aises, s.v. Cassation 
Civile, Noo. 737-791 and 904-1100. 

U 2 

278 ITie Law Quarterly Review. [No.lxxv. 

a Court of Appeal has been cassed, it is to the Court of Appeal 
which is the next neighbour of the court which has gone astray. 
When it is an arre^ of the Cour de Paris which is cassed, the 
renvoi is to the Court of Rouen, or of Amiens, or of Orleans. In 
criminal cases there is more latitude of choice. The case is 
remitted to any court of the same rank, iirespective of its geo- 
graphical situation. And where a judgment in a criminal matter 
has been annulled for incompetence, the remit \& to the court 
which is held by the Court of Cassation to be the competent court, 
whatever may be its rank. 

The cassation has the effect of a restitutio in integrum. The 
parties are put back into the same position in which they were 
before the erroneous judgment was pronounced. If the judgment 
is cassed only in pai*t the remit is only as to the part cassed. The 
court to which the case is remitted is called the tribunal de renvoi. 
When the remit is made to a Cour d'Appel that court is bound to 
hear the case in audience solennelle ; i. e. before two chambers sitting 
together, unless the Cour d!Appel has only one chamber. Even 
then there must be nine judges (conseillers) present. In the Courts 
of First Instance two chambers never sit together (see Dalloz, 
Repertoire, s. v. Organisation Judiciaire, No. 193)^. 

The Court of Remit is perfectly free to come to any decision either 
on the facts or the law. It may throw down the gauntlet to the 
Court of Cassation and reaffirm the proposition of law which that 
court has just held to be erroneous. When this happens, a special 
procedure is provided. Suppose Court of Appeal A has laid down 
a certain doctrine of law. This is held to be erroneous by the 
Court of Cassation, the judgment is cassed, and the case remitted 
to Court of Appeal B. That court in audience solennelle reaffirms the 
doctrine laid down by Court A. A second pourvoi is presented on the 
same grounds as before. The Chambre des Requetes if it admits it, 
as it is pretty certain to do, sends it to the Chambre Civile, That 
Chamber, on seeing that the pourvoi directly challenges their previous 
decision in the case, finds that it ought to be heard in the Court of 
Cassation before the United Chambers {chambres r^unies) *. The three 
chambers sit together to hear the case. There must be thirty-four 
judges present, including the President. If they ' cass ' the second 
judgment upon the same grounds as the first they make a second 
remit to Court of Appeal C. In that case, however, Court of Appeal 
C. has not complete freedom of judgment. It can come to any con- 
clusion upon the facts, but upon the law it must bow to the ruling 
so solemnly laid down by the Court of Cassation. But even here it 
is only as between the parties and in this case that the rule of law 

1 Garsonnet, 1. 1. § 79. ^ See Cass. civ. 26 nov. 1890; D. P. 91, i. 345. 

JiJy. 1903.] The Organization of Justice in France. 279 

is binding. If the same point should come up a week later in any 
Court in France, of whatever rank, from d^juge de j)aix to the Court 
of Appeal of Paris, that Court is perfectly free to fly in the face of 
the doctrine laid down by the combined wisdom of the united 
Chambers of the Court of Cassation. The Court of Cassation 
for the sake of its own dignity, and also for the sake of what 
French writers call Funit^ de jurisprudence^ generally adheres to its 
opinions. But it is not absolutely bound to follow its own previous 
decisions, as is the House of Lords in England. (See Ait.-Gen. 
V. Bean and Canons of Windsor^ i860, 8 H. L.C., at p. 391^.) It 
has happened that the coui*t has changed its mind. Upon one 
famous question the Court of Cassation reversed a decision of its 
own upon an important point in the law of succession. The 
majority of the Courts of Appeal preferred the older view which 
had been followed for twenty-five years. They continued to give 
arrets contrary to the later doctrine which the Couii; of Cassation 
had adopted. These arrels were uniformly cassed. After twenty 
years of conflict, the Court of Cassation, by an arret of the Chambres 
reunies^ came round to its original opinion ^. 

Pi-oud'hon, a writer of high authority, says the Court of Cassa- 
tion makes sometimes de glorienx retours sur eUe-meme. To an 
English lawyer it is surprising that a more absolute uniformity of 
decisions is not felt to be desirable. It may be theoretically sound 
to say that the legislature and not the judge makes the law, and 
that therefore every judge is in duty bound to follow the guidance 
of his own reason, and is not to be coerced into a wrong interpret 
tation because other courts have fallen into error. But surely it 
might be admitted, if unity of jurisprudence is worth anything, 
that the view taken by the Court of Cassation with its bench of at 
least eleven of the most eminent and experienced judges in France 
was entitled to so much respect that lower courts must follow it, 
unless the Court of Cassation itself saw fit to change its mind. 

Perhaps, as the procedure of the Court of Cfissation i3 ao different 
from that of any of our courts^ I may be permitted to give an 
illustration. I will take a recent case which can be stated very 

In the French protectorate of Tunis the French courts have, by 
decree of the Bey, jurisdiction to ti*y any * crime ' committed in 
Tunis by a Tunisian subject to the prejudice of French citizens. 
Dahman, a Tunisian^ and not a soldier, was accused of the delict 

^ [More lately, in Lomfon Strut Tramways Co. v. london County Council [1898] ^C. 
375, the House of Lords expressly declined to reconsider a decision of its own.] 

* Cass. civ. 10 noT. 1880 ; D. f*. 81, i. 81. S^e |*lanio), Tfait^ j^lom^i^t^ire do 
Droit Civil, Y, 3» 5 S^TQi 

280 The Law Qiuirterly Beview. 

of cheating the French army, by deceit as to the quantity of some 
stores he had sold. He was brought before a military court. He 
pleaded that the court was incompetent. The plea was rejected on 
the ground that Tunis was, in the sense of the law, enemy's territory. 
Being a civilian, Dahman had the right to request cassation. He 
did so, and the court cassed, holding : 

(i) That Tunis was not enemy's territory ; 

(2) That ' crime' in the Bey's decree was not used in a technical 
sense, and included delicts ; and 

(3) That the competent court before which Dahman should have 
been brought was the ordinary French court — the tribunal eorrec- 
tionnel — upon which jurisdiction had been conferred by the Bey's 
decree. They remitted to the Court of First Instance of Sousse. 
That court did not agree with the Court of Cassation. It held 
itself incompetent on the ground that the word * crime ' was not 
meant to include delict. On appeal the Court of Appeal of Algiers 
affirmed this judgment. The ministere public^ or public prosecutor, 
entered a pourvoi ^, 

The Court of Cassation held again that crime included delict. 
They remitted the case to the Court of Appeal of Aix. That court 
finally held : 

(i) That Tunis was not enemy's territory, and therefore that the 
military court had not competence to try a civilian ; 

{%) That crime included delict ; 

(3) That the Court of Sousse was the court of competent juris- 
diction, but that it was convenient to exercise the power of retaining 
the case at Aix and disposing of the merits ^. 

Here we have five trials in a criminal matter, and criminal 
matters ai*e generally regarded as best suited for prompt solution. 

F. P. Walton, 
M**Gill University, Montreal. 

' Ch. crim. 9 nov. 1894, D.P. 95, i. 49. * D.P. 95, 2. 289* 

{To be continued.) 


Sheffield Cobpobation v. Babolay and others. 

IN the case of the Lord Mayor and Corporation of Sheffield v. Barclay 
and otAers^^ the Lord Chief Justice gave judgment on October 27 
last, and held that an innocent purchaser of stock in a company 
or corporation who sends in his transfer to be registered impliedly 
agrees to indemnify the company or corporation for any loss they 
may suffer as the direct result of registering the purchaser as 
a stockholder. 

The following is a brief statement of the facts : — 

The defendant, Barclay, became the innocent purchaser of certain 
stock in the plaintiff Corporation. The transfer deed purported 
to be executed by two transferors. Barclay, the transferee, sent it 
to the Corporation with a letter requesting them to register him. 
He also sent the registration fee. The Corporation wrote to the 
persons named in the deed as transferors to confirm the transfer, 
and, getting no reply^ registered Barclay in the belief that the 
transfer was valid. The stock was subsequently sold to other 
persons who were registered as transferees. One of the original 
transferors then died and the survivor brought an action to be re- 
placed on the register. A jury found that his signature was a forgery, 
and it was held that he was entitled to be replaced on the register. 
The Corporation claimed to be indemnified by Barclay for the 
expense they had incurred in replacing the original transferor on 
the register, and the Lord Chief Justice held that the defendant, 
in requesting the Corporation to register him, had impliedly pro- 
mised to indemnify them, and gave judgment for the plaintiffs. 

As this is a most important decision and one which has come as 
a surprise to many people, we propose to consider certain decided 
cases of implied indemnities, and then to examine the judgment 
of the Lord Chief Justice and the grounds on which it is based. 

An undertaking or agreement or promise to indemnify is like 
any other undertaking or agreement or promise in this, that it 
may be couched in express terms, or it may arise by implication 
from the circumstances or situation in which two parties find or 
have placed themselves. The situation may be such as to lead 
a jury to infer that, as a matter of fair dealing between man 
and man, one party must be taken to have implied a promise to 

' [^903] I K.B. i; 7aL. J. K. B. 8. 

282 The Law Qtiarterly Beview. [No. Lxxv. 

indemnify the other. In the case of the Sheffield Corporalion 
V. Barclay there was no question of any express promise, and so 
we need only concern ourselves with the nature of implied promises 
to indemnify, and the various situations and relationships in which 
such promises are to be inferred. 

That the existence of an implied promise is a matter to be 
inferred as a fact from the position of the parties is clear from the 
case of Bells v, Gibbins ^. Lord Denman C. J. there said ; — 

* Taking this as a question of fact, I have no doubt that a jury 
at Guildhall would have said that the parties understood that 
there was an engagement to indemnify. ... If the jury had been 
asked as commercial men whether an indemnity was implied, they 
must have said that it was.' 

We must now invite the reader to the somewhat dreary enter- 
tainment of considering the facts of several cases in which a 
promise to indemnify has been inferred with a view to discovering 
some common factor among them, some essential circumstance 
upon whose presence or absence depends the existence or ex- 
clusion of an implied promise to indemnify. 

The first case of implied indemnity seems to be FarebrolAer 
V. Ansley^. That was an action by an auctioneer against the 
Sheriff of Middlesex. The facts were that a writ oi fieri facias had 
been sued out directing the sheriff to levy £363 of the goods of 
J. Auberey. The sheriff delivered to his officer, Watkins, a warrant 
to levy under the writ, and Watkins and the attorney for the 
execution creditor instructed the plaintiff in the way of his pro- 
fession and business of an auctioneer to sell the goods seized. 

There was no evidence of any direction having been given by 
the defendant to the plaintiff to sell. Watkins by mistake seized 
goods which were not the goods of J. Auberey, and the plaintiff 
as auctioneer sold them and was sued in conversion by the true 
owner, who recovered judgment for £395. The plaintiff then sued 
the defendant on an implied promise to indemnify. Lord Ellen- 
borough C. J. held that there was no implied promise under these 
circumstances; that the plaintiff was seeking to be indemnified 
against the consequence of his own blunder. 

The report of this case is defective and unsatisfactory in that we 
are left in the dark as to the direction given by the sheriff s officer 
and the effect of any such direction on the action and conduct of 
the plaintiff. We must satisfy ourselves with observing that Lord 
Ellenborough does not seem to contemplate any responsibility on 
the part of the sheriff for the direction given by his officer, while 

' (1834') 2 A. & E. 57 ; 4 L. J. K. B. I ; 41 R. R. 381. 
• (1808) I Camp. 343. 

July. 1903* J Implied Indemnities. 283 

he does allude to the plaintiff's * own blunder.' We are therefore 
lefl to infer that the plaintiff acted, at any rate as between himself 
and the sheriff, on his own motion, and it is expressly stated in 
the case that there was no evidence of any direction given by 
the sheriff to the plaintiff. But so much is left to conjecture and 
surmise that this case cannot be considered one of any great 
weight. It is at most an authority, if any authority were wanted, 
for the proposition that one cannot claim to be indemnified for 
one's own blunders. 

The next case in point of date is Adamsou v. Jarvis ^. In that case 
the plaintiff was an auctioneer. He was requested by the defendant 
to sell, and did sell, certain goods and chattels of which the defen- 
dant was in possession. The defendant was not the owner of the 
goods, and he who was the owner sued the plaintiff and recovered 
the value of the goods. The plaintiff then sued the defendant on 
a warranty or false representation that he was the owner of the 
goods. It was held that he might recover on an implied indemnity. 
One cannot do better than quote some of the words of Best C. J. : — 

* Stripped of the technical language with which it is encum- 
bered, the case stated in the second count is this ; that the defen- 
dant having property of great value in his possession, represented 
to the pladntiff that he had authority to dispose of such property ; 
and followed this representation by a request that the plaintiff 
would sell the property for him, the defendant. The plaintiff 
believing the representation of the defendant as to his right to the 
property, and not knowing, either at the time the representation 
was made, or at any time after, that it was not his, as the agent 
of the defendant, sold the propei-ty ; and after paying such sums 
out of the proceeds as he was bound to pay, and making such 
deductions as be had a right to make, which the .defendant appears 
to have allowed, paid the residue to the defendant. 

' The defendant who had induced the plaintiff to make this sale 
by his false representation and request to sell, and who, after the 
sale, continued to assert his right to sell, and confirmed the agency 
of the plaintiff by accepting from him the residue of the proceeds 
of the sale, had no riAt U) dispose of this property. The conse- 
quence has been that the plaintiff, supposing from the defendant's 
false representations that he had an authority which he had not, 
and acting as the defendant's agent, has rendered himself liable to 
an action at the suit of the true owner of the goods and has been 
obliged to pay damages and costs, whilst the defendant, the sole 
cause of the sale, quietly keeps the fruits of it in his pocket. . . . 

'Every man who employs another to do an act which the 
employer appears to have a right to authorize him to do undertakes 
to indemnify him for all such acts as would be lawful if the 
employer had the authority he pretends to have. . . . 

* (i8a7) 4 Blng. 66; 29 R. R. 503. 

284 The Law Quarterly Review. [No. Lxxv; 

'Auctioneers, brokers, factors, and agents do not take regular 
indemnities. These would be indeed surprised if, having sold 
goods for a man and paid him the proceeds, and having sufiei-ed 
aftei-wards in an action at the suit of the true owners, they were to 
find themselves wrongdoers and could not i-ecover compensation 
from him who had induced them to do the wrong.' 

In 1 831 the case of Httmphrys v. Pratt * was decided in the House 
of Lords. That was an appeal from the Court of Exchequer 
Chamber in Ireland. The facts were that a judgment creditor had 
delivered to a sherift' a writ oi fieri facias to be executed upon the 
goods and chattels of Dorothea Power. He pointed out to the 
sheriff certain cattle upon her land which he represented as being 
her property ; whereupon the sheriff seized them. The cattle did 
not belong to Dorothea Power, and the true owner sued and 
recovered in trover against the sheriff. The sheriff then sued the 
judgment creditor on an implied indemnity, and it was held in 
the Coui-t of Exchequer in Ireland that he might recover. This 
judgment was affirmed in the Court of Exchequer Chamber and in 
the House of Lords. Unfortunately the learned reporters were not 
present when judgment was given in the House of Lords, but Lord 
Tenterden privately informed Mr. Richard Bligh * that he put the 
judgment on the ground that the sheriff was a public officer and 
was ' placed between two fires ' ; which must mean that the sheriff 
was placed in a position of doubt and difficulty, and ran the risk of 
an action at the suit of the judgment creditor if he did not seize 
the cattle, and at the suit of the true owner if he did. 

In Betts V. Gibbins^ the plaintiff was a wharfinger. The defendant, 
a manufacturing chemist, had a quantity of acetate of lime in the 
plaintiffs keeping. We pause here a moment to observe that the 
contract between a wharfinger and a depositor of goods is that 
the former will hold the goods at the disposal of the latter in return 
for certain dues. Of this acetate of lime the defendant sold ten 
casks to Messrs. Nyren & Wilson to be paid for by bill at four 
months on delivery, and he directed the plaintiff £0 set aside ten 
casks for the purchasers. He then drew a bill on the purchasers 
and sent it to them for acceptance ; but they neither accepted nor 
returned it. A week after the bill was drawn the purchasers called 
at the plaintiffs wharf and took away two of the casks. Shortly 
afterwards the defendant gave instructions to the plaintiff to deliver 
the remaining eight casks not to Messrs. N}rren & Wilson but ta 
someone else, which the plaintiff accordingly did. Meanwhile 
Messrs. Nyren & Wilson had been made bankrupt and their 

» (1831) 2 Dow k Cl. a88 ; 5 Bli. N.S. 154 ; 35 R. R. 41. 

» See 5 Bli. N. S. 154 at p. 164. 

' (1834) a A.&E. 57; 4L.J. K.B. I ; 41 R. R. 381. 

July, 1903.] Implied Indemnities. 285 

assignees in bankruptcy demanded the eight casks from the 
plaintiff. The plaintiff wrote to the defendant asking for instruc- 
tions as to whether he should resist the claim and defend the 
action by the assignees, but received no answer from the defendant; 
whereupon he paid the claim of the assignees for the value of the 
goods and claimed to recover the amount from the defendant. The 
declaration in this case stated that the defendant undertook to 
indemnify the plaintiff in consideration that the plaintiff at the 
defendant's i-equest would refuse to deliver goods to Messrs. Nyren 
& Wilson and would deliver them to another person. Lord Denman 
C. J. held that the plaintiff was entitled to be indemnified, as he had 
in compliance vdth the defendant's directions delivered the goods of 
Nyren & Wilson to the third person. 

In Toplis V. Grane^ the plaintiffs were auctioneers and the 
defendant was an attorney. Rent became due to a client of the 
defendant from one Armstrong, who was also an auctioneer and 
had on the premises which he occupied goods and chattels for sale 
which belonged to various owners and were privileged from distress. 
The defendant gave a written authority to the plaintiffs authorizing 
them to seize and distrain the several goods and chattels on 
Armstrong's premises, and concluding with the words 'and for 
so doing this shall be a sufficient warrant or authority.' He also 
told the plaintiff's derk to levy the distress at once as there was 
a large quantity of furniture in the show room, and that unless the 
distress were levied at once he would be obliged to give the order 
elsewhere. The plaintiffs accordingly distrained all the goods on 
Armstrong's premises and had to meet claims made by ten different 
owners in respect of the goods. The plaintiffs then brought an 
action against the defendant for indemnity, and it was held that 
they were entitled to recover. In the course of the judgment 
Tindal C. J. said :— 

' It is quite unnecessary to lay it down as a general rule of law 
that a broker who enters under an ordinary warrant of distress and 
takes goods upon the premises which are privileged by law from 
distress can look for indemnity from his employer. In most cases 
the broker has a better opportunity of informing himself as to any 
exemption from the liability to distress which may belong to the 
goods found upon the premises than the landlord or his agent can 
possibly have. The landlord and the a^ent indeed have frequently 
no opportunity whatever. To hold therefore as a general pro- 
position that the law gives in all cases an indemnity to the broker 
would have the effect in many of throwing the consequences of his 
own wrongful act or want of caution from himself upon his 
employer, and would tend to render him generally careless in the 
discharge of his duty.' The learned judge continues : * But we think 
* (1839) 5 Bing. N. C. 636 ; 9 L. J. C. P. i8o ; 50 R. R. 814. 

286 The Law Quarterly Review. [No. Lxxv. 

the facts stated in this special case would satisfy a jury that the 
defendant by his conduct throughout the whole transaction caused 
the plaintiffs to believe that they were acting under an indemnity 
from him, and that such indemnity therefore may be justly inferred 
to have been given/ ... * We think this evidence brings the case 
before us within the principle of Beits v. Gibbins ^, that when an act 
has been done by the plaintiff under the express directions of the de- 
fendant, which occasions an injury to the rights of third persons, yet 
if such an act is not apparently illegal in itself but is done honestly 
and bona fide in compliance with the defendant's directions, he shall l>e 
bound to indemnify the plaintiff against the consequences thereof.' 

In DugdaleY. Lovering^ the plaintiffs were the owners of a colliery 
to which certain trucks had been sent by purchasers of coal. While 
the trucks were at the plaintiffs' colliery they were claimed by the 
K. Company as being their property. They were also claimed by 
the defendant, a trustee in the liquidation of one Phillips, a coal 
merchant. After correspondence between the plaintiffs and the 
defendant the latter wrote a peremptory letter ordering the trucks 
to be immediately £Qled with coal and sent to him. In compliance 
with this letter the plaintiffs sent the trucks to the defendant ; 
whereupon the K. Company, the real owners of the trucks, sued 
the plaintiffs for conversion. To settle the action the plaintiffs 
paid a considerable sum which they claimed to recover from the 
defendant on an implied promise to indemnify. The Court of 
Common Fleas followed Belts v. Gibbins'^ and Toplig v. Gratie^, and 
held that on these facts there was evidence on which a promise to 
indemnify might be implied. 

Now it is to be observed that of the cases above cited the 
majority were claims by auctioneers or wharfingers, persons classed 
by Best C. J. with brokers, factors, or agents, who make it their 
business to act on the mandate or instructions of others ; persons 
who sell or deliver without any warranty of their own title, whose 
acts are not in the fullest sense their own acts, but the acts of 
others, ' domini,' as Mr. Haldane called them in his argument for the 
defendants in Sheffield Corporation v. Barclay^ or * superiores,' in the 
sense in which the word is used in the maxim respondeat superior^ 
who act through them, and who must ultimately pay if the act 
is wrongful. Before passing on from this class the judgment of 
Tindal C.J, in Toplisy. Grane^ demands special attention. That 
learned judge clearly intimates that if general directions only had 
been given to the broker to distrain for rent due to Armstrong, 
and the broker had seized goods privileged from distress, be could 
not have claimed any indemnity ; because his means of knowing 

» a A. & E. 57 ; 4 L. J. K. B. i ; 41 R. R. 381. 
' (1875) L. R. 10 C. P. 196 ; 44 L. J. C. P. 197. 
» 5 Bing. N. C. 636 ; 9 L. J. C. P. 180 J 50 R. R. 814. 

July, 1903.] Implied Indemnities. 287 

what goods might legally be distrained were equal or superior to 
those of the landlord, and it would have been his business and his 
duty, if he had had merely general instinictions, to inform himself 
as to what goods might be distrained. If he misinformed himself, 
it was his own blunder. 

Tindal C.J. goes on to point out that in Toplis v. Grane^ the 
evidence showed that the landlord or his attorney had given more 
than general directions and had practically pointed out the goods 
to be seized, and that the broker had acted in compliance with 
those directions. One word more and we pass from the cases of 
wharfingers, auctioneers, and other agents. Those cases justify us 
in saying that where two persons are placed in such a relation to 
each other that one undertakes to act on the mere mandate or 
direction of the other, and not on his own independent motion, 
he is entitled to be indemnified if in pursuance of his undertaking 
he does an act which he has no reasonable means of knowing to 
be, but which is in reality, a wrongful act. 

But one of the cases cited above, Hamphryn v. Pratt ^, was a case 
of a sherifi. Now a sheriff, as such, is not bound to act on the 
mandate or direction of an execution ci*editor. He is the officer 
of the law and not the agent of the creditor. If notwithstanding 
the mandate or direction of the execution creditor he acts on his 
own responsibility, and in so doing seizes the goods of a person 
who is not the debtor, he is liable himself and cannot claim 
indemnity from the execution creditor — Collins v. Evatis ^ ; but it is 
otherwise if the sheriff acts in obedience to the mandate or direc- 
tion of the execution creditor and not on his own responsibility, for 
if acting in obedience to those directions he seizes the goods of 
persons other than the judgment debtor he is entitled to an 
indemnity from the execution creditor — Humphry% v. Pratt^ ; 
Childers v. JFooler *. 

There may be two opinions upon the question whether a sheriff 
is not declining from his high position as an officer of the law in 
accepting the mandate and acting on the direction of the execution 
creditor. If the Court had declined to allow the officer of the law 
to act on any other motive than his own responsibility, such an 
attitude might have found favour in the eyes of many lawyers, if 
not of many business men. No doubt for this reason the cases of 
Collins V. Evans ^ and Childers v. Wooler^ show a great reluctance on 
the part of the Courts to hold that the sheriff has acted otherwise 
than on his own responsibility and at his own discretion, notwith* 

* 5 Bing. N.C. 636 ; 9 L. J. C. P. i8o; 50 R. R. 814. 
" 2 Dow & CI. 288 ; 5 Bli. N. S. 154 ; 35 R. R. 41. 

» (1844) 5 Q. B. 820 ; 12 L. J. Q. B. 339- 

* (1859) 2 E. & E. 287 ; 29 L.J. Q. B. 129. 

288 The Law Quarterly Review. [No. LXXV. 

Btanding explicit directions given to him by execution creditors ; 
and this reluctance is very natural considering the means at the 
disposal of the sheriff oT informing himself by means of inter- 
pleader proceedings as to the real ownership of the goods which 
he is desired to seize. In both the cases last named the Court 
refused to find that the sheriff had acted on the direction of the 
execution creditor. 

In Bump/ir^s v. Prati^^ where the claim to indemnity was allowed, 
three points are clear : — (i) the title to the goods was doubtful ; 
at any rate it is to be surmised that the sheriff would not have 
seized them without the direction of the execution creditor; (2) that 
the mandate or direction was in fact given ; (3) that the sheriff 
acted on the mere mandate or direction and not on his own motion. 
The same remarks apply to Dugdale v. Lovenng ^, whei'e the posi- 
tion of the plaintiffs was analogous to that of the sheriff in 
Hnmphrtfs v. Pratt *, in that they were under no obligation to act 
on the instructions of the defendant. The title to the wagons was 
doubtful ; the defendant gave a distinct mandate or direction ; and 
the plaintiffs acted on the mere mandate or direction and not on 
their own motion. In this class of cases, which is really an ex- 
tension of the former class, it is clear from the judgment of Brett J. 
in Dugdale v. hovering *, and from the cases of Collins v. Evaus ^, 
and Childers v. Wooler^, that where the two parties are at arm'a 
length, each acting on his own motion, there is no implied promise 
by either to indemnify the other. These cases justify us in laying 
it down that where one person insisting on his view of a doubtful 
state of facts directs another to act upon that view, and the other 
person acts on the mere direction and not on his own motion, 
there is evidence on which a promise by the former to indemnify 
the latter may be inferred The question whether Sheffield Cor^ 
poration v. Barclay was rightly decided depends upon whether it 
can be brought within this class of cases. We think it cannot. 

It is now time to purge our minds of any doubt which may 
have aiisen from the use of the words * mandate ' or * direction.' 
Much force was attributed . by the Lord Chief Justice to the 
' request' of Barclay contained in his letter to the Corporation that 
they should register him. Let us say at once that it matters not 
a whit whether the pei*son seeking indenmity has acted upon 
a mandate or direction given, or upon a request made, provided 
that he can prove that he acted on the mere mandate or direction, 
or on the mere request, and not on his own motion. Lampleigh 

• a Dow & Cl. a88 ; 5 Bli. N. S. 154 ; 35 R. R. 41. 
« L. R. 10 C. P. 196 ; 44 L. J. C. P. 197. 

5 5Q.B. 820; 12L.J. Q.B. 339. 

* a E. & E. 287 ; 29 L.J. Q. B. 129. 

July, 1903.] Implied Indemnities. 289 

V. BratAwaif^ is the leading case upon the legal rights of one who 
has acted at the request of another. There ' Anthony Lampleigh 
brought an assumpsit against Thomas Brathwait and declared, 
that whereas the defendant had feloniously slain one Patrick 
Mahune; the defendant^ after the said felony done, instantly 
required the plaintiff to labour, and do his endeavour to obtain 
his pardon from the king, whereupon the plaintiff, upon the same 
request, did, by all the means he could and many days' labour, do 
his endeavour to obtain the king's pardon for the said felony, 
viz., in riding and journeying at his own charges from London to 
Boiston, when the king was there, and to London back, and so to 
and from Newmarket, to obtain pardon for the defendant for the . 
said felony. Afterwards, soil, &c., in consideration of the premises, 
the said defendant did promise the said plaintiff to give him £100, 
and that he has not, &c., to his damage £120.' 

From this, the authentic statement of the case^ it seems clear 
that Lampleigh acted not on his own motion but on the mere 
request of Brathwait ; and indeed a little consideration will show 
us that a dangerous fallacy is involved in the proposition that 
every one who acts at the request of another is entitled to be 
indemnified by him. The most common legal relations generally 
commence with a request by one party to the other. A purchaser 
of groceries begins by requesting the grocer to sell him a pound 
of tea, but he does not therefore undertake to indemnify the grocer 
for any loss he may be put to through selling the tea. If the tea is 
the property of a third person who sues the grocer for conversion, 
it would be strange if the purchaser of the tea were bound to in- 
demnify the grocer because he requested him to do what turned 
out to be a wrongful act. It is well known that a pawnbroker 
selling pledges does not warrant his title to the pledges he sells. 
When he requests bystanders to purchase pledges, does he under- 
take to indemnify them if they purchase and are afterwards sued for 
conversion ? Assuredly not. Because they do not act on the mere 
request but on their own motion. The holder of shares in a com- 
pany having heard that a dividend has been declai*ed, but having 
received no dividend warrant, may write, one would think, to the 
company requesting them to send him a warrant without under- 
taking to indemnify them ; the occasion for an indemnity arises 
under other circumstances, for example, when a wai*rant has already 
been sent and the company have reason to think it may have been 
mislaid, in which case, as is well known, companies decline to send 
a duplicate warrant except on an express contract to indemnify. 
But then they act in a doubtful state of facts on the mere mandate 

* (1613) Hob. 105. 

290 The Law Quarterly Review. [No. LXXV. 

or direction or request of their shareholder and not on their own 
motion, and their sense of the situation is marked by their demand 
for an express indemnity. In the case under review it is con- 
ceivable that the Corporation might have received notice of the 
transfer and, taking the initiative, might have requested Barclay 
to send in his transfer deed for registration. If so the Corporation 
would have been surprised to learn that by that request they had 
impliedly undertaken to indemnify Barclay for having acted ^ post,' 
and yet not 'propter,' tlieir request. But enough has been said 
to show that in one sense a request is a common preliminary io 
almost all legal relations, and it is not necessary to labour the 
point that a request, when it is merely a preliminary to entering 
into legal relations, does not give rise to a valid claim for an 

Now in the Sheffield Corporation v. Barclay it is clear that the 
defendant was not a person insisting on his view of a doubtful 
state of facts, and directing the plaintiffs to act on his view. There 
was no doubt in the minds of either party that Barclay was the 
legal transferee of the stock. He certainly believed that he was, 
and the Corporation made their own inquiries and satisfied them* 
selves that he was the legal transferee of the stock. We do not 
intend, however, to place too much reliance on the absence of 
doubt. For it may be said that a doubtful state of facts is not 
necessary to the implication of a promise to indemnify, and that 
the ti-ue view is that such a state of facts is merely evidence of the 
more vital and essential circumstances, namely, that a mandate or 
direction was given, or request made by one party, and that the 
other acted on the mere mandate or direction or request, and not on 
his own motion. If so, the whole case depends on the answer to 
two questions : (i) Did the defendant Barclay give, any mandate 
or direction to the Corporation to register him, or did he make any 
request (other than as a mere preliminary to their acting on their 
own motion) that they should register him? and (a) Did the 
Corporation act upon his mere mandate or direction or request, or 
on their own motion ? The first of these questions cannot be said 
to be free from doubt ; for it has been held in two cases in America, 
Brotvn v. Howard Fire Insurance Co} and Bostofi ^ Albany Bailroad Co. 
V. Richardson 2, that a person presenting a tiunsfer for registration 
represents, not merely that he honestly believes himself to be, but 
that he is the legal transferee. With unfeigned respect for the 
opinions of American Judges, we should be sorry to think that 
this is the law of England. Companies and Corporations in this 
country have means at least equal with those possessed by pur- 

» (1875) 42 Maryland, 384. » (1883) 135 Mass. 473. 

July, 1903O Implied Indemnities. 291 

chasers of stock in the mai-ket of testing the authenticity of the 
signatures of the transferors of the stock purchased. When the 
means of testing these signatures are equal, why should either 
party make any representation or warranty to the other beyond 
that of an honest belief? When two persons have equal knowledge 
of the surrounding circumstances it is most probable that each of 
them acts on his own motion. The Corporation of Sheffield, like 
other corporations and companies, demanded and were paid a fee 
for registering Barclay, and under the circumstances it is submitted 
that he gave no mandate or direction to the Corporation that they 
should register him, and made no request other than as a mere 
preliminary step towards entering into a legal relation with the 
Corporation in becoming a registered transferee of their stock upon 
payment of the usual registration fee. 

Further, there seems to be no reason for supposing that the 
Corporation acted on Barclay's mere request. They had ample 
means of their own provided by their Act of Parliament for 
satisfying themselves as to whether the transfer to Barclay was 
or was not a valid instrument. If they omitted to use the means 
at their disposal, that was not the fault of the defendant. They 
were empowered by their private Act to demand a statutory 
declaration from the transferors of their stock if the circumstances 
of the case should appear to make it expedient, and surely they 
are the judges of the expediency, if any. They did not apparently 
deem it expedient in this case, but they did what they considered 
sufficient. They wrote to the transferors and, receiving no reply, 
came to the conclusion that the transfer was in order. It is a 
common practice for companies and corporations, when a transfer 
of their stock is sent in for registration, to write to the transferor 
and ascertain whether the transfer deed has been in fact executed 
by him. No doubt this is not conclusive, but in the absence of 
other guidance the common practice affords some indication of 
what companies and corporations regard as their duty in such 
matters. But we are not without authority on this point. In 
Simm V. Anglo-American Telegraph Co/ Lindley J. dealt with the 
obligation of a company in these terms : — 

* Their obligation by statute is to keep a proper register ; it is 
a duty imposed upon them by s. 29 of the Companies Act, 1862 ; 
and further than that, when a transfer is brought to them to be 
acted upon, they do in point of fact take upon themselves the duty 
or the task of making inquiries about it ; and it appears to me that 
when a person innocently and honestly takes a transfer to the 
company, it is no more than a statement by him to the following 
effect : — 

* (1879) 5 Q- B. D. 188 ; 49 L. J. Q. B. 39a. 

292 The Law Qtuirterly Beview. [No. Lxxv. 

* So far as I know the transfer is a genuine document : I shall 
leave it with you for a certain time to make inquiries, and if you 
make inquiries and find that it is a genuine document, of course 
you will receive me as a stockholder ; if, on the other hand, the 
result of the inquiries is to show that it is not a genuine document, 
then of course you will not register me as a stockholder/ One 
might add the words * except upon my indemnity.' 

The judgment of Lindley J. was overruled in the Court of 
Appeal, upon the ground that the duty of a company to see to 
their register was a duty which they owed to themselves and not 
to a transferee of their stock. Bramwell L. J. says, * I believe that 
the system of inquiry by companies before the registration of a 
transfer is modem : no doubt that is a very reasonable and proper 
step for companies to take ; nevertheless, as it seems to me, it is 
clearly a practice to which they have recourse for their own benefit, 
and not for the benefit of any one else.' But that is sufiicient to 
show that they act on their own motion and not on the mere 
request of the transferee. So did the Corporation in the case under 
discussion. They did not act on the mere request of Barclay, but 
satisfied themselves that he was the legal transferee and registered 
him accordingly. 

If so there is no consideration for any promise to indemnify. 
From the theoretical point of view that is the conclusion of the 
whole matter. Unless the person claiming an indemnity has gone 
out of his way at the request of the person from whom he claims 
it, there is no consideration for the undertaking or agreement or 
promise of the latter. From the practical point of view there is 
much to be said on both sides, and it is difficult to adjust the 
balance. It is very important that stock in companies should 
be readily transferable, and that no unnecessary obstacles should 
be placed in the way of its passing freely from one person to 
another ; but, on the other hand, it is very important that legal 
holders of stock should have some security in their holding, and 
that bona fide purchasers of stocks should be certified that they are 
purchasing stocks and not lawsuits. On the whole it is submitted 
that the mischief of allowing 'a company or corporation to rely on 
the request of any one who presents a transfer would be greater 
than that of holding that in registering a transfer they act on their 
own responsibility. If on making their own inquii'ies they find 
reason to doubt the genuineness of the transfer tendered, then let 
them refuse to register except upon an indemnity; but not till 
then« That will put the transferee on his guard. But until they 
have some reason for suspicion, what right have they to any 
indemnity ? If a company refuse on insufficient grounds to register 
a transferee, what is the order made by the Court on a summons 

July, 1903O Implied Indemnities. 293 

under the Companies Act, 1862? Not to register upon having 
a proper indemnity, but to register^ that is, unconditionally. If 
a company, without having any reason to doubt the authenticity 
of a transfer, were to refuse to register it except upon an indem* 
uity, we venture to think that they could be compelled to register 

We now come to deal with the grounds upon which the Lord 
Chief Justice based his judgment. That judgment purports to be 
founded on the case of Sifnm v. Atiglo- American Telegraph Co} and to 
appreciate it it is necessary to say a few words about that case 
and the judgment in it 

One Coats was the duly registered holder of stock in the Anglo- 
American Telegraph Co. His clerk without his authority instructed 
a stockbroker to sell this stock, and it was sold on the Stock Ex- 
change, the clerk forging the transfer, to Spurling & Skinner. The 
company wrote to Coats to confirm the transfer. His clerk inter- 
cepted the letter and, after waiting a week for a reply, the company 
registered Spurling & Skinner as stockholders, and a certificate was 
prepared for them, though it was not sent for the following reason. 
They held the stock as trustees for Surge & Co., who obtained 
a loan from their bankers and executed a transfer of the stock to 
Simm & Ingelow as trustees for the bankers to secure repayment of 
this loan. The loan was paid off, and accordingly Simm & Ingelow, 
when registered, would have been bare trustees for Surge & Co. 
Simm & Ingelow and Surge & Co. then claimed to have Surge & Co. 
registered as the holders of the stock. In the meantime the forgery 
was discovered. The company claimed an indemnity against Spur- 
ling & Skinner. Lindley J. held (i) that the company were bound 
to keep their register correctly, and to inform themselves as to the 
validity of transfers presented to them before they regbtered the 
transferees : that the company having registered Spurling & Skinner, 
and Surge & Co. for whom they held the stock having altered their 
position on the faith of this registration, the company were estopped 
from denying that Spurling & Skinner were duly registered^ and 
were therefore bound to register Surge & Co. He also held (2) 
that Spurling & Skinner were not bound to indemnify the company. 
Soth parties appealed. The Court of Appeal reversed Lindley J. 
on the first holding, and held that, as the loan in i-espect of which 
Surge & Co. had transferred the stock had been paid off, Surge 
& Co. had not so altered their position as to estop the company 
from denying that Spurling & Skinner were duly registered, and 
that therefore the company were not bound to register Surge & Co. 
It therefore became unnecessary to adjudicate upon the appeal 

1 5 Q. B. D. 188 ; 49 L. J. q. B. 39a. 

X 7. 

294 The Law Quarterly Review. 

from the second holding, viz., that the company were not entitled 
to an indemnity from Spurling & Skinner, and the Court of Appeal 
expressly refused to give any opinion on this doubtful question. 
The substantive decision of the Court of Appeal was that Burge 
& Co. were not entitled to be registered. 

Now how does the Lord Chief Justice utiUze this decision ? * It 
appears to me/ he says, ' that the Court of Appeal did decide that 
as between two innocent parties, one of whom had innocently and 
without negligence handed in a forged transfer, upon which forged 
transfer the company were asked to act, the loss was to fall upon 
the person who handed in the transfer, or, in other words, that 
they brought that case within the rule to which I referred, that 
when one of the two innocent persons must suffer, the party who 
has innocently put forward the request upon which the other one 
has acted must bear the burden.' But what the Court of Appeal 
did in reality decide was that as between two innocent persons, 
one of whom has innocently and without negligence handed in 
a forged transfer upon which the company are asked to act, the 
loss is to fall upon the person who handed in the transfer, if he 
claims to be registered. When the holder of a forged transfer 
comes to be registered, the company may refuse to register him, 
although he is quite innocent of any bad faith. That did not 
warrant the Lord Chief Justice in saying that the Court of Appeal 
had decided as a general proposition that as between two innocent 
persons the loss is to fall on the person who hands in the transfer 
whether proceedings are brought by or against him, or, in other 
words, that when one of two innocent persons must suffer, the 
party who has innocently put forward the request upon which 
the other one has acted must bear the loss whether he sues or 
is sued. That party cannot insist on being registered, but it does 
not follow that if the company or corporation have registered him 
they can insist on an indemnity. It is consistent with the decision 
of the Court of Appeal that whichever party moves in the matter 
must fail, or, in other words, that as between two innocent parties 
in such a case as this the loss .must lie where it falls ; for to say 
that one party moving must fail, is not to say that the other party 
moving must succeed. 

For these reasons we venture, with all respect, to question the 
soundness of the decision in Sheffield Corporation v. Barclay, 

Walter Husset Griffith. 



A PERFECT system of International Bankruptcy is practically 
impossible without world-wide international agreement. 
Such an agreement has only been concluded on any subject in 
isolated instances, and on the subject of International Bankruptcy 
it has BO far proved impossible to arrive at even a preliminary 
general agreement as to principle. 

Admitted that even approximate perfection is not possible without 
an almost impossible uniformity of international agreement, the 
question before us is this : Is our own law as just (for justice and 
perfection are in this connexion synonymous) as the imperfect con- 
dition of circumstances will permit 1 And the answer is distinctly, 
No I The most glaring defect is our method of treating insolvent 
branch establishments in this country ; a method which in effect 
upholds a theoretically perfect doctrine, but which in practice 
produces unnecessary harshness and injustice to our own subjects. 
As in almost every other British institution the most unsystematic 
and theoretically imperfect parts in reality make most for justice 
and convenience, while where our law happens to coincide most 
thoroughly with theoretical perfection it falls most into practical 
difficulties and defects. 

The two generally accepted alternative principles are Unity and 
Universality on the one side, and strict territoriality on the other. 
Our law is based really on no principle at all, unless compromise 
and common sense be a principle. Such principles as do exist are 
there rather by accident than design. ^English Law/ says Von 
Bar ^, * in many of the leading points has reached fairly satisfactory 
results, less perhaps by a discussion of general principles than by 
the exercise of practical good sense.' Unity and universality are 
usually supposed to go hand in hand ; but our law repudiates the 
one while it embraces the other. Unity has evidently no place in 
our system, for while a good deal of authority can be found for the 
proposition that English law bases jurisdiction on the domicil of 
the debtor, whether it be in England or abroad ^ s. 6 of the 

^ GUlespie's edition, p. loii. 

* li« Eluihmany L. R a Eq. 23 ; Solomoruv, RosSf i H. Bl. 131 n. ; Westlake, p. 13^ ', 
Smith ▼. Moffdiy L. R. i Eq. 397. 

296 The Law Quarterly Review. [No.lxxv. 

Bankruptcy Act mentions mere residence as being another ground 
of competence. English courts claim jurisdiction over debtors in 
many cases where they are not domiciled within the kingdom, and 
a declaration of bankruptcy in the place of the debtor's domicil is 
not in law a bar to commencing bankruptcy proceedings here.. It 
is merely a ground for the English court to exercise its discretion 
as to whether it shall stay its own proceedings or allow them to 
continue concurrently with the foreign bankruptcy ^. What could 
be more unscientific or more redolent of compromise? And yet 
in result it works far more satisfactorily than many other systems 
based on the purest theories. 

On the other hand the Bankruptcy Act of 1883 was hailed 
abroad as a triumph of universality ^. By the combined effect of 
88. 44 and 168 tl^o property of a bankrupt divisible among his 
creditors comprises his 'money, goods, things in action, land, 
and every description of property whether real or personal, and 
whether situated in England or elsewhere! And this universality is 
recognized as affecting not only the property of a bankrupt, but his 
capacity, no matter where he may be. Lord Lindley evidently 
took this view when he said ^ — ^ It must be borne in mind that 
bankruptcy is a very serious matter. It alters the status of a 
bankmpt. This cannot be overlooked or forgotten when we are 
dealing with foreigners who are not subject to our jurisdiction. 
What authority or right has the court to alter in this way the 
Btatus of foreigners, who are not subject to our jurisdiction 1 ' 
A similar universality is allowed to the judgments of foreign 

In all this English law is strictly theoretical, but in following 
this very theory has fallen into its gravest defect. We would not 
find fault with the universal effect given to foreign judgments of 
bankruptcy over property in England; that is only just, for we 
claim the same universality for our own. But when the idea of 
universality as affecting the person prevents our courts from 
declaring a bankruptcy, which we should be perfectly justified in 
declaring according to the accepted rules of international law, and 
when such refusal works greatly to the detiiment of our own 
subjects, it is then that we cannot but wish that the English 
courts had followed their usual course of unsystematic common- 
sense, and had not for once stood forward as the staunch supporters 
of a logical theory. A branch establishment of a foreign firm is 
carrying on business and contracting debts in England while the 

^ Ex parte WCuUochf 14 Ch. D. 716, per James L. J. 

• Journal de Droit Int. Prive, vol. xi. 230. 

* Re A. B, d: Co. [1900] i Q. B. 544. 
' Except as to land in England. 

July, 1903.] Defect in our Law of International Bankruptcy. 297 

members of the firm are domiciled or reside abroad and are therefore 
not personally subject to the jurisdiction of the English coui*ts. At 
first sight the words of the Bankruptcy Act would seem to bring 
such a case within the jurisdiction of the English courts : — ' A 
creditor shall not be entitled to present a bankruptcy petition 
against a debtor unless (among other things) the debtor is domiciled 
in England or within a year before the date of the presentation of 
the petition has ordinarily resided or had a dwelling-house or 
place of bu^ness in England.* To any one not accustomed to the 
surprises which lurk in every clause of an Act of Parliament would 
it not have seemed obvious that a foreign firm^ which carried on 
a branch business here, was ipso facto subject to the English 
bankruptcy jurisdiction, either as being domiciled here in the 
commercial sense of the word, or, at any rate, as having a place 
of business in England 1 

Such unfortunately is not the case. A string of cases, culminating 
in a decision of the House of Lords, has deprived our courts of a 
jurisdiction so necessary for the commercial interests of Englishmen. 

Ex parte Crispin ^ commenced the series. A Portuguese subject, 
domiciled in Portugal, who had contracted some debts while 
temporarily resident in England, left the kingdom in consequence 
of being served with a writ. He was held not to be liable to 
bankruptcy proceedings here as he had not committed any act of 
bankruptcy in England. 

Ex parte Blain ^ goes further. The plaintiff recovered judgment 
against a firm consisting of eight persons, two of whom had never 
been in England : he then presented a bankruptcy petition against 
all the members of the firm. With regard to the two members 
who had not been in England the petition was refused. ' English 
legislation,* said Lord Justice James, * unless the contrary is ex- 
pressly enacted, or so plainly implied as to make it the duty of an 
English coui-t to give effect to an English statute, applies only to 
English subjects and foreigners in the jurisdiction.' It would be 
monstrous, he contended, if an English merchant at Liverpool were 
summoned to appear and defend bankruptcy proceedings in Hono- 
lulu under the code of Kamehameha II, King of the Sandwich 
Islands. But, we would respectfully submit, if the Liverpool 
merchant was really carrying on business in Honolulu so as to be 
commercially domiciled there, even though he had not paid a visit 
to that particular island in person, there would be no hardship and 
no illegality in subjecting him, at least so far as concerned his 
business in the island, to the local bankruptcy code. In this case, 

' L. K 8 Ch. 374. 2 la Ch. D. 52a. 

298 The Law Quarterly Review. [No. Lxxv. 

however, it was not contended that the two partners in question 
were domiciled in England in any sense. 

Brett L. J. laid down an important principle in the same case. 
A firm as such cannot commit an act of bankruptcy ; it must 
be the personal act or default of the person who is to be made 

After this decision it was still the belief, or at any rate the hope, 
of lawyers and jurists that s. 6 of the Bankruptcy Act was to 
be construed positively as well as negatively, and that any debtor 
who carried on trade in England was liable to bankruptcy pro- 
ceedings in England if he committed out of England one of those 
acts of bankruptcy which in the terms of the Bankruptcy Act may 
be committed in England or elsewhere. 

This seems to have been the opinion of Westlake ', for after 
quoting the words of Sir G. Mellish, * A foreigner not domiciled in 
England and not carrying on trade in England, who quits England 
without having committed an act of bankruptcy, cannot be made 
a bankrupt on an alleged act of bankruptcy committed out of 
England,' he continues: 'It seems difficult to say that a person's 
having an ordinary residence or a place of business within the 
jurisdiction is not a fairground for distributing among his creditors 
all property of his which can be found within the jurisdiction, on 
the occurrence anywhere, within a reasonable time, as a year, of 
one of those circumstances which are deemed in other cases to give 
fitting occasion for such distribution. Supposing that subjection 
to the jurisdiction on the ground of domicil is wanting, there is 
not wanting the element of voluntary submission to it in circum- 
stances which may lead those who give credit to the foreigner to 
expect an equitable application of his means to their payment after 
no excessive delay on their part. The better opinion, therefore, 
probably is that the words quoted from s. 6 of the Bankruptcy 
Act, 1883, should be read positively as well as negatively, so as to 
give the creditor a right to present a petition in the cases mentioned 
in them, wherever the act of bankruptcy was committed *.' 

This view seems to be supported by Piggott', and by the judgment 
of Lord Esher in Pearson* s case in 1892 *. 

Such hopes or beliefs were shown to be unfounded by a recent 
decision of the House of Lords *. The Charles A. Vogeler Company 
was a firm consisting of two partners, citizens of the United States, 
who resided and carried on business there. This firm possessed a 
branch establishment in the city of London, worked by a manager on 

' Westlake, s. 127, 3rd ed. pp. 147-148. * pp. 147-148. 

' Foreign judgments, p. 329. * [1892] 2 Q. B. 263. 

• Cwke V. Charles A, VogtUr Co. [1901] A. C. 102. 

July, 1903.] Defect in our Law 0/ InterncUional Bankruptcy. 299 

their behalf: the branch business had assets in England and had con- 
tracted debts In England. In January, 1900, two English creditors 
filed a bankruptcy petition against the firm founded on two acts of 
bankruptcy — one, that they had through their agent, the manager, 
given notice in England to their creditors that they had suspended 
or were about to suspend payment of their debts ; the other, that 
they had in America assigned all their property to a trustee for the 
benefit of their American creditors (an act which may in the terms 
of the Bankruptcy Act be committed * in England or elsewhere '). 
The debtors disputed the jurisdiction of the court. 

Counsel for the plaintiffs argued that the case was clearly dis- . 
tinguishable from ex parte Blain^ in that the first act of bankruptcy 
was actually committed in England, and that the second might be 
committed in England or elsewhere; that if the receiving order 
should not be made the English creditors would have no remedy : 
the English assets would be realized by the trustees of the deed 
and the proceeds sent to America, and employed in paying the 
American creditors of the firm to the exclusion of the English 
creditors. The court, however, decided that there was no juris- 
diction. Lord Lindley, after dwelling on the serious and universal 
effects of bankruptcy in the passage we have quoted above, con- 
tinued: 'I can see the difficulty in construing s. 6. It might 
possibly be thought that the word ** debtor " is so plain as to confer 
jurisdiction over foreigners. But the Court of Appeal has said 
that it is not, and I am unable to distinguish the present case from 
In re Pearson* 

In the House of ^rds ^ it was not contended that the territorial 
law will bind people who are not within the jurisdiction ; but that 
for the purposes of bankruptcy the respondents were within the 
jurisdiction, as having had a place of business within the year. 
In other words, that commercial domicil alone is sufficient to 
found jurisdiction. It is sufficient in case of a company or other 
corporation' — why not for an individual? Surely a foreigner 
sufficiently submits himself to the jurisdiction of our courts, who 
embarks a large portion of his capital in a commercial undertaking 
here — who claims the assistance of our courts to recover debts due 
to him by English debtors by reason of that undertaking, and who 
incurs liabilities to English creditors for which he can be sued in 
these courts. Those who enjoy liberty to trade must surely be 
amenable to bankruptcy, the inevitable issue of unsuccessful trade. 

The Lords affirmed the previous decision. Their reasons are 

* CodkB ▼. CharUB A, Vogeler Co. [1901] A. C. loa, Sir R. T. Reid. 

* lU Commercial Bank qf South AtutraUa, 33 Ch. D. 174 ; Hoggin y. OxmpMr d^Escompie 
d€ Paris, 2Z Q. B.D. 519. 

300 The Law Quarterly Review, [No.lxxv. 

best stated in the words of Lord Halsbury : * I am by no means 
prepared to say that it might not be a reasonable thing to apply 
the English law of bankruptcy to a trader, who, though himself 
personally abroad, exercised a trade through the instrumentality of 
an agent, and possessed assets in this country. . . . But if it is 
manifest that the language of the statute does not reach the case, 
no court has jurisdiction to enlai-ge the ambit of English legislation 
beyond what the legislature has permitted ' ; and he goes on to say 
that the Bankruptcy Act does not reach th^ case. The word 
' debtor ' must have some limit, and that limit must be ' a debtor 
who is subject to the English bankruptcy laws * : a foreigner 
coming to this country and trading here is subject to our laws ; 
but an act of bankruptcy mujst be a personal act or default, and it 
cannot be committed through an agent or a firm as such. 

Lord Davey struck a note of hesitation in admitting that he had 
some doubt whether in ex parte Blain the foreigners might not have 
been held responsible for the default of their partners in the course 
of carrying on the business. 

The facts of this case alone sufficiently show the harshness of its 
result It is a strict application of the principle of universality — 
it is an equally striking instance of ' summum ius, summum nefas.' 
It is a grievous defect in our common-sense system of law, that no 
matter how far the creditors may have to go, no matter how the 
laws of the debtor's country difier from our own, no matter what 
imperfect justice they may obtain when they get there, there is no 
way for an English creditor to defend his rights by the safeguard 
of an English bankruptcy, if only his debtor happens to be a 
partnership and not a company, and none of the partners happen 
to have personally visited England. The hardship is enhanced by 
the fact that the mere presence in England of such a branch estab- 
lishment makes it impossible for a creditor when suing to obtain 
security for costs ^. This hardship will fall even more heavily on 
the colonies. F. T. Piggott, Attorney-General for Mauritius, has 
expressed a strong opinion as to its effect there and in similar 
places, where most of the business houses are branch establishments 
of European firms whose pai*tners have probably never visited the 
island. The decision comes from the Supreme Court of Appeal, 
and nothing short of legislation can alter it. 

Suppose the legislature inclined to move in this matter, and 
suppose — a still more improbable supposition — that it could find 
time to legislate on such a subject, what grounds could be sug- 
gested whereby this unjust result of a strict univeraality could be 

' Redcndo v. Chaytor, 4 Q B. D. 457. 

July, 1903.] Defect in our Law of International Bankruptcy, 301 

avoided without falliog into the Chary bdis of an equally unjust 

Foreign positive law is not very fertile in suggestions. Legis- 
lation on the international effect of bankruptcy is almost a blank : 
but there is a mass of * jurisprudence/, which, though varied and 
sometimes contradictory, at least shows us what to avoid. 

American law makes bankruptcy jurisdiction depend on residence 
and the commission of acts of bankruptcy within the state, so that 
a decision similar to the one we deplore might possibly be made 
in America. Story, however, says ^ that according to the general 
American doctrine, if Americans are diligent in obtaining the help 
of their country *s laws against property of a banki'upt in the state, 
there is no reason why they should be sent to get what dividend 
they can abroad. Before the recent general law ^ superseded them, 
the laws of seveml individual states allowed bankruptcy proceed- 
ings to be taken against non-resident debtors who had property 
within the jurisdiction. A decision such as in ex parte Blain is 
prevented by s. 5 (c), by which a court of bankruptcy which has 
jurisdiction over any one of the partners of a firm may have juris- 
diction over all the partnera and the partnership property. 

By Scottish law sequestration may be awarded when the debtor 
is eulject to the jurisdiction of the Supreme CouH of Scotland ami 
has within a year resided or had a dwelling-house or place of 
business in Scotland ^. This seems to show that Scotland would 
also be affected by the judgment in the Fogeler case ; but Scottish 
courts recognize domicil as a basis of jurisdiction, and not the 
juridical domicil of the law of intestacy, but with the broader 
meaning of 'home or trading establishment*.' Whether this dis- 
tinction would save Scottish law from the defect of the English 
system may be doubted ; but whatever the House of Lords might 
be inclined to do, it is probable that a Scottish court would recog- 
nize trading alone as giving ground for exercising jurisdiction. 

Italian law accepts unhesitatingly the principle of universality, 
but avoids to some extent the difficulties which assail our system 
by adopting commercial domicil as the basis of jurisdiction. 
Bankruptcy is pronounced by the tribunal where the debtor has 
his principal commercial establishment. In the case of a debtor 
having commercial establishments in different states, if the several 
establishments form in reality but one house of business, a bank- 
ruptcy declared at the principal business seat comprises all the 
branches; but where the debtor has several distinct houses of 

' Conflict of Laws, p. 575. 

* [1898] Sess. II. c. 541. ' 19 & 20 Vic. c. 79, 8. 13. 

* Phosphate Sewage Co. v. Lawson^ 1878, R. 11 38. 

302 The Law Quarterly Review. [No. Lxxv. 

business in different states a declaration of the bankruptcy of one 
does not affect the others simply because they are managed by 
the same individual ; and this is no departure from the rule of 
universality, for all property connected with the bankrupt house 
is comprehended in the bankruptcy wherever it may be situated. 

The difference between Italian and French law is illustrated by 
the case of Hoffman^. A trader carrying on business in London 
but possessing branch establishments in Paris, Brussels, and Milan 
was declared bankrupt in England. Some of his Italian creditors 
attached his property in Milan. The court held that the title of 
the English trustee in bankruptcy was good against the creditors 
on the ground that Hoffman was domiciled in England, and the 
Italian branch was connected with the English. After the declara- 
tion of the English bankruptcy a French court declared Hoffman 
bankrupt ^ in respect of his branch establishment in Paris. The 
French Court of Appeal avowedly preferred the interests of French 
creditora to the principle of universality, and no one has suggested 
that internationally they were not entitled to do so. Bankruptcy, 
they said, is a matter of public order ! Articles 3 and 4 of the 
Code Civil have given Frenchmen the utmost facilities to sue their 
foreign debtors in France ; in view of public order it matters little 
that Hoffman had his principal establishment in London ; and the 
argument for the expediency of universality cannot prevail against 
the aforesaid articles of the Code Civil. Such' reasoning would 
make short work of the Vogeler case. 

The French courts always act on this principle of protecting their 
own subjects. In 1875 ^*' ^^^ ^^^^ ^ ^^** ^ commercial firm having 
its head establishment abroad and a branch establishment in France 
could be declared bankrupt in the place of the branch establishment, 
if in consequence of its operations in France such branch establish- 
ment had suspended payment. This principle has been followed 
in several later cases ^. 

French law has on the other hand sometimes upheld the unity 
of the bankruptcy of the domicil. The court of Rouen in 1874* 
held that there can be only one bankruptcy, for a trader has only 
one domicil; and a debtor domiciled in France who owed the 
greater part of his debts there was declared bankrupt in France, 
though he had already been declared bankrupt in England®. 
Again, the court of the debtor's personal domicil has been declared 

* Journal Clunet, vi. p. 77, viii. p. 351. ^ ibj^i, y. p. 606. 

* Trib. Comm. de Seine, 18 Aug. 1875. 

* See LixMer Hooper d Co., C. d'Orl^ans, 37 Mar. 1885, and Journal de D. J. P. xxiv. 
p. 103 1. 

* Deva%uo*8 ca&e, Journal de D. J. P. Tiii. 125. 

* Trib. Seine, 10 May, 1881 ; Journal, viii. 514. 

July, 1903.] Defect in our Law of International Bankruptcy. 303 

competent, though he had neither his chief establishment nor any 
branch establishment in France, and had never carried on business 
there ^. 

These cases ai'e certainly inconsistent with Hoffman^i case, and 
seem to show considei'able conflict of principle, justifying Von Bar's 
criticiam, that France, though she has made the most praiseworthy 
efforts, has her bankruptcy law in the state of the greatest con- 
fusion. The only consistent principle to be discovered in the 
Fi'ench law seems to be this, that French courts recognize the 
competence of the court of the domicil, but refuse to recognize 
unity or universality when they conflict with the interests of 
French creditors. Very unsystematic, almost unprincipled !— but 
at any rate French creditors have no ground to complain that the 
law of their country works hardships for its own citizens. 

Belgian law is founded almost entirely on that of France, but 
upholds the reality of the doctrine which French courts profess only 
in name. The court of Brussels declared in 1851 that *the state 
of the bankrupt trader extends its effects everywhere, where the 
trader possesses any property ; the administration of bankruptcy is 
one, indivisible and universal^* This is followed by a string of cases 
all upholding in terms of eloquence and almost affection the principle 
of unity and universality. Greek law provides a suggestion. 
The Court of Appeal at Athens in 1892 upheld the declaration of 
bankruptcy of a firm in Greece, though its chief place of business 
was situated in Belgium. Competence, said the court, in the matter 
of bankruptcy is governed by the interests of creditors, and the 
siatut personnel of the bankrupt is immaterial. A trader who has 
an independent establishment in Greece and a principal establish- 
ment abroad may be declared bankrupt in both countries. In case 
of such double bankruptcy each bankruptcy has its own assets, 
its own debtora and creditors. The foreign bankruptcy is recog- 
nized in Greece, but only so far as concerns the foreign bankruptcy ^. 

But this solution of our problem is open to the accusation of the 
injustice which is inseparable from the application of a strict 
territoriality; namely, that one set of creditors may get a much 
higher dividend than the others, or even be paid in full, while the 
others get practically nothing; the inequality depending merely 
on accident — the place where the goods happen to be — or the place 
where the bankrupt in the interests of his favourite creditors 
chooses to deposit them. 

Germany too escapes our difficulty. By Articles 237 and 238 of 

* G. de Paris, 2 Aug. 1883 ; Journal, zi. 63. 

' Court of BruBsels, 1851, Journal Glunet, vii. 87. 

' See also C. d'Appel de Patras, 1896, No. 824, Journal de D. J. P. xxv. p. 963. 

304 Tlie Law Quarterly Review. [No. LXXV. 

the new code, ' If a debtor declared bankrupt abroad possess goods 
in Germany, execution may be had over these. . . . The bank- 
ruptcy comprises only the assets which are in Germany, when 
the debtor possesses an industrial establishment there, but has not 
his juridical domicil there.' The effect is ^ that German ci*editors 
can obtain execution in spite of a foreign declaration of bankruptcy, 
but at the same time the foreign administrator is recognized, and 
if he is first in the field can get execution himself. 

Most countries will probably continue thus to prefer the interests 
of their own subjects to perfection of theory and so universality 
be postponed indefinitely, unless some means be found in the 
nature of a compromise, which shall safeguard the rights of in- 
dividual creditors, and yet support the universal effect of the 
bankruptcy of the debtor's domicil. 

An interesting discussion on this point took place at the meeting 
of the Institute of Intel-national Law at the special Conference at 
the Hague in 1 893 2. 

After much discussion the following resolution was adopted — 

'Bankruptcy can always be declared by the tribunal where 
a simple branch establishment {^uccnrsale) is set up — but shall 
produce no effect except in the country where it is declared. 

'In the case of a bankruptcy declared in the country of the 
principal seat of affairs, the proceedings of the tribunal of the 
ittccnrsale shall be stayed.' 

The adoption of some such amendment into the domain of 
positive law would go some way towai-ds removing our difficulty : 
it would protect creditors from such a flagrant injustice as an 
assignment of all the debtor s property to trustees for the foreign 
creditors, and it would prevent the removal of the debtor's assets 
from the jurisdiction. But creditors would still be often obliged 
to suffer inconvenience and expense in taking proceedings in a far 

A perfect solution is to be found, if at all, in a suggestion by 
Jitta in his book on International Bankruptcy^ — a suggestion 
which appears to be original and fertile in great possibilities. 

A secondary declaration of bankruptcy, he suggests, should be 
allowed, whenever there is a secondary establishment in the 
country, which does not publicly declare that it is secondary — or 
where such an establishment has existed but has been suppressed 
within, say, three months of the bankruptcy petition — or again if 
there is a very large part of the debtor's patrimony within the 

• Von Bar, 1053. 

^ Annuaire de Tlnstitut de D. Intl. xiii. 266-280. ' Ch. 5. 

July, 1903.] Defect in our Law of International Bankruptcy. 305 

country. The secondary bankruptcy takes the place of the principal 
declaration, if that is not or cannot be declared. 

When declared, the secondary bankruptcy is a principal bank- 
ruptcy in itself until declaration in the * centre of active life ' : it 
then becomes ancillary. 

The secondary administrator can do all acts for securing and 
distributing the property subject, in the latter case, to instructions 
from the principal administrator, and he can exacb proof of local 
debts before the local court. The local creditors may prove their 
debts by local law, provided they were contracted with the 
local establishment : the secondary administrator represents these 
creditoi's, votes for them in questions of composition, and demands 
dividends on their behalf. 

There might in this way be several ancillary bankruptcies 
without inconvenience, and if there should be no bankruptcy in 
the chief centre of business, one of the ancillary bankruptcies — 
perhaps the earliest— might be declared principal. 

Such is the picture that Jitta draws. English jurisprudence 
should welcome it, for it is a compromise : and more than that, it 
is a compromise, which, though illogical as all compromise must 
be, is useful and workable, and might be adopted into English law 
without to any great extent disturbing the present form of 
bankruptcy administration. 

Legislation would of course be necessary, but only a short 
statute of one section, amending the Act of 1883. We would not 
dare to attempt that most difficult of all tasks, parliamentary 
draftsmanship, but we can imagine the necessary legislation con- 
ceived somewhat in these terms ^ : 

§ I. The word 'debtor* shall, in the discretion of the court, be 
deemed to include any person, who within a year from the 
presentation of the petition has had a place of business in England, 
whether he has resided in England or otherwise submitted himself 
to the jurisdiction of the court or not. 

Provided that where the debtor is not subject to the jurisdiction 
of the court, the word * property * shall not include any property of 
the debtor not within the jurisdiction of the court. 

Provided also that if the debtor shall be declared bankrupt by 
a competent tribunal of any other country, the court shall have 
power, if it shall think fit, to order that the trustee shall 

(a) Hold all the property of the debtor in his hands as the 
agent of the administrator or syndic appointed by the 
foreign tribunal ; 
(i) Represent as trustee such creditors as shall prove in the 
English bankruptcy and sue in their name before the foreign 
tribunal ; 

^ See Bankruptcy Act, 1883, s. 168, for meaning of terms. 

306 The Law Quarterly Beview. 

(c) Defend any actions brought in England against the ad- 
ministrator or syndic appointed by the foreign tribunal in 
the name of such administrator or syndic ; 

and that all debts proved in England shall be deemed to have been 

proved before the foreign tribunal. 

We should thus retain our unscientific but eminently useful 
practice of leaving much to the discretion of the court, and extend 
the present discretion by adding the power to declare an English 
bankruptcy to be only ancillary to the principal bankruptcy in 
a foreign country ; and to declare such a bankruptcy, whether the 
debtor has personally visited England or not. 

It is not claimed that this legislation would produce a perfect 
system of international bankruptcy law for England ; but it would 
remove the chief defect of our present system, and would at any 
rate, during the interval which must elapse before the golden age 
of international uniformity, place our system in advance of any 
now existing in possessing a via media between the two at present 
unjust extremes of territoriality on the one hand and unity on the 

Alpbed F. Topham. 



THE Patents Act, 1902, makes several important changes in our 
patent i^stem. The amendment of the law as to compulsory 
licences has received the greater share of public attention ; but the 
new provisions for an 'investigation' into prior specifications before 
new patents are granted, will be at least as far-reaching in effectr 
Hitherto there has been no provision for any such examination, 
with the result that patents have been granted over and over again 
for the same invention. In order to avoid the obvious evils which 
result from the multiplication of invalid patents, both the United 
States and Germany have for some time had a systematic search as 
to novelty before granting new patents, the search including both 
home and foreign specifications and the standard publications on 
the various subjects as well; in neither case is there any official 
guarantee as to novelty, but in both the seai'ch is so comprehensive 
that the patents granted after it are seldom upset by Uie courts. 
Without instituting any such general examination as to novelty, 
the new Patents Act provides for what is termed an investigation^ 
designed to cover only previous British specifications, subject to 
certain exceptions. 

The new system may be described thus. When, on any appli- 
cation for a patent) the complete specification is received, the 
examiner is to make an investigation as to whether the invention 
claimed has been claimed or described wholly or in part in any 
previously published British specification ; but this investigation 
IB not to extend to specifications more than fifty years old, or to 
the provisional specifications (not followed by complete ones) which 
were published in accordance with the old practice before 1884. 
If, in the opinion of the comptroller, this investigation discloses 
nothing adverse, the application will proceed in the ordinary way. 
If otherwise, the applicant will be informed of the particulars ; if 
he then amends his specification so as to avoid the objections of 
the comptroller, the application will proceed on the amended 
specification in the ordinary way ; while if the specification is not 
BO amended, the applicant may still obtain his patent^ but there 
will be inserted in the specification as published a reference to such 
prior specifications as the comptroller considers right * by way of 
notice to the public/ There are also provisions for an appeal from 


308 ITie Law Quarterly Review. [No. LXXY. 

ihe comptroller to the law officer, for shortening the time «within 
which an application accompanied by a provisional specification 
must be followed by a complete specification, and for the prescribing 
of a new fee in respect of the new investigation. The investigation 
is not to be held in any way to guarantee the valicCty of any 
patent, and there is to be no official liability, in respect of the 
investigations, or of the reports or proceedings thereon. The 
system is to be brought into operation by a departmental order, 
laid before both Houses of Parliament, and is to apply only to 
applications made after it has been brought into operation. These 
are the principal provisions of the first section of the new Act ; 
the second section will be considered presently. 

These new arrangements will do a good deal towards checking 
the multiplication of invalid patents. How large a proportion of 
the patents now granted are of that character may be gathered 
from the results of the official investigation recently made in respect 
of complete specifications accepted during certain specimen periods ; 
though the range of that investigation did not' extend further back 
than 1877, the result showed that * upwards of 42 per cent, of the 
specifications accepted appear to have been anticipated either wholly 
or in part by ' previous British specifications ^. Yet all these were 
granted without any notice to the patentee or to the public of 
the true state of things. Under the new conditions, the number of 
patents granted with what may be called * dean ' specifications will 
probably be much less ; and the number of grants as a whole will 
probably be diminished too, because in cases of serious anticipation, 
the applicant will sometimes prefer to abandon his application and 
to save the sealing fee. 

It is likely, however, that the volume of patent work will be 
increased. -Though the grants may be fewer, the applications will 
probably be more numerous, because (except for the additional 
fee, which is not to exceed £1) the fees will be the same as at 
present, and will give the applicant the additional advantage of 
the investigation. With the investigation thus included in the 
fees, it will seldom be worth the applicant's while to make anything 
beyond a * fireside search' through the abridgement volumes. The 
decrease in the demand for searches will probably be more than 
compensated for by the increase in the number of the applications 
of hearings before the comptroller, and of appeals to the law officer. 
These appeals may be numerous at first, but how far the number 
keeps up will depend upon the practice adopted by the law officer. 
In any case, such questions as whether an invention which is de- 
scribed in a previous specification is in fact workable, which might 
^ See the Beport of the Departmental Gommittee (1901)1 C. 506^ p. 4. 

July. 1903.] The new * Investigation ' for Patents. 309 

be considered at the trial of an action for infringement, will probably 
not be taken into account at the hearing of this appeal. Whether* 
the appeal is a rehearing or an appeal in the narrower sense, it is 
unlikely that anything will be considered beyond the specifications 
themselves. The real question in such appeals will probably be^ 
not whether the new application has in fact been anticipated by 
the other, but whether the relation is such as* to justify the inser* 
tion of a reference to that other * by way of notice to the public* 
The validity of the patent, whether the specification is ' notified ' 
or * clean,' is 'still left as a matter for the courts to determine; 
but in practice the prudent investor will not put much money 
on a patent with a * notified ' specification. 

One may regret that the new investigation is not made ex- 
haustive, so far as previous British specifications are concerned. 
The excluded classes ai-e not very numerous ; the number of pro-, 
visional specifications not followed by complete ones which were 
published under the old practice is only about fifteen hundred, 
while the number of complete specifications which will be fifty 
years old in 1905 — ^when the new system is expected to be brought 
into operation^ — ^will be about thirty thousand*, which is about 
equivalent to two years* output at the present rate. The number 
of specifications more than fifty years old will increase as time goes 
on ; but they will increase at a very much slower rate than that at 
which new specifications are added, and the system, once it is fairly 
in working order, should be able to keep pace with the increase of 
the total number. It may also be observed that, according to 
present plans, the new series of illustrated abridgements — which 
include the ' published provisionals ' and which are being carried 
back BO as to cover the whole range of British specifications — will 
be completed by the end of 1906 ^. With facilities for investigating 
over the whole period thus provided, it is not unreasonable to hope 
that the new investigation will yet be extended so as to include 
the excluded classes. 

In accordance with the exclusion of these two classes, the second 
section of the new Act provides that ' an invention covered by any 
patent granted oa an application to which section one of this Act 
applies, shall not be deemed to have been anticipated by reason 
only of its publication in a specification ' belonging to either of the 
two excluded classes. But even if such specifications should be 
excluded from the investigation, this provision appears to be 

* See the answer of the President of the Board of Trade to a question in the 
House of Commons, May 7, 1905. 

' See Appendix D to the Annual Reports of the Comptroller, and the of&oial 
Instructions to Applicants for Patents, section 38 (a). 

* See the Report of the Departmental Committee (1900), C. a 10, pp. 7 and 14. 

Y 2 

310 The Law Quarterly Beview. . [No.lxxv. 

contrary to principle.. The new investigation is in no way con- 
clusive. Even when a specification has passed that ordeal success- 
fully, the patent may still be upset if it can be shown to have been 
anticipated by any previous British specification within the scope 
of the investigation, even though the examiner may have overlooked 
that one or considered it irrelevant ; or it may be upset in any of 
the other modes of anticipation to which the investigation does not 
extend — as, for instance, by any of the foreign specifications to 
which the public have access at the Patent Office Library, and 
which are much more numerous than our own^. Therefore the 
mere fact that the specifications of these two classes in question are 
not included in the investigation, is no sufficient reason for making 
them any less effective as anticipations than they are now. To do 
80 may lead to a serious narrowing of the rights of the public, by 
permitting inventions which have become public prepay to be 
monopolized again. 

What do the words * by reason only of its publication in a speci- 
fication ' belonging to either of these classes mean ? To take them 
in the narrow sense would make this second section a dead letter, 
for all the inventions belonging to these classes will be described in 
the abridgement volumes, while some of them are also described 
in private abridgements and other compilations. Probably the more 
correct view is that the term is designed to cover not only the 
actual specifications, but also any other descriptions and abridge- 
ments which are based upon these specifications and upon these 
specifications alone. But this view would work out to a wide ex- 
clusion, probably to an exclusion far wider than was ever intended, 
and would raise such questions as whether, in various works of 
reference, the authors have in any way gone beyond the specifica- 
tions referred to. Any technical restriction on anticipation will prob- 
ably raise more difficulties than it settles. Whether an invention 
has in fact been anticipated, should stiU be left to be determined on 
the same broad principles as at present. Undoubtedly, the most 
satisfactory plan would be to include in the scope of the investi- 
gation the two excluded classes, and if this were done there 
would not remain even a semblance of justification for this second 
section of the new Act. 

The principal objects of the investigation appear to be, to check 
the multiplication of invalid patents and to protect the public by 
not issuing fresh patents for inventions covered by previous 
British specifications, without inserting a reference to these in the 

^ As to the anticipating effect of these foreign specifications in the Patent Of&ee 
Library, see Barris y. RothtoM (1887) 35 Gh. D. 416. The United Stotes Patent 
Office alone now issues about 25,000 new patents each year, or nearly twice a» 
many as are issued in this country. 

July, X903.] The new 'Investigation' for Patents. 311 

speoification of the new patent. But even apart from the two 
classes already referred to^ this is but imperfectly provided for. 
There will still be not a few cases in which the specifications of 
new patents which are anticipated by prior but recent British 
specifications, will still be issued without any reference to these 
anticipations being inserted. 

The new investigation is to cover only specifications ' published 
before the date of the application' for the patent in question. 
Previous complete specifications are not to be taken into account 
till they have been examined and accepted and sent to the printers 
and published — a series of operations which will generally take 
about two months. Thus, if several confiicting specifications follow 
closely the one upon the other, the second application being made 
before the complete specification of the first is published, that 
first specification will. not be taken into account in the investi- 
gation as regards the second, even though it is the clearest 
possible anticipation. That the specification of the second patent 
should be thus published without any reference to that of the 
first, is a serious blot in the new system. The chances of prac- 
tically simultaneous invention are not so small as may at first 
sight appear. It is almost a commonplace in the history of intel- 
lectual development that several minds attain the same result 
together ; as witness the independent claims of Gray and Bell to the 
invention of the telephone. Special circumstances also tend to the 
same result; thus, for instance, when it was proposed to make the use 
of automatic couplings compulsory, there was a rush of confiicting 
inventions to meet the anticipated demand ; while the recent cab 
accident to a distinguished statesman produced another sudden rush 
of similar inventions designed to pi*event the recurrence of such 
a disaster. It is not easy to see how the difficulty here mentioned 
can be overcome, except by extending the field of the investigation 
so as to make it cover all the complete specifications of which the 
patents would have priority of date to the patent of the specification 
in question. This, however, would involve the making of fresh rulea 
as to the mode and the order of the investigation, as well as several 
other departures from the proposed practice. 

The difficulty just refeixed to will be the greater, because of our 
system of provisional protection and of dating patents back to the 
date of the original application \ Suppose, for instance, that two 
men, A and £^ apply for patents which are in fact conflicting. 
A makes his application, say, in January ; he sends with it a pro- 
visional specification, and does not file his complete specification 
till June. Some time between January and June JB applies, ^ing 

^ S. 13 of the Patents, DesignB, and Trade Marka Act, 1883. 

ai2 The Law Qtmrterly Review. [No. Lxxv, 

bis complete specification either then or later. As the law stands, 
utf's patent will be dated as from the date of his application in 
January, and will thus have priority. But jS's specification, 
whether published before or after ^'s, will not have any refer- 
ence to i^'a inserted in it, and so, in that case also, the public 
will not receive the protection which they ought to receive. The 
further difficulty here referred to arises from the practice of dating 
the, patents back to the dates of the original applications, whether 
these applications were accompanied by complete specifications or 
only by provisional ones. There are two possible remedies. One 
is, to abandon the system of provisional protection and to require 
every application for a patent to be accompanied by a complete 
specification. The other is, to revert to the old practice and to give 
the authorities a limited discretion as to the dating of patents, 
the acceptance of the suggested date being a condition of sealing. 
Under these circumstances the authorities would probably decline 
to date back a patent so as to nullify a patent already granted^, and 
the general result would be much the same as if the first alternative 
had been adopted. 

A somewhat similar difficulty arises in connexion with the ante^ 
dating of patents under the international arrangements. Suppose, 
for instance, that A patents an invention abroad, and that within 
a year of his foreign application he applies for a similar patent in 
this country, accompanying his application, as now required in 
such case, by a complete specification. In the interval between 
A'% foreign and the home applications, B applies in the ordinary 
way for a conflicting British patent — ^and perhaps has his specifica- 
tion published and his patent granted before 4*8 application for 
a British patent is received here^ A^ however, makes his home applica- 
tion under the international arrangements, and consequently his 
British patent when granted will be dated back to the date of his 
foreign application, and will thus have priority, of, and invalidate, 
JS's. But here again ^'s specification, whether published before or 
after J*s, will not have inserted in it any reference to A!b ' ; and 
so in this instance also the public, in dealing with Bb patent, 
will not have any proper protection. This case cannot be remedied 
by anything short of some considerable change in our arrangements 
with other nations ; but I mention it as an additional instance of 
the difficulty of attempting to combine a system of protecting the 
public by an investigation of previous complete specifications before 

^ As did Lord Hatherley L.O. in w paaie Bates it BedgaU (1869) L.R. 4 Ch. 
§77, decided ander the Act of 185a. But see the obsenrations of Lord Cairns L. C, 
m In re Dering'e Patent (1879) 15 Ch. D. 393. 

' Whether A*b wiU or will not have inserted in it a saperfluous reference to Fa 
seems to depend on whether or not fs specification is pablished before A'b applica- 
tion is receiyed. 

Jttiy, 1903O The new 'Investigation' for Patents, 313 

granting new patents, with a system of dating the patents out of 
the order which the order of these complete specifications would 

There are thus three cases in which even a patent granted with 
a ' dean ' specification may be found to have been anticipated by 
an earlier dated British patent, of which the specification was not 
published in time to be included in the scope of the investigation. . 
For convenience, they may be classified thus : — " 

(i) Where the complete specification of that earlier dated patent 
was received but not published before the date of the patent in 

(2) Where, though the complete specification of that earlier dated 
patent was not received before that date, yet the application and 
the provisional spedfication were ; and the patent granted after the 
acceptance of the subsequently received complete specification was 
dated back to the date of the application. By section i (8) of the 
new Act, the time which may elapse between the making of the 
original application and the filing of the complete specification is 
reduced, as from the time when that section is brought into opera- 
tion, from nine months to six. 

(3) Where, though even the application for that other patent 
was not received before the date of the patent in question, the 
other applicant had* previously applied in one of the ' Convention 
Countries' for a similar patent (afterwards granted), and under 
the international arrangements his subsequent British patent, 
was dated back to the date of his foreign application. By the 
Patents Act, 1901, applications for patents claiming to be dated 
back in this way must be accompanied by complete specifications, 
and the limit of time for dating them back is extended from seven 
months to twelve. 

In these statutory limits the point of time taken is the date when 
the application is received ; not the date of allowance, or of printing, 
or of publication. These processes take a considerable time, which 
in practice must be added to the set period ; and that time becomes 
further extended if the application, instead of being allowed forth- 
with, gives rise to correspondence. Thus' even under the new 
conditions, and when a British patent is granted with a ' clean ' 
specification, considerably more than a year must elapse before 
any one can be reasonably certain that it has not been anticipated 
by some other British patent of too recent a character to be included 
in the scope of the new investigation. 

Quite apart from these serious imperfections, it must be remem- 
bered that the new investigation is in no sense a search for novelty. 
Its application even to previous British specifications is only partial, 



314 ITie Law Quarterly Review. [No.lxxv. 

and it takes no account whatever of those more numerous foreign 
specifications to which the public have access, or of any of those 
other modes of publication or of use which may prove quite as 
effective anticipations as a British specification. Consequently, 
the fact that a l^ritish patent has been granted even with a ' clean' 
specification, should not be taken to suggest even a probability that 
it is valid. This should be kept constantly in mind by the investing 
public after the new practice has come into operation. Prospectuses 
will, no doubt, be adorned with statements that the official examiners 
have been unable to find anything adverse to the patents which the 
advertisers are putting before the public, and if the public forget 
that the investigation covers only a small part of the field of 
possible anticipation and let themselves be lulled into a false sense 
of security by that alluring statement, the new investigation may 
prove a pitfall rather than a protection. 

There is a preliminary matter which should have been dealt 
with in the new Act. Patentees and their assigns should be 
placed under some obligation to give the public reasonable 
notice both that their articles are patented and aJso of the 
patent or patents on which they rely. It is generally impossible 
for other people to obtain that information in any other way 
than by laying themselves open to an action for infringement ; 
in the confusion of overlapping patents the 'subject-index' is 
practically useless for this purpose, and the same observation 
applies to the ' name-index,' for the names there given are those 
of the patentees, while the names with which the public are ac- 
quainted are generally those of the manufacturers. In some few 
cases a reference to the patent is given ; but under the present con- 
ditions that may perhaps weaken the patentee's or the manu- 
facturer's position, and it is seldom done. Thus the initial difficulty 
is to discover which is the patent in question, and so long as that 
difficulty remains it does not matter much — for this purpose — 
whether the specification of that patent is 'dean' or 'notified.' 
Many patents will still be taken out not in any belief that they aie 
valid, but simply in order to have the privilege of marking arddes 
as ' patented ' so as to deter competition ^ 

If one examines patented articles from the United States, one 
finds that sufficient particulars are given to identify the patent. 
The reason is that section 4900 of the Revised Statutes of the 
United States contains this excellent provision : — 

' It shall be the duty of all patentees, and their assigns and legal 
representatives, and of all persons making or vending any patented 

^ Ab to the prevalence of this abuse, see the eTidence of several experts given 
before the Departmental Committee (1901), C. 530, particularly answers 727-36, 
2460-3, and 2653-5. 

July, 1903.] The new ^Investigation' for Patents. 315 


article for or under them, to ffive sufficient notice to the public that 
the same is patented ; either by fixing thereon the word '* patented," 
together with Hie day and year the patent was granted ; or when, 
from the character of the article, this can not be done, by fixing to 
it, or to the package wherein one or more of them is inclosed, 
a label containing the like notice ; and in any suit for infringement, 
by the p&i^ failing so to mark, no damages shall be recovered by 
the plamtin, except on proof that the defendant was duly notified 
of the infringement, and continued, after such notice^ to make, use, 
or vend the article so patented.' 

We might well adopt that section practically as it stands, except 
that) for convenience of reference, we should require the number of 
the patent to be given, as well as the day and year. Under such 
conditions it would be to the interest of the patentee and his assigns 
to disclose instead of to conceal that important information. Such 
a provision would cut at the root of the practice of obtaining bogus 
patents in order to use the term ' patented ' in terrorem, and it would 
enable the public to reap the full benefits of the new investigation. 

J. DuNDAs White. 



IT has become the habit of the nations of Europe, when they 
oome into contact with civilization totally different from their 
own, to conclude treaties with the country of the alien civilization 
exempting their subjects resident in that country from its laws and 
jurisdiction, and retaining over them the same rights of protection 
and jurisdiction aa if they had remained at home. Europeans 
living in such countries carry with them, as far as their rights 
of law and protection go, a little bit of their home country. From 
this policy has flowed the modem system of extraterritoriality, 
and the whole structure of consular jurisdiction. It is proposed in 
this article to describe the working of this system in China and its 
effects upon the life and undertakings of British subjects resident 
in that empire. 

When, in the middle of the nineteenth century, the powers of 
Europe began to take an active interest in the affairs of China, 
they proceeded to secure freedom for those of their subjects who 
lived in China from the jurisdiction of the magistrates and the law 
of the country. An equally accurate statement of the case might 
be made by saying that the Chinese, when they found that the 
foreign devils were not to be kept out of their domifiions, accepted 
the inevitable but prayed on all accounts to be excused from the 
task of governing and administering justice to these barbarians. 
Whichever view is preferred, by the Treaty of Tientsin in 1858, 
the British Government secured for its subjects resident in China 
the privileges of exterritoriality, and the other Western powers 
secured at or about the same time similar privileges for their 
subjects also. The broad principle on which this system of ex- 
territoriality rests is that in the event of any charge or claim 
being made against any British subject or other foreigner in China, 
the case shall be heard not by the courts of the Chinese Emperor 
but by a court of an officer of the nation to which he against whom 
the claim or charge is brought belongs, and shall be tried according 
to the laws of that nation at that time in force. Consequently for 
every nationality existing in Shanghai or other treaty ports there 
is a separate court; claims against Englishmen must be made in 
the British court, against Germans in the German, against 

The Oovemment of the Foreigners in China. 317 

PortogueBe in the Portuguese, and so on. On the other hand, claims 
or charges made against Chinese by a foreigner are heard by the 
Chinese court, in which,'in addition to the Chinese magistrate, sits 
azx assessor of the plaintiff's nationality. In the foreign courts, 
when complaints are made against one of their subjects by a 
Chinese or a subject of another power, no representative of the 
Chinese or other nationality sits to represent the plaintiff's 

There is no doubt that the exfierritorial system in China places 
the foreigner in a far better position than he would be in had the 
trea^es never been made, and the complaints of foreigners living 
in Japan, now that the treaties have expired, illustrate the truth of 
this statement. But the system is essentially a makeshift, and 
neither produces a satis&ctory administration of justice nor adds to 
the efficiency of the consular service. It is a system which' works 
well enough for small populations and small interests, but it is not 
adequate to meet the requirements of the large and growing 
European populations on the coast of China whose interest and 
enterprises throughout the empire are daily on the increase. 

In its administration of justice t&e system feuls from two causes : 
first, from the fact that justice is administered by consular not 
.judicial officials; secondly, from the inherent limitations of the 
extraterritorial court having merely personal jurisdiction. The 
British court in China, for instance, has power only over British 
subjects in China. It is the sole tribunal in which cases against 
a British subject in China can be tried, but it must be noticed ita 
powers are limited to and extend only over that British subject. 
If therefore a Chinaman sues a British subject, the court has no^ 
control over that Chinaman. If he perjures himself the court 
cannot punish him, or again it cannot commit him for contempt 
of court. The Chinaman can only be prosecuted or punished in 
a Chinese court and according to Chinese laws, and it has been 
remarked that perjury is to a Chinaman an offence as venial as 
punning to an Englishman. The only means that foreign cx>urta 
have of obtaining control over a Chinese plaintiff is to require him 
to make a deposit of money as security for costs. This acts as 
a sort of pledge on behalf of the Chinaman that be will within 
certain limits play the game as understood by the foreigner, or at 
least that the rules will not be too obviously disregarded : but the 
power of the court over him is limited to this security of which it 
has the physical possession, and the amount of security required 
cannot for obvious reasons be large. From the same want of 
control over a plaintiff of another nationality arises another grave 
flaw in the extraterritorial system. If tiie defendant has no 

318 The Law Quarterly Beview. [No. lxxv. 

defence against the plaintiff but has a counterclaim of equal or 
greater amount, the court cannot entertain the counterclaim 
however obvious the validity of that counterclaim may be. The 
counterclaim is a claim against a man of another nationality, and 
can be heard only in the court of that nationality and tried 
according to the law of that nationality. How inconvenient, 
cumbersome, and expensive such a system must be in the working, 
very little reflection will show. It is not necessary to give 
illustrations of this here, inaflmuch as it must at once occur to 
the redder that in almost all mercantile disputes of any com- 
plication, and in all actions of tort wherein damages to both sides 
have taken place, there is a necessity for two actions instead of one 
to be fought and tried. 

Another great weakness of the system^ also arising from the fact 
that the juiisdiction of the foreign courts is entirely personal, 
appears in all questions relating to land The rights and property 
of a British subject in China can be assailed only in His Britannic 
Majesty's court where the law of England is administered. But 
does the fact that a British subject owns land in China of itself 
invest that land with all the characteristics of land in England? 
It has been tacitly assumed that it does, and lawyers employ the 
English form of conveyance in transferring land. But the assump- 
tion is contrary to the theory of English law, which is that the law 
which governs land is the lex loci rei ntae^ that is, in this case, the 
law of China, and is completely at variance with a recent decision 
of the Privy Council on an appeal from the court of Zanzibar, 
where a similar system of extraterritoriality prevails. In that 
case it was held that the law which the British court administers 
as to land in Zanzibar is the lex loci, and that the British court 
must take judicial cognizance of that law. If this decision applies 
to China (and'there is no apparent reason why it should not), then 
the law under which land is held in China by British subjects 
is Chinese law ; and what Chinese law is, beyond an intricate code 
of punishments and penalties, few would dare to say. The tact 
is that the lawyers in Shanghai and other treaty ports in China do 
not really know what the law applicable to land held by British 
subjects and other foreigners really is. In small communities, 
where small interests only are involved, society can continue in 
this uncertainty by the exercise of a spirit of compromise* and 
common-sense. But as soon as interests begin to grow, a more 
logical system becomes necessary. In the large town that is 
growing up at Shanghai the inconvenience and absurdity of not 
knowing whether the English rules as to ancient lights, rights 
of way, and rights of support apply to land held by British subjects 

July. 1903.] The Oavemment of the Foreigners in China. 319 

is already felt, and the Bystem of extraterritoriality becomes 
farcical when an Englishman may block up the ancient lights of 
his neighbour and leave his neighbour in the dark and without 
remedy by a fictitious transfer of his property to, for instance, a 
Portuguese against whom no such system of law as there is in 
England may prevail. And it is in itself sufficiently absurd if 
a Chinaman or Portuguese may block my ancient lights or deprive 
my house of support while an Englishman may not. It is of itself 
sufficient to show that no system of jurisdiction which is personal 
but not territorial can be satisfactory to the persons whom it 

So great are the inherent difficulties and shortcomings of the 
extraterritorial system that it would seem imperative for its 
efficient administration that the courts should be presided over 
by judges of no little experience and legal proficiency. In factj 
with one exception, their judges are not trained lawyers at all. At 
the various treaty ports in China reside consuls of the various 
nationalities with local interests. The members of the consular 
service are not necessarily, and in ^t seldom are, members of the 
legal profession; they can never be, by reason of their service, 
trained and practised lawyers. The first duty of a consul is to 
protect the interest of his sovereign's subjects : it is scarcely con- 
sistent to add to that duty the task of administering justice when 
a complaint is brought against that subject ; and the duties of 
protection of a class and the administration of impartial justice 
between that class and others cannot but clash. Only too often is 
the verdict of the extraterritorial court a formula as of course 
Judgment for the defendant ' ; and the defendant has then every 
reason to be satisfied that he has an efficient consular service. 
This is a reproach which cannot but exist so long as the consular 
and judicial functions are centred in one man. There is only one 
court in China which can at present be free from it. 

This exception is the British Supreme Court which sits at the 
chief treaty port and commercial centre of North China, Shanghai. 
It is the court of appeal from the various British consular courts 
at the treaty ports in China, and is also a court of first instance in 
Shanghai. Its chief justice is appointed from the legal profession, 
and its officers are not consuls and have no consular duties. Con- 
sequently this court may be expected to and does administer 
justice with the same impartiality and success as any other court 
in England or elsewhere whose presidents are trained lawyers with 
no other duties than that of administering justice. But the success 
of this court is grievously curtailed by its inherent limitations 
as an extraterritorial court already stated. 

320 The Law Quarterly Beview. [NcLXXV. 

Such being the justice administered by the extraterritorial 
courts of the Western powers in China, it is necessary to throw one 
glance at the one territorial court of His Majesty the Emperor of 
China left standing, when foreign interests are concerned^ among 
its alien rivals. When a foreigner has a complaint against a 
Chinese, the case is tried by the Chinese magistrate ; in practice he 
is assisted by an assessor of the plaintiff's nationality. The court 
that thus sits, being composed of two judges, is known as the Mixed 
Court. Here we no longer have an extraterritorial court or the 
limitations and defects of extraterritoriality. The Chinese magis- 
trate has complete jurisdiction over all persons in his district who 
are not exempted therefrom by treaty, and a Nicaraguan is as 
much under his jurisdiction as a Chinaman. The defects of the 
Mixed Court (viewed on its civil side) are limited to a complete 
absence of any system of law and a tribunal competent to ad- 
minister justice. The law of the court is Chinese law. Chinese 
law has not yet distinguished between civil and criminal cases. 
What we should regard as purely civil cases, such as mercantile 
disputes, when they occur among the Chinese themselves, rarely 
come into court : they adjust themselves either by reason of the 
extreme spirit of compromise inherent in the Chinese character, or 
by the appearance of the ' peace- maker ' beloved of Chine£ie society, 
or by the intervention of the guild of that particular trade. Should 
they come into court, the unsuccessful party usually is punished in 
some way or another, for the magistrate is administering good 
morals to his people, and one party will usually in some way have 
J offended against his conception of them. Chinese law is, in shorty 
aimed entirely at a maintenance of general good principles among 
the people, and its science consists in a diversity of punishments 
for offences against them. In other words, it does not deal with the 
rights of persons among themselves so much as with a general con* 
ception of their duties to the state at large and the penalties for 
the infraction of such duties ; that is to say, in Western language, 
it is purely penal. The value of such a system of law in settling 
the disputes of the purely commercial communities of the treaty 
ports is difficult to discover. 

The result of this is that in the Mixed Court there is no system 
or code of law administered whatsoever. A case is decided accord* 
ing to a general idea of what the court considers fair. The court 
is not bound by precedent; it has no fixed procedure; it may 
decide one thing one day and another the next. It sometimes 
refers cases to the arbitration of another merchant in the trade, 
in order that he may decide it according to the custom of the 
port But the privacy of arbitration prevents such customs from 

July, 1903.] The Oovernment of the Foreigners in China. S2l 

crystalliziBg, and it is a fair generalization to say that in any case 
when a Chinaman is defendant the result is purely hypothetical, 
and depends on the relative strength of the Chinese magistrate and 
' foreign assessor concerned. 

The evils of the consular jurisdiction of the Western powers are 
fully felt in the Mixed Court. The magistrate is a Chinese official 
of a humible grade ; even were he of a higher rank his knowledge 
of commercial disputes would not be of much value. The assessor 
is a junior of his consular service ; he is not a member of the legal 
profession, he can never be a practised lawyer, and is chosen for 
his knowledge of Chinese rather than for any legal or judicial 
qualifications. His duty as a consul is to protect the interests of 
his nationals, and the Chinese magistrate is fully aware of it. Too 
often do proceedings in this court develop into a mere wrangle 
between the assessor and magistrate, each advocating the cause of 
his own sovereign's subject. Sometimes the court adjourns in 
high disagreement. At other times, weary of its civil strife, it 
tosses the ball back to the litigants and bids them see to it them- 
selves. The writer has personal knowledge of an instance of this 
latter sort, when the decision of the court was as follows: ^This 
case involves very many difficult points, and the parties must 
Settle the* matter among themselves and not cause any further 

Enough has been said of the evil effect of consular jurisdiction 
upon the system of law administered where foreigners are con- 
cerned in China. It remains to consider the effect that this addition 
of. judicial functions has upon the performance of the consular 
duties proper of the consular service in China. To arrive at any 
conclusion upon this side of the subject is not so easy, inasmudi 
as there is no consular service bereft of these judicial functions 
with which one can suitably compare that of China. But reverting 
to first principles, it may be fairly said that the object and end 
of the British consular service in China is the protection and the 
furtherance of British commercial interests. Are the chances of an 
efficient performance of such duties enhanced by an addition to 
them of the duty of administering justice under the exterritorial 
system ? 

The same objection which the laiwyer may raise against one 
whose first object is the protection of his nationals sitting as judge, 
may be raised by the trader against one who has (if required) to 
sit as a judge against him being the responsible person to protect 
and further his interests. But there are more undesirable con- 
sequences thi^ this. The fact that the consul is invested with 
judicial powers over British subjects and British property has 

322 The Law Quarterly Beview. [No.lxxv. 

given rise to the abuse of consular influence and protection for 
interests not really British, necessarily at the expense of British 
interests proper. The abuse is not by any means limited to the 
British consular system, but is equally shared by all the foreign 
consulates in China. To explain its nature it is necessary to give 
a short account of certain aspects of foreign commercial intercourse 
with the Chinese. 

The Chinese have not been slow to learn that the property of 
a foreigner in China is in a far more secure position than that 
of a Chinese. Whether the property be land or goods, it is exempt 
from the many petty squeezes that a Chinese owner would have 
to pay to the local officials. If litigation arises over it, the case 
is heard before the foreign court, where money need not be spent 
in bribing the judge. The Chinaman therefore has availed himself 
of the services of his foreign friends in order to employ their names 
for his property and enterprises. A foreign owner of land, for 
instance, obtains a title-deed for it through his consulate, who in 
turn obtains it from the native authorities} this title-deed is 
practically indefeasible, and the foreigner's property to the land 
can be attacked only in the court of his own consulate. What 
simpler than for a Chinaman to make a fictitious transfer of his 
land to a foreigner, and the foreigner to obtain a consular title- 
deed for it and stand possessed of that land nominally and to the 
world as beneficial owner, when he is in fact a bare trustee for the 
Chinaman? Should there be any dispute as- to the property in 
the land during the negotiations for the title-deed between the 
consulate and the native authorities, the whole weight of consular 
authority is thrown into the scale on behalf of interests that do not 
in reality concern them in the very least. Should it be necessary 
to sue recalcitrant natives who still maintain some title to the 
land, the foreign assessor comes to the Mixed Court to influence 
the magistrate against them. Again, should a native landlord have 
a difficulty in removing ietn undesirable native tenant from his 
property, he executes a lease of the property to a foreigner, entirely 
fictitious in fact, and it is the foreigner who brings a suit in the 
Mixed Court and obtains the assistance of his consulate in punish- 
ing the tenant for keeping him, the foreigner, out of possession. 
It is impossible to obtain statistics on a point like this, but the 
use of it to the Chinaman is so obvious, and the name of the 
foreign friend can be borrowed so cheaply, that the system is 
extremely widespread and scarcely any attempt at concealment 
of it made. It would probably be weU within the limits to say 
that at least half of the land standing in the name of foreign 
owners at Shanghai is beneficially owned by the Chinese, and 

July. 190J.] The Government of the Foreigners in China. 323 

that half of the civil suits brought in the Mixed, Court do not 
beneficially affect foreigu interests. 

The object of maintaining a consular service to the taxpayer at 
home for such purposes as this is not very apparent, and it no 
doubt gives the Chinese a lofty idea of the pride with which we 
regard the name of our nation. But it should not be imagined 
that the practice of the foreigner lending or hiring out his name 
to the Chinese as a cover for their transactions is limited to land 
transactions. The trade of the foreigner with the Chinese is 
carried on principally through the medium of a native known 
as the compradore. The eompradore is an employee of the foreign 
firm, who is paid a nominal wage and introduces Chinese pur- 
chasers and vendoi*s to the foreigner, making his remuneration out 
of a commission on the transactions. The most suitable person for 
such a post is of course a native merchant with a considerable 
business and connexion ; and^ in fact, the compradore of a foreign 
firm of any standing is always a native merchant of a considerable 
independent private business. On becoming a compradore to a 
foreign firm, this native merchant in addition to his own name 
hangs outside his own place of business the business name of his 
foreign employer in Chinese characters, and carries on his trade 
with the added Mat of the style of foreign merchant. Should he 
in the course of this business render himself liable to an action at 
the hand of another, it is not probable that his employer will take 
upon himself the responsibility for the case as his principal and 
render himself liable to be shot at in the foreign court ; but should 
the compradore have cause of complaint against another Chinese 
in respect of some transaction arising entirely out of the com- 
pradore's business, the foreigner's name is almost invariably 
employed and the assistance of his assessor called in to aid the 
compradore in the Mixed Court against his brother Chinaman. 
Here again is an instance of the use of consular officials for the 
protection of interests other than that of their own nationals. 
A similar abuse of great frequency is that of the compradore or 
any other Chinese merchant using the name of a foreign friend 
for exporting cargo, and making use in connexion with it, when 
necessary, of the routine work of a consular staff which exists 
properly only for the necessary work of goods of their own 

So great is the amount of purely Chinese work thrown on 
foreign consular oificials that it is impossible that they can do it 
except at the expense of the work of their own nationals, unless 
indeed they are, for foreign work proper, overstaffed. Either of 
these alternatives shows an unsatisfactory state of affairs. 

VOL. XTX. z 

324 The Law Quarterly Review. [No. LXXV, 

The abuses above mentioned to which the system is subject are 
kept within reasonable bounds in ports where the foreign element 
is small, and the doings and affairs of every foreigner known to 
every other foreigner there. But in the larger ports this is no 
longer so. Shanghai^ with its clashing jurisdictions and multi- 
farious population, has already become a most desirable haven for 
the evil-doer, and presents innumerable chances for small gains to 
foreigners not delicate for the purposes to which they lend their 
names. It has been locally observed that quite a new and a most 
undesirable class of foreign adventurers are now appearing in the 
ports of the Far East. The same evil is appearing in a lesser degree 
in the smaller though growing ports of Tientsin and Hankow. It is 
impossible to expect the relations of China with the West to show 
any real signs of improvement until the conditions of life and law 
at the principal places at which foreigners reside are put on a basis 
more logical and less open to abuse. 

It is difficult to see how this can be done until the present 
extraterritorial system is radically changed. This chauge can 
ceiiainly not be made by simply promoting the Chinese to the 
position of sovereignty over all foreigners in their dominions, as 
has been done with the Japanese. Viewed historically, the extra- 
territorial system may be regarded as a makeshift until the people 
of the native civilization sufficiently approximate to Western 
methods to be able to come into comity with the Western nations 
on terms of equality with them. But the Chinese has not shown 
the Japanese inclination for progress either towards Western 
industrial or Western legal and intellectual methods ; and, in the 
meantime, the commercial intercourse with the outside world has 
BO much increased as to have thrown a large number of foreigners 
on to the coast of China. The machinery which was designed to 
meet the needs of only small populations has become strained and 
no longer adequate to the requirements ; it is now too late for 
Great Britain to annex Shanghai or any other treaty port; and 
inasmuch as the very mention of the partition of China brings up 
visions of a world-wide war, it would perhaps be as well for the 
powers to consider whether or not some different scheme of govern- 
ment for the larger treaty ports could not be devised. The in- 
stitution of independent municipalities under international control 
and guarantee at Shanghai, Tientsin, and Hankow, with complete 
territorial jurisdiction inside their boundaries, is one method of 
meeting the problem. The machinery, in the present municipal 
councils, is already at hand ; all the change that would be required 
would be the cession of the territory and all rights over it from 
the Emperor of China to the municipality, and the investment by 

July. 1903.] The Government of the Foreigners in China. 325 

treaty of the little republic with sov^eign powers and independence 
as regards its internal government and affairs. Objections can no 
doubt be raised to such a course ; but it seems to be the only one 
which would secure a reasonable working system for the govern- 
ment of the foreign communities in China, and at the same time 
not awake international jealousies. 

A. M. Latter, 
Barrister-at-Law, Shanghai. 

z 2 



A MUTUAL jealousy between the thi*ee learned profebsions has 
for -centuries past disclosed itself in many epigrams and 
anecdotes that have become historic. Bat the jeaJousy has shown 
itself the most markedly in the attitude of the oldest of the three 
— ^the ecclesiastical profession — towards her two younger sisters ; 
or, perhaps it would be more correct to say, her daughters. 
Renan tells us that in all the voluminous folios of the Acta 
Sanctorum there cannot be found recorded more than two or three 
saints who were physicians ; ' and the biographies of even these 
few are believed to be spurious.' For men who devoted them- 
selves, however unscientifically, to the observation of biological 
cause and effect were so apt to develop independent habits of 
mind that the mediaeval clergy launched against them the angry 
generalization — ' Ubi tres medici, ibi duo athei.' That clerical 
criticism has its counterpart in a similar censure upon lawyers — 
^ Bonus jurista malus Christa,' or, in its much more common and 
much older Teutonic form, * Juristen bose Christen.' 

This latter sarcasm might at first sight seem likely to have 
been inspii-ed by the same sense of intellectual distrust. For the 
lawyer's lifelong training in the minute analysis of evidence and 
in the subtle interpretation of edicts and charters might well 
prove just as perilous to dogmatic authority as is the habit of that 
patient scrutiny which the physician directs upon the processes 
of nature. But the actual history of this censorious rhyme seems 
to show that it took its rise in a distrust not of the lawyers' 
doctrinal orthodoxy but of their political influence. That history 
has been minutely traced out by the late Professor Stintzing ; (to 
whose Rectoral Address of 1875 at Bonn I am indebted for the 
marrow of the present Essay). 

The revival of the study of Roman law in the Italian Univer- 
sities, in the closing years of the eleventh century, was indeed a cause 
of great political and social changes. For the result of that revival 
was that Hhe monarchy of theology over the intellectual world was 
disputed. A lay science claimed its rights ... It was a science of 
civil life to be found in the human, heathen Digest^.' In the course 
of four centuries the disputes between theology and law became in 

^ Profeesor MaitUnd (Law Quarterly Review, xiv. 3a) ; Pollock and Maitland, 
History of EngUbh Law, i. 33, 2nd ed. 

Bonus Jurista malus Christa. 327 

Germany so grave as to give birth to the rhyming sarcasm "which 
we are discussing. As a Christian condemnation of legal science, 
it presents a striking contrast to the lofty words in which the 
pagan Ulpian had pronounced jurisprudence to be ' Divinarum et 
humanarum rerum notitia/ and its followers to be worthy of the 
very title of iacerdotes, 'nam justitiam colimus et boni et aequi 
noUtiam profitemur.' Tet the contrast was not due to there being 
any taint of classic paganism still lingering in secular law when 
this Christian censure was first uttered. For so soon as Cliris- 
tianity had acquired political power, she had remodelled law to 
her own wishes. Indeed, as years went on, she had even come 
to place the charge of it in the hands of her own clerical servants. 
In the England of iioo they were so prominent in the secular 
tribunals as to give rise to the saying, 'Mullus clericus nisi 
causidicus \' Legal knowledge became, in fact, so peculiarly the 
property of the clergy that, in mediaeval times, any officer of the 
secular courts who manifested an acquaintance with law and an 
aptitude in draftsmanship was distinguished from his unlearned 
colleagues by giving him the ecclesiastical title of 'clerk.' Not 
until the middle ages were at an end did there spring up once 
again a separate profession of unclerically-minded legal experts, 
men such as the jurista whom the Teutonic rhyme contemplates. 
That profession arose simultaneously with the rise of modern 
States and with the revival of interest in the great masterpieces 
of the Boman j urists. 

During several preceding generations, the Church, reversing 
her old policy, had been discouraging the study of Boman law. 
Although the charters of the Universities provided for professor- 
ships of Boman as well as of Canon law, yet the former study 
took but a secondaiy place ; as was shown by the number alike of 
its teachers and of its scholars. For the bulk of both the scholars 
and the teachers of jurisprudence were clerics; and they looked 
upon Boman law as a mere aid to the study of Canon law. Nor did 
it continue to be a welcome aid. ' The Church,' as Mr. Jenks says, 
<had now grown strong enough to repudiate her foster-mother. 
Boman law was the work of laymen ; and the Church would not 
acknowledge so merely secular an authority.' The Canon law 
which, by its help, she had developed was now strong enough to 
stand alone ^ Hence, so early as 121 9, Pope Honorius III forbade 
all beneficed clerks to go to lecture on Boman law ; and, so far as 
the University of Paris was concerned, suspended that study alto- 
gether for a considerable number of yeara Innocent IV^ about 
1350, tried to extend this prohibition to the whole of France, and 

> Pollock and HaitUnd, i. 85. * Ibid. i. 85, 96. 

328 The Law Quarterly Review. [No.lxxv. 

to Great Britain and Hungary. Even in later times the Chair of 
Boman law in many a University, as at Vienna and Heidelberg, 
was sometimes left vacant for ten or twenty years. 

But the first years of the sixteenth century saw a sudden revival 
of the decadent science. The general revival of letters had ushered 
in a new spirit of legal research*, which, by recalling men from 
the tedious study of the glossators to the perusal of the original 
authorities themselves, had awakened a fresh interest in the 
treasures of Roman law. Thus many laymen were led by intel- 
lectual zeal to acquire legal learning; and it was the gradual 
multiplication of their number, in the course of the sixteenth 
century, that made possible the development, for the first time, of 
a national life in the various local States of Germany. The efforts 
of the various local princes to develop and consolidate, each for 
himself, a local supremacy had evolved State sovereignties of the 
familiar modem type. Any such independent self-supporting 
social organization had much to gain by adopting a secular code 
of law, if it could find one. One was now available. An adequate 
knowledge of Koman law had been developed by the Universities. 
And hence, as the older German political organizations decayed, 
the Boman jurisprudence came to control an ever-increasing portion 
of the life of the people. That ' Imperial ' (Kaiserlicies) law thus 
became familiar as a body of jural rules independent of the Church's 
Canon law, and not inferior to it in validity. It was of service 
alike to the political authority which the German princes were 
consolidating, and to the economic needs of the social life which 
was rising under each one's sway. It thus secured in Germany for 
its rules an authority which would not have been won for them 
merely by the fascination which the name of Home had always 
exercised over the German mind, or by the belief that in the 
imperial authority of Germany the Boman Caesarship still sur- 
vived. In like manner in England ^ Henry VIU, in 1535, forbade 
the study of Canon law in the Universities, and soon afterwards 
filled up the gap by establishing professorships of Boman law at both 
Oxford and Cambridge. Yet for more than two centuries longer 
neither University possessed a professorship of English law ; an 
omission which Gibbon, in a manuscript annotation upon Black- 
stone, explains by saying that in both Universities 'the clergy 
were the sole masters, and easily proscribed a science which they 
abhorred. • . . But Mr. Blackstone touches upon this neglect with 
the becoming tenderness of a pious son who wishes to conceal the 
infirmities of his parent.' 

* See ProfeMor F. W. Maitland's English Law and the Renaissanoej pp. 5-8. 

* Ibid. pp. S-aa. 

July. 1903.] Bontis Jurista mains Christa. 329 

In Germany the laity betook themselves eagerly not only to the 
study bnt also to the administration of the new jurisprudence. 
Thus a body of professional and secular lawyers grew up. And as 
the State went on strengtheniog its hold on the administration of 
the law, a body of public legal officials was also developed. The 
contrast of all this with the mediaeval days, when the Church had 
controlled the whole range of social life, was vivid. * It was the 
teaching of Roman law,' says a recent French Catholic writer, 
* that laid the foundation for Protestantism.' The Church's 
partisans must often have asked themselves whether secular 
organizations thus entirely separate from the constituted autho- 
rities of the Church could be acknowledged as really Christian. 
If not, could the chief supporters of those organizations, viz. the 
jurists, be regarded as sound Christians? 

The earliest known display of this distrust had occurred at 
Basel amidst the commotion of the nascent Reformation movement. 
In 151 7 a friend of Erasmus, Claudius Cantiuncula of Metz, on 
being called to Basel as professor of Roman law, found that his 
lecture-room there was empty. A spirit of hostility to Roman law 
had been aroused amongst the students by the embittered priesthood. 
He consequently published at Basel, in 1522, a defence of the Jus 
Civile against those who maintained that 'Leges cum evangelio 
parum conveniunt,' and who alleged that, as the Gospel taught men 
to forgive their enemies and not to seek their own, jurisprudence 
could have no business to show them how to come forcibly by 
their own and to forcibly punish their enemies. The ecclesiastics 
who had urged these objections urged them only against the 
renascent Roman law ; ignoring the fact that, if of avail against it, 
they must equally be of avail against the Canon law itself. 
Cantiuncula met their attack by contending that the old Roman 
prudentes who framed the Civil law had been providentially guided 
to formulate it in rules that were divinely purposed to serve 
afterwards as foundations for the Christian commonwealth. He 
boldly went on to insist that the general tenor of those rules was 
much more in accordance with the tenor of the New Testament 
than were many of the Canonical decrees which Christian eccle- 
siastics had promulgated. Only three years after this, in 1525, the 
great reformer Melanchthon delivered at Wittenberg a famous 
lecture De Legibus. In this he pointed out the recognition given 
in the New Testament to Roman law; and insisted upon the 
divine origin, and the consequent sacredness, of the secular 
political organization. Repudiating that disparagement of civU 
authorities which Hildebrand, four and a half centuries before, 
had initiated by pronouncing them to be the work of the Devil, 

330 Uie Law Qtmrterly Review. [No. Lxxv. 

Melanchthon declared the administration of secular courts of law 
to be * no work of impiety, but even a sacred duty.' Cantiuncula's 
cautious attitude towards the Reformation movement had pre- 
vented him from grappling expressly, as Melanchthon thus did, 
with the real issue at stake — the question whether the secular 
organization of social life has not a foundation as truly divine as 
has the ecclesiastical. This sacredness of lay authority and lay 
jurisprudence was repeatedly reasserted with aixiour by one of 
Melanchthons disciples, HegendorP, Pix)fes6or of Civil Law at 
Frankfort. Him in 1539 we find protesting against (what he 
calls) the evil adage that ^ Ein Jurist ein boser Christ.' (It was 
thus that for the fii*st time it found its way into piint; though 
almost immediately afterwards we find it cited by another writer 
on law as being already an 'old' saying.) These advocates of 
Protestantism realized that their religious movement had a clear 
affinity with the efibrt to create political States possessed of a 
secular jurisprudence. For their own struggle against Church 
authority in the sphere of theology facilitated the effort of the 
State to secure for itself supreme authority throughout the sphere 
of politics. 

Yet their great leader himself did not show any similar predilec- 
tion for the jurists. Penetrated though Luther was with the 
conviction that secular institutions and authorities are of divine 
appointment) his temperament nevertheless was one which recoiled 
from the external and formal character of positive law, and from 
that dependence on mere conventional rules of justice which is 
inseparable from all human attempts to force men to be just. 
Coercive legislation seemed to him an evil which sin may have 
made necessary for the present distress, but which in a truly 
Christian community would be a needless fetter. He often employs 
our 'malus Christa ' adage ; so often, indeed, that he has sometimes 
been regarded as its author. But he uses it from a new and 
opposite point of view ; condemning lawyers not because of their 
denying the exclusive authority of Canon law, but because of their 
conceding to it any shai*e of authority at all. 

In France the position of affairs was different From about 1550 
onwards, during the golden age of French jurisprudence, a majority 
of the greatest French jurists were struggling and suffering in the 
foremost ranks of the Huguenot party. Such were Brisson, 
Hotman, Donel, Dumoulin. French jurisprudence stood at this 
moment on an intellectual level which it never again attained; 
a height to which it had been raised by its scientific zeal for an 
independent investigation of the original sources. Hence its 
followers, when they turned to the theological Commotions of the 

July, 1903.] Bonm Jurista malm Christa. 331 

time, were naturally attracted by that reforming movement which 
had itself been produced by a kindred desire for firsthand investi- 
gation. Accordingly when, as soon came to pass, the sarcastic 
German saying became current in a French form—* Bon juris- 
consulte, mauvais Chretien '—it was muttered only by one group 
of assailants ; and not, as in Luthers land, by two. For, though 
many French jurists were blamed for their zeal in the reformation 
of the Chxurch, few were accused of any lukewarmness in it. It is 
true that Cujas, in some respects the greatest of them all, did decline 
all intermeddling in these ecclesiastical strifes, setting up the 
unanswerable plea — * nihil hoc ad edictum praetoris.' Aided by 
an outward conformity to the dominant Catholicism, he thus 
secui-ed for himself in his lifetime the quiet of uninterrupted study. 
But, from the other side of the grave, even he disclosed his 
suppressed heretical proclivities, by significant directions given to 
his widow in his last will and testament. It thus was probably 
with an eye to his French contemporaries rather than to his 
Teutonic ones that Yiglius (a President of the High Council at 
Brussels), who has sometimes been regarded as the author of our 
proverb, expressed it in the emphatic form *Plus quelqu'un est 
grand juriste, d*autant plus est-il mauvais Chretien.' 

In Germany itself, the maxim soon came to gain fresh currency 
from an entirely new, though very natural, cause. For the rapid 
development of legal technicalities — inevitable in a system which 
was not based on indigenous custom but on a foreign code, imported 
and manipulated by experts alone— soon surrounded the nascent 
legal profession with an atmosphere of pedantry and craft In the 
embittered habit of mind which, as his Table Tali shows, often took 
possession of Luther in his later years, the saying ' Juristen bose 
Christen, ja Diabolisten ' seems to have grown frequent with him. 
But he now uttered it, less upon grounds of political or doctrinal 
contention than as a protest against the technicalities which almost 
inevitably attend the practical administration of justice and against 
the delays and expenses which make litigation a pitfall for the poor. 
The gentle Melanchthon, even in his Oitttion in defence of the 
secular lawyers, becomes similarly bitter when he confesses that 
some of their fraternity were already conspicuous as ' legum con- 
tortores, bonorum extortores.' Popular experience soon came to 
embody this feeling of irritation in jingling proverbs like ' Legum 
doctores legum dolores,' ' Juristae nequistae,' ' Juris consultus ruris 

Besides this ethical opposition, and the earlier theological one. 
a political jealousy soon sprang up. Statesmen complained that 
the growing importance of the legal profession had given it a pro- 

332 Tfie Law Quarterly Bemew. [No. Lxxv. 

minence in state affairs which caused the current affairs of the Holy 
Roman Empire to be settled by legal rather than political analogies. 
The forms and even the chicane of the law-courts had become 
dominant in the council chambers of princes. The history of the 
United States of America has afforded us, in modem days, similar 
illustrations of the way in which a constitution may be both 
constructed and reconstructed in obedience to the theories and 
prepossessions of the legal profession. 

Of the various currents of feeling which thus gave currency to 
our proverb^ at least one still remains important. From the earliest 
days of the Beformation, part of the theological hostility to law 
had, as we have seen, been based on the fact that it encourages the 
enforcement of one's rights and a resistance to hostile claimants. 
Such encouragement is still viewed by some theologians as anti- 
Christian. That view is i*epudiated by lawyers. And the repudiation 
found expression in an extreme form, a quarter of a century ago, in 
the essay which has probably been more widely circulated and 
more often translated than any other law book of our generation — 
Budolph von Ihering's ' Struggle for Bight.' He goes so far as to 
insist that every man is under a moral obligation to exact energeti- 
cally his due from his debtors. For, as a whole consists merely of 
the sum total of its parts, the coherence of the whole scheme of 
legal relations must be weakened whenever a single right is 
anywhere infringed with impunity. The man who submits tamely 
to any such injustice, and thereby encourages like inroads upon 
the like rights of his neighbours, Ihering pronounces to be as 
contemptible as the soldier who saves his skin by slinking fix)m 
a battle where he has his country to think of as well as himself. 
The unwillingness to submit to wrong, he considers to be as im- 
portant to society as the unwillingness to commit wrong. His 
position is certainly in accord with the steady drift of modem 
times to a fuller recognition of the essential connexion between 
the individual citizen and the State, and of the consequent moral 
duty of the individual towards the whole. Yet it may, on the 
other hand, be fairly urged that the analogy of civic duties to 
military ones must not be pressed too far. The soldier's duties are 
imposed on him primarily — we may almost say, wholly — for the 
public benefit. But the citizen's legal rights are given to him 
primarily for his own personal benefit ; and therefore his voluntary 
surrender of them, even at the expense of whatever small advantage 
the community might gain by his insisting on them, may in certain 
cases be permissible or laudable or possibly obligatory. Ihering 
undoubtedly did good service by reminding us all that a habit of 
cowardly or lazy submission to hostile infringements of our rights 

July, 1903.] Bonus Jurista malus Christa. S33 

tends gradually to impair the public sense of justice ; and that 
consequently the duty of helping to preserve that sense unimpaired 
may warrant, and even ennoble, a strenuous enforcement of claims 
which in themselves would seem merely petty or pedantic. As 
has been recently said by no less eminent a theologian than Prof. 
Herrmann of Marburg, 'If, for the sake of my comfortable indolence, 
I abstain from enforcing legal rights of mine, and thereby give any 
encouragement to insolent aggressiveness, or even merely to men- 
dicancy, I shirk a Christian duty. For my surrender of my rights 
against the wrongdoer helps to make him a worse man. It is 
therefore in God's own service that we are taking our stand, when 
we exert ourselves to get the law of the land carried out.' 

But this laus litium must not degenerate into an actual 
' panegyric of quarrelsomeness.' It is ti*ue that cowardly idleness 
i»mnot be a virtue. Yet it must be remembered that deliberate 
benevolence certainly is one. Benevolence may often be a virtue 
more imperative than that of contributing a minute stimulus to the 
popular sense of justice. There would be as much exaggeration in 
pressing Ihering's arguments to the point of maintaining that 
benevolence can never be thus imperative, as in asserting, like 
some divines, that it must be so always. A theologian justly held 
in esteem at Cambridge, Chancellor J. J. Lias, says, in his Com- 
mentary on I Cor. vi, * It often becomes necessary for a Christian 
to plead before courts of law, lest violent or covetous men should 
dissolve the framework of society. Yet we ought rather to suffer 
wrong than appeal to the law, unless some more important matter 
be at stake than our individual loss or inconvenience.' Taken 
literally, this dictum would justify us in appealing to the law on 
every occasion when any of our rights are infringed ; for, as we 
have just seen, every unredressed wrong involves a weakening of 
the public respect for justice. But Mr. lias obviously meant to 
concede no such complete liberty. Probably he meant to draw 
a distinction not between circumstances but between motives ; and 
to say that a Christian cannot justifiably go to law when his only 
motive for so doing is his own protection, and not the protection of 
the community. That distinction is, at any rate, the accepted 
theory of the Soman Catholic confessional as to the private 
prosecution of criminal offences ; though St. Alphonso Liguori, with 
a shrewd knowledge of human nature, remarks that it is a mere 
abstract theory and not of much practical avail ^ For, as one of 
the French commentators upon him adds in explanation, 'It is 
prudent to refuse absolution to any penitent who says that he 

' 'Magis speoulativd quam practice vel saltern rarissiind, veram est ' ; (Theologia 
Horalis, II. 39). 

334 The Law Quarterly Review. 

forgives his enemies but that he neverthelesB wishes the law to 
take its course upon them in order that wickedness may meet its 
deserts. I never believe in a man's disinterested zeal for the 
punishment of wrong-doing, if he only troubles himself about 
proceeding against those who injure Aim, and leaves all other 
wrongdoers undisturbed.' He had evidently met with Parisian 
penitents resembling the English rustic who said, ' Parson, I forgive 
my enemies ; so I'll leave it to the Lord to play the devil with 

These theories of the inherent moral wrongfulness of exacting 
one's legal due— these attempts, in other words, to take Christianity's 
ideal counsels of perfection as the rigid and literal code of everyday 
life, and to condemn positive law because it differs from that code 
— are happily not widely current. But the fundamental point of 
view from which they spring is still current enough ; at any rate 
among the Latin races where the black spectre of Ultramontanism 
is still a living force. For, at bottom, all these theories take their 
rise from the conviction that law and civilization are things earthly 
and unholy except when based upon the will of ecclesiastical 
authorities. The social Manichaeanism which aaserts this unethical 
dualism between the Church and the State — instead of regarding 
both of them as means to the same supreme end, the perfecting of 
human life — ^was checked by the Reformation, but was not over- 
thrown. The same conviction which stirs Leo XIU to his conflict 
with the Quirinal stirred the founders of the Free Kirk to the 
Scottish Disruption of 1843. Yet what the modem State sets 
before itself is a moral aim — ^the completion of human develop- 
ment, the attainment of the sum of man's ethical well-being. By 
the sacredness of this aim it is rendered a sacred organization ; and 
it is not made any less sacred by its refusal to take upon itself the 
direct discharge of the more spiritual and impalpable of the social 
functions through which that aim may be advanced. For all the 
powers which thus remain in the hands of the Church have to be 
exercised within a sphere which the State controlsi and under the 
shelter of a protection which the State alone can afford ; so that — 
indirectly, at any rate — even these high functions receive the 
care and rest upon the aim of the secular State. 

Courtney Kennt. 



[Short notices do not necessarily exclnde ftdler review hereafter.] 

A UiHory of Engluk Law. By W. S. Holdswokth. London: 
Methuen&Co. 1903. 8vo. Vol I. xliand46opp. (io«. 6^.net.) 

A SHOBT history of English law has been a badly needed book. To 
recommend a short history of German or of French law has been easy. 
The inquirer could be sent to Schroder or to Esmein. If he asked for 
a short history of English law, we had to tell him that there was none to 
be had. There were some elaborate histories of periods— for the more part 
early periods — and there were some elaborate histories of branches, institu- 
tions, doctrines. But a summary Tiew of the whole was nowhere to be 
had. We had no Schroder, no Esmein. This was bad for the law student 
at the outset of his career, and it was perhaps worse for the lay historian 
— the man who wanted to tell some piece of the general history of 
England. The copious legal materials that he might have used for the 
illustration of his theme he dared not touch; he had no guide where 
a guide was much wanted. 

This gap Mr. Holdsworth has set himself to fill. As yet he has given 
1^ but one volume. It is entirely filled by the history of the courts. It 
is to have one successor and, as we understand, one only. It is a handy 
and handsome volume. 

The full measure of the praise that we are inclined to bestow upon it 
we will reserve until we have seen what follows. To put an accurate but 
readable history of the courts into some four hundred pages is one task, to 
compress the tale of our substantive law into a like space is a different 
task. We hope that Mr. Holdsworth will seriously consider whether his 
second volume shall not become two volumes. Can he say what is worth 
saying and what will be intelligible to beginners and to laymen about 
such matters as high treason and bankruptcy, the estate tail and the joint 
stock company, the relief of the poor and the contingent remainder in four 
hundred pages? No doubt, the historian of English Maw in general' 
must refrain from the detail of any and every branch of the law. Still all 
the great lines of development should be indicated, and a few additional 
words of explanation and illustration may make the difference between 
a book that repels and a book that attracts those whom we would see 
attracted to the history of our legal system. 

Up to the present however Mr. Holdsworth has done well : indeed he 
has done admirably well. He has written a cleverly schemed, learned, 
l,ucid, and interesting book about an important matter. It can confidently 
be recommended to students of English history and to all who are begin- 
ning the professional study of English law. Especially we may hope that 
it will have a considerable sale at Oxford and Cambridge. Its author makes 
no parade of uncommon erudition, and indeed it may be doubted whether 
he sets before us much that he would claim as a discovery of his own. 

S36 The Law Quarterly JReview. [No. Lxxv. 

But in all quarters he has gone to the best books, and, at least so far as 
the Middle Age is concerned, it would be difficult to find any serious 
deficiency in his equipment. He has gone to Mr. Pike for the Common 
Law side of the Chancery, to Mr. Leadam for the Court of Requests, to 
Mr. Marsden for the Admiralty, to Mr. Turner for the forests, to Mr. Lapsley 
for the Palatinate of Durham, to Thayer for the jury, to Mr. Gross for the 
coroners. It is pleasant to observe that the band of inyestigators who 
have helped him to his history, though small, is growing, and that twenty 
or fifteen years ago his book could not have been written. He owes much 
to others ; but those others will owe much to him for placing the results 
of their labours in his welUconceived scheme. 

When the Middle Age is left behind Mr. Holdsworth occasionally 
Touches a warrantor who is open to exception. We see Lord Campbell's 
name in footnotes rather more frequently than we like. • Lord Campbell,' 
we are told, * yividly describes the hearing of the petition of the House of 
Massachusetts for the recall of the Lieutenant-Governor and Chief Justice 
in 1774.' Lord Campbell ' vividly described ' a great many things that he 
never saw and some things that were never seen by any one. In the 
present instance a reference either to the firsthand evidence for the 
famous scene or to some careful modern book would have been more to 
the point than a citation of the Lives of the Chancellors. 

An earlier Chancellor, Lord Ellesmere, almost certainly did not write 
the tract on his office which passes under his name (see Diet. Nat. Biogr. 
«. V. Egerton, Sir Thomas), but contains opinions contrary to his, e. g, as to 
relief in equity after judgment at law; the tract however is not later 
than his time, and Mr. Holdsworth does no more than quote it by its 
current title. A sufficient account of the Marshalsea Court is given, but 
the modern history of its offshoot the Palace Court is overlooked. See 
Encycl. Laws of Eng. «. t?., and Thackeray's ' Ballads of Policeman X,' «. U 
^ Jacob Homnium's Hoss,' where the constitution and practice of that Court 
Ump. Vict., before its abolition in 1 849, are well explained. 

Someday the history of Henry VIII's reign should be written by some- 
body who takes little interest in a showy but futile foreign policy and no 
interest in religious movements, but a deep interest in national finance. 
Then we shall begin to know something about the Statute of Uses, its 
causes and effects. In the meantime we must, it is probable, put up 
with the conventional history that can be obtained from preambles and 
from the legal expositors of a later age. Still it seems highly doubtful 
whether we ought to treat that statute as a proof of the * vitality * of the 
common law. It was wrung from a reluctant parliament by a self-willed 
king, and to increase his revenue was the main if not the only object 
of those who framed it. He was the one person in the kingdom who had 
all to gain and nothing to lose by the extirpation of uses, for other lords, 
if they had one interest as lords, had another interest as tenants. We 
know with fair certainty from the despatches of foreign ambassadors that 
King Henry had been demanding more even than he obtained ; even * one 
third of the feudal property of deceased persons,' so it is vn-itten. This 
however is matter for debate, and Mr. Holdsworth is not to be blamed for 
adhering at such a point to traditional lines. It is more to be regretted 
that he seems to have missed Mr. Ames's remarks on Tyrrel's Case and on 
the Chancellor's enforcement of secondary uses : Mr. Cyprian Williams has 
adopted and confirmed them. When writing his second volume Mr. Holds- 
worth will, we may hope, pay due regard to whatever Mr. Ames has 

July, 1903.] Reviews and Notices. 337 

On a few little blunders in antiquarian matters we will not dwell. 
Our author reads a passage in the printed Hundred Rolls as saying that 
the abbot and conyent of Tavistock hold of the king ^ quindecim foeda et 
dimidiam ense de Hauglebergh * and very naturally he puts a note of in- 
terrogation after these strange words. If he looks again he will see ' quin- 
decim feoda et dimidium en fe de Haubergh/ and then if he perceives 
that there is a lapse from Latin to French he will obtain the sense of the 
passage : — ^fifteen fees and a half * en fief de hauberc ' if we adopt con- 
tinental spelling. The passage happens to be a very interesting one just 
because it contains a term well known in France and but rarely found in 
English documents. A certain tendency to deprave texts which stand in 
no need of depravation we have noted. Really the jurors of Tavistock 
did not say ' quod locum de Tavistock . . . aliquando fuit . . .' They 
said quite plainly * quod locus ... fuit . . .' We must be just even to 
Tavistock men. Every decently educated person will see that there is an 
error in ' dies datus est a die Paschae in unum mensam ' ; but Mr. Holds- 
worth should remember that there are undergraduates and others whose 
first guess will be that the unum and not the mensam requires amendment. 
If Fortescue C. J. when speaking of the creation of palatinates really said 
' le Roy sanz parlament ne poit prendre son lige home de droit/ we have 
not the faintest idea what he meant by it, though we have some little hope 
that if we went behind the printed Year Book we might find that prendre 
was a mistake for priver. We cannot easily believe that the style of a pie 
powder court contains the words 'coram majore et duobus convicibus,' 
for * concivibus ' seems much more probable. But these are little matters, 
and the great matter is that Mr. Holds worth has begun well and has 
already written a very good book. 

F. W. M. 

TAe SUefU Trade : a contribution to the early history of human inter^ 
course. By P. J. Hamilton Grierson. Edinburgh : Wm. Green 
& Song. 1903. 8vo. X and 112 pp. 

Ber Bid: ein Beitrag zu seiner Geschichte. Von Rudolf Hiszel. 
Leipzig: S. Hirzel; London: Williams & Norgate. 1902. 
8vo. vi and 224 pp. 

We bring the titles of these two books together to show how various are 
the points of contact between historical jurisprudence and anthropology. 
The first-named work appears to be a lawyer's, which of course makes it 
more valuable for our purposes. Nowadays we think of trading with 
enemies as forbidden. But there is much reason to think that all trade 
was originally between enemies. Within a nomad or pastoral tribe there 
is nothing to trade in, every family being self-supporting ; and all external 
tribes may be presumed to be hostile. In fact all the stages of * silent 
trade' have been observed among savages in modern times. Barter 
between people who mistrust and fear one another (with additional 
superstitious motives, as often as not) is managed by one party leaving 
his goods on the ground and going away. The other comes and takes 
what ho wants, and leaves of his own wares what he judges an equivalent. 
Adjustment of values under such conditions is clumsy, but it gets done. 
Next comes the stage where the parties are not afraid of being seen, but 
do not speak. Then we find the primitive market. Neutrality is required 
for the conduct of business, and developes into a truce with religious 
sanctions. Markets had a special peace even in medieval Christendom. 

338 ITie Law Qtmrterly Review. [No. lxxv. 

Later the trader ventures into the strange country, and we find elaborate 
custems of hospitality and guest-friendship to protect him, all this being 
still compatible with regarding hostility between the tribes as the normal 
state of things. Down to the thirteenth century, again, we find in our 
own land, as one may read in Bracton, the rule that a man who keeps 
a stranger more than three nights must answer for him as one of his own 
household. We cannot pretend to verify Mr. Grierson's numerous authori- 
ties, but we take his word for it that the subject has never yet been so 
fully treated, and he has made a very good story of it. No doubt other 
explanations of this and that detail may be offered, and may at first sight 
be plausible, or may even be correct in special cases. But it is clear, for 
example, that mutual ignorance of language will account for silence, but 
will not account for the buyer and seller not meeting face te face at all ; 
and, if Mr. Grierson's theory is te be improved upon, it must be by some- 
thing which also explains things as a whole, and explains more. 

'Der £id' is the work of a philologist, and only tenches the fringe of 
jurisprudence. None the less the lawyer who is a Greek scholar and can 
read German will find excellent vacation reading in it. Prof. Hirzel 
of Jena seems te have all Greek literature from Hesiod to modem Greek 
folk-lore at his fingers' ends, but we think he has a preference for the 
Attic dramatists, for he knows everything about them, including 
Dr. Verrall's almost teo ingenious studies of Euripides ; and he illustrates 
the religious and social operation of the oath in different stages of civiliza- 
tion with a delightful wealth of instances. One is not sorry, besides, to 
have for once a work that contrives te make a serious contribution 
to anthropology and yet keep clear of the everlasting discussion of savage 
totems (though therie is now, if we may say so, a slump in totems), tabus, 
and disgusting ritual and other customs. We have not space to give 
a systematic account of Prof. Hirzel's history, and moreover the Whitsun- 
tide vacation is very short. Enough to say that he traces with great skill 
the gradual process of rationalizing the oath till it ceases to be a primary 
source of obligation, becomes a mere auxiliary sanction te public or private 
contracts or to judicial evidence, and is interpreted not literally, but 
according to the sense of the transaction. Of judicial oaths, however, he 
says but little. His distinctions look at times rather too sharp. One 
cannot in practice draw a clear line between the ^assertery' and the 
* promissory ' oath. An oral witness, here and at this day, swears before 
he speaks that he will speak the truth (which is ' promissory ') ; a deponent 
swears te the truth of that which is already written in his name (which is 
'assertery'); but there is no substantial difference. Defined categories, 
however, are necessary for orderly exposition in a subject so rich in 
details, and it is quite fair te make things look in outline more definite 
than they are, and supply the qualifications afterwards. The merely 
sportive element in the ' strange oaths * Qi colloquial expletives is perhaps 
underrated. We have heard of a traveller returning from Bayreuth who 
crushed the obstinacy of some petty of&cial by the formula Po<2tau«enc^- 
&oe^(fammtfrun^-Z>(mnerti7«^fer-Z^tVm/i62«a|)perm«n<. It would be rash to 
infer that he intended te devote either the ofiicial or himself to the 
conflagration of Valhalla. But, if he was a good Wagnerian, this may 
come under the formula ' man schwort bei Allem, was theuer ist.' Finally, 
we learnt German long enough ago to be rather well pleased that oui: 
learned author's spelling is unreformed. 

F. P. 

July. 1903.] Beviews and Notices. 3^39 

Eiieyclopadie der SecAUioiaenscAqft in systematischer Bearheitung^ 
begriindet von Dr. Feanz von Holtzendokpf unter Mitwirkung 
von G, Anschiitz, L. von Bar, &c., herausgegeben von Dr. Joseph 
EoHLER, ord. Professor der Rechte in Berlin. Sechste, der 
Neubearbeitung erste Auf lage, i . Lieferung. Band i, Bogen 1-5 
enthaltend. Leipzig : Duncker & Hum blot ; Berlin : Guttentag. 
1 902. 8vo. 80 pp. 

This is the first instalment ^f the new edition of HoltzendorfP' s well- 
known Encyclopaedia of Law and Jurisprudence (see L. Q.R.vol.i. pp.62-79) 
which is now being brought out by Professor Eohler under a remodelled 
plan, necessitated by the great changes introduced into German law by 
the enactment of the new Civil Code. The greater part of the instalment 
is occupied by the editor's essay on 'Legal Philosophy and Universal 
Legal History,' which is the subject of the present notice. 

In the fifst part of the article Professor Kohler defines legal philosophy 
as the study of the evolutionary processes by which law is formed, and 
contrasts this view with the belief formerly held in a science aiming at 
the discovery of an abstract and immutable system, called the law of 
nature. The chief merit of having destroyed this belief is ascribed to 
Hegel, who is stated to be the founder of the science of legal philosophy. 
The term * positivism ' is used by Professor Kohler to denote the attitude 
of those who confine their attention to the study of positive law, which 
attitude is condemned as not less opposed to scientific inquiry than the 
theory of natural law. Utilitarianism as represented by Ihering— the 
English Utilitarians do not seem to be known to Professor Kohler — is also 
treated with great severity. * Legal politics/ being the art of adapting 
laws to the conditions prevailing at a given time, and * Rechtstechnik,' 
being the method of interpreting existing law, are also distinguished from 
legal philosophy, which, as mentioned above, is the inquiry into the 
evolution of legal institutions ; for this inquiry the material is furnished 
by universal legal history, which may also be described as the science of 
comparative law. An enumeration of the sources from which materials 
for this universal history may be gathered is given together with some 
rules as to the mode of using such materials. 

The second part of the article deals with legal institutions under four 
heads: (i) Relation of man to nature; (2) relation of man to man; (3) 
formation of collective bodies; (4) influence of collective bodies on 
individuals. Under the first head the evolution of proprietary rights 
including ' the right in ideas ' is described ; under the second a distinction 
is made between the intimate ties of sexual and parental relationships 
and the looser ties formed by dealings between strangers ; on the one side 
the evolution of marriage, paternal power, the artificial extensions of the 
family, inheritance and other similar institutions ; on the other the history 
of the recognition of obligatory rights and of the means of enforcing them 
is commented upon. The chapter dealing with the formation of collec- 
tive bodies traces the evolution of the modem states from primitive 
communities, and that relating to the influence of collective bodies on 
individuals contains a summarized historical statement on the subject 
of criminal law and criminal procedure. 

It is obvious that a survey extending over a field of such huge dimen- 
sions and varied aspect contained in the space of sixty-nine pages must 
be condensed in form and dogmatic in expression. Having regard to the 
fact that it is based on materials which can only be mastered by long and 

VOL. XTX. A a 

340 The Law Quarterly Beview. [No.LXXV. 

patient study, it is outside of the competence of the present writer to 
express an opinion on the author's conclusions, and he can only giye 
utterance to his admiration of the way in which the breath of life has 
been made to enter into the multitudinous skeletons brought to light by 
antiquarian and ethnographic research. Professor Kohler's extensiye 
knowledge of general literature and his artistic temperament charms and 
fascinates the reader and makes him indulgent to some faults which might 
otherwise haye an irritating effect. Among these faults the aggressiye 
manner in which the work of others on similar subjects is commented 
upon is specially conspicuous. 

Some subjects seem to be introduced for the special purpose of contro- 
yersy. Thus, for instance, it seems obyious that the inquiries to which 
Professor Kohler gives the name of legal philosophy are not in any way 
dependent on the inquirer's position with reference to the theory of know- 
ledge and the problems of ontology; the author's statement (p. 7) that the 
rejection of * Kantian errors ' is a condition on which the scientific nature 
of such inquiries must necessarily depend, seems, therefore, to haye no 
purpose other than the display of animosity against Kant's critical method. 
In the survey of modern writers on legal philosophy on p. 12 only two 
English writers, Austin and Professor Holland, are mentioned, and they 
are dismissed in one sentence in which they are called ' Naturrechtler ' and 
representatives of a 'Stand der Betrachtung Uber den wir uns l&ngst 
erhoben haben.' Sir Henry Maine is entirely ignored, and his name only 
occurs in the list of the works of an Italian writer, Vanni ^ one of which 
has the title of ' Gli studi di Sumner Maine.' A somewhat closer study of 
English writers might possibly have suggested some aspects of the subject 
of legal philosophy which do not seem to have occurred to Professor 
Kohler. Thus, for instance, the perusal of the observations on the law of 
nature in Professor Holland's ' Jurisprudence,' besides showing him that 
the term 'Naturrechtler' as applied to that author was somewhat in- 
appropriate, would have called his attention to some effects of the notion 
of a 'jus naturae ' which no writer on the evolution of law ought to over- 
look. Moreover, Sir F. Pollock's articles on the ' History of the Law of 
Nature' (Journal of Comp. Legisl. 1900, p. 418; 1901, p. 204) would 
have shown him how the assumption of the existence of an ideal principle 
to which positive law ought to conform has in itself influenced the growth 
of law. This belief in natural justice, which, as shown in the articles 
referred to, is by no means inconsistent with a belief in the doctrine of 
evolution, has in Itself played a part in the evolution of law which is 
at least as important as the beliefs and customs of primitive times, such 
as totemism and ancestor worship, to which so much space is given by 
Professor Kohler. p 

A Treatise on the Specific Performance of Contracts. By the Right Hon. 
Sir Edwaed Fey. Fourth Edition. By W. D. Rawliks, K.C. 
London: Stevens & Sons, Lim. 1903. La. 8vo. liii and 

This fourth edition of ' Pry on Specific Performance ' makes no sub- 
stantial alteration either in the amount or in the arrangement of the 

^ We have to regret the loss of Prof. Icilio Yanni, who died some months 
ago. — Ed. 

July, 1903.] Beviews and Notices. 341 

matter contained in the third edition, which was published eleven years 
ago. There is the usual inevitable addition to the Index of Cases, but 
space has been made for the consequent additions to the text by slightly 
increasing the amount printed on each page, the net result being a small 
diminution in the total number of pages. 

The numbering of the sections remains unaltered, so that those who 
habitually refer to the book in actual practice may find the latest decisions 
upon any point in the place where they have always been accustomed to 
search for cases upon that point. 

Some of the general rules stated in the book are subject to so many 
qualifications and exceptions or apparent exceptions that it would be 
more convenient if those rules were now re-stated with greater precision 
in a qualified form. For instance, s. 821 states as a rule that Hhe Court 
will not , . . generally compel specific performance of a contract unless it 
can execute the whole contract'; and later on ss. 839-866 are occupied 
with the statement and discussion of nine classes of exceptions or apparent 
exceptions to this general rule, all of which so-called exceptions are 
referable to the equally important general principle that the Court can 
and will in proper cases interfere to enforce specific performance of part 
of a contract where such partial interference cannot work any possible 
injustice to either contracting party. All these classes of exceptions or 
apparent exceptions would really illustrate and fall into line with the 
general rule if that rule were re-stated subject to the necessary qualification 
as follows: 'The Court will not specifically enforce part of a contract 
except where that part can be separately enforced without any possible 
injustice to the defendant.' 

So again in s. 460, under the defence of ' want of mutuality,' it is stated 
as a general rule that a contract cannot be specifically enforced unless 
' it might at the time it was entered into have been enforced by either of 
the parties against the other of them/ and in ss. 464-475 numerous 
exceptions to the general rule are stated which appear to be all referable 
to the same general priaciple, viz. that the defence of 'want of 
mutuality' will not avail to prevent the Court from exercising its* 
beneficial jurisdiction where the contract can be properly enforced without 
any possible injustice to the defendant, provided a corresponding equit- 
able remedy becomes available against the plaintiff on or before his 
institution of the action. 

Another improvement may be suggested in the arrangement of the 
' Defences to the Action ' in Part III of the book, which again contains 
twenty-five separate chapters, in each of which a different head of ' Defence 
to the Action ' is separately discussed. There is some apparent want of 
system in the treatment of these numerous defences, which might with 
advantage be grouped under some half-dozen heads indicating -the 
common origin and characteristics of the defences comprised in each 
group, e.g. defences relating to (i) the person, (2) the substance of the 
agreement, (3) the form of the agreement, (4) the subject-matter of the 
contract, and so forth. 

The retention of the unqualified statements of general rules and the 
omission of any classification or arrangement of the numerous ' Defences 
to the Action ' are probably due to the editor's expressed desire * to interfere 
as little as possible with the author's language and to preserve the general 
structure and arrangement of the work ' ; but it is permissible to express 
a hope that this desire may not be allowed in future editions of this most 
useful book to exclude any revision and amendment of the general rules 

Aa 2 

342 The Law Quarterly Review. [No. Lxxv. 

or any more systematic arrangement of the * Defences to the Action ' Tvhich 
may be capable of introduction with advantage to the general scope and 
design of th i author's treatment of the subject. 

Oliver A. Saukdebs. 

A Treatise on the Law of Contracts, By the late C. O. Addison. 
Tenth edition, edited by A. P. Perceval Keep and Wjlliam E. 
Gordon. London: Stevens & Sons, Lim. 1903. cxxiv and 
1245 + (Index) 107 pp. (£a 2«.) 

In our opinion the editors are greatly to be commended for their efforts 
to reduce the bulk of this book, and we do not think that any one will 
complain of the judicious excision to which they refer in their preface, or 
consider that it has in any way impaired the value of the Work. Between 
nine and ten thousand cases are referred to in the volume besides a large 
number of statutes, and it must be obvious to every one that the task of 
dealing with such a mass of material must have been a very difficult and 
laborious one. The learned editors are to be congratulated on the industry 
and ability which they have displayed. So far as we have been able to 
test the present edition it seems to us to contain nearly everything which 
is worth knowing about the Law of Contract, but at the same time we 
must confess that considerable research is sometimes necessary before one 
arrives at the exact piece of information one requires. For example, one 
might expect to find the comparatively recent case of Lamond v. Ricfiard 
([1897] I Q. B. 541) dealt with under the heading * Who are guests and 
travellers,' instead of which it is dealt with under the headings ^ duties of 
innkeepers ' and * lien of innkeepers.' If the book has any serious fault 
we are inclined to think it is this, that for a text-book it partakes 
too much of the nature of a digest of case-law, and that the general 
principles to be collected from the cases have not been brought into 
sufficient prominence. On page 50 the question of conditions precedent 
is dealt with, and we are correctly informed that whether particular, 
stipulations are to be conditions precedent or not depends upon the 
intention of the parties to be gathered from the particular instrument. 
A long list of stipulations follows which have been held to be or not to be 
conditions precedent, but no general rule is laid down to guide one in 
ascertaining the intention of the parties from the instrument. We notice 
on page 51 and again in the index that the case of Bettini v. Gye 
(i Q. B. D. 183) is referred to as Berlini v. Gya. The statement on 
page 1 1 1 that ' as a general rule a contract will not be enforced unless it 
is valid by the law both of the country in which it was made and of 
that in which it is to be enforced ' is not correct. In fact it is rightly 
stated on page 55 that ' if the contract is valid by the law of the country 
where it is made it is valid everywhere unless jccTVtra honos mores or 
for the doing of a thing directly prohibited and forbidden in or contrary 
to the public policy of the country where the contract is sought to be 
enforced.' After all these are not great matters, and what we have 
called the digest form of the book has no doubt come down to the 
present editors from those who have gone before. The present edition is 
well up to date, and all the more important cases on the Law of Contract 
which have been decided during the last two or three years are to be 
found either in the text or the addenda, which face page i of the text. 

July, 1903.] Reviews and Notices, 343 

One of the most important of these cases is Keighley Maxnted <Cr Co, v. 
Durani [1901] A. C. 240, which is correctly but somewhat summarily 
dealt with in four lines on page 301 without any reference to the judg- 
ments of the present Master of the Rolls and Lord Justice Romer in the 
Court of Appeal. The chapter on the sale of goods has been rewritten, 
and the existing law under the Act of 1893, copiously illustrated by decisions 
both before and after the passing of the Act, will be found in the text. 

We notice on page 2 a statement that Bracton, who wrote in the time of 
Henry III, is the first of our lawyers who treats of naked promises. This 
is literally true, but misleading. Bracton's treatment of Actions and 
Obligations (fo. 99 sq.) is copied partly from the Institutes and partly 
from Azo's commentary, as Mr. Maitland has shown in detail, and has 
Tery little to do with any real English law and nothing with our modern 
doctrine of consideration. Nudum pactum meant for Bracton something 
quite different from what it meant for an Elizabethan lawyer. 

Au Encyclopaedia of Forms and Precedents other than Court forma hy 
Eminent Conveyancing and Commercial Counsel, Under the general 
editorship of Arthur Underhiix, assisted by Charles Ono 
Blagdbn and Wjlliam E. C. Baynks. Vol. III. Building 
Societies to Commission. London: Butterworth & Co. 1903. 
La. 8vo, liii and 815 pp. 

This volume fully maintains the high character of its predecessors. It 
contains a vast amount of information which is not generally accessible to 
the practitioner. The preliminary discussions are full of valuable matter. 
The precedents appear to contain everything which will be required in 
practice by either branch of the profession. The most important subjects 
discussed in this volume are Building Societies, Chapels, Charities, Choses 
in Action, and Churches. 

The forms relating to Building Societies are divided into (i) Forms 
relating to the incorporation of a Society; (2) Forms relating to the 
rules and constitution of a Society; (3) Forms for use in the conduct of 
a Society's business, which include those relating to loans to a Society ; 
these forms, so far as we are aware, are not in any of the precedent books ; 
and (4) Forms relating to the dissolution of a Society. 

The preliminary note to Chapels contains information relating to the 
' Model deeds ' used by Nonconformists, much of which cannot be found 
elsewhere in books usually accessible to the practitioner. There is a large 
collection of precedents. Under the head ' Charities * there is not only 
a preliminary disquisition and numerous precedents, but also a collection 
of forms used by the Charity Commissioners. 

While the preliminary note to * Choses in Action ' contains much useful 
information, we are, we must confess, puzzled by the statement that ' the 
term legal chose in action appears to include all rights the assignment of 
which a court of law or equity would before the (Judicature) Act have 
considered lawful.^ 

The difficulty arises from the use of the word 'lawful.' If it only 
means * not contrary to law * or, in other words, * valid,' the term legal 
chose in action is according to the definition extended to all choses in 
action except those few which are absolutely incapable of being assigned 
either at law or in equity. On the other hand, if by * lawful ' is meant 
' valid at law as distinguished from equity,' the definition excludes most 

344 The Law Quarterly Review. [No. LXXV. 

choses in action except negotiable instniments and except some which are 
assignable by statute. 

The true distinction between a legal and an equitable chose in action 
has nothing to do with the question whether before the Judicature Act the 
chose in action could be assigned;- it depends solely on the question 
whether the person originally entitled to the chose in action could, before 
the Judicature Act, haye enforced his rights by an action at law, or 
whether he could only enforce them by a suit in equity ; if he could enforce 
them at law, it was called a legal chose in action, if he could enforce them 
in equity only, it was called an equitable chose in action. 

We cannot help thinking that the author has been misled by the cases 
which he cites, in which the question was not. What is a legal chose in 
action ? but. What is a legal chose in action within the meaning of the 
Judicature Act, s. 25, sub-s. 6? Nothing in those cases shows that where 
the person originally entitled to a chose in action whose rights are enforce- 
able in equity only assigns it in accordance with the provisions of the Act 
the assignee can bring his action at law. 

The precedents under the head Choses in Action include forms of 
contracts and conditions of sale of reversionary interests and policies, 
reversions, life interests and shares in companies, assignments of interest 
of various natures. We may fairly say that we are not aware of any 
collection of precedents of this nature which contains so large a variety. 

The preliminary note on < Churches * discusses the different manners of 
acquiring land for ecclesiastical purposes, and of the various powers of 
dealing with the land so acquired. It contains an apparently complete 
statement of the various manners in which land or buildings may be 
given or sold for providing a church, how .land may be given or sold for 
providing or enlarging a churchyard .or church,, or for a parsonage house 
or glebe. There is also an explanation as to the manner of making leases 
or mortgages of Church land, of making sales of glebe land either with or 
without the approval of the Board of Agriculture, and lastly exchanges of 
glebe lands are considered. The precedents contain forms (i^ relating to 
the clergy ; (2) acquisition of property for Church purposes ; (3) Diocesan 
Trusts ; and (4) dealings with Church property. 

The last subject treated of in this volume is Clubs, a matter which to 
our belief has not hitherto been discussed by conveyancers, though there 
has been a good deal of learned talk over the recent case of the Oxford and 
Cambridge Club {Harington v. Sendall [1903] i Ch. 921). 

In conclusion, we are of opinion that this volume will be a very useful 
addition to the conveyancer's library ; he will find information which it is 
difficult to obtain, and forms and precedents of excellent quality, some of 
which are we believe unknown to the greater number of the Bar. 

TAe CofulituCion of the Commonwealih of Australia, By W. Harrison 

Moore, Dean of the Faculty of Law in the University of Mel* 

boui-ne. London : John Murray. 1902. 8vo. xx and 395 pp. 

(16*. net) 

Those who desire to become acquainted with the principles of the 

Australian Constitution cannot fail to derive much useful information 

from this book. The learned author has brought a wide and varied 

knowledge to bear on his subject ; the arrangement of his matter is clear ; 

he shows a firm grasp of principle, and his observations are at times 

July, 1903.] Reviews and Notices. 345 

compressed and suggeatiye — a fact that by no means detracts from the 
merits of the work. 

By the arrangement of the subject-matter which he has adopted, the 
author is enabled to bring into juxtaposition and discuss in one place 
subjects which are somewhat scattered in the Act ; but, as the Act itself is 
printed with paginal references to the work, and a good index is added, 
the book can be used as an annotated text. Readers desirous of solving 
some of the many problems which are likely to arise in the working of this 
new Constitution will deriye material assistance from the clear statement 
of the legal principles upon which their true solution depends. 

The opening chapter on the sources of the laws and institutions of the 
Colonies contains a careful analysis well calculated to impress those who 
are imperfectly acquainted with the subject with the multiplicity of those 
sources. It also giyes a clear explanation of the rule against the extra- 
territorial operation of Colonial statutes. The distribution of powers in 
the Commonwealth— legislative, executiye and judicial; the relations of 
the Senate and the House of Representatiyes ; of the Parliaments — 
Imperial, of the Commonwealth and of the States : the Cabinet system ; 
the constitution and jurisdiction of the Federal Courts ; the constitutions 
and powers of the States ; and the subject of finance and trade are all 
matters which receive due attention. 

In his chapter on the diBtribution of powers in the Commonwealth, 
Professor Harrison Moore is careful to point out that, though the doctrine 
of the separation of powers is now thoroughly established in the American 
Courts as an independent principle, the more important cases in which 
attention has been called to this principle have been decided, not on the 
prohibition implied from such separation, but upon express restraints 
imposed on the Legislature by the Constitution, such as the prohibition of 
bills of attainder, and the making of ex post facto laws ; and he adds : 
* However mischievous and dangerous may be ex poet faeto laws and 
privilegiay their very mischief lies in the fact that they are something 
other than judicial acts; and the propriety, the justice, or the expediency 
of an Act of Parliament is a question which lies outside the jurisdiction of 
any Court. It may be conjectured that in this matter of the distribution 
of powers, our Courts will not closely follow the American precedents^ 
which would assign to the Commonwealth Parliament in its sphere a 
position quite different from the States Parliaments in their sphere. . . . 
It is