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by the Act of 1855, include "any premises in such a state as to be
was that it lay on the defendant to prove that he had been injured by the want of notice, but it is now settled that the want of notice is a complete defence, and that evidence tending to show that the defendant was not prejudiced by the neglect is inadmissible, except in an action against the drawer, who had no effects in the hands of the drawee: (Byles on Bills, 8th edit. 273.) We have nothing to say against the decision in Petty v. Cooke, which was shortly put upon its proper footing by Mr. Justice Hannen, in accordance with the rule established by Lord Eldon, thus: "Lord Eldon puts it that the surety is discharged when the creditor has done anything which is against the faith of his contract.' How can it be against the faith of his contract to do that which it was his duty to do, namely, to receive payment? turned out afterwards that the payment was not a good payment, and therefore the surety is discharged." But we do protest against an extension of the doctrine so as to hold a surety to a bargain when, although not prejudiced, he might reasonably conclude that he was discharged.
AN INDIAN JUDGE ON THE SCIENTIFIC STUDY OF
MR. JUSTICE MARKBY, a Judge of the High Court of Judicature at Calcutta, has published some lectures which he delivered at Calcutta, and which in their collected form he describes as "Elements of Law considered with reference to Principles of General Jurisprudence" (Oxford: printed at the Clarendon Press.) He seems to have been induced to bring out his work by the new direction which education in law has recently taken, and, more sanguine than most people, he thinks that we have already begun the scientific study of the law. At any rate he notices as now existing "a revival of the demand for a systematic education in law, apart from professional training," and finds that the Universities of Oxford, Cambridge, and London are "taking active steps to reconstitute the study of the law as part of their course." Apparently these steps amount at the present time only to "resolutions," for our author says, "it is not sufficient simply to take a resolution to teach law in this way," i.e., scientifically. Experience shows," he adds, "that to establish a study on this footing we must have books and teachers specially suited for the purpose. At present of the first we have scarcely any."
We are disposed to regret that, appreciating as Mr. Justice MARKBY does the dearth of books adapted to the scientific teaching of the law, he was not more ambitious. Had he given us a complete manual on some branch of law, instead of a collection of essays, the arrangement of which is "obviously defective" (Preface page 1), dealing with law generally, he would have served some useful purpose, more especially as his opinion is that " when a work is written on English law which is complete in point of arrangement, the long series of labours which are now just commencing, will have been brought very nearly to a conclusion." To have forged the first link of the chain would have been something, but Mr. Justice MARKBY can hardly claim to have done thus much. His little work is a collection of criticisms and suggestions, useful and indeed valuable in their way, but of no worth as a classbook.
THE ELEMENT OF TIME IN SURETYSHIP. Is the recent case of Petty v. Cooke (L. Rep. 6 Q. B. 790), two old decisions respecting the discharge of a surety by the act of the creditor in giving time to the principal debtor were somewhat reflected upon by Mr. Justice Blackburn. At the close of the last century it was laid down by Lord Loughborough, in the case of Rees v. Berrington (2 Ves. 540), that where time is given by a creditor to a principal debtor without the consent of the surety, the surety is in equity discharged, however short the time may be, on the ground that he is thereby deprived of his right on paying off the creditor to sue the principal debtor. This reasoning Mr. Justice Blackburn condemns as artificial. The next case of Samuel v. Hawarth (3 Mer. 272), was decided by Lord Eldon, and that eminent judge laid down the rule thus: "The rule is that if a creditor without the consent of the surety gives time to the principal debtor, by so doing he discharges the surety, that is, if time is given by virtue of a positive contract between the creditor and the principal-not where the creditor is merely inactive." The ground of his decision is stated to be, "that the creditor by so giving time to the principal has put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal or not, and because he, in fact, cannot have the same remedy against the principal as he would have had under the original contract." And further on he said, "The creditor has no right, it is against the faith of his contract, to give time to the principal, even though manifestly for the benefit of the surety, without the consent of the surety.' In the opinion of Mr. Justice Blackburn, this definition, however accurate, is "based upon highly technical reasoning." If a principle is accurate in itself, it matters little whether the reasoning upon which it is based be technical or artificial, unless it be sought to introduce some exception to it. This was the business of Mr. Justice Blackburn in the case of Petty v. Cooke, and he has introduced an exception of some importance, although what he says does not amount to a judicial decision. "It is clear," said his Lordship," that a creditor who gives time to the principal debtor, without reserving his right against the surety, discharges him; but that time given by a creditor, which in numberless cases does not injure the surety, The first chapter deals with the general conception of law, the should discharge him, is, to my mind, not justice, although estab- bulk of which is based on recognised authority, but which in its lished by Courts of Equity," This view was taken by a Vice- scope seems a little wide of the mark. We do not see the utility Chancellor in Hulme v. Coles (2 Sim. 12), who considers the of labouring the questions whence particular tribunals derive their doctrine a refinement of a Court of Equity. But surely if it is authority, and what was the nature of their original foundation, right that if in some cases injury may result to a surety from whether the judges have power to make law, and if they have not maintaining an opposite rule, and he be deprived of his subrogated are their decisions law at all? In treating of law as a science we remedy, the old principle should be sustained. The contract have to recognise its established sources. Mr. Justice MARKBY of a surety is, in such cases as those under consideration, for a speaks of judicial decisions as being a source of law, and it is a specified time. The time elapsing he may enter into new engage- very common practice to speak of judge-made law. But judges ments, and, if subsequently called upon to pay, it is difficult to do not evolve law out of their own consciousness. They interpret calculate possible consequences. It was contended in Petty v. the Common Law of England, and upon certain principles decide Cooke that the surety at the time of taking upon himself his upon facts which come before them. This cannot be called making liability contracts that the creditor shall receive valid payment law-it is rather the fixing of floating principles, uncertain perhaps, of his claim against the principal debtor. This is hardly so. but still existing and being in themselves law. The further question The contract is that if the principal debtor does not pay by a whether this law, now embedded in a mass of decisions encumgiven day the surety will, but after the expiration of the specified bered with facts, is such a law as we can successfully use for time the contract is gone. And the facts of Petty v. Cooke go practical purposes, is the really important one, and must be to support the view that if by a mistake, if by something inequit- answered in the negative. The work of the lawyer in raking able as between the debtor and his creditor, the time goes by, the together dicta from numerous cases to make one principle is painsurety is not discharged. There the debtor did pay, but the payment ful and unsatisfactory. This would be in a measure unnecessary was held to be a fraudulent preference, and thus there was no pay- if, as Mr. Justice MARKBY suggests, English Judges were comment at all. We do not see that it can be logically deduced from a pelled, as in Italy, France, and Spain," and as has been attempted decision in favour of the creditor as against a surety under such in India"-why attempted only? to state separately and fully circumstances, that under all circumstances where the surety is what French lawyers call the motives, and Spanish lawyers the not damnified, for it must go as far as that, the surety is not dis-points of their decisions. "The law," says our author, “being charged by time being given. The surety is discharged by reason stated in distinct propositions, altogether separate from the facts, of the laches of the creditor, as the parties to a bill of exchange would be easily ascertained." An admirable custom prevails in the are discharged by a failure to present or to give notice of dis- High Court at Calcutta of requiring its own members, when they honour. We are aware that a mere guarantor of the payment of differ in opinion on a matter of law, to refer the difference to the a bill of exchange is not discharged by failure to give him due arbitration of a majority of the whole Court. That is to say, the notice of dishonour, but that is because he has no remedy against majority rules without any division of opinion being known to the the parties to the bill. An indorser is entitled to notice because world. This," we are told, "sometimes leads to the enunciaif he have it not, his remedy against the parties liable to him is tion of propositions of law in an abstract form, which it is made rendered more precarious. The old doctrine on this subject imperative on all the members of the Court, and, of course, on all
the inferior Courts to accept, until overruled by the Privy Council. The same error which has appeared to us to pervade Mr. Justice MARK BY'S primary conception of theorigin of law, induces him to mention the commentaries of great jurists as sources of law. He speaks of the law which is derived from such commentaries, and then he refers to jurists as expounders of the law. Now a commentator is necessarily an expositor of that which exists, who makes certain deductions from the materials which he has, and he acts towards the law in the same way as the Judges do, but in a different form and with less authority. The inutility of observations of this kind on the sources of law is plain, for as Mr. Justice MARKBY observes (p. 31), "At each step we take in enumerating the sources of law, the mode of derivation becomes proportionately more obscure. The function of Judges in making the law is far less easy of comprehension than that of the Legislator; that of the commentator is a degree less clear." This is the strongest argument in favour of not making the sources of law a subject of study, but, accepting the materials which we have, to mould them for practical use in the most scientific way which is possible.
The most interesting portion of our author's work, to our mind, is that which deals with the condition of the law as administered in India, and he tells us that a very curious problem with reference to equity is now being worked_out. "We scorn," he writes, the exclusive maxims of the Roman Law, and we emphatically profess to extend the protection of law to all classes of the Queen's subjects alike. Nevertheless, there are in India enormous gaps in the law. It is not too much to say that there are considerable classes of persons whose legal rights are, with reference to many very important topics, entirely undefined; and there are many topics affecting all classes on which it would be scarcely possible to lay down a single principle, which there would not be some hope of challenging with success. It has been supposed that in India these gaps are to be filled up by the Judge deciding the case according to equity and good conscience.' And it has even been said that all the rules of law which a Judge has to apply in India are subject to 'equity and good conscience.' But, though in the present state of Indian Law some such maxim and some such expedient may be necessary, it is well to be on our guard against the dangers to which it may lead. Constantly criticised by an able Bar, always closely watched by a jealous public, generally dealing with suitors who have the energy and means to resent injustice--the Equity Judges of England and of Rome have been under a restraint as effective, if not as obvious, as the Judges of Common Law. Under these restraints, and with ethical ideas generally accepted in an homogenous society, as in England, equity may do, and no doubt has done, very useful work. But in a country like India, where these restraints are almost wholly wanting, and where it is perfectly possible (not to speak of minor antagonisms) that in successive courts of appeal a Hindoo, a Mahomedan, and a Christian might have to sit as Judges in the same case, the attempt to apply a system which has only been extensively applied in two countries of the world, might seem somewhat hazardous."
Into the general contents of the book we cannot go at present; but it is sufficiently interesting to induce us to do so hereafter; and we would say to Mr. Justice MARKBY, in conclusion, that if he can afford the time he would do a public service if he attempted to eliminate principles from decisions in some important branch of law, and by a clear collocation give us something like a specimen of scientific law as it ought to be taught.
THE CHICAGO LAWYERS.
We have made more than one appeal to the many wealthy lawyers in this country on behalf of the Legal Profession in Chicago. We have not heard that these appeals have had any effect, and we therefore give prominence to another, and trust that as an English Barrister, who bears a name famous in legal history, has taken up the case, something will be done to redeem our reputation for liberality:
TO THE EDITOR OF THE LAW TIMES. SIR,-Chicago Law Institute Library. Some days since I received from my correspondent, Mr. Hoyne, of the firm of Hoyne, Horton and Hoyne, counsellors, at Chicago, a circular, a copy of which forward on the other side. I should be glad to know whether any subscription has already been set on foot, and, if so, to make a small contribution to it. If no list exists at present, should gladly take, or join in, any steps for collecting or forwarding money or contributions. Yours truly,
Dec. 8th, 1871.
10, King's Bench-walk, Temple, E.C.
EDWARD S. ALDERSON.
No class has suffered more in the fiery ordeal through which Chicago has passed than the legal profession. They number about 500. Most of them are young men with small means, devoting from year to year their surplus earnings to forming a law library.
A large number of libraries thus collected were worth from 10,000 dols. to 20,000dols. The value of law books destroyed in the Law Institute and private libraries exceeds 400,000dols. Many of the lawyers lost not only their libraries, but their homes, and personal property of every description, excepting the clothing they wore in their flight from the fire fiend that pursued them from house to house. No words can adequately describe the horrors of that night, when the heavens were literally on fire, the atmosphere itself burning with an intensity compared with which the combustion of ordinary fuel seemed harmless.
Having been associated with the legal profession at the Bar, and upon the Bench for forty years, and having escaped the calamity that has overtaken most of my brethren in this devoted city, and being at the present time in no way judicially or by practice connected with the legal profession, I assume the responsibility of appealing to the legal profession of the United States and Great Britain in behalf of the Chicago Bar. I suggest that the responses to this appeal be made in law books. In order to avoid the inconvenience of miscellaneous contributions, and that the books contributed may be memorials of the generosity and sympathy of the contributors. I suggest that the Bar of every State capital inaugurate an association to include all the legal profession of such state that may desire to join it, the object of which shall be to procure and forward as a donation to the Chicago Law Institute all the legal literature of such state, including the Statutes and Reports, and treatises on legal subjects, by citizens of such state; that the associations be designated " Association of the Members of the Legal Profession of the State of for the Relief of the Legal Profession of Chicago;" that associations be formed by the Bar of each county to act in concert with the Bar at the capital of the state; that in each county or Bar, legal cap be prepared with proper heading, and signed by all contributors, with place of residence; that each page contain ten signatures; that these be preserved and forwarded with the books, tobe kept by the institute as a memorial not only of an unprecedented calamity, but especially of the_liberality and generous sympathy of the Profession. The Chicago Law Institute is a corporation including in its membership nearly all the lawyers in the city. Its library and fixtures before the fire exceeded 50,000dols. in value. Should this appeal be responded to, I am assured by prominent members of the institute that the bye-laws will be modified so as to make it free for all members of the legal profession in the United States and Great Britain, and the members of the institute only assessable to an amount sufficient to keep up the library and pay current expenses. I would further suggest that the Bars of London, Edinburgh, Dublin, and other cities in Great Britain correspond and act in concert in procuring English, Scotch, and Irish reports and legal publications, and that they adopt a plan similar to that proposed for the United States, or a better one, as circumstances and superior wisdom may suggest. (Signed) JOHN M. WILSON,
Ex-Chief Justice of the Superior Court of Chicago.
Chicago, Oct. 18, 1871.
THE ELEMENTS OF THE LAW OF AVERAGE.. (Continued from page 97.)
GENERAL AVERAGE EXPENSES AND PARTICULAR CHARGES. Ir any expense, not usually incident to the adventure in which a ship is engaged, be incurred for the safety or general benefit of ship, freight, and cargo (not merely for repairs of damage to the ship by sea perils, or reconditioning sea damaged goods), it is contributed for as general average, whether the property be ultimately saved or not: (Stevens on Average, 20). The same observation applies to expenses of a general average nature, or particular charges, incurred for the benefit of any one interest separately. The expenses are recoverable from those for whose intended benefit they were disbursed, although the property be afterwards totally lost. When a ship accidentally gets ashore, and after throwing overboard part of the cargo, and cutting away the masts, it is found necessary to discharge the rest of the cargo in order to relieve and lighten the ship, and the crew are thereby enabled subsequently with the assistance of others, by heaving on anchors, and with the aid of a steam-tug, to get her afloat, after which the ship having sustained no damage, the cargo is reshipped; the jettison of cargo, the cost of replacing the masts cut away, and all the expenses incurred, are properly recoverable in general average.
Salvage is a reward for saving ship and cargo, both or either, from total loss by sea perils, or recovering them when captured by enemies or taken by pirates. It is recoverable even on policies of insurance, "warranted free from particular average.'
If goods be given to salvors at a port of refuge for services bringing ship and cargo from a situation of peril into a port of refuge, the loss on these goods and the freight of them are, like jettison, recoverable in general average.
PORT OF REFUGE EXPENSES AND PARTICULAR CHARGES.
a vessel with cargo on board has, in the course of her voyage, to put into an intermediate port in order to repair any damage, whether that damage may belong to general or particular average or not, the practice of this country is to allow in general average the local expenses of entering the port, the harbour dues, charges for protest, quarantine dues, the expense of discharging the cargo in order to allow the ship to be repaired, and of conveying it to, and depositing it in a place of safety, and so on; and to state the warehouse rent and other charges for the goods against the cargo itself, and the cost of reshipping the cargo and the charges such as pilotage out of port against freight: (Stevens on Average, 22; Wilson v. The Bank of Victoria, L. Rep. 1 Q. B. 203.)
But it appears to be more equitable that if the captain has authority to break bulk for the general benefit at the general expense, the charges for replacing the cargo in the hold, whether it had been only shifted on board or landed, should be borne by a general contribution as a logical direct, and necessary conse quence" of removing it from the place where it was stowed for the voyage.
If, on putting into a port of refuge, the vessel is in ballast and not chartered, the outward as well as the inward charges attach to the only interest at risk, namely, the ship.
These "particular charges and all claims of general average are borne by the respective underwriters, on ship, goods, or freight if the property is insured.
DEC. 16, 1871.]
THE LAW TIMES.
They are recoverable under the "suing and labouring clause' in a policy of insurance.
If a part of goods, insured "free from particular average," be found to be in a sea-damaged state when discharged at an intermediate port, the fees of survey on the goods when landed, and the charges for putting them into proper condition, and similar expenses, fall upon the proprietors of the goods, and not upon the underwriters.
Particular charges, such as warehouse rent of cargo and reshipping charges, are chargeable to cargo and freight respectively, and paid by the underwriters, whether the goods and freight are insured against particular average or not. (Willes, J. in Kidston v. Empire Marine Insurance Company, L. Rep. 1 C. P. 535,; Benecke Pr. of Indem. 472.)
Loss on part of cargo sold to pay expenses at a port of refuge is allowed on the same principle as jettison, but is apportioned, disbursements to pay like bottomry premium, on all the (Stevens on Average, 15.) which the sale is resorted to. When a bottomry bond is granted by the master of the ship, containing a stipulation that if the principal be paid, the bottomry premium (or "maritime interest") shall not be charged, but only the cost of insuring the disbursements, the cost of such insurance Commission on advances by an is apportioned in a similar manner. agent for disbursements at a port of refuge is likewise apportioned on the disbursements for which it is charged.
The wages and cost of provisions to the master and crew, during detention at a port of refuge, are, by the practice of this country, charged to the owners of the ship: (Stevens on Average, 38.) An allowance in respect of wages and board and lodging is made in cases of shipwreck, when the master and crew assist at the salvage of the property. (Stevens on Average, 256; Benecke Pr. of Indem. 463.)
If a ship puts into a port in the course of her voyage solely because of contrary winds, or to replenish water and provisions, the (Stevens, petty average." xpenses fall upon the shipowner as n Average, 23.)
(To be continued).
ROMAN LAW AS AN ENGLISH STUDY. ONE of the most striking facts in connection with the history of past nations is the completeness of the destruction that has come upon many of them. Temples, palaces, and pyramids still remain as proofs of their material prosperity; frescoes and hieroglyphics exist to furnish some information of their social habits and religious rites; but the hand of time has removed nearly every trace of their laws and civil polity. Races have risen from barbarism, have become powerful empires, have attained to a most complex and advanced civilisation, and have passed away. The dwellers in Mexico and Etruria, upon the banks of the Nile and the Euphrates, by the shores of Phoenicia and Carthage, have left us evidence, clear and undeniable, of their wealth and power and culture; it is their legal systems only which have vanished. This is a circumstance which should be borne in mind, but which has been altogether ignored by speculators upon "ancient law,' and noticeably by the most distinguished of them.
Of early nations, two only have transmitted to us an accurate and full account of their jurisprudence, the Hindus and the Romans. The code of the former, popularly styled the "Laws of Manu," was, however, compiled comparatively late, and at a time when class distinctions had hardened into the barriers of caste; it is, consequently a collection of legal principles mingled with religious rules and priestly regulations; and the student is thus perpetually in doubt as to the exact nature and scope of any given chapter in the code, as to whether it is treating of law purely, or of law modified by theology.
To the Romans, therefore, we must turn, if we would investigate ancient juristic ideas. Here we have no lack of materials. We can watch the development of their legal system over more than ten centuries: : we note how the few unbending customs of the Twelve Tables are ameliorated by the Prætor, in accordance with the varying needs of the times, till a corpus juris is completed in parts almost perfect; and we see the final touches put to the structure by Tribonian and his coadjutors. These last changes, however, entirely altered the spirit of the system. It ceased to be Roman and became universal; it ceased to be a jus civile and became a welt-recht. To appreciate the peculiar characteristics of Roman Law we must go to the Commentaries of Gaius, not to the Institutes. These were written between 150 and 170 A.D., and they contain an account of many matters which-probably out of date if not obsolete at that period-had been forgotten by the time of Justinian. The Institutes contain scarcely a word upon the legitimate modes of manumission; upon the power of a husband over his wife, manus, or of a paterfamilias over the free person who has been sold to him, mancipium; upon the modes of conveyance by mancipatio and in jure cessio, or the strictly technical division of things into res mancipi and res nec mancipi; upon the history of testaments or the various species of legacies; upon the adstipu lator or the contract literis; upon the legis actiones, or indeed upon the history of actions at all, and the various forms of writs. For
all knowledge of these subjects we are indebted to Gaius. Know-
Mr. Poste's edition is well got up, and printed on good paper, as
In proceeding to inquire how far the objects indicated have been attained, the first observation we have to make is that Mr. Poste shows very little originality of thought or even of sugges tion. He has borrowed-not always with a due appreciation of the meaning of his original-whole pages from various writers. Especially has Austin been laid under contribution. This was to be expected. Every "professor" of, every glib spouter upon, fail; jurisprudence and their number is rapidly increasing-quotes or talks Austin, and runs to him for ideas when privata opes they seldom comprehend him, and they do not always make Mr. Poste has acknowledged but not compreacknowledgment. hended. The "Preliminary Definitions," pp. 1 to 9, are simply a rechauffe of this great jurist; and on page 8 occurs a palpable misconception. Austin's primary division of Rights is not into Sanctioned and Sanctioning Rights-it is into "Law of Persons” (Jus Personarum) and "Law of Things" (Jus Rerum), the latter being subdivided into sanctioned (or primary), and sanctioning (or secondary) rights. "I pass to law considered with reference to its purposes, and to the subjects about which it is conversant. The first great distinction of law considered under this aspect, is the celebrated one into the law of persons and the law of things; or (as I think it ought to be stated), the law of things and the These are Austin's words (vol. 2, pp. 705-6), law of persons." but Mr. Poste may have been misled by the term "law," and have thought that this was an arrangement of the corpus juris, upon the basis of "laws," i. e., statutes, and not upon that of rights. Austin, however, gives no ground for such an inference, since immediately after (p. 709), he writes: "The law of things like the law of persons, relates to rights and duties, but to rights and duties considered in the abstract; exclusively of the rights and duties which are the constituent elements of conditions or status." Indeed, Mr. Poste himself, on page 7, says that "a third important division of rights is expressed in the terms expressions by "rights given by the law of things and rights jura rerum and jura personarum," though his translation of these given by the law of persons," is not remarkably exact; and on pages 133 and 134, he distributes "the whole world of 1ights, minus the rights of status," into sanctioned and sanctioning rights.
The account of constitutional law-that it belongs to positive morality, not to positive law, and can be enforced against the sovereign by moral sanction only--is taken directly with some change of language from Austin. So is that of "Dominium" and "Servitus," but with the introduction of two mistakes which vitiate
the whole account. "Property absolute, or pre-eminently so called, may be defined as a right of unlimited duration, imparting to the owner a power of indefinite use, a power of aliening from all who in default of alienation by him might succeed by descent." This is the definition on p. 137. Mr. Austin says (vol. 2, p. 866), that "it means a right indefinite in user, unlimited in duration, and alienable by the actual owner from every successor who in default of alienation by him might take the right. . Property pre-eminently so called, is alienable by the actual owner from every successor who in default of such alienation might take the right. It therefore implies more than the power of aliening from his own successors ab intestato. For even where a right is a right of unlimited duration, another right may be expectant upon it." This latter point is the essence of absolute property-duration is not, see Austin, vol. 2, p. 867; user is not, it being always restricted by a regard for the rights of others—but unrestricted alienability is; and Mr. Poste has failed to grasp this fact. His description would include estates in fee simple since their owners are able to alienate from all who otherwise would succeed by descent; yet these estates are not absolute property whenever they are held of a mesne lord, there remaining theoretically a reversion to him which cannot by any act of the tenant be defeated. I may remark that even Austin has made a slip in laying down that there is not in English law any absolute property in land. The reason he assigns is that just given, viz., the existence of an indefeasible reversion. But this reversion does not occur in the case of tenants in capite. They hold directly from the sovereign; they have accordingly the power of aliening from all successors, "who by virtue of any right existing over the subject are interposed between the possible successors (by descent) to their own unlimited right, and the sovereign as ultimus hæres;" and such power gives them absolute property.
The other mistake which we have alluded to is the arranging "Habitatio," "Usus," and "Usufructus," with personal servitudes. They are jura in re aliena, as Austin points out, and as the framers of the Institutes seem to have intimated when they concluded the fifth title of the Second Book with the words: "Hæc de servitutibus et de usufructu et usu et habitatione dixisse sufficiat ;" thus plainly separating the last three rights from servitudes proper. If we examine the various modes of property according to the extent of the right of user, we may arrange them thus:
(1) Absolute property or dominium, a right, or rather a complex right, unlimited in extent (limited of course by a regard
for the rights of others), e. g. quiritarian ownership, property in (English law in a movable, &c.:
2) Jus in re aliena, a right indefinite but limited in a res, the corpus of which is in the dominium of another, e. g., usufructus, an estate for life or years, &c.;
(3) Servitus, a right single, definite, limited over the dominium of another, e, g., right of way, &c. Servitudes-with which our easements are not exactly synonymous, are prædial or real (appurtenant and appendant), when they belong to an individual in virtue of his being the owner of a certain estate, and personal when they belong to him as being actually the individual he is, e. g., common in gross. This error of mixing up personal servitudes with jura in re, is a very common one, produced no doubt by the fact that no unequivocal example of the former is found in the whole corpus juris, and Mr. Poste may be excused for having fallen into it.
He cannot, however, be excused for ignorance of the subject, Roman law, with which he is more immediately concerned. Errors in minor points are constantly occurring a few may suffice. A servus ponce was not (page 85) a servus sine domino, the latter term being applied to those who were in the usufruct of one person and had been in the dominium of another, but had been set free by the naked dominus (Ulpian i., 19); but the state was the dominus of a servus ponce. There is no ground for assuming (page 91) that in adoption there intervened a pater fiduciarius in addition to the pater naturalis and the pater adoptivus. The list of res mancipi (page 142) does not contain rustic servitudes. In order that a depositary should be liable to an action in duplum he must have denied the deposit. It can scarcely be said that Justinian "introduced" the beneficium inventarii (page 207). This privilege was practically in existence before Justinian, who merely amended the regulations relating to it, and extended its effects: (Inst. III. 19, 6, Code VI. 30, 22.) Justinian did not "totally abrogate the cretio "-the abrogation was due to Arcadius, Honorius, and Theodosius (Code VI. 30, 17.) From this latter mistake, and another very similar to it on page 176, as to the peculium adventitium, we have a faint suspicion that Mr. Poste attributes the origin of everything in the Digest and the Code to Justinian himself, and that that emperor not merely compiled, but absolutely promulgated the whole contents of the Corpus Juris.
If we pass over errors in matters of detail, and take a wide view of the commentary, we are bound to say that it is crude, unmethodical, defective, and faulty.
(To be continued.)
NOTES OF THE WEEK.
COURT OF APPEAL IN CHANCERY.
(Before the LORDS JUSTICES.) Ex parte HONEY; Re JEFFERY. Bankruptcy Act 1869, s. 37.-Distinct contractsJoint and separate estates.-Right of proof. THIS was an appeal from a decision of Mr. Registrar Pepys, sitting as the Chief Judge. On the 1st June 1869, to secure a loan by one Handcock to W. S. Jeffery, a joint and several promissory note was given to Handcock, signed by W. S.
Jeffery, J. R. Jeffery, J. and W. Jeffery and Co. (of which firm W. S. Jeffery and J. R. Jeffery were members), and by certain other persons who were not members of the firm. The firm having become bankrupt, Handcock claimed to prove against the joint estate of the firm and the separate estates of W. S. Jeffery and J. R. Jeffery in respect of the amount advanced by him. The Registrar admitted the claim and the trustee appealed from his decision, contending that the decision was wrong on the construction of the 37th section of the Bankruptcy Act 1869, which provides that if any bankrupt is at the date of the order of adjudication liable in respect of distinct contracts as member of two or more distinct firms, or as a sole con
tractor, and also as member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts, against the properties respectively liable upon such contracts.
Little, Q.C. and Winslow, for the appellant. De Gex, Q.C. and Thesiger, for the respondents, were not called upon.
Their LORDSHIPS were of opinion that there were here distinct contracts within the meaning of the 37th section on the part of the firm jointly, and
on the part of two of its members separately, and that the claimant was therefore entitled to prove against the three estates and to receive dividends from them.
Appeal accordingly dismissed with costs. Solicitors for the appellant, Reed, Phelps, and Sidgwick.
Solicitors for the respondent, Linklaters, wood, and Addison.
Friday, Dec. 8.
Ex parte PORTER; Re PORTER. Bankruptcy Act 1869, s. 6-Petition · creditor-Judge's order.
ever, had been paid his debt since the date of the
Robertson Griffiths for the appellant.
Their LORDSHIPS held that the registrar's order was right, inasmuch as the petitioner was not a secured creditor, the judge's order not being a security, as it did not purport to transfer any exHack-isting stock.
THIS was an appeal from an order of Mr. Registrar Spring Rice, adjudging the appellant a bankrupt. The Mid Hants Railway Company being indebted to one Gilbert in the sum of 2801., Porter, the solicitor of the company, guaranteed that certain stock not yet created in the company should be transferred to him by a given date. The transfer not having been made on the appointed day, Gilbert procured a judge's order ordering the stock to be transferred to him, and afterwards he presented a petition to the Court of Bankruptcy praying that Porter might be adjudged bankrupt. Porter now asked that the adjudication might be set aside on the ground that Gilbert was a secured creditor, and that he had not stated his security in his petition in accordance with the 6th section of the Bankruptcy Act 1869, which provides that the debt of the petitioning creditor must not be a secured debt, unless the petitioner state in his petition that he will be ready to give up such security for the benefit of the creditors in the event of the debtor being adjudicated a bankrupt, or unless the petitioner is willing to give an estimate of the value of his security, in which latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated. The stock had never been transferred to Gilbert, who, how
Re THE ACCIDENTAL DEATH INSURANCE COMPANY; Ex parte CHAPPELL. Company-Winding-up-Contributory-Order for payment of call-Suspension of order pending appeal to House of Lords. proceedings against Chappell under an order for THIS was an application for the suspension of the payment of calls in respect of certain shares formerly held by Chappell in the above company, on his paying into court 2s. in the pound on the amount of the calls, pending an appeal to the House of Lords. The amount of the calls exceeded 4000l., and it appeared that the applicant was totally unable to pay the amount, and that the liquidator of another company had agreed to accept 2s. in the pound in satisfaction of his claim. The Master of the Rolls had fixed Chappell on the list of contributories, and on an appeal to the Lords Justices the decision of the Master of the Rolls had been affirmed by James, L.J., Mellish, L.J., dissenting. Chappell accordingly was about to appeal to the House of Lords.
Sir Richard Baggallay, Q.C. and Locock Webb appeared for the applicant.
Swanston, Q.C. and Graham Hastings, for the official liquidator, opposed the application.
Lord Justice JAMES said that he must refuse the application unless the applicant brought the whole amount into court or gave security for it. Lord Justice MELLISH concurred. Solicitors for the applicant, Chappell and Son. Solicitors for the official liquidator, Deane and Chubb.
DEC. 16, 1871.
ROLLS COURT. Friday, Dec. 8.
SMITH V. FARRAH. Injunction-Imitation of name-Repudiation of authority-Costs.
THIS Bill was filed by the well-known firm of W. H. Smith and Son, publishers and news and advertising agents, of the Strand, to restrain the publication of "Smith and Co.'s Railway Time Tables and Merchants' and Manufacturers' Directory," printed by Messrs. Gregory, Strickland, and Co., of Clement's-lane, and published by Mr. F. Farrah, of 282, Strand. It having come to the knowledge of the plaintiffs that some of their clients had given orders for the insertion of advertisements therein, believing it to be the plaintiffs' publication, a letter was written in July 1870, by plaintiffs' solicitors to the defendant, Farrah, inquiring whether it was published by his authority, who replied that he believed he was to be the publisher, but that his name appeared on it without his authority. Upon the number for August appearing in the same form, plaintiffs, solicitors again wrote to Farrah calling his attention thereto, and the answer obtained was that the matter stood as it did, that it was not yet settled whether he should publish it The bill was then filed, and an injunction obtained ex parte, and a proposal was made to Farrah that if he would pay the costs up to that time, and undertake not to sell any more copies of the publication, the suit should be discontinued. He refused to pay the costs, although willing to give any undertaking required, and issued a circular to the trade, with a warning against selling any copy with his name (which had been used without his authority) appearing as publisher.
The Solicitor-General (Jessel Q. C.) and Bedwell for the plaintiffs.
Higgins for the defendant Farrah.
Lord ROMILLY said that the complaint of the defendant that the suit had been hurried on without giving him an opportunity of explaining his position, was not justified. When inquiries are made of him he does not repudiate the publication, but merely says it is not yet settled whether he is to publish it. When a publication, bearing a well-known name was offered to him, it was his duty, before undertaking to publish it, to inquire whether it was issued by their authority; but he does nothing of the kind; he agrees to do certain things to ascertain whether the publication is likely to succeed. The defendant must pay all
Solicitors: Rogerson and Ford; J. B. Lay.
MARTIN v. MARTIN. Trustee and cestui que trust-Mortgagee and mortgagor-Improper sale.
JOHN MARTIN, by his will, devised an orchard in High-street, Sutton, to trustees upon trust for his wife, Ann Martin, for life, and on her death to sell the same and divide the proceeds equally amongst his four children, John, William, Charles, and Thomas. John Martin, the son, died in 1859, subsequent to the death of the testator, and by his will gave a life interest in his share of the orchard to his wife, with remainder to his brothers William, Charles, and Thomas, or the survivor of them. William Martin mortgaged his reversionary interest in the orchard to his mother, to secure certain advances amounting to 2601., and died in 1866, having, by his will, appointed his widow and John Morgan, the plaintiffs in this suit, his The life interest of executors and devisees. the widow of John Martin was subsequently bought by Charles Martin and Thomas Martin. On the 8th May 1868 Ann Martin, the widow of the testator, being tenant for life of the property, and mortgagee, with power of sale, of one-fourth of the reversion, and Charles Martin and Thomas Martin being entitled to the remaining threefourths of the reversion, a deed was executed by these parties, by which one moiety of the orchard was conveyed to Charles Martin, and the other moiety to Thomas Martin for the sum of 500. In Dec. 1869 the plaintiffs were informed of the sale, and in March 1870 they filed this bill for a decree for the administration of the estate of the testator, and to set aside this sale.
Fry, Q.C. and Speed, for the plaintiffs, relying upon an agreement of 29th Feb. 1868, by which the trustees agreed to sell the property to Charles Martin and Thomas Martin, argued it was a sale by trustees at a gross undervalue.
Sir R. Baggallay, Q.C. and Cozens Hardy, for the trustees, contended that as to the one-fourth to which the estate of Wm. Martin was entitled subject to the mortgage thereon, it was a sale by a mortgagee under a power of sale, one-fourth of the purchase money being expressed to be paid to Ann Martin as mortgagee
Roxburgh, Q.C. and Cole, for Charles Martin and Thomas Martin.
W. W. Karslake for other parties. Lord ROMILLY said that Ann Martin, and her sons Charles Martin and Thomas Martin, had full
THE LAW TIMES.
power to dispose of three-fourths of the property,
Saturday, Dec. 9. Re LANDON.
Will-Construction-Trustees' discretion. WILLIAM LANDON, by his will, dated 10th Aug. 1870, directed his trustees to raise a sum of 1000%., and expend the same in releasing his son Charles Richard Landon from his liabilities, provided he (the testator) should not effect that object in his lifetime. The testator died on the 13th Sept. 1870. C. R. Landon was adjudicated bankrupt in 1863.
The trustees had raised the sum of 1000l., and paid the same into court, and this was a petition by the assignees appointed under the bankruptcy for a distribution of the fund in court to the parties entitled.
Sir R. Baggallay, Q.C. and Horton Smith for the petitioners.
Wingfield for creditors subsequent to the date of the bankruptcy and prior to the death of the testator.
Beale for a creditor subsequent to the death of the testator, part of his debt being for a suit of mourning supplied to C. R. Landon, to enable him to attend the funeral of testator.
Alfred Baily for C. R. Landon, contended that the object of the testator was that his trustees should have a discretion so to dispose of this sum of 1000l. as to free him from all his liabilities, those incurred subsequent to his father's death, as well as those debts owing at that time, and relied upon Joel v. Mills (3 L. T. Rep. N. S. 882.) Southgate, Q. C. and Wm. Barber appeared for the trustees.
Lord ROMILLY said that in Joel v. Mills there was a power for the executors to raise a sum of money, and at their discretion to pay the debts of his son. In the present case a sum of 1000l. is to be applied at once in relieving him of his difficulties not in payment of debts incurred after his father's death, and that the creditors at the time of testator's death only were entitled to be paid out of this fund, including also the amount due for the suit of mourning. If the debts had exceeded the fund. the trustees would have had a discretion to endeavour to get the creditors to take a composition. The debts and costs must be paid out of the fund, and the balance forms part of the testator's estate.
Solicitors: Flux and Co.; J. Mote; Richardson and Sadler.
Dec. 9 and 11. ATTORNEY-GENERAL v. FLETCHER. Will-Construction-Joint tenancy or tenancy in common. ANN FLETCHER, by her will dated the 5th April 1830, after bequeathing the income of all sums of stock and parts or shares of sums of stock in which she had any disposable interest, gave and bequeathed the principal thereof unto such of them, the nephews and nieces of her late husband, and the children of his deceased niece, Ann Clarke, thereinafter named, as should be living at the time of her decease, to be divided between and among them per stirpes equally, and not per capita, the children of the said Ann Clarke taking between them only the equal share to which the said Ann Clarke would have been entitled if named in that bequest instead of her children, and living at the time of decease of testatrix. Upon the petition of one of the children of Ann Clarke for payment of the share to which she was entitled under the said will out of the fund which had been paid into court, the question arose whether the children of Ann Clarke took as tenants in common, or as joint tenants, several of the children having died since the death of testatrix.
Horace Davey, for the petitioner, argued that was to the effect of the words "between them" make them joint tenants.
Lewin for respondent in the same interest. Badcock and Everitt, for other respondents, contended, on the authority of Lashbrook v. Cock (2 Mer. 70), that they were tenants in common. Lord ROMILLY was of opinion that Ann Clarke's children took as tenants in common. Solicitors: Ellis and Ellis; Vizard, Crowder and Co.; Lewin and Co.
V.C. BACON'S COURT. Nov. 24 and Dec. 7. CARTER V. EARL OF DUCIE. Settlement-Construction. UPON the marriage of James Haughton Langston with Lady Julia Moreton a sum of 35,000l. was settled in trust for the children of the marriage
other than an eldest son. The settlement contained
Willcock, Q. C. and W. W. Karslake appeared for the trustees of the settlement.
Kay, Q. C. and Speed for Lord and Lady Ducie. Eddis, Q. C. and Kekewich for Mr. Langston's executors.
The VICE-CHANCELLOR was of opinion that Lady Ducie was entitled to the whole amount of the trust-fund, and to the dividends due thereon since the death of her mother, and ordered the transfer and payment accordingly.
Solicitors for all parties, Harrison, Finch, and
ATTORNEY-GENERAL v. CLEMENTS.
PETITION. By a decree made on the 25th April
S. Hunter appeared in support of the petition. The VICE-CHANCELLOR was of opinion that the application was premature, and refused to make the order.
Solicitor, William Haigh, junior.
COURT OF BANKRUPTCY.
(Before the CHIEF JUDGE.)
Ex parte CAULWELL; Re CURRIE.
THIS was an application by the assignee of a
De Gex, Q.C. for the assignee, contended that in the order and disposition of the bankrupt with the trustees of the the policies were, at the time of the bankruptcy, the consent of the true owners, marriage settlement. Roxburgh, Q.C. and R. Griffiths appeared for the trustees of the settlement.-The assignee having taken no steps to establish his claim by giving notice to the offices, the claim of the trustees, who had given notice, must prevail, although that notice was given after the bankruptcy: (Barr's Trust, 1 K. & J. 129.)
De Gea in reply.
The CHIEF JUDGE.-The law upon this subject is perfectly clear. At the date of the bankruptcy the name of the bankrupt appeared in the books