Page images
PDF
EPUB
[ocr errors]

:

a

66

66

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 injurious to health,” and “any pool, diteh, gutter, watercourse, by the want of notice, but it is now settled that the want of privy, urinal

, cesspool, drain, or ashpit, so foul as to be a nuisance notice is a complete defence, and that evidence tending to show or injurious to health.”

that the defendant was not prejudiced by the neglect is inadIt will be objected that these powers relate only to the abatement missible, except in an action against the drawer, who had no not to the prevention of nuisances, and no doubt this is so. There effects in the hands of the drawee : (Byles on Bills, 8th edit. 273.) fore we would suggest that instead of an Act giving a right of We have nothing to say against the decision in Petty v. Cooke, action where none now exists at law, larger powers of inspection which was shortly put upon its proper footing by Mr. Justice should be given to local authorities, and that they should be com- Hannen, in accordance with the rule established by Lord Eldon, pelled to exercise these powers. They may now procure sanitary thus : " Lord Eldon puts it that the surety is discharged when the reports, but they very rarely do procure them. They should be creditor has done anything which is against the faith of his concompelled to procure and to publish them, so that every ratepayer tract. How can it be against the faith of his contract to do that might know the condition of the neighbourhood in which he lives, which it was his duty to do, namely, to receive payment ?

It and either take steps to have it properly drained, or, at any rate, turned out afterwards that the payment was not a good payment, hare a chance of escape from the terrible diseases which follow and therefore the surety is discharged.” But we do protest in the wake of sanitary neglect.

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. THE ELEMENT OF TIME IN SURETYSHIP. Is the recent case of Petty v. Cooke (L. Rep. 6 Q. B. 790), two

AN INDIAN JUDGE ON THE SCIENTIFIC STUDY OF old decisions respecting the discharge of a surety by the act of

THE LAW. the creditor in giving time to the principal debtor were somewhat MR. JUSTICE Markby, a Judge of the High Court of Judicature at reflected upon by. Mr. Justice Blackburn. At the close of the last Calcutta, has published some lectures which he delivered at Calcentury it was laid down by Lord Loughborough, in the case of cutta, and which in their collected form he describes as Elements Rets v. Berrington (2 Ves. "540), that where time is given by a of Law considered with reference to Principles of General Juriscreditor to a principal debtor without the consent of the surety, prudence" (Oxford : printed at the Clarendon Press.) He seems the surety is in equity discharged, however short the time may to have been induced to bring out his work by the new direction be, on the ground that he is thereby deprived of his right on which education in law has recently taken, and, more sanguine paying off the creditor to sue the principal debtor. This reasoning than most people, he thinks that we have already begun the Mr. Justice Blackburn condemns as artificial. The next case scientific study of the law. At any rate he notices as now existing of Samuel s. Hawarth (3 Mer. 272), was decided by Lord Eldon, "a revival of the demand for a systematic education in law, apart and that eminent judge laid down the rule thus : * The rule is from professional training,” and finds that the Universities of that if a creditor without the consent of the surety gives time to Oxford, Cambridge, and London are taking active steps to rethe principal debtor, by so doing he discharges the surety, that is, constitute the study of the law as part of their course. Appaif time is given by virtue of a positive contract between the creditor rently these steps amount at the present time only to "resoluand the principal --not where the creditor is merely inactive.” tions,” for our author says, “it is not sufficient simply to take a The ground of his decision is stated to be, “ that the creditor by resolution to teach law in this way," i.e., scientifically. * Experience 80 giring time to the principal has put it out of the power of the shows," he adds, “ that to establish a study on this footing we must surety to consider whether he will have recourse to his remedy have books and teachers specially suited for the purpose. At against the principal or not, and because he, in fact, cannot have present of the first we have scarcely any." the same remedy against the principal as he would have had under We are disposed to regret that, appreciating as Mr. Justice the original contract." And further on he said, “ The creditor has MARKBY does the dearth of books adapted to the scientific teachno right, it is against the faith of his contract, to give time to the ing of the law, he was not more ambitious. Ha he given us a principal, even though manifestly for the benefit of the surety, complete manual on some branch of law, instead of a collection of without the consent of the surety." In the opinion of Mr. Justice essays, the arrangement of which is “obviously defective ” (PreBlackburn, this definition, however accurate, is based upon highly face page 1), dealing with law generally, he would have served technical reasoning.” If a principle is accurate in itself, it matters some useful purpose, more especially as his opinion is that “when little whether the reasoning upon which it is based be technical a work is written on English law which is complete in point of or artificial, unless it be sought to introduce some exception to it. arrangement, the long series of labours which are now just com

This was the business of Mr. Justice Blackbum in the case of mencing, will have been brought very nearly to a conclusion.” To Petty v. Cooke, and he has introduced an exception of some im- have forged the first link of the chain would have been something, portance, although what he says does not amount to a judicial but Mr. Justice Markby can hardly claim to have done thus much. decision. “It is clear,” said his Lordship, “ that a creditor who His little work is a collection of criticisms and suggestions, useful gives time to the principal debtor, without reserving his right and indeed valuable in their way, but of no worth as a classagainst the surety, discharges him; but that time given by a book. 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 encum. given 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 debtordid 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 P-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 loches 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

66

a

[ocr errors]

66

a

the inferior Courts to accept, until overruled by the Privy Council. The same error which has appeared to us to pervade Mr. Justice MARKBY'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 anthor'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. Nerertheless, 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 India: 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 leal. Constantly criticised by an able Bar, always closely watched by a jalous public, generally dealing with suitors who have the enerzy mind 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.

Having been associated with the legal profession at the Bar, and upon the Bench for forty years, and heving 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 sigued 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 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 I 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, I should gladly take, or join in, any steps for collecting or forwarding money or contributions. Yours truly, Dec. 8th, 1871.

EDWARD S. ALDERSON. 10, King's Bench-walk, Temple, E.C.

[Copy.] 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 liter:lly on fire, the atmosph itself burning with an intensity compared with which the combustion of ordinary fuel seemed harmless.

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 over, board 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 erpenses 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, che loss on these goods and the freight of them are, like jettison, recoverable in general average.

PORT OF REFUGE EXPENSES AND PARTICULAR CHARGES. - When 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 dnes, 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 l'ictoria, 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 consequence" of removing it from the place where it was stowed for

If, on putting into a port of refuge, the ressel 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 arerage are borne by the respective underwriters, on ship, goods, or freight if the property is insured.

the voyage.

THE LAW TIMES.

Dec. 16, 1871.]

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 y. Empire Marine Insurance Company, L. Rep. 10. 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, like bottomry premium, on all the disbursements to pay which the sale is resorted to. (Stevenson Average, 15.) 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 is apportioned in a similar manner. Commission on advances by an 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. 163.)

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 xpenses fall upon the shipowner as petty average.” (Stevens, n Average, 23.)

(To be continued).

a

[ocr errors]

66

66

Or no

[ocr errors]

Or no

ܪ

all knowledge of these subjects we are indebted to Gaius. Know-
ledge or ignorance of Gaius means then knowledge or ignorance
of Roman Law in its old form, and as it was before it was
thoroughly overlaid by a a foreign element. An edition
of Gaius, brought out by a good classic and a sound
Roman lawyer must evidently be most interesting to historians
and jurists; and if, in addition to the above qualifications, the
editor had made himself acquainted with our own Corpus Juris,
and had compared the two systems, both so very technical and
exclusive, and their mode of expansion presenting such remarkable
resemblances, his work would possess, in addition to mere specula-
tive interest, very great intrinsic value. Such an attempt has
been made in the book before us: (Elements of Roman Law, by
Gaius, with a Translation and Commentary. By Edward Poste, M.A.,
Barrister-at-Law and Fellow of Oriel College, Oxford.) This is
not the first appearance of Gaius in an English dress; but of its
predecessors, the one is merely a translation, the other is a trans-
sation plus a commentary-and errors. At the presnt day it is
considered the "correct thing” for both Bar and Bench to assume
to be conversant with the Roman law, and we hear much nonsense
spoken with regard to the comprehensiveness and flexibility of its
principles. Even the Inns of Court prescribe it as one of the
subjects at the general examination for call, in infinitesimal doses
truly, and of the impure mixture-Justinian; at the last examina-
tion Book I. tit. I. & II. (!!) and never more than one book, nor
ever a word of Gaius. Whether this assumption be in all cases
well founded we cannot stop to determine, but with the single
observation that those who pretend to expound Roman law,
whether orally or by writing, should avoid at least gross blunders,
we pass on to our main subject.

Mr. Poste's edition is well got up, and printed on good paper, as all the productions of the Clarendon Press are-not, however, without occasional typographical errors; but here we fear that positive praise must end. It is intended for “law students who desire to prepare themselves for the intelligent appreciation of the laws of their own country by an acquaintance with the only other system of legal conceptions known to the world, and partly for those not destined to the legal profession, who consider some initiation in the principles of jurisprudence as an essential part of a liberal education. This paragraph is an excellent illustration of the vagueness of Mr. Poste's style and conclusions. Are we to gather from it that there is no other “system of legal conceptions " but our own!

other system of ancient legal conceptions extant" but the Roman? Both which assertions are manifestly false.

other system, present or past, of legal conceptions," so perfect and scientific as the Roman? An assertion to the truth of which we might very justly demur.

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, jurisprudence—and their number is rapidly increasing--quotes or talks Austin, and runs to him for ideas when privato opes fail;

but they seldom comprehend him, and they do not always make acknowledgment. " Mr. Poste has acknowledged but not comprehended. The “Preliminary Definitions,” pp. 1 to 9, are simply a rechauffé 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 law of persons." These are Austin's words (vol. 2, pp. 705-6), 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 jura rerum and jura personarum,” though his translation of these expressions by “rights given by the law of things and rights given by the law of persons,” is not remarkably exact; and on pages 133 and 134, he distributes “the whole world of nights, 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 hy 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

LAW LIBRARY. 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 apon many of them. Temples, palaces, and pyramids still remain as prouts of their material prosperity; frescoes and hieroglyphics erist 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 Phænicia 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.

Or 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 giren 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 neeris 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 veli-rocht. 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, mancipinm ; upon the modes of conveyance by.

cipatio 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 odstipu. lotip or the contract literis ; upon the legis actiones, or indeed upon the history of actions at all, and the various forms of writs. For

[ocr errors]
[ocr errors]

owner

from every

succes801

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

who in d fault 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 Auistin 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 tne 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. 9. 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. servus pence 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 pence. 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.)

99

9

NOTES OF THE WEEK. on the part of two of its members separately, ever, had been paid his debt since the date of the

and that the claimant was therefore entitled adjudication.

to prove against the three estates and to receive Robertson Griffiths for the appellant.
COURT OF APPEAL IN CHANCERY.
dividends from them.

Babington for the respondent.
Thursday, Dec. 7.

Appeal accordingly dismissed with costs. Their LORDSHIPs held that the registrar's order
(Before the LORDS JUSTICES.)
Solicitors for the appellant, Reed, Phelps, and

was right, inasmuch as the petitioner was not a Silgwick.

secured creditor, the judge's order not being a Ex parte HONEY; Re JEFFERY.

security, as it did not purport to transfer any ex. Bankruptcy Act 1869, s. 37.Distinct contracts

Solicitors for the respondent, Linklaters, Hack- isting stock. Joint and separate estates.-Right of proof.

wood, and Addison. This was an appeal from a decision of Mr.

Re THE ACCIDENTAL DEATH INSURANCE COM. Registrar Pepys, sitting as the Chief Judge. On

Friday, Dec. 8.

PANY ; Ex parte CHAPPELL. the 1st June 1869, to secure a loan by one Hand.

Ex parte PORTER ; Re PORTER. Company-Winding-up-Contributory-Oriler for cock to W. S. Jeffery, a joint and several promis- Bankruptcy Act 1869, s. 6– Petition - Secured

payment of call-Suspension of order pending sory note was given to Handcock, signed by W. S.

creditorJudge's order.

appeal to House of Lords. Jeffery, J. R. Jeffery, J. and W.Jeffery and Co. (of

This was an application for the suspension of which firm W. S. Jeffery and J. R. Jeffery were

This was an appeal from an order of Mr. Regis. I proceedings against Chappell under an order for members), and by certain other persons who were

trar Spring Rice, adjudging the appellant a bank. the payment of calls in respect of certain shares not members of the firm. The firm having become rupt. The Mid Hants Railway Company being formerly held by Chappell in the above company, bankrupt, Handcock claimed to prove against the indebted to one Gilbert in the sum of 2801., Porter, on his paying into court 2s. in the pound on the joint estate of the firm and the separate estates of the solicitor of the company, guaranteed that cer- amount of the calls, pending an appeal to the W. S. Jeffery and J. R. Jeffery in respect of the tain stock not yet created in the company should House of Lords. The amount

of the calls er. amount advanced by him. The Registrar admitted be transferred to him by a given date. The trans.

ceeded 40001., and it appeared that the applicant the claim and the trustee appealed from his fer not having been made on the appointed day,

was totally unable to pay the amount, and that decision, contending that the decision was wrong

Gilbert procured a judge's order ordering the the liquidator of another company had agreed to on the construction of the 37th section of the stock to be transferred to him, and afterwards he accept 2s. in the pound in satisfaction of his claim. Bankruptcy Act 1869, which provides that if any presented a petition to the Court of Bankruptcy The Master of the Rolls had fixed Chappell on the bankrupt is at the date of the order of adjudication praying that Porter might be adjudged bankrupt. list of contributories, and on an appeal to the liable in respect of distinct contracts as member Porter now asked that the adjudication might be Lords Justices the decision of the Master of the of two or more distinct firms, or as a sole con.

set aside on the ground that Gilbert was a secured Rolls had been affirmed by James, L.J., Mellish, tractor, and also as member of a firm, the cir. creditor, and that he had not stated his security L.J., dissenting. Chappell accordingly was about cumstance that such firms are in whole or in part in his petition in accordance with the 6th section

to appeal to the House of Lords. composed of the same individuals, or that the sole of the Bankruptcy Act 1869, which provides that

Sir Richard Baggallay, Q.C. and Locock Webb contractor is also one of the joint contractors, the debt of the petitioning creditor must not be appeared for the applicant. shall not prevent proof in respect of such con.

a secured debt, unless the petitioner state in his Swanston, Q.C. and Graham Hastings, for the tracts, against the properties respectively liable petition that he will be ready to give up such secu, official liquidator, opposed the application. upon such contracts. rity for the benefit of the creditors in the event

Lord Justice James said that he must refuse Little, Q.C. and Winslow, for the appellant.

of the debtor being adjudicated a bankrupt, or De Gex, Q.C. and Thesiger, for the respondents, of the value of his security, in which latter case unless the petitioner is willing to give an estimate the application unless the applicant brought the

whole amount into court or gave security for it. were not called upon. he may be admitted as a petitioning creditor to

Lord Justice MELLISH concurred. Their LORDSHIPS were of opinion that there the extent of the balance of the debt due to him, Solicitors for the applicant, Chappell and Son. were here distinct contracts within the meaning of after deducting the value so estimated. The stock Solicitors for the official liquidator, Deane and the 37th section on the part of the firm jointly, and had never been transferred to Gilbert, who, how. Chubb.

Dec. 16, 1871.)
THE LAW TIMES.

ROLLS COURT.

power to dispose of three-fourths of the property, other than an eldest son. The settlement contained Friday, Dec. 8.

the remaining one-fourth was subject to the life a proviso that in case “the said James Haughton SMITH v. FARRAH.

estate of the widow, who professed to sell it as Langston shall depart this life in the lifetime of

mortgagee. If it had been a very gross case of the said Julia Moreton, leaving an only child, and Injunction-Imitation of name- --Repudiation of improper sale, this would not be sufficient; but as such child shall be a son, then in trust for such authority-Costs.

the plaintiffs fail to show this, they must pay the only child. If there shall not be any child who This Bill was filed by the well-known firm of W. H. costs of this part of the suit, but there must be a shall acquire a vested interest, then in trust for Smith and Son, publishers and news and advertis. decree for administration.

the executors, administrators, and assigns of the ing agents, of the Strand, to restrain the publica- Solicitors: Nicol and Son; Sole, Turner, and said James Haughton Langston. If there should tion of “Smith and Co.'s Railway Time Tables Turner; Arden A. Shapland.

be only one child of the marriage (other than an and Merchants' and Manufacturers' Directory,

eldest son), then such one child shall not have printed by Messrs. Gregory, Strickland, and Co.,

Saturday, Dec. 9.

or be entitled to any part of the trust-funds." of Clement's-lane, and published by Mr. F. Farrah,

Re LANDON.

There were two children of the marriage-the deof 282, Strand. It having come to the knowledge WillConstruction-Trustees' discretion. fendant, Lady Ducie, who was married in 1849, and of the plaintiffs that some of their clients had WILLIAM LANDON, by his will, dated 10th Aug. a son who died in 1850, in the ninth year of his age. given orders for the insertion of advertisements 1870, directed his trustees to raise a sum of 10001., Mr. Langston died 'in 1863, and Lady Julia therein, believing

it to be the plaintiffs' publica- and expend the same in releasing his son Charles Langston in 1869. Under these circumstances, the tion, a letter was written in July 1870, by Richard Landon from his liabilities, provided he personal representative of Mr. Langston claimed plaintiffs' solicitors to the defendant, Farrah, (the testator) should not effect that object in his to be entitled to the trust-fund, as part of his inquiring whether it was published by his authority, lifetime. The testator died on the 13th Sept. personal estate. who replied that he believed he was to be the 1870. C. R. Landon was adjudicated bankrupt in Willcock, Q. C. and W. W. Karslake appeared for publisher, but that his name appeared on it with 1863.

the trustees of the settlement. out his authority. Upon the number for August The trustees had raised the sum of 10001., and Kay, Q. C. and Speed for Lord and Lady Ducie. appearing in the same form, plaintiffs, solicitors paid the same into court, and this was a petition Eddis, Q. C. and Kekewich for Mr. Langston's again wrote to Farrah calling his attention thereto, by the assignees appointed under the bankruptcy executors. and the answer obtained was that the matter stood for a distribution of the fund in court to the parties The VICE-CHANCELLOR was of opinion that as it did, that it was not yet settled whether he entitled.

Lady Ducie was entitled to the whole amount of should publish it The bill was then filed, and an Sir R. Baggallay, Q.C. and Horton Smith for the trust-fund, and to the dividends due thereon injunction obtained ex parte, and a proposal was the petitioners.

since the death of her mother, and ordered the made to Farrah that if he would pay the costs up Wingfield for creditors subsequent to the date transfer and payment accordingly. to that time, and undertake not to sell any more of the bankruptcy and prior to the death of the Solicitors for all parties, Harrison, Finch, and copies of the publication, the suit should be dis- testator.

Jennings. continued. He refused to pay the costs, although Beale for a creditor subsequent to the death of willing to give any undertaking required, and the testator, part of his debt being for a suit of ATTORNEY-GENERAL v. CLEMENTS. issued a circular to the trade, with a warning mourning supplied to c. R. Landon, to enable SettlementTrust for wife in default of children, against selling any copy with his name (which had him to attend the funeral of testator.

Death of husband-Possibility of posthumous been used without his authority) appearing as Alfred Baily for C. R. Landon, contended that child-Application premature. publisher.

the object of the testator was that his trustees PETITION. By a decree made on the 25th April The Solicitor-General (Jessel Q. C.) and Bedwell should have a discretion so to dispose of this sum 1871 (reported 24 L. T. Rep. N. S. 384) it was for the plaintiffs.

of 10001.as to free him from all his liabilities, those ordered that Allen Clements (the petitioner's hus. Higgins for the defendant Farrah.

incurred subsequent to his father's death, as well band) having incurred a forfeiture under the Lord ROMILLY said that the complaint of the

as those debts owing at that time, and relied upon Marriage Acts, certain funds to which Mrs. defendant that the suit had been hurried on with Joel v. Mills (3 L. T. Rep. N. S. 882.)

Clements was entitled, should be paid into court out giving him an opportunity of explaining his

Southgate, Q. C. and Wm. Barber appeared for and settled in trust for Mrs. Clements for life, for position, was not justified. When inquiries are the trustees.

her separate use, without power of anticipation, made of him he does not repudiate the publication,

Lord ROMILLY said that in Joel v. Mills there and after her decease in trust for such of her but merely says it is not yet settled whether he is

was a power for the executors to raise a sum of children as should attain the age of twenty-one to publish it. When a publication, bearing a

money, and at their discretion to pay the debts of or marry, and in case there should be no such well-known name was offered to him, it was his his son. In the present case a sum

of 10001. is to be child, and Mrs. Clements should survive her hus. duty, before undertaking to publish it, to inquire applied at once in relieving him of his difficulties band, then in trust for her executors, adminis. whether it was issued by their authority ; but he i not in payment of debts incurred after his father's trators, and assigns. The parties were married on does nothing of the kind; he agrees to do certain death, and that the creditors at the time of testa. the 7th Nov. 1870. On the 1st June 1871 Mrs. things to ascertain whether the publication is tor's death only were entitled to be paid out of Clements gave birth to a stillborn child, and on likely to succeed. The defendant must pay all this fund, including also the amount due for the the 12th June following, her husband, Allen Clethe costs.

suit of mourning. If the debts had exceeded the ments, died of smallpox. Mrs. Clements, having Solicitors: Rogerson and Ford; J. B. Lay.

fund, the trustees would have had a discretion to attained the age of twenty-one on the 10th Aug.

endeavour to get the creditors to take a composi. 1871, now applied that the fund in court might be MARTIN V. MARTIN,

tion. The debts and costs must be paid out of the paid to her, as under the circumstances she was Trustee and cestui que trust-Mortgagee and

fund, and the balance forms part of the testator's entitled absolutely to it.
estate.

S. Hunter appeared in support of the petition. mortgagor-Improper sale.

Solicitors: Flux and Co.; J. Mote; Richardson The VICE-CHANCELLOR was of opinion that the John MARTIN, by his will, devised an orchard in and Sadler.

application was premature, and refused to make High-street, Sutton, to trustees upon trust for

the order. his wife, Ann Martin, for life, and on her death

Dec. 9 and 11.

Solicitor, William Haigh, junior. to sell the same and divide the proceeds equally ATTORNEY.GENERAL v. FLETCHER. amongst his four children, John, William, Charles, Will-Construction-Joint tenancy or

COURT OF BANKRUPTCY. and Thomas. John Martin, the son, died in 1859,

tenancy in common. subsequent to the death of the testator, and by his ANN FLETCHER, by her will dated the 5th April

Monday, Dec. 11th. will gave a life interest in his share of the orchard 1830, after bequeathing the income of all sums of

(Before the CHIEF JUDGE.) to his wife, with remainder to his brothers William, stock and parts or shares of sums of stock in

Ex parte CAULWELL; Re CURRIE. Charles, and Thomas, or the survivor of them. which she had any disposable interest, gave and be. Order and disposition-Policy of insuranceWilliam Martin mortgaged his reversionary inte- queathed the principal thereof unto such of them,

Notice to offices. rest in the orchard to his mother, to secure certain the nephews and nieces of her late husband, and the This was an application by the assignee of a advances amounting to 2601., and died in 1866, children of his deceased niece, Ann Clarke, therein. bankrupt's estate under the former Act, for an having, by his will, appointed his widow and after named, as should be living at the time of her order on the London and Westminster Bank to John Morgan, the plaintiffs in this suit, his decease, to be divided between and among them pay to him as such assignee, two sums of erecutors and devisees. The life interest of per stirpes equally, and not per capita, the chil. 5001. each, being the amount of two policies the widow of John Martin was subsequently dren of the said Ann Clarke taking between them of assurance upon the bankrupt's life, and bought by Charles Martin and Thomas Martin. only the equal share to which the said Ann Clarke which had been paid into the bank by the On the 8th May 1868 Ann Martin, the widow of would have been entitled if named in that bequest assurance offices to await the decision of the the testator, being tenant for life of the property, instead of her children, and living at the time of court. The bankrupt, by his marriago setand mortgagee, with power of sale, of one-fourth decease of testatrix. Upon the petition of one of tlement, executed in 1869, covenanted to insure of the reversion, and Charles Martin and Thomas the children of Ann Clarke for payment of the his life for a sum of not less than 20001. This Martin being entitled to the remaining three share to which she was entitled under the said covenant he had not performed, but by a memofourths of the reversion, a deed was executed by will out of the fund which had been paid into randum dated Dec. 1869, after the marriage, he these parties, by which one moiety of the orchard court, the question arose whether the children of agreed to deposit with the trustees of his marriage was conveyed to Charles Martin, and the other Ann Clarke took as tepants in common, or as joint settlement the two policies in question. In purmoiety to Thomas Martin for the sum of 500l. In tenants, several of the children having died since suance of this memorandum, the two policies Dec. 1869 the plaintiffs were informed of the sale, the death of testatrix.

were deposited with the trustee's solicitors, but and in March 1870 they filed this bill for a decree

Horace Davey, for the petitioner, argued that no notice was given to the offices which had issued for the administration of the estate of the testator, the effect of the words “between them was to the policies either of the covenant in the settle. and to set aside this sale. make them joint tenants.

ment, or of the deposit, until after the bank. Fry, Q.C. and Speed, for the plaintiffs, relying Lewin for respondent in the same interest. ruptcy. upon an agreement of 29th Feb. 1868, by which

Badcock and Everitt, for other respondents, De Gex, Q.C. for the assignee, contended that the trustees agreed to sell the property to Charles contended, on the anthority of Lashbrook v. Cock the policies were, at the time of the bankruptcy, Martin and Thomas Martin, argued it was a sale (2 Mer. 70), that they were tenants in common. in the order and disposition of the bankrupt with by trustees at a gross undervalue.

Lord ROMILLY was of opinion that Ann Clarke's the consent of the true owners, the trustees of the Sir R. Baggallay, Q.C. and Cozens Hardy, for children took as tenants in common.

marriage settlement. the trustees, contended that as to the one-fourth

Rorburgh, Q.C. and R. Griffiths appeared for the

Solicitors : Ellis and Ellis; Vizard, Crowder to which the estate of Wm. Martin was entitled and Co.; Lewin and Co.

trustees of the settlement. The assignee having subject to the mortgage thereon, it was a sale by

taken no steps to establish his claim by giving a mortgagee under a power of sale, one-fourth of

V.C. BACON'S COURT.

notice to the offices, the claim of the trustees, the purchase money being expressed to be paid to

who had given notice, must prevail, although that

Nov. 24 and Dec. 7. Ann Martin as mortgagee

notice was given after the bankruptcy : (Barr's Roxburgh, Q.C. and Cole, for Charles Martin and

CARTER V. EARL OF DUCIE.

Trust, 1 K. & J. 129.) Thomas Martin.

Settlement-Construction.

De Gex in reply.
W. W. Karslake for other parties.

UPON the marriage of James Haughton Langston The CHIEF JUDGE.-The law upon this subject Lord Romilly said that Ann Martin, and her with Lady Julia Moreton a sum of 35,0001. was is perfectly clear. At the date of the bankruptcy sons Charles Martin and Thomas Martin, had full 'settled in trust for the children of the marriage' the name of the bankrupt appeared in the books

:

[ocr errors]
[ocr errors]
[ocr errors]
« EelmineJätka »