"themselves to the good sense both of lawyers and
"the public" (5): that the outer door should not be a
protection against civil process: that voluntary agree-
ments should be equally binding in equity as those
for consideration: that the rule as to natural alle-
giance, (not correctly represented as depending merely
on the place of birth) (6), “should give way; and be
“accommodated to the present views and circum-
"stances of society:" that principle is to be violated
under the colour of expedience by protecting the foul
effusion of immorality and blasphemy; that “the con-
"taminated character of the libel should form no im-

66

pediment;" and the vicious object is to be fostered
and promoted in a Court of Equity and Conscience:
that" adherence to authority should be confined to
"matters respecting real property and questions of
"technical reasoning; and departed from on questions
"of evidence, practice and personal contract or obli-
gation; and where confessedly repugnant to the real

(5) Mr. Fearne's Book will of course be involved in the general
wreck; and the Professors under the new system may rest on the
consolation, how little reason they have to apprehend, that the
simplicity of their regenerated science will be perplexed, and the
serenity of their studies ruffled, by another such work.

(6) The place of birth, if it was the effect of accident or ne
cessity, had no influence at Common Law; as in the well known
instance of children of Embassadors; and that mentioned by Lord
Coke, 7 Rep. 6. 18, Calvin's Case: probably shipwreck or capture
in the course of a voyage would have been considered as falling
within the principle; and this relaxation of the general law has
beep extended by Stat. 25 Edw. 3. st. 2, to children of fathers
and mothers at the time of the birth in allegiance to the King;
the mother having passed the sea by license of her husband,
(Bacon v. Bacon, Cro. Ch. 601); and by Stat. 7 Ann. c. 5. 10 Ann.
c. 5. 4 Geo. 2. c. 21; and 13 Geo. 3. c. 21, to children and grand-
children, whose fathers or paternal grand-fathers were natural-
born subjects.

purposes of justice; and no material inconvenience "would result from a judicial correction of it;” admitting "the caution, with which this principle is to " be adopted;" or rather this arbitrary discretion to be exercised.

WITH Much more of a similar character the Author disapproves the right of Appeal; the protection afforded to infants; the rule rejecting the evidence of Husband and Wife for and against each other; the effect of the Law of Evidence, " especially in criminal "cases, where the crime has been substantially proved, "to allow a criminal upon a mere point of form to ་ escape the punishment, which regularly ought to fol"low;" the doctrine of equitable waste; and the claim of a married woman on her own property, which her husband can obtain only in equity; charging the Judges in the same breath with departure from established legal rules and too strict an adherence to precedent. He asserts, that "it is not fit, that every man should "have the right of settling his property according to "what he conceives the state of his family to require:

at least, that the powers of enjoyment, particularly "of allowing maintenance, of sale, and of appointing

new trustees, ought in a considerable degree to be "defined by the Legislature; that perhaps specific legislative forms of settlement should be prescribed; " and, if trustees are necessary, public officers ought "to be appointed for that purpose:" strong and galling fetters, to be riveted at the commencement of the liberal era upon the enjoyment and privilege of property in a Country, distinguished by the freedom of her institutions. The Author further recommends giving facility to the dissolution of marriage; and the admission of hearsay evidence generally.

UNWILLING to believe, that such opinions can have a general, or maintain a permanent, influence, I do not regret my time and exertions; with the hope, approaching confidence, that, as the Digest, when discovered at Amalfi (7), had effect in dispelling the ignorance of the darker ages, the valuable materials here collected will at a future, more auspicious, period be available to clear the mists, in which the affectation of a vain and false philosophy has involved us; aid the revival of learning; and contribute to restore, uphold and promote, true science upon principles sound and unerring, immutable and eternal.

HAVING endeavoured to take every opportunity of deriving advantage from fair and candid observation, I find it necessary to caution the reader, the student especially, against the hasty adoption of superficial and exuberant criticism: the confident critick not always proving the most competent judge: on the contrary the error in some instances consisting in the criticism alone: the effect perhaps of failure in minute attention, ample inquiry, just discrimination, and correct judgment: qualities essential to the due discharge of that office; and rarely found in union with those, which are the usual incidents, or inducements, to its inconsiderate, or less excusable assumption.

I AVAIL myself of this final address by requesting attention to a recent decision; holding an inn-keeper liable for property, lost in his house under circumstances, that appear to constitute a case of extreme

(7) This town, deriving some celebrity from the incident here mentioned, claims further distinction from the discovery of the Compass by Gola at the close of the thirteenth century. ⠀

severity; and neither consistent with principle, nor supported by authority. The case, Kent v. Shuckard, as it appears in 2 Barn. & Adol. 803, states, that the Action was to recover the value of a bag, containing bank-notes, lost by the plaintiff during the time he resided as a guest in the inn; and that the following facts appeared upon the trial. The plaintiff and his wife, with a young lady, Miss S. arrived at the defendant's hotel, (the Old Ship, at Brighton,), in the evening of the 30th of December, 1830; and took a sitting-room and two bed-rooms; so situated that, the door of the sitting-room being open, a person there could see the entrances into both the bed-rooms. On the following day Mrs. Kent went into the bedroom; and laid a reticle, which contained the money, upon her bed; and afterwards returned into the sittingroom; leaving the door between that and the bedroom open. After she had remained in the sittingroom about five minutes, she sent Miss S. for the reticle; and it was not to be found (8). Mr. Justice Gaselee, reserved the point, made at the trial for the defendant, that the inn-keeper was responsible for goods and chattels only, not money; and directed the jury to find for the plaintiff; if they thought the money was lost or taken out of the inn. The verdict was for

(8) The amount of the loss is not stated. The account in the newspapers was, that the lady soon after her arrival at the inn went out to walk; leaving a reticle, containing sixty sovereigns, on the bed. Neither is it stated, nor easy to conceive, how the case was proved. The remark, that the wife could not prove it, would be superfluous; had not a work, that has received some notice in the preceding pages, recommended an alteration of the law, that would open a copious source of undue influence and domestic discord, or partial testimony. If another person observed this lady's inadvertence without giving her an opportunity of correcting it, that seems a very singular and important circumstance.

the plaintiff; and a motion in the Court of King's Bench for liberty to enter a Nonsuit upon the distinction between goods and money was refused.

THE general rule, upon which this Action is founded, stands upon a clear and sound principle: the security of the publick: especially against concert between the inn-keeper and robber, too frequent in other countries. To this rule there is an exception, upon a principle no less sound and clear; that, if the loss arises by the default of the guest, the inn-keeper shall not be charged. Lord Coke, 3 Rep. 33, Calye's Case, distinctly puts both the rule and the exception upon the default; adopting the word in the Writ," pro defectu

hospitator' &c. ;" and states two instances, in which the inn-keeper shall not be charged: “if the guest's "servant, or he, who comes with him, or he, whom "he desires to be lodged with him," (marking the distinction, "if the inn-keeper appoints one to lodge "with him," "steals or carries away his goods;" and, "if the inn-keeper requires his guest, that he will put his goods in such a chamber under lock and key; and then he will warrant them; otherwise not: "for the fault is in the guest;" having such companion or servant in the one case; and not complying with the terms in the other: yet in the former instance there might be no wilful or moral default by the guest; who might be deceived under the strongest reasons for a good opinion of his companion or servant.

In this instance there could not be a doubt of the default; and, unless Lord Coke's clear and convincing reasoning is to be " swept away," as "antiquated doc"trine," the only question was upon the application of the exception to these circumstances: but that ap