« ElőzőTovább »
of fishings in the South Esk was deprived of one of the fishingstations let and warranted to him by the landlord's erecting a quay at the spot. The tenant sublet the fishing at a considerable rise; but, notwithstanding, the majority of the judges were of opinion that damage had been sustained, but apparently thought that its amount could not be ascertained. The result was that the Court of Session refused a suspension of a threatened charge for the rent with costs. So far as we can see from Lord Eldon's account of the opinions of the judges (for there is no report in the Court of Session), this judgment proceeded on no principles peculiar to the law of leases, but on the ground that damage had not been sustained, or that if sustained it was not ascertainable or not appreciable. The House of Lords remitted back to have the amount of damage ascertained; and the Lord Chancellor's opinion is still instructive. He says, "It was argued to-day that even though the appellant had lost one fishing-station, yet if he caught as many fish. as before at the remaining stations, then he had sustained no damage. But if he contracted for ten fishing-stations, what right would the respondent have to reduce them to nine? In this country, when we get at a case of damage, we never hear of giving judgment against a party who sustained the damage. We say that when you arrive at the point of damage, by fixing whether liability attaches in the particular case, you may settle the amount to be given in one of two ways; if you can get persons of skill in such matters to give a distinct opinion thereon, the amount may be fixed in that way; if you cannot obtain this, then nominal damages are given."
The judgment bears: "That if the acts of the respondent caused any damages to the tenant of the fishings demised, the amount of such damages ought to be paid by the respondent; and further, find that some damages were sustained by the tenant:" and therefore the cause was remitted to the Court of Session to ascertain the amount of damages according to its practice.
Mr. Mayne lays down the broad rule, that "every infringement of a right involves a claim to nominal damages, though all actual damages is disproved" (p. 6). In a subsequent note, Mr. Lumley Smith points out a qualification of this general rule by later cases, viz., “that there must be some damage, otherwise there is no cause of action." In our law, where the action of declarator settles many questions that in England are determined by less direct forms of procedure, such questions have not been very often discussed; but probably the statements of Mr. Lumley Smith and Mr. Mayne may be found to be reconcilable to one another on the principles of both Scotch and English law. They are both defective, though not incorrect, and we apprehend that the true and full statement of the law, which corresponds with the principles stated by Lord Eldon in Hall v. Ross, is given by Sir W. Erle in one of the cases referred to by Mr. L. Smith. That eminent judge says, in Smith v. Thackerah,
L. R. 1 C. P. 564; 35 L. J. C. P. 276: "Where there is an actionable wrong, such, for instance, as a person stepping on another man's land, or a returning officer refusing a vote tendered to him, or an interference with the flow of water to which a man is entitled, it is not necessary to prove pecuniary damage. But where an adjoining owner of land does a lawful act of ownership on his land, which is no wrong of itself, it may become actionable if appreciable damage is done to his neighbour." And there follow a number of illustrations of this rule, which are very instructive, and all show the principle of the decision in Hall v. Ross, where the landlord was bound by the terms of his contract to give the tenant possession of the fishings," in so far as the different stations have hitherto been fished or occupied." See also Embrey v. Owen, 6 Exch. 353.
We have digressed from our proper subject-Mr. Smith's edition of Mayne on Damages. We shall make amends by letting Mr. Smith speak for himself. We quote a useful passage which he has added to Chapter X. ("Carriers"):—
"ON ACTIONS AGAINST ELECTRIC TELEGRAPH COMPANIES.
“The character in which Electric Telegraph Companies receive and undertake to forward messages, and their responsibility for loss occasioned by error or delay in transmission, have of late years given rise to much discussion, especially in America, where most conflicting opinions have been expressed. In England the Court of Queen's Bench, after considering the American cases which were brought to their notice, have refused to recognize any analogy between the consignment of goods through a carrier and the transmission of a telegram. They accordingly held that the message having been sent by the sender on his own account, and not as agent for the person to whom it was addressed, there was no privity between the latter and the company, and that he could not be said to have any property in the message any more than he would have had if it had been sent orally by the servant of the sender, and that the obligation of the company to use due care and skill in transmission was one arising entirely out of the contract between them and the sender (Playford v. United Kingdom Electric Telegraph Co. L. R. 4 Q. B. 706; 38 L. J. Q. B. 249). The telegraph companies in general limit their responsibility by special conditions, which by some of their incorporating acts must be reasonable. A condition that the company would not be responsible for unrepeated messages has been held reasonable (MacAndrew v. Electric Telegraph Co., 17 C. B. 3; 25 L. J. C. P. 26). Under the Telegraph Acts 1868, 1869 (31 & 32 Vict. c. 110, and 32 & 33 Vict. c. 73), telegraphic messages are now carried by the Postmaster General, who is not a common carrier, nor responsible for the neglect or misconduct of his inferior officers. Nor is the sender responsible for mistakes made in transmission, the Post Office authorities being only his agents to transmit the message in the terms in which he delivered it (Henkel v. Pape, L. R. 6 Ex. 7; 40 L. J. Ex. 15).
1 Lane v. Cotton, 1 L. Raym. 646; Whitfield v. Lord Despencer, 2 Comp. 754. The principal American cases will be found referred to in chap. 30 of Shearman and Redfield On the Law of Negligence (the authors of which work still maintain the opinion that telegraph companies are common carriers), and in a note to the 4th edition of Sedgwick on Damages, p. 413 (1868). It would seem that the same rule respecting remoteness of damage should be applied as in the case of other contracts; and in Landsberger v. Magnetic Telegraph Co., 32 Barb. 530, the Supreme Court of New York acted upon the rule laid down in Hadley v. Baxendale, and Griffin v. Colver, 16 N. Y. 494. So Stevenson v. Montreal Tele
graph Co., 16 Upp. Canada, Q. B. 530.
Outlines of Roman Law, consisting chiefly of an Analysis and Summary of the Institutes. For the use of Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's Inn, Barrister-at-Law. New Edition. London: Stevens and Sons, 119 Chancery Lane.
THE excuse for the existence of books such as this is that "the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations." So Gibbon wrote in the motto which Mr. Greene has put on the title-page of his elegant and convenient manual. It is a student's book, and it is not without faults; but it is notwithstanding one of the most readable manuals of legal science which we have seen. The author has not penetrated deeply into the learning of German law schools; he refers to the writings of none of their jurists except Savigny, and does not betray much acquaintance with their language or their controversies. The perspicuity and plainness of his style is perhaps a consequence of the author's avoidance of German profundities and complexities. He certainly betrays no ignorance of the Roman jurists, for his little book is saturated with the spirit of Gaius and Ulpian and Paullus. It is this, we think, which gives it its chief attraction and its chief value. It reflects the thoughts of these masters of jurisprudence, not always perhaps with the deepest critical appreciation, but yet with the true apprehension that is derived only from the honest study of the original texts, with such light as may be borrowed from the profound and lucid interpretation of Savigny, the elegant criticism of Maine, or the ponderous definitions of Austin. Mr. Greene has succeeded in producing a book which you can read in an evening, and which will give you a better idea of the jurisprudence of Justinian than many lectures.
As a specimen of Mr. Greene's power of compressed statement, we quote his summary of "some of the grounds on which the permanent value of the Roman law has been said to rest":—
"1. Its great wealth in leading principles, and their logical application to daily life; the exactness of its terms, its symmetry, and close adherence to fundamental rules. 2. The scientific method and general literary excellence of the jurists. 3. From the comparative smallness of its volume, from its mastery of principles, their consistency (elegantia) and clearness of arrangement, there is no system of positive law which is so capable of being comprehensively grasped as a whole. 4. It illustrates in a remarkable manner the general history of law, and is valuable for purposes of contrast and comparison. 5. It is the key to international law, to the civil law of nearly all Europe and of a large part of America. Even in England, much of the Ecclesiastical Law and Equity, and some portion of the Common Law (particularly the mercantile), is derived from the Roman, either immediately or through the Canon Law. 6. It affords a model of legal thought and principles to which English law is steadily and inevitably tending. 7. It is the solvent of feudal custom and barbarous usage. 8. It furnishes valuable instruction in the interpretation and application of express written rules. 9. It is rapidly becoming the lingua
franca of universal jurisprudence and diplomacy. 10. It is a most important element in the general mass of human knowledge. 11. Although an acquaintance with Roman law may not be necessary to ensure success as a practitioner, it is almost indispensable for the judge, the jurist, the diplomatist, and the draftsman. 12. It is a collection of the rational opinions and accumulated experience of the wisest lawyers and the ablest intellects of the world, which may be referred to as a scientific--although not binding-authority, when the municipal laws are silent or obscure. Servatur ubique jus Romanum non ratione imperii, sed imperio rationis."
The Institutes of English Public Law: embracing an Outline of General Jurisprudence; The Development of the British Constitution; Public International Law, and the Public Municipal Law of England. By DAVID NASMITH, Esq., LL.B. of the Middle Temple, Barrister-at-Law, &c. London: Butterworths, 7 Fleet Street.
WE must confess to having been led by the title-page and preface of this little work to expect more than the author intended to give. When a work is entitled Institutes,' we in Scotland are accustomed to expect something combining depth of research with originality and breadth of view, and aiming at least at becoming an authority in that branch of law of which it treats. Accordingly, we are not inclined to concede the name to what is something between an elementary exposition of an interesting and popular branch of the law and a class text-book. Mr. Nasmith cannot certainly claim much originality for his work; but he has laid before his readers, with admirable impartiality, the opinion of authoritative writers on the subjects which he touches. In subjects such as the origin of law, general jurisprudence, and international law, much is necessarily matter of speculation; and Mr. Nasmith may perhaps be excused for not attempting to decide between Hobbes and Austin, Wheaton and Phillimore, and other authors from whom he has given plentiful extracts. It did occur to us, however, that his work should have awaited the issue of the late Irish University Bill, and that its appearance before the success of that Bill was assured was somewhat premature. A work better suited as a text-book for that University, as it was to have been, cannot well be imagined, and there is every appearance that it was meant to meet the demand which must have arisen among Irish students, had that now famous provision, that "no disqualification shall attach to any candidate in any examination by reason of his adopting in modern history, moral or mental philosophy, law, medicine, or any other branch of learning, any particular theory in preference to any other received theory," passed into law. The only improvement that we can suggest is that parts of it should have been printed in parallel columns.
When, however, we look at the work as a crammer's text-book, or as a book of reference for any one desirous of taking a cursory glance at what leading writers have said on any of the important subjects treated, it has many merits. The subjects dealt with are
The Origin of Law and General Jurisprudence: The Growth of British Constitutional Law: International Law: and English Public Municipal Law. The arrangement is undoubtedly good and easy of reference, and it brings within a small scope, on a most intelligible plan, much useful information, valuable both to the general reader and to the student preparing for examination.
Lord Selborne's Judicature Bill.-This is peculiarly a lawyer's measure one in which the public generally will not take a deep interest, but which for that very reason is perhaps more likely to become law. Lord Selborne has been fortunate in having entered into the labours of others, and in having adopted their suggestions, and particularly in having known how to avail himself of the suggestions of Lord Chief Justice Cockburn. Many of the views which the Lord Chief Justice embodied in his famous letter to Lord Hatherley upon the Law Courts' Bill of 1870, are adopted in the new measure of Lord Selborne. The Judicature Commissioners laid down two grand principles of reform, which are carried out in this Bill, viz., the abolition of the distinction between law and equity in the administration of justice, and the combination in a single court of the various functions and jurisdictions of the Supreme Courts of Common Law and Equity.
By section 26, various important changes are made, mainly in favour of the law and practice of the Courts of Equity. For example, choses in action and debts are made assignable; and the rule which obtains in the Admiralty Court as to equal apportionment of damages in collisions where both parties are in fault, is to be abrogated in favour of that of the common law-a very important matter, as to which probably the opposite course would be desirable. The Bill proposes, we think unwisely, to adopt the rule of the English common law in place of that which prevails according to the general maritime law, which has been recognised in Scotland, both by the Court of Session and House of Lords (Le Nere v. Hay, 2 S. Ap. 395; Boettcher v. Carron Co., Jan. 17, 1861, 23 D. 328), and which the Court of Admiralty has been applying in the majority of cases which have occurred in England.
The Supreme Court is to consist of two divisions. The first, Her Majesty's High Court of Justice, is to have both original and appellate jurisdiction. The other is purely the Court of Appellate. The High Court of Justice is merely a reconstitution of the existing inferior courts, and is changed chiefly in name. The Privy Council is to retain its appellate jurisdiction for the sake of the colonies, VOL. XVII. NO. CXCVI.-APRIL 1873.