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A REPUBLICATION OF SUCH CASES
ENGLISH COURTS OF COMMON LAW AND EQUITY,
FROM THE YEAR 1785,
AS ARE STILL OF PRACTICAL UTILITI
SIR FREDERICK POLLOCK, BART., LLD.,
OORPUS PROFESSOR OP JURISPRUDENCE IN THE UNIVERSITY OF OXFORD.
1 MOORE, P. C.—1 MYLNE & CRAIG-4 ADOLPHUS & ELLIS-
6 NEVILE & MANNING—3 BINGHAM, N. C.-3 SCOTT-3
PREFACE TO VOLUME XLIII.
Several cases of notable and various interest will be found in the present volume. Mayor of Lyons v. East India Co., p. 27, is long in proportion to any utility it is likely to have for the practical business of most readers. But it is of such importance for the constitutional law and history of British India that we feel bound to preserve it with only slight retrenchment of details.
Roux v. Salvador, p. 638, is a leading case in the law of marine insurance, and R. v. Greenhill, p. 440, on the nature and grounds of a father's rights as natural guardian of his children. This was a case much honoured by the late Mr. Justice Willes. Vaughan v. Menlove, r. 711, finally settled the rule of what Chief Justice Holmes of Massachusetts has aptly called “the external standard”—that due care and caution do not consist in acting to the best of one's own judgment, but in acting with not less judgment than a man of ordinary sense and prudence may be expected to shew. The reasonable man of the law is a man of fair average understanding as well as good intentions. Malachy v. Soper, p. 691, is an early and instructive example in the line of authorities which have now distinguished slander of title, as an action in the nature of deceit, from defamation. Recent development of actions for fraudulent imitation of trade names and “unfair competition " generally has increased the importance of those authorities, if anything. As to defamation proper, we have before now had occasion to remark on the late dates at which various points came to be clearly settled. Lay v. Lawson, p. 487, shews a good deal of vagueness existing in 1836 about the differences, now elementary, between the defences of justification, privilege, and fair comment.
Trower v. Chadwick, p. 659, Chadwick v. Trower, in Ex. Ch., p. 676, are not free from difficulty as to the total result of the two judgments. The judgment of the Common Pleas on the first count of the declaration was left, in form, untouched by the disallowance of the second count in the Exchequer Chamber. But the reasoning of the Exchequer Chamber seems to shew that the first count, though probably sufficient, was inartificially framed so far as it introduced the question of the defendant's acts being done with precaution or otherwise. If the plaintiffs had a right of support for their building at all, it was an absolute right with which the defendant interfered at his peril. It seems to have been formerly the practice to allege negligence in actions of this kind, but it is sufficient to refer to Dalton v. Angus, 6 App. Ca. 740, to see that this was founded on a misconception of the nature of the right claimed.
In Squire v. Campbell, at p. 248, it will be seen that Lord Cottenham thought the statue of King George III. in Cockspur Street a great benefit to the public. It is open to consideration whether this was more than an extra-judicial opinion. There is a rather hard passage in Mr. G. Meredith's “One of our Conquerors," from which it may be inferred that he does not agree with Lord Cottenham.
Some persons think the reporters of the present day are less accurate than their predecessors. Our impression is that this is by no means generally true. For our part we
think no modern reporter, and we hope no modern editor of reports, would confound Jane Seymour with Lady Jane Grey: see p. 126. But at p. 555 may be seen the beginning of a series of learned notes—those of the late Serjeant Manning—which very few modern lawyers can hope to rival.
We have received a complaint as to the omission from the Revised Reports of Thorpe v. Eyre (1834) 1 A. & E 926. The complaint is founded on the fact that the case is cited in Woodfall's Landlord and Tenant, 10th ed. p. 801, in these terms: “ Where a tenant held from Lady-day, and there was a custom that the tenant, at the regular expiration of the Lady-day tenancy, should have the away-going crops, and the tenancy was determined on the 1st of June by an award made in a reference of disputes between the landlord and tenant; it was held that the custom had no operation.” At p. 938 of the report the judgment of the Court says: “We think the custom had no operation in the case of a tenancy so determined.” But it appears by reference to the argument, and especially to the remarks of Taunton, J. at p. 933, that this was not a general proposition of law, but merely an interpretation of the arbitrator's intention in making an award which dealt with all matters in difference and said nothing about emblements. The citation in Woodfall, therefore, seems to go beyond what the decision warrants. We should have thought the point rather minute in any view. The rest of the decision is of no importance at the present day, nor does our correspondent allege that it is. It appears to us on the whole, with all respect for Woodfall's succession of learned editors, that the fault, if any, is with some or one of them and not with us. No judicial reference of any kind to the case, during the sixty-five years that