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also deserving of notice, but not noticed, in which damage will be presumed; as, for instance, where a house roof is built over another man's land, the drip of the rain-water is taken to be injurious, previous to evidence thereof.

Coming next to Torts as more immediately affecting personal property, we must beg to say that one principle, which is not contained in this work, is of no small utility with regard as well to cases of trespass de bonis asportatis, as of trover, viz.—the property in goods cannot be in abeyance any more than the fee in land.1 Again, it is perfectly obvious that the subject of conversion might be more effectively and clearly explained, and this is, of course, wholly indispensable before presenting a correct view of the nature of trover.

Further, there can be little doubt that no harm would have been done by stating the principle, that while the right of property in a chattel is in one person, the right of possession cannot be absolutely and adversely in another.2

Then there is a decision which shows under what circumstances, if goods bought are left in the custody of the vendor, and he resells them, the re-sale is a conversion. This ought certainly to have been stated, for the light it throws on the nature of conversion, which perhaps may be succinctly said to mean a breach, made adversely, in the continuity of the owner's dominion over his goods.3

We are told, "dogs trespassing in pursuit of animals fero naturæ, cannot lawfully be destroyed." Does not this, however, as a proposition, require some little qualification? It seems

that dogs, so trespassing in ancient parks and prescriptive warrens, may be destroyed, and there are very numerous authorities to that purpose.*

Hellam v. Ley, Brownl. Steel v. Houghton, 1 H.

1 Graysbrook v. Fox, Plowd. C. 275, 280, 2 Inst. 167. R. 132. Haynes's case, 12 Rep. 113; per Heath J. in Bla. 60; per Tindal C. J., Legge v. Boyd, 1 C. B. 112. One view with reference to fixtures it was material to have given; but it is overlooked, viz.-That there may be a chattel, though fixed; Bishop v. Elliot, 10 Ex. 496, s. c. err. 11 Ex. 496.

2 Clerk v. Adam, 1 Cla. & F. 242.

3 Chinnery v. Viall, 5 H. & N. 288. See also Martindale v. Smith, 1 Q. B. 389. 4 Wadhurst v. Damme, Cro. Jac. 44, Vin. Abr. Warren, G. 1 Wms. Saund. 84, N. (3); 20 Vin. Abr. 519, 520; 18 Id. 64; Com. Dig. Plead. 3 M. 33, Protheroe v Matthews, 5 Car. & P. 581.

As belonging to what we have said above, on the value of laying down, in the first place, leading principles for bringing out the rationale of the law on the subject treated, we might have mentioned a principle of very common application on this head of law; viz., that all persons are responsible for all the natural and legal consequences resulting from acts done by them in violation of the rights of others, and we feel an apology to be owing for not stating this maxim sooner; but our excuse must be, that in fact it does not appear until the 343rd page of the book, that in Tort there ought to be a concatenation between the wrong and the loss, and then the matter is introduced, and most perfunctorily dismissed, in five lines. In trespass the intent may in general be said not to be material; but, perhaps, no court of law has ever carried the principle so far as the Supreme Court of the State of New York, which has held that a justice of the peace, though insane at the time, was properly found guilty, and had judgment against him, in an action for false imprisonment.2

It certainly is with great regret that we find so little attention given to the objects of explaining and exemplifying principles, when so much is devoted to such subjects as proceedings against county court judges and officers, which has made necessary, or at least has led to, the copying into the book of copious extracts out of the County Court Acts; surely a misappropriation of space as much as it would have been to state the law as to proceedings against justices or railway directors, on a plan of such detail as to involve the citation of Jervis's acts, or whatever others might apply to the case.

Speaking of the exemption of constables, and persons acting in their aid, from liability for acts done by them in obedience to a warrant of justices under the statute (24 Geo. II. c. 44, s. 6), the author goes on to confine its operation to actions of Tort, citing Irving v. Wilson, 4 T. R. 485; in fact, however, there is

1 See Walker v Goe, 5 Jur. N.S. 737.
2 Krom v Schoonmaker, 3 Barb. 647.

no more than a dictum of Grose. J. to that effect, which has been overruled.1 It will be seen at once to be an extrajudicial dictum, because the officer there took not colore officii, but without any right whatever.

However comparatively unimportant the above may seem, no one will say that the fullest development ought not to have been given to one part of the law of Tort which is pre-eminently fertile in difficulty-we mean Torts which spring out of contract. There seems to be something quite unaccountable in the treatment of this department of the task. Although the case of Martin v. The Great Northern Railway Co. is more than once cited, we find nowhere any adequate or even serious attempts at development of the whole of the doctrine of law as to negligence, much less of that part of it which one would have supposed the case mentioned would have suggested, if any case could, viz., the question whether the doctrine of contributory negligence has place in the case of torts founded on contracts.2 An action purely for a Tort, as, for instance, for a collision at sea or in a river, where neither party is previously known to or has special duties in respect of the other, seems undoubtedly to stand on a different footing in this respect, from one in which the Tort arises from some breach of a duty which one party has incurred to the other, by reason of their previous transactions and the contract that has grown out of these. There is sometimes great difficulty to say whether the gist of the action is tort or contract. The action for money had and received, very often runs into the region of trover. For our own part, we should have wished to see more statement and elucidation of the right and power of waiver of the tort and suing in contract; because such discussion cannot be adequately conducted without setting in a strong light various salient points in the law of Tort.

1 See Waterhouse v Keen, 4 B. & C. 211, 212.

Gerhard v. Bates, 2 E.

2 See Caswell v. Worth, 5 E. & B. 849. Woolley v. Scovell, 3 Ma. & Ry, 105, See per Jervis C. J, in Courtenay v. Earle, 10 C.B. 83, & B. 476.

3 Marker v. Kenrick, 13 C. B. 188. Weal v. King, 12 Radnidge, 3 East. 62. Boorman v. Brown, 3 Q. B., 511. 2 N. R. 241.

Govett v.

East. 452.
Hamer v. Alexander,

2

On the one hand, it is certain that very often facts which do not constitute an actionable breach of contract will support an action for Tort; but still, on the other hand, it is to be borne in mind that a person cannot render another liable by declaring in tort who would not have been so on his promise.1 Also, as a contract cannot be transferred so that the transferee should be able to sue on it, so neither can an action be raised on the ground that the contract supplies a duty for the breach of which an action on the case may be brought. Indeed it would be a strange result if, by merely substituting one form of declaring for another, the fundamental and much clung to rule of the old law -the impossibility of transferring a chose in action-could be eluded. The fact is, that the old lawyers founded, or sought to found, their distinction of actions on the metaphysical nature of things (so to speak); and where a question arose, whether one form could be substituted for another, the consequence was almost inevitable, that an ample inquiry into the relations of the actions was embarked in. The traces of the practice of waiving the one view or the other, reach far back: thus Newton C. J.3 lays down the law in the reign of Henry VI. thus, "If you have taken my cattle, it is at my will to sue a replevin, which proves that the property is in me, or to sue a writ of trespass, which proves that the property is in him who takes the goods, and so it is at my pleasure to waive the property or not."

Another point we would refer to is, that whilst we are told that 5 & 6 Vict. c. 97, s. 3, repeals so much of any clause or provision in any public local, &c., act, as enables any party to plead the general issue only, and give any special matter in evidence, the author does not point out that this legislation was not meant to break in upon the practice of granting, in public

1 Green v Greenbank, 2 Marsh. 485. See Lythgoe v Vernon 5 H. and N. 180, and compare Turner v Cameron's St. Comp. 5 Ex. 932.

2 Howard v Shepherd 9 C. B. 319. See Id. 312, that a breach of duty and a tort are not convertible terms; therefore it seems that the law is laid down too unqualifiedly in this respect at p. 706 of this work.

3 Yearb. 19 Hen. VI. fol. 65. pl. 5; so 6 Hen. VI. fol. 8 B. Rolgers v Maw, 15 M. and W. 448. Neate v Harding, 6 Ex. 349.

acts, power to plead the general issue, and that various public acts have been passed since the above, containing such provisions.1

That a man in general shall not have an action against another, because that other has previously brought an action against him (the mere exercise of the right to sue in the Queen's courts not being in itself a ground on which any one is enabled to say that he is damnified), is true enough, though it is not stated by Mr. Addison in as clear language as he might have found in some of the many authorities on the question, of which he seems to have pretermitted all notice. Nor has he sufficiently, in our judgment, discussed those cases where the law throws a peculiar degree of care upon the defendant, as distinguished from those where the plaintiff's negligence prevents him from recovering.2

There is a curious question which Mr. Addison has just stated with a reference to a Nisi Prius dictum only upon it; but that is by no means the whole of the authority that is extant concerning it. The point is this, when a defendant, in justifying libel, justifies words which amount to a charge of felony, and proves his justification and obtains a verdict, can the plaintiff be transferred to the criminal court eo instanti to take his trial for the felony, without an indictment found? It has been said, according to what appears to be the better opinion, that he may; but there certainly seems to be somewhat of a lack of examples of the thing having been done.

The part of the work which belongs to libel and slander seems to us to be the most ably developed, albeit by no means the easiest division of the task to deal with; we will only remark that we should have rejoiced to see more discussion and explanation introduced respecting those cases in slander in which malice must be presumed, and is not a question of fact to be left to a

1 Ex. Grâ. 11 & 12 Vict. c. 44. s. 10. Kirby v Simpson, 10 Ex. 358. Taylor v Nesfield, 3 E. & B. 724. No action will lie against a person for giving false evidence at a trial. Collins v Cave, 5 Jur. N.S. 296.

Webb v Page, 6 M. & Gra. 196. 94 b, lib. ii. c. 29. 4 Steph. Com. 408. 6 Jur. 1115. 7 M. & W. 630. 4 Hawk. See per Ld. Ellenborough C. J. and

2 See Willoughby v. Horridge, 12 C. B. 742. 32 Hale P. C. 151, Staundf. P. C. 4 Bla. Com, 307. 2 Car. and P. 421. P. C. Bk. ii. c. 25. s. 6. 4 T. R. 293. Grose J., 29 How. Sta. Tri., 400.

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