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jury, as in Hooper v. Truscott. The law as to libel in newspapers ought, we should say, to have been more fully developed ; for instance, why omit the singular decision, that to tell, in a newspaper, a story of an individual calculated to render him ludicrous, is libellous, though he may have told the story of himself before its publication in print ?? The most singular decision, in this department of law, that we have met with lately, is the American case of libel brought for publishing an obituary of a living person.
In his 20th chapter, Mr. Addison treats of the pleadings; but he omits to give his readers the benefit of the principle derivable from Wilkins v. Reed (though he mentions the case on another point), viz., that the declaration in an action for giving a false character of a clerk, must state sufficient cause of action, and more, must state the real matter of controversy between the parties, so as to shew that a good cause of action is furnished thereby; otherwise the judge or court will probably not consent to amend, and the plaintiff must fail, though he have ample evidence in court to go to the jury on a different ground of action. Nor has he told us the important rule in libel, that a plea of privileged communication must allege that the defendant made the communication on a lawful occasion, believing it to be true, and without malice, or at least bonâ fide.
The 21st chapter is given to the question of charges and costs in actions ex delicto, and there is something on remoteness; but he omits the material case of Powell v. Salisbury,' and also Moore v. Adam.
We shall conclude these remarks, which have been made in no unfriendly spirit, by calling attention to one or two miscellaneous points which could not so conveniently be introduced earlier. It might have been as well, as the case of Wells v. Ody is cited in
1 2 Bing. N. C. 457. Bull. N. P. 8.
Ward, 6 Bing. 406. 3 M'Bride v Ellis, 9 Rich. Law, 313. * Smith v. Thomas, 2 Bing., N.C. 372. 52 Y. & Jerv. 391. Moore v. Adam, 2 Chit., 198.
the book, to have pointed out the consequences if one part of the injury sued for is done on the plaintiff's ground, and part on that of another landowner—a point explained in this case. Again, part of an author's duty, and especially of one who writes for the edification of the classes for whom Mr. Addison publishes, must necessarily be, if he intends to be intelligible at all, to state a great deal more in the way of explanation and elucidation than he would be bound to do if his readers were more select, because more learned. Therefore it would not, we should have thought, have disgraced this work if we had read there, that a thing which is not a legal injury, is not made actionable by being done with a bad intent. He might have been at the trouble of pointing out that, where a new duty is imposed by a statute under a penalty, a person who has sustained a special damage by means of a violation of that duty, having a right at common law to sue for such special damage, does not lose that right by reason of the statute having made the penalty recoverable by a common informer, upon neglect to perform the duty, though no person at all be injured.” There are, on the other hand, cases where statutes having prescribed particular modes of remedy, no other can be adopted.
Very little or no explanation is given, and no attention is solicited to the principle of the case of Taylor v. Plumer; yet the case is remarkable, as being an instance in which the common law courts pushed the doctrine of the character of the original trust being impressed on the product of the trust, almost farther than the courts of equity themselves have ever brought them
selves to go.
At page 196, a case is stated from the Year-book of Henry VIII., which is misrepresented altogether. The effect of that case is to show that feræ nature, whilst on the land, are part of the realty as much as mines. The case has been so understood by Lord Coke and various of the old lawyers, having been decided by some of the highest names, as Broke and Fitzherbert.8 The case, understood as Lord Coke understood it, has been
Stevenson v. Nexenham, 13 C. B, 297,
VOL. X. NO. XIX.
supported or adopted as law for a great many years. It seems very difficult to concur in the explanation that was attempted to be given of it, in the case of Earl of Lonsdale v. Rigg,” by the Court of Exchequer Chamber.
Finally, with regard to the two important points in a law book, the index and table of contents, we must report the former to be bad, and the latter excellent.
ART. II.-ASSIZE AMENITIES. THERE HERE are some people whose minds are so peculiarly con
situated, and manners so strangely formed, that, whenever they enter a controversy, however much they may themselves be in the wrong, they manage to provoke their antagonist to put himself more or less wrong, too ; while, on the other hand, should they chance to be on the right side, they contrive by wrongheadedness to give it a dubious and questionable aspect. We do not know if Mr. Sheriff Evelyn or Sir Colin Blackburn be of this class. But neither of these gentlemen has shone with any brightness in the late passage of arms which disturbed and amused the Home Circuit at the late assize at Guildford. The affair was foolish enough in itself, and advantage was taken of every circumstance to work up, intensify, and aggravate the folly apparent on the occasion. One of the newspaper critics charges Mr. Justice Blackburn with lack of courtesy, declaring him to be a remarkably uncouth judge; and then, by a mock and irrational generalization, alleges that judges are not such gentlemen as they were wont to be, and Lord Campbell is taken to task for appointing to the bench a person so ill-qualified for the post as the late reporter in the court of Queen's Bench. We traverse the general assertion, and we demur to the particular illustration offered. Those who, by observation or tradition, are acquainted with the personal characteristics of the bench in olden times, know that
1 27 Ass. pl. 29. 16 Edw. IV., fol. 2, pl. 5. Bro. Abr. Reservation, pl. 23. Propertie, pl. 4, 19, 20. Trespas, pl. 162.
'1 H. & N. 923. Shep. Touch. 90.
there has always been, and necessarily must have been, then as now, a certain proportion of judges not remarkable for high polish in their demeanour, or distinguished for good birth-that, of the fifteen members of the bench, some must be more and some less eminent for professional learning and other valuable judicial qualities; but it is certain that, at no period of our history, was the Common Law Bench more worthily filled than it has been for the last quarter of a century. And further, we will dare to say that justice, whether in civil or criminal affairs, has never been more honestly, laboriously, and satisfactorily administered in our superior courts than at this day. Creatures of the court, political adventurers, low and vulgar practitioners, are not advanced to high judicial posts now, and indeed during exceptional periods only has this ever been the
Public feeling and parliamentary watchfulness are too powerful to be despised, even if corrupt motives, or ignorance in the government, should prompt it to make improper appointments of judges. With the exception of Lord Campbell's nomination of Mr. Blackburn, all the recent appointments have met with the cordial approbation of the profession and the public; and even the elevation of this gentleman is not ascribed, so far as we are aware, to any unworthy motive; por as a judge has he, since he has enjoyed his unexpected appointment, given any occasion for any depreciatory comment, except that of the newspaper referred to, in which it was complained that he laid hold of Mr. Evelyn’s shoulder in an undignified manner, being generally ungracious and ungraceful. We were not present on the occasion of this assault on the sheriff, and cannot therefore say whether any other judge would or would not, in all probability, have coerced this county functionary, even as bailiffs, it is said, give their hints when armed with a writ of ca sa ; nor can we venture to guess whether, if another judge had been driven to the resource of using physical force, he would have effected the operation with greater ease and elegance, and been better able to plead molliter imposuit manus. Since Chancellor Hatton's time it has not been considered an important quality in a judge to be a master of “ deportment.” We never knew any one who has seen Mr. Justice Blackburn trip it gaily on festive occasions, or play his rapier as happily as Mr. C. Kean in the duel scene of Hamlet, or Mr. Wigan in the Corsican Brothers.
Mr. Evelyn wanted to make a speech—the judge wanted to prevent him. Now, it is a very difficult matter to stop the tongue of any man or any woman, if there exist in either a strong determination to be loquacious. You may awe a talker, or outtalk him, or knock him down, or push him out of your presence; but in any other mode the task is difficult, as any county court judge will depose who has tried to make an Irish plaintiff and defendant and their witnesses refrain from giving concurrent testimony. Mr. Justice Blackburn was put in a very awkward predicament by Mr. Evelyn; but the judge gained his object, was prompt in action, and, by the combined effort of his fingers and his fines, gained him ultimately the victory. To our minds his success is a justification of the course he pursued. No one could venture to say of himself, until he has been placed in a like predicament, that he would conduct himself better than did Blackburn J. Still, many may fairly believe that, by tact and force of character, most judges would have rendered impossible the occurrence of such a scene in court.
But this scene (No. I. as we may call it) is of little importance compared with scene No. II., and the causes which provoked it.
Scene II. is the fining of Mr. Sheriff in five hundred pounds for publishing constitutional placards in the court. The causes inducing this scene are the abominable arrangements and condition of the Assize Courts of Guildford. Blackburn J. thought that noises emanated from the public, who are allowed to congregate in a small space of the court, and so he had the commune vulgus cleared out immediatè. That there was confusion, noise, and disturbance in the court, no one who knows Guildford can doubt. The court where Blackburn J. sat is used as a corn-market except at assize time, when it is rigged up in a temporary manner to receive the officers of justice-and a miserable rigging it is! In the outer passages, partitioned off from the portion occupied