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be compelled to bring them, if there was any reasonable ground to suppose that the working would in time produce damage to their property. It would be in vain that the worker should say•You will not be injured, the workings are not injurious. If they turn out likely to be so, I will take means to prevent it. At all events, wait till you are injured. Vexatious and oppressive actions might be brought on the one hand; and, on the other, au unjust immunity obtained for secret workings of the most mischievous character, but the result of which did not appear within six years. The inquiry in such cases would be little better than speculation. The character of the soil, the inclination of the strata, the depth and extent of the works, the distance and nature of the land supposed to be in danger, and other considerations, would make the inquiry of such a character, that the only prudent verdict would be not proven.' In many cases damages would be given where none would be sustained, but would in other cases be withheld where they ought to be given.
“There is no doubt that for an injury to a right an action lies, and the question is, what is the plaintiff's right? Is it that his land should remain in its natural condition, unaffected by any act done in the neighbouring land ? or, is it that nothing should be done in the neighbouring land from which a jury would find that damage might possibly accrue ?
“No authority is cited in Nicklin v. Williams for the judgment there given; and, although the judgment in that case is distinct upon the point, it nevertheless was extrajudicial, for, before the former action was commenced, it was obvious that actual damage had been sustained; in which case another principle applies, namely, that no second or fresh action can, under such circumstances, be brought for subsequently accruing damages. All damage consequent upon the unlawful act is, in contemplation of law, satisfied by the one judgment or one accord.
“We are not insensible to the consideration, that holding damage to be essential to the cause of action, may extend the time during which persons working minerals and making excavations may be made responsible. But, we think, that the right which a man has, is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such a manner as he thinks fit; subject always to this, that if his mode of using it does damage to his neighbour, he must make compensation. Applying these two principles to the present case, we think that no cause of action accrued for the mere excavation by the defendant in his own land, so long as it caused do damage to the plaintiffs; and that cause of action did accrue when the actual damage first occurred. We should be unwilling to rest our judgment upon mere grounds of policy; but we can
not but observe that a rule of law, or rather the construction of a statute of limitation, which would deprive a man of redress after the expiration of six years, when the act causing the damage was unknown to him?—when, in very many instances, he would be in invincible ignorance of it-would be harsh, and contrary to ordinary principles of law.”
This very important question is thus now settled upon true principles of justice, and we may add of expediency. It is better both for owners of surface land and owners of mines, that the cause of action should accrue upon the happening of actual damage, rather than upon an imaginary injury to a right; and we may rejoice, as Abbott C. J. would have rejoiced, that the wisdom of the Court of Exchequer Chamber has been interposed, to prevent the injustice which would have arisen had the judgment of the Court of Queen's Bench in Bonomi v. Backhouse been affirmed.
It is to be regretted that several of the points to which we lately referred in our notice of Solomon v. The Vintners' Company, and the earlier cases, have not been so satisfactorily settled as the question which arose in Bonomi v. Backhouse; for, although the circumstances may not have been precisely similar in the cases in which those points were decided, yet it must be admitted that the decisions are somewhat conflicting in principle.
This argument, no doubt, meets the justice of the case; but it must be remembered that, in the case of The Imperial Gas-Light Company v. The London Gas-Light Company (10 Exch, 39), it was laid down that even the fraudulent concealment of the cause of action will not at law affect the operation of the statute.
2 L. M. and R., vol. viii., p. 402.
[*** It should be understood that the notices of new works forwarded to us for review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in a more elaborate form, in a subsequent Number, when their character and importance seem to require it.]
A Treatise on the Principles of the Law of Evidence, with Elementary
Rules for conducting the Examination and Cross-Examination of Witnesses ; by W. M. Best, A.M., LL.B., Birrister-at-Law. Third Edition. London: Sweet, 1860.
The fourth edition of Mr. Best's treatise gives rise naturally to an expression of congratulation that so good a book is so extensively appreciated. It is indeed one of the few works on English jurisprudence which do it credit, and redeem it from the charge of being, as a system of laws, unscientific, anomalous, and incapable of being made the subject of philosophical inquiry.
We hope to make, of the appearance of this edition, an opportunity in our next Number, for considering some interesting points discussed
very learned and able author. In the mean time, though it would be a superfluous act on our part to praise Mr. Best's work, inasmuch as most of our readers are more or less acquainted with its character and merits, we may be allowed to commend it emphatically to the younger members of the profession. It is too true that among lawyers, in the arduous labours of learning the practice and acquiring a practice, men are prone to be so much absorbed, that they neglect the study of principles, and forget that law has a philosophical side, and is not alien from liberal learning, nor exempt from scientific investigation. A perusal of Mr. Best's volume will be an excellent antidote to mere businessworship. A Practical Treatise on the Law of Covenants for Title; by W. H.
Rawle. Third Edition. Boston: Little, Brown, & Co. London : Trübner & Co., 1860.
On so brief an acquaintance as we possess of the above volume of nearly eight hundred pages, we will not profess to tell our readers more than our author tells us in his preface. He there says, that his work“ is devoted to the consideration of the liabilities and right of vendors and purchasers of real estate arising from the covenant for title.” He argues rightly enough, that the subject is one of no little gravity, and comprehends widely spread interests, in as much “as such covenants are in some shape or form introduced into nearly every conveyance of real estate on both sides of the Atlantic.” Mr. Rawle's volume is for the present placed on our Reserve list.
Manual of Military Law, for all Ranks of the Army, Militia, and
Volunteer Services; comprising an Account of the Constitution, Composition, and Procedure of Courts-Martial; also a Notice of the Practice and Procedure of Courts of Inquiry, and a short Exposition of the Law of Evidence; to which is added, an Abstract of the Acts governing the Volunteer Force, &c., &c.; by Colonel J. K. Pipon, Assistant Adjutant-General at Head-Quarters, and J. F. Collier, Esq., of the Inner Temple, Barrister-at-Law. London: W. H. Allen & Co., 1860.
Tuis volume must likewise be placed on our reserve list, as it has been received too late to admit of due notice on the present occasion. The work is published with the sanction of the Commander-in-chief ; and, as it contains a mass of information which is not to be found in a collected form in any other published treatise, we believe it will be received with favour, and prove extremely useful, not only to those who are called upon to advise on the matters of which it treats, but to all members of the legal profession who have joined, or think of joining, the volunteer force.
The Lawyer's Companion and Diary for 1861. Edited by H. Moore,
Esq. London: Stevens & Sons.
The lawyers who for years past have used this work, will have done so because they have found it pre-eminently useful, as indeed it is. The lawyers who have not used it, would perhaps do so if they knew its merits; but we cannot undertake to give a full account of its contents. Suffice it to say, it contains all the specific and miscellaneous information found in a good pocket-book, such as the almanac, details of Sovereigns, princes, peers, members of the House of Commons, bankers, public offices, commissioners, and boards; and in addition to this, much more particularly needful to the lawyer, whether barrister or solicitor. We find (e. g.) a complete law list and directory, tables of law terms and sessions, interest tables, income-tax tables, annuity tables, &c.; a few short forms of agreement are given, and a summary of important statutes, and an index to those of the last session. At the end of the volume is a blank diary for the year. Certainly a great deal of this is what one is always wanting, and it seems to us it can be found easily enough in the arrangement adopted by Mr. Moore. Our readers will judge for themselves if this is the sort of “Companion and Diary which they want. For our own part, we like the volume.
We had hoped in this number to be able to review a work by Lord Brougham, which however will, it seems, not be published" till November. Its subject is the British Constitution, a topic upon which his lordship, if any one, has certainly a right to be heard, and we specially desire to hear him hold dissertation.
' By Messrs. Griffin, Glasgow and London,
Events of the Quarter.
The main event-and a very pleasant one to lawyers—of the past quarter, has been the long vacation. Those who were so unfortunate or unwise as to stay in or near London during this happy period, paidjan additional penalty of enduring the worst weather we remember since 1816, when the only compensation for wheat being too dear to buy, was, that the bread was too bad to eat. In several of the picturesque tourists' districts, our professional brethren assure us that the season was sufficiently fine ; indeed, was as favourable as a common jury generally is to the plaintiff when they are trying a tradesman's bill, and the defendant is a gentleman who is disputing a swindling overcharge.
Some lawyers, however, have not devoted all their holiday to amuse-, ment; witness the assemblage at the Social Science Congress at Glasgow, at which jurists not a few, headed by Lord Brougham, took prominent part.
The inaugural address of Lord Brougham (which has been published separately with notes l) could not fail to be interesting. The undefined character of “Social Science," and the multitude of relations with which it is concerned, render his address discursive, and general in treatment. It has been before the public so many weeks, and made the subject of so much comment, that we shall not draw upon it to any considerable extent. We will, however, select one or two passages, bearing, as they do, on certain criticism which we have been obliged to make on the system of law-making now pursued by our legislature." We have shewn that the statutes this session are particularly imperfect in themselves, and inadequate to the necessities of the country. " Lord Brougham points out some of the obstructions to parliamentary businessthe fruitful cause of the subsequent hurry and spoiling that which is done. The greatest obstruction, he urges, is the non-restraint of the parliamen-' tary tongue. Now, it can be but little pleasing to the members of the legislature to be told, as they continually are told, that they have “done nothing, or worse than nothing,” or, putting it in a modified form, “ little, and that little badly;" for assuredly they work very hard. As. a body they, like charity, "suffer long, and endure all things;" whilst among them there are some of the ablest men of the day, earnest, active, and capable. A certain proportion of the eleven hundred British legislators can perform the arduous duties imposed upon them. What, then, prevents it? chiefly jealousies amongst themselves, party feeling, and the interference of the incapable, on both sides. A foolish measure often takes a longer time to be proposed, discussed, and rejected,
1 London and Glasgow : Richard Griffin & Co., 1860. · Ante, Art. X., “Acts and Bills of the Session.”