120 CHANCERY LANE, LONDON, CONTAINS the latest editionS OF TEXT-BOOKS AND COMPLETE sets of the reports. ADVANTAGES OF THE LIBRARY. Any number of books or volumes may be taken out from the Library at a time, so long as the value of the whole does not exceed the amount for which the Subscription is paid. Books may be changed daily, or may be retained any length of time within the term of Subscription. NOTE.-Country Subscribers can have their books sent by Parcel Post on paying a Deposit of 55. on account of Postage. The Cost of the Carriage to and from the Library is borne by the Subscriber. Cheques and Postal Orders to be crossed Union of London & Smiths Bank, Ltd.' STEVENS & SONS, Limited, 119 & 120 Chancery Lane, London. Now Ready, No. 349 (August), price 5s. Annual Subscription, 15s. post free. THE LAW MAGAZINE & REVIEW, A Quarterly Review of Jurisprudence; Being the combined 'Law Magazine,' founded in 1828, and the 'Law Review,' founded in 1844. CONTENTS. The History of the Criminal Law. By HENRY H. BROWN, Procurator Fiscal of Fifeshire. The Law of the Universities. By JAMES WILLIAMS, D.C.L., LL.D. Heredity, Education and Crime. By Lex. Civil Judicial Statistics, 1906. Recent Developments in the Scottish Law of Sale. By RICHARD BROWN. Professor Westlake on War. By TH. BATY, D.C.L. Current Notes on International Law. Notes on Recent Cases. Reviews. Contemporary Foreign Literature. JORDAN & SONS, LIMITED, 116 CHANCERY LANE, LONDON, W.C. THE LAW QUARTERLY REVIEW. No. XCVI. October, 1908. NOTES. HE preference of our Courts for awarding compensation rather than penalization as the proper verdict for difficulties brought about by an infringement of a civil or quasi civil right is once more shown in the case of Lodge Holes Colliery Co., Lim. v. Mayor, &c., of Wednesbury [1908] A. C. 323. The appellants, whilst working a mine which ran under a roadway, let down the surface in such a manner as to damage the road and render it unfit for user. The road authorities, apparently without pausing to consider how the actual damage could most easily and inexpensively be made good, built the road up to its former level at a cost of £400. There was no actual necessity to have raised the level of the road at all, as an equally commodious thoroughfare might have been made by a simple reparation of the surface at one-fifth of the cost. The House of Lords told the appellants that people who interfered with the convenience of the public must not expect the Courts to be very zealous in curtailing the consequent liability, and an illustration of their lordships' declaration may be found in the case of Savin v. Oswestry Highway Board (1879) 44 J. P. 766, in which case the cost of building a better road than the one damaged was laid upon the shoulders of the defendant. In Savin's case the road originally was made for light traffic only, but having been damaged by the defendant's traction engines, it was found necessary when repairing it to make it strong enough in the future to bear heavier traffic. The Divisional Court held that as the defendant was a wrong-doer, and the cost of the repairs could not be distinguished from the cost of strengthening the road, the whole must be borne by the defendant. In the Lodge Holes Colliery Company's case the House of Lords held that the repair of the surface would have put the road into a perfectly satisfactory state for public user, and limited the damages to the smaller amount. The aim of the Locomotive Acts in their provisions upon this subject is not to impose a penalty, but simply to ensure that those Bb VOL. XXIV. who by a user of the road cause unusual damage shall themselves defray the additional cost of maintenance. The wrong is not technically a mere tort (Chesterfield Rural Council v. Newton [1904] 1 K. B. 66; per Collins M. R.), but it is one in effect (Story v. Sheard.[1892] 2 Q. B. 518). Under the Act of 1878 the action was one merely for the recovery of expenses, but by the Act of 1898, s. 12), it is now one for the recovery of damages: see Kent County Council v. Folkestone Corporation [1905] 1 K. B. 629, per Vaughan Williams L. J. The ejusdem generis rule of interpretation is one of those artificial but necessary creations of law which are designed to teach people the necessity of employing clear and accurate modes of expression in their dealings with one another. Familiar modes of expression must be interpreted consistently, and this has led to the establishment of the rule that general descriptive words following particular ones only extend the latter to a very limited degree, i.e. they only effect the inclusion of other objects of the same character as those particularly described. In Larsen v. Sylvester & Co. [1908] A. C. 295, the parties to a charter party introduced an expression which fortunately for the charterers excluded the application of the rule, and gave full play to what was undoubtedly the real intention of the parties. By the terms of this particular document the parties mutually exempted each other from liability arising from frosts, floods, strikes..., and any other unavoidable accidents or hindrances of what kind soever beyond their control delaying the loading of the cargo.' Delay in loading was caused by the congested state of the ships at the loading port, but Lord Loreburn L. C., with the concurrence of the other law lords present, whilst freely conceding that the congestion of traffic was not in the same genus as those particularly specified, held that, upon the natural construction of the clause, it must be taken to come within the wide general words at the end. It has, however, to be borne in mind that in this case there was nothing in the special relations of the parties, or in the substance of the transaction which could cast a doubt upon the meaning of these general words. It would not be safe to apply such a free interpretation to every document wherein similar words might be found. See Lord Provost and Magistrates of Glasgow v. Farie (1889) 13 App. Cas. at 675, per Lord Watson. Even where it is applicable as a pure proposition of law, the circumstances of the transaction may sometimes limit its effect, see Hext v. Gill (1872) L. R. 7 Ch., per Mellish L. J. at p. 718. It is really refreshing to find common sense applied as it now is to the construction of wills. Common sense is perhaps a dangerous word to use in connexion with law and legal interpretation, but what it means in this connexion is the view of the testator's words which ninety-nine out of a hundred sensible people would take if they were asked. As the embodiment of this common sense the Court seats itself in the testator's armchair and surveys the situation. It recognizes of course that a testator's intentions can only be known by the words he has used, the 'intendment of the will,' as it is called, but it imports also into its reading of the will a knowledge of human nature-its habits and motives; above all it recognizes that there are intentions and intentions-that some are governing and absolute, others subsidiary and qualified, and it discriminates between them. In this weighing and balancing of intentions lies the real art of construction. In Re Sharp, Maddison v. Gill [1908] 2 Ch. 190 is a recent example. A testator in a commendably brief will and codicil gives his residuary estate upon trust for certain personsfive in number and-reading will and codicil together-'for the six children now living of Samuel Frederick Okey by his first wife in equal shares as tenants-in-common.' Now there had been six children of Samuel Frederick Okey by his first wife, but at the date of the will only one of the six was living, and the question was whether the residuary estate was divisible in elevenths or in sixths. If in elevenths, the five shares of S. F. Okey's five children who had died were undisposed of. What was the testator's governing. intention? Evidently to benefit the children of a certain person S. F. Okey. Was that intention to be defeated by the accident of an inaccurate description in the number of the children-falsa demonstratio? The Court held certainly not. What the testator really meant to have said was for 'such of the six children as shall then be living.' But what is to be done when there is no commonsense view? For the layman's frequent assumption that his own first off-hand impression is the only possible or sensible one will not stand criticism. Failing common sense, we still need a certain number of artificial rules of construction, and such rules are useful in their proper place; that is to say, when they are not allowed to usurp the commanding position of rules of law. This is the moral, as we read it, of Vaughan Hawkins's admirable preface to his book. In Mansell v. Valley Printing Company [1908] 2 Ch. 441, 77 L.J. Ch. 397, the Court of Appeal has affirmed a rule of great importance in principle, and has done so in the clearest manner. The right to retain the publication of unpublished work of any kind is proprietary; it is independent of property in any tangible material such as a MS. or a canvas; and, being proprietary, though it need not have a corporeal object, it may be infringed without wrongful intention or knowledge. The element of motive or intention on the part of the defendant is wholly irrelevant,' per Cozens-Hardy M. R. at p. 445. To put the point in the shortest form, the right is an absolute right, and the violation of it is a quasi trespass. The case of a trade-mark at common law was different; there the jurisdiction was founded on passing off,' i. e. not on property but on fraud, per Farwell L. J. at p. 448. 'One cannot prescribe in a que estate for a commercial profit à prendre in alieno solo; it must be for a profit à prendre measured by the nature, size, and necessities of the estate. A prescription in a que estate for a profit to be taken without limit, not with reference to the wants of the estate, but commercially for purposes of sale, is unknown to the law.' So Buckley L. J. formulated the legal ground of the judgment of the Court of Appeal reversing that of Neville J. in the case of the Wye fishery: Lord Chesterfield v. Harris [1908] 2 Ch. 397, 424. It is difficult to deny this proposition; but if the case is taken to the House of Lords it will remain. to be seen whether the ingenuity of counsel may not yet extract from the mass of facts a more plausible ground for the right claimed by the fishermen. The difference of opinion in the Court of Appeal in Hyams v. Stuart King [1908] 2 K. B. 696, 77 L. J. K. B. 794, requires fuller consideration and discussion than we can now give to it. Sir Gorell Barnes and Farwell L. J. held, against Fletcher Moulton L. J., that a defendant's promise to pay a balance due for gaming debts may be supported by forbearance or a promise thereof on the part of the plaintiff, who admittedly has no such legal right of action for the balance as he would if it were a balance of account in a lawful business. All we can say off-hand is that, until the House of Lords finally decides the question or further legislation intervenes, the dissenting judgment is not to be neglected. In Elliston v. Reacher [1908] 2 Ch. 374, 77 L. J. Ch. 617, Parker J. defines the circumstances under which the owner of a piece of land sold subject to restrictions can compel the observance of stipulations against other holders of land comprised in the same scheme of sale. The present decision sums up, perhaps we may say finally for the present, the results of numerous earlier ones. |