On this and other grounds “judge-made law,” as he called it, was the
object of constant denunciation by Bentham. “It is the judges,” he
says in his vigorous way (Works, V. 235), “that make the common law.
Do you know how they make it? Just as a man makes laws for his dog.
When your dog does anything you want to break him of, you wait till he
does it and then beat him. This is the way you make laws for your dog,
and this is the way the judges make laws for you and me.”
Footnote 118:
D. 1. 3. 17.
Footnote 119:
Strict interpretation is an equivocal expression, for it means either
literal or narrow. When a provision is ambiguous, one of its meanings
may be wider than the other, and the strict (_i.e._ narrow) sense is
not necessarily the strict (_i.e._ literal) sense. When the equitable
interpretation of a law is wider than the literal, it is called
extensive; when narrower, it is called restrictive.
Footnote 120:
In the interpretation of contracts, no less than in that of statutes,
there is to be noticed this distinction between the real and the
latent intention of the parties. The difficulty of construing a
contract arises more often from the fact that the parties had no clear
intention at all as to the particular point, than from the fact that
they failed to express an intention which they actually had.
Footnote 121:
Hale’s History of the Common Law, chap. ii.
Footnote 122:
Blackstone, I. 63.
Footnote 123:
Co. Litt. 141 a; The Case of Tanistry, Dav. Rep. 32; Blackstone, I.
77.
Footnote 124:
“If any general custom were directly against the law of God, or if any
statute were made directly against it, ... the custom and statute were
void.” Doctor and Student, Dial. I. ch. 6. See also Bonham’s Case, 8
Co. Rep. 118a; Coke’s 2nd Inst. 587; Hobart, 87; Blackstone, I. 91;
Pollock and Maitland, History of English Law, I. 491; Pollock,
Jurisprudence, pp. 262–267.
Footnote 125:
Dernburg, Pandekten, I. sect. 27. 3.
Footnote 126:
Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem
necessarium esse, ut eo animo et intentione servetur, ut jus in
posterum fiat.
Footnote 127:
Blackstone, I. 76. Co. Litt. 113 a.
Footnote 128:
Quare rectissime etiam illud receptum est, ut leges non solum
suffragio legislatoris. sed etiam tacito consensu omnium per
desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however,
exists as to the true relation between custom and statute in Roman
law, owing to a passage in the Code (C. 8. 53. 2.) which, if read
literally, conflicts with the doctrine expressed in the Digest, and
declares custom to be destitute of legal effect if contrary to statute
law. The ingenuity of German jurists has suggested numerous solutions
of the apparent inconsistency, but with no convincing result. See
Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect.
16. Dernburg, Pandekten, I. sect. 28.
Footnote 129:
System, sect. 18.
Footnote 130:
Vol. i. sect. 18.
Footnote 131:
For the similar doctrine of Scottish law, see Erskine’s Institutes, I.
19.
Footnote 132:
It is to be noticed that the term custom is often used to mean
particular custom exclusively. Custom (meaning local usage having
legal validity) is opposed to law (meaning the common law of the
land). When we find in the books any proposition laid down as to the
legal efficacy or requirements of custom, it must be carefully
ascertained from the context whether the term does or does not extend
to general customs.
Footnote 133:
Both in English and foreign law, however, the time of memory was
extended by the allowance of tradition within defined limits. A
witness might testify not only to that which he had himself seen, but
to that which he had been told by others who spoke of their own
knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time
of memory was held to extend for one hundred years. Pothier, De la
Prescription, sects. 278–288.
Footnote 134:
The statute of Westminster I. c. 39, imposed a limitation upon actions
for the recovery of land. It provided that no such action should lie,
unless the claimant or his predecessor in title had had possession of
the land claimed at some time subsequent to the accession of Richard
I. The previous common law rule of limitation for such actions was no
other than the rule as to time immemorial. At common law the claimant
had to prove his title and his seisin by the testimony of living men;
therefore he or his predecessors must have been in possession within
time of human memory. The enactment in question was accordingly
construed as laying down a statutory definition of the term time of
memory, and this supposed statutory definition was accepted by the
courts as valid in all departments of the law in which the idea of
time immemorial was relevant. See Blackstone, II. 31; Littleton, sect.
170.
Footnote 135:
_R._ v. _Joliffe_, 2 B. & C. 54; _Bryant_ v. _Foot_, L. R. 3 Q. B.
497; _Lawrence_ v. _Hitch_, L. R. 3 Q. B. 521; _Simpson_ v. _Wells_,
L. R. 7 Q. B. 214.
Footnote 136:
In limiting the requirement of immemorial antiquity to local customs,
we have, for the sake of simplicity, spoken somewhat more absolutely
than the present state of the authorities warrants. The more common,
and, it is believed, the better opinion is that the law is as stated
in the text. There is, however, some authority for saying that the
same requirement exists in the case of certain general customs also.
In _Crouch_ v. _Crédit Foncier_, L. R. 8 Q. B. 374, it was held that
modern mercantile custom was powerless to render an English instrument
negotiable, although it is well settled that foreign instruments, such
as the bonds of foreign governments, may be made negotiable in this
way. _Gorgier_ v. _Mieville_, 27 R. R. 290. The authority, however, of
the case in question is exceedingly doubtful. See _Goodwin_ v.
_Robarts_, L. R. 10 Ex. 337; _Bechuanaland Exploration Co._ v. _London
Trading Bank_, (1898) 2 Q. B. 658; _Edelstein_ v. _Schuler_, (1902) 2
K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great
part of our mercantile law has been derived from modern mercantile
custom, and we may assume with some confidence that such custom still
retains the law-creating efficacy which it formerly possessed.
Footnote 137:
Decretals, I. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus
canonicum non valet consuetudo, nisi praescripta sit et rationabilis.
Decretum, Dist. I. 4. Gloss. (Vol. i. p. 3). Ad hoc ergo ut consuetudo
juri communi praejudicet, requiritur primo quod rationabilis sit, et
quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96).
Footnote 138:
Suarez, De Legibus, VII. 15. 5.
Footnote 139:
Novel. 131. ch. 6.
Footnote 140:
Decretals, I. 4. 11. Gloss. (Vol. ii. p. 96). Illa consuetudo
praejudicat juri, quae excedit hominum memoriam. Decretum, Dist. VIII.
c. 7. Gloss. (Vol. i. p. 25).
Footnote 141:
D. 43. 20. 3. 4. Fossam jure factam aut cuius memoria non exstat. D.
39. 3. 2. 7.
Footnote 142:
Pothier, De la Prescription, sects. 278–288; Baudry-Lacantinerie, De
la Prescription, sects. 12, 21; Windscheid, I. sect. 113.
Footnote 143:
Suarez, De Legibus, VII. 15. 2. Aliqui enim antiqui immemoriale tempus
postulabant, tamen sine fundamento, et ita relicta et antiquata est
illa sententia.
Footnote 144:
Y. B. 20 and 21 Ed. I. 136. As to the history of immemorial
prescription see Die Lehre von der unvordenklichen Zeit, by
Friedländer, 1843.
Footnote 145:
Littleton (sect. 169) tells us that: Consuetudo ex certa causa
rationabili usitata privat communen legem. And to this Coke (113 a)
adds by way of commentary the canonical maxim: Consuetudo praescripta
et legitima vincit legem. In _Goodwin_ v. _Robarts_, L. R. 10 Ex. at
p. 357, it is said: “We must by no means be understood as saying that
mercantile usage, however extensive, should be allowed to prevail if
contrary to positive law, including in the latter such usages as
having been made the subject of legal decision, and having been
sanctioned and adopted by the courts, have become, by such adoption,
part of the common law. To give effect to a usage which involves a
defiance or disregard of the law would be obviously contrary to a
fundamental principle. And we quite agree that this would apply quite
as strongly to an attempt to set up a new usage against one which has
become settled and adopted by the common law as to one in conflict
with the more ancient rules of the common law itself.” See also to the
same effect _Edie_ v. _East India Company_, 2 Burr. 1216.
Footnote 146:
Pothier on Obligations, sect. 95.
Footnote 147:
Encyklopädie, sect. 20.
Footnote 148:
Pandektenrecht, I. sect. 15.
Footnote 149:
Austin, p. 538. An able and forcible defence of the Austinian position
will be found in Professor W. J. Brown’s Austinian Theory of Law,
Excursus D.—“Customary Law in Modern England.”
Footnote 150:
Co. Litt. 113 b.
Footnote 151:
The importance of reported decisions has, however, been increasing in
both France and Germany for some time, and Continental law shows a
distinct tendency to follow the example of English in this matter.
Footnote 152:
Hale’s History of the Common Law, p. 89 (ed. of 1820).
Footnote 153:
Hale’s History of the Common Law, p. 88.
Footnote 154:
_In re Hallett_, 13 Ch. D. at p. 710.
Footnote 155:
_Castro_ v. _R._, 6 A. C. p. 249; _Scaramanga_ v. _Stamp_, 5 C. P. D.
p. 303.
Footnote 156:
_In re Parsons_, 45 Ch. D. 62: “Decisions of the Irish Courts, though
entitled to the highest respect, are not binding on English judges.”
Footnote 157:
In _Leask_ v. _Scott_, 2 Q. B. D. 376, at p. 380, it is said by the
Court of Appeal, speaking of such a decision: “We are not bound by its
authority, but we need hardly say that we should treat any decision of
that tribunal with the greatest respect, and rejoice if we could agree
with it.”
Footnote 158:
Persuasive efficacy, similar in kind though much less in degree, is
attributed by our courts to the civil law and to the opinions of the
commentators upon it; also to English and American text-books of the
better sort.
Footnote 159:
_London Street Tramways Company_ v. _London County Council_, (1898) A.
C. 375, at p. 379. This is said to be so even when the House of Lords
is equally divided in opinion, so that the judgment appealed from
stands unreversed and so authoritative. _Beamish_ v. _Beamish_, 9 H.
L. C. p. 338; _Att.-Gen._ v. _Dean of Windsor_, 8 H. L. C. p. 392. As
to the equal division of other courts, see _The Vera Cruz_, 9 P. D. p.
98.
Footnote 160:
_Pledge_ v. _Carr_, (1895) 1 Ch. 51; _Lavy_ v. _London County
Council_, (1895) 2 Q. B. at p. 581, per Lindley, L.J. See, however,
_Mills_ v. _Jennings_, 13 C. D. p. 648.
Footnote 161:
It is to be remembered that the overruling of a precedent has a
retrospective operation. In this respect it is very different from the
repeal or alteration of a statute.
Footnote 162:
_Sheddon_ v. _Goodrich_, 8 Ves. 497.
Footnote 163:
_Pugh_ v. _Golden Valley Railway Company_, 15 Ch. D. at p. 334.
Footnote 164:
_Smith_ v. _Keal_, 9 Q. B. D. at p. 352. See also _In re Wallis_, 25
Q. B. D. 180; _Queen_ v. _Edwards_, 13 Q. B. D. 590; _Ridsdale_ v.
_Clifton_, 2 P. D. 306; _Fookes_ v. _Beer_, 9 A. C. at p. 630: “We
find the law to have been accepted as stated for a great length of
time, and I apprehend that it is not now within our province to
overturn it.”
Footnote 165:
_In re Hallett_, 13 Ch. D. at p. 712.
Footnote 166:
_Osborne_ v. _Rowlett_, 13 Ch. D. at p. 785.
Footnote 167:
It is clearly somewhat awkward to contrast in this way the terms
authority and principle. It is odd to speak of deciding a case on
principle because there is no legal principle on which it can be
decided. To avoid misapprehension, it may be advisable to point out
that decisions as to the meaning of statutes are always general, and
therefore establish precedents and make law. For such interpretative
decisions are necessarily as general as the statutory provisions
interpreted. A question of statutory interpretation is one of fact to
begin with, and is decided on principle; therefore it becomes one of
law, and is for the future decided on authority.
Footnote 168:
Holmes, The Common Law, p. 35.
Footnote 169:
On the decision by judges of questions of fact under the guise of
questions of law, see Thayer’s Preliminary Treatise on the Law of
Evidence, pp. 202, 230, 249.
Footnote 170:
This statement, to be strictly correct, must be qualified by a
reference to the interests of the lower animals. It is unnecessary,
however, to complicate the discussion at this stage by any such
consideration. The interests and rights of beasts are moral, not
legal.
Footnote 171:
Pandekt. I. sect. 37.
Footnote 172:
Geist d. r. R. III. p. 339, 4th ed.
Footnote 173:
Theory of Legislation, pp. 82–84. See also Works, III. 217.
Footnote 174:
Principles of Ethics, II. p. 63.
Footnote 175:
The denial of natural rights is not rendered any more defensible by
the recognition of other _positive_ rights in addition to the strictly
legal rights which are created by the state; for example, rights
created by international law, or by the so-called law of public
opinion.
Footnote 176:
See Austin, Lect. 17.
Footnote 177:
The terms subject and object are used by different writers in a
somewhat confusing variety of senses:—
(_a_) The subject of a right means the owner of it; the object of a
right means the thing in respect of which it exists. This is the usage
which has been here adopted: Windscheid, I. sect. 49.
(_b_) The subject of a right means its subject-matter (that is to say,
its object in the previous sense). The object of a right means the act
or omission to which the other party is bound (that is to say, its
content): Austin, pp. 47, 712.
(_c_) Some writers distinguish between two kinds of subjects—active
and passive. The active subject is the person entitled; the passive
subject is the person bound: Baudry-Lacantinerie, Des Biens, sect. 4.
Footnote 178:
As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburg,
Pandekten, I. sect. 49.
Footnote 179:
See as to rights to rights, Windscheid, I. sect. 48 a (Rechte an
Rechten).
Footnote 180:
_Musgrove_ v. _Toy_, (1891) A. C. 272.
Footnote 181:
On the distinction between liberties and rights, see Bentham’s Works,
III. p. 217; _Starey_ v. _Graham_, (1899) 1 Q. B. at p. 411, per
Channell, J.; _Allen_ v. _Flood_, (1898) A. C. at p. 29, per Cave, J.;
Terry, p. 90; Brown’s Austinian Theory of Law, p. 180.
Footnote 182:
A power is usually combined with a liberty to exercise it; that is to
say, the exercise of it is not merely effectual but rightful. This,
however, is not necessarily the case. It may be effectual and yet
wrongful; as when, in breach of my agreement, I revoke a licence given
by me to enter upon my land. Such revocation is perfectly effectual,
but it is a wrongful act, for which I am liable to the licensee in
damages. I had a right (in the sense of power) to revoke the licence,
but I had no right (in the sense of liberty) to do so: _Wood_ v.
_Leadbitter_, 13 M. & W. 838; _Kerrison_ v. _Smith_, (1897) 2 Q. B.
445.
Footnote 183:
On the distinction between powers and other kinds of rights, see
Windscheid, I. sect. 37; Terry, p. 100.
Footnote 184:
This division of rights into rights (_stricto sensu_), liberties, and
powers, is not intended to be exhaustive. These are the most important
kinds of advantages conferred by the law, but they are not the only
kinds. Thus, the term right is sometimes used to mean an _immunity_
from the legal power of some other person. The right of a peer to be
tried by his peers, for example, is neither a right in the strict
sense, nor a liberty, nor a power. It is an exemption from trial by
jury—an immunity from the power of the ordinary criminal courts.
Footnote 185:
A very thorough examination of the conception of a legal right is to
be found in Terry’s Principles of Anglo-American Law (Philadelphia,
1884), a work of theoretical jurisprudence too little known in
England, and characterised by much subtle analysis of legal
conceptions. Rights are there divided (ch. 6, pp. 84–138) into four
kinds, which the author distinguishes as (1) permissive rights (which
we have here termed liberties), (2) facultative rights (which we have
here termed powers), (3) correspondent rights (which are so called
because they correspond to duties, and which we have here termed
rights in the strict sense), and (4) protected rights. These last we
have not recognised as being in truth a class of rights at all. They
are, if I understand Mr. Terry correctly, not rights but the _objects_
of rights _stricto sensu_; for example, life, reputation, liberty,
property, domestic relations, &c. That is to say, they are the things
in which a person has an interest, and to which, therefore, he has a
right, so soon as, but not until, the law protects that interest by
imposing duties in respect of it upon other persons. There is no right
to reputation apart from and independent of the right that other
persons shall not publish defamatory statements.
Footnote 186:
The distinction here drawn between duty and liability may seem to
conflict with the common usage, by which certain kinds of duties are
apparently spoken of as liabilities. Thus we say that a man is liable
for his debts. This, however, may be construed as meaning that he is
liable to be sued for them. We certainly cannot regard liability as a
generic term including all kinds of duty. We do not say that a man is
liable not to commit murder, or not to defraud other persons.
Footnote 187:
Of the three classes of rights or legal interests which we have
considered, the first, consisting of those which are the correlative
of duties, are by far the most important. So predominant are they,
indeed, that we may regard them as constituting the principal
subject-matter of the law, while the others are merely accessory. In
future, therefore, we shall use the term right in this narrow and
specific sense, except when the context indicates a different usage;
and we shall commonly speak of the other forms of rights by their
specific designations.
Footnote 188:
The term enforcement is here used in a wide sense to include the
maintenance of a right or duty by any form of compulsory legal
process, whether civil or criminal. There is a narrower use of the
term, in which it includes only the case of civil proceedings. It is
in this sense that we have already defined civil justice as being
concerned with the enforcement of rights, and criminal justice as
being concerned with the punishment of wrongs. As to the distinction
between recognising and enforcing a right, see Dicey, Conflict of
Laws, p. 31, 2nd ed.
Footnote 189:
There is another use of the term imperfect duty which pertains to
ethics rather than to jurisprudence, and must be distinguished from
that adopted in the text. According to many writers, an imperfect duty
is one of such a nature that it is not fit for enforcement, but ought
properly to be left to the free will of him whose duty it is. A
perfect duty, on the other hand, is one which a man not merely _ought_
to perform, but may be _justly compelled_ to perform. The duty to give
alms to the poor is imperfect; that of paying one’s debts is perfect.
Perfect duties pertain to the sphere of justice; imperfect to that of
benevolence. The distinction is not equivalent to that between legal
duties and those which are merely moral. A duty may be a perfect duty
of justice, although the actual legal system takes no notice of it;
and conversely an imperfect duty of benevolence may be unjustly made
by law the subject of compulsion. It does not seem possible, however,
so to divide the sphere of duty by a hard and fast line. One of the
most noteworthy attempts to do so is to be seen in Spencer’s
Principles of Ethics.
Footnote 190:
_Ex parte Sheil_, 4 Ch. D. 789. _London & Midland Bank_ v. _Mitchell_,
(1899) 2 Ch. 161.
Footnote 191:
As to rights against the state see Brown’s Austinian Theory of Law, p.
194.
Footnote 192:
Some writers treat _jus in personam_ and _jus ad rem_ as synonymous
terms. It seems better, however, to use the latter in a narrower
sense, as including merely one species, although the most important
species, of _jura in personam_. Savigny, System, sect. 56, n. b.
Footnote 193:
Gaius, IV. 2.
Footnote 194:
A personal as opposed to a proprietary right is not to be confounded
with a personal as opposed to a real right. It is a misfortune of our
legal nomenclature that it is necessary to use the word personal in
several different senses. The context, however, should in all cases be
sufficient to indicate the particular signification intended. The more
flexible language of the Germans enables them to distinguish between
_personliche Rechte_ (as opposed to _dingliche Rechte_ or real rights)
and _Personenrechte_ (as opposed to _Vermögensrechte_ or proprietary
rights). See Dernburg, Pandekten, I. sect. 22, note 7.
Footnote 195:
Ahrens, sect. 55: Tous les biens, soit matériels en eux-mêmes, soit
susceptibles d’être estimés en argent comme équivalent (par aestimatio
et condemnatio pecuniaria) appartenant à une personne, forment son
avoir ou son patrimoine.
Baudry-Lacantinerie, Des Biens, sect. 2. Le patrimoine est un ensemble
de droits et de charges appréciables en argent.
Dernburg, Pandekten, I. sect. 22. Vermögen ist die Gesammtheit der
geldwerthen Rechte einer Person.
Windscheid, I. sect. 42, note: Vermögensrechte sind die Rechte von
wirthschaftlichem Werth.
See also to the same effect Savigny, System, sect. 56, and Puchta,
Institutionen, II. sect. 193.
Footnote 196:
The words status and estate are in their origin the same. As to the
process of their differentiation in legal meaning, see Pollock and
Maitland, History of English Law, II. pp. 10 and 78 (1st ed.). The
other uses of the term property will be considered by us later, in
chapter xx.
Footnote 197:
See Dicey, Conflict of Laws, p. 458, 2nd ed.
Footnote 198:
See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, §
178; Hunter’s Roman Law, p. 138, 3rd ed.
Footnote 199:
See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.
Footnote 200:
The Romans termed them _servitutes_, but the English term servitude is
used to include one class of _jura in re aliena_ only, namely the
_servitutes praediorum_ of Roman Law.
Footnote 201:
The owner of an encumbrance may be termed the encumbrancer of the
servient right or property over which it exists.
Footnote 202:
In addition to the distinctions between different kinds of rights
considered in this chapter, there must be borne in mind the important
distinction between Primary and Sanctioning Rights, but this has
already been sufficiently dealt with in the chapter on the
Administration of Justice.
Footnote 203:
Pollock, Jurisprudence, p. 175: “Ownership may be described as the
entirety of the powers of use and disposal allowed by law.... The
owner of a thing is not necessarily the person who at a given time has
the whole power of use and disposal; very often there is no such
person. We must look for the person having the residue of all such
power when we have accounted for every detached and limited portion of
it; and he will be the owner even if the immediate power of control
and use is elsewhere.”
Footnote 204:
The figurative identification of a right with its object is not
absolutely limited to the case of material things, though this is by
far the most important instance. Similar reasons of convenience of
speech and ease of thought lead to a similar metonymy in other cases,
when the object of a _jus in re propria_ has a recognised name. We
speak, for example, of the ownership of a trade-mark, or of that of
the good-will of a business; meaning thereby the ownership of a _jus
in re propria_ in respect of these things.
Footnote 205:
A similar explanation of the distinction between corporeal and
incorporeal ownership is given by the following writers:—
Windscheid I. sect. 42: “A very common form of speech ... substitutes
for the right of ownership (Eigenthumsrecht) the thing in respect of
which it exists.”
Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its
excuse, if not its justification, in the consideration that the right
of ownership, being the most complete right which can exist in respect
of a thing, since it is absolute and exclusive, is identified with the
thing itself.”
Bruns, Das Recht des Besitzes, p. 477.
Girard, Droit Romain, p. 244.
Footnote 206:
Austin, p. 358. German Civil Code, sect. 90: Sachen im Sinne des
Gesetzes sind nur körperliche Gegenstände.
Footnote 207:
Vide supra, § 73.
Footnote 208:
This use of the term thing (_res_) and the distinction between _res
corporalis_ and _res incorporalis_ are derived from Roman Law. Just.
Inst. II. 2:—Quaedam praeterea res corporales sunt, quaedam
incorporales. Corporales eae sunt, quae sui natura tangi possunt:
veluti fundus, homo, vestis, aurum, argentum, et denique aliae res
innumerables. Incorporales autem sunt, quae tangi non possunt. Qualia
sunt ea, quae in jure consistunt: sicut hereditas, usufructus,
obligationes quoque modo contractae.
Footnote 209:
The same explanation is applicable to the distinction between
corporeal and incorporeal _property_. A person’s property consists
sometimes of material objects and sometimes of rights. As to the
different uses of the term property, see infra, ch. xx.
Footnote 210:
He who owns property for his own use and benefit, without the
intervention of any trustee, may be termed the _direct_ owner of it,
as opposed to a mere trustee on the one hand, and to a beneficial
owner or beneficiary on the other. Thus if A. owns land, and makes a
declaration of trust in favour of B., the direct ownership of A. is
thereby changed into trust-ownership, and a correlative beneficial
ownership is acquired by B. If A. then conveys the land to B., the
ownership of B. ceases to be merely beneficial, and becomes direct.
Footnote 211:
On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The
Place of Trust in Jurisprudence, by W. G. Hart).
Footnote 212:
Vide supra, § 85.
Footnote 213:
On investitive and divestitive facts, see chapter xvi., § 120.
Footnote 214:
On vested and contingent ownership, see Windscheid, I. sects. 86–95;
Dernburg, Pandekten, I. 82. 105–112; Austin, Lecture 53.
Footnote 215:
Possession in law is sometimes used in a narrow sense to denote
possession which is such in law only and not both in law and in
fact—that is to say, to denote constructive possession (_possessio
fictitia_). In the wider sense it denotes all possession which is
recognised by the law, whether it does or does not at the same time
exist in fact.
Footnote 216:
See, as to the idea of seisin and the consequences attributed to its
presence or absence, a series of interesting articles by Maitland in
the L. Q. R., I. 324, II. 481. IV. 24, 286. See also Lightwood,
Possession of Land, pp. 4–8.
Footnote 217:
_Possessio_ is the _de facto_ relation between the possessor and the
thing possessed. _Jus possessionis_ is the right (if any) of which
possession is the source or title. _Jus possidendi_ is the right (if
any) which a man has to acquire or to retain possession.
Footnote 218:
D. 41. 2. 3. 1.
Footnote 219:
It must be remembered that we are speaking of possession in fact.
Whether possession in law and the various advantages conferred by it
are to be attributed to all possessors in fact or only to some of them
is a different question with which we are not here concerned. Roman
Law, save in exceptional cases, allowed possessio corporis only to
those who possessed as owners and on their own behalf. In English law,
on the other hand, there is no such limitation of legal possession;
though even here the possession of a servant sometimes fails to obtain
legal recognition.
Footnote 220:
_R._ v. _Mucklow_, 1 Moody C. C. 160.
Footnote 221:
_Merry_ v. _Green_, 7 M. & W. 623.
Footnote 222:
Pollock and Wright, Possession in the Common Law, p. 14.
Footnote 223:
“Absolute security for the future,” says Dernburg, Pandekten, I. sect.
169, “is not requisite. For it is not to be had.... All that is
necessary is that according to the ordinary course of affairs one is
able to count on the continuing enjoyment of the thing.” See also I.
sect. 178. See also Pollock and Wright, Possession, p. 13: “That
occupation is effective which is sufficient as a rule and for
practical purposes to exclude strangers from interfering with the
occupier’s use and enjoyment.”
Footnote 224:
Pollock and Wright, Possession, p. 15: “Physical or _de facto_
possession readily follows the reputation of title.”
Footnote 225:
In the words of Ihering: “The visibility of possession is of decisive
importance for its security.” Grund des Besitzesschutzes, p. 190.
Footnote 226:
21 L. J. Q.B. 75.
Footnote 227:
L. & C. 1.
Footnote 228:
7 M. & W. 623.
Footnote 229:
8 Ves. 405. 7 R. R. 99.
Footnote 230:
1 Moody C. C. 160.
Footnote 231:
33 Ch. D. 562.
Footnote 232:
(1896) 2 Q. B. 44.
Footnote 233:
1 Smith L. C, 10th ed. 343; 1 Strange 504.
Footnote 234:
See for a criticism of the _ratio decidendi_ of this case Clerk and
Lindsell’s Law of Torts, Appendix.
Footnote 235:
33 Ch. D. 562 at p. 568.
Footnote 236:
The explicit recognition of mediate possession (mittelbarer Besitz) in
its fullest extent is a characteristic feature of the German Civil
Code (sects. 868–871): “If any one possesses a thing as usufructuary,
pledgee, tenant, borrower, or depositee, or in any similar capacity by
virtue of which he is entitled or bound with respect to some other
person to keep possession of the thing for a limited time, then that
other person has possession of it also (mediate possession).” See
Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp.
697–701.
Footnote 237:
In _Ancona_ v. _Rogers_ (1 Ex. D. at p. 292) it is said in the
judgment of the Exchequer Chamber: “There is no doubt that a bailor
who has delivered goods to a bailee to keep them on account of the
bailor, may still treat the goods as being in his own possession, and
can maintain trespass against a wrongdoer who interferes with them. It
was argued, however, that this was a mere legal or constructive
possession of the goods.... We do not agree with this argument. It
seems to us that goods which have been delivered to a bailee to keep
for the bailor, such as a gentleman’s plate delivered to his banker,
or his furniture warehoused at the Pantechnicon, would in a popular
sense as well as in a legal sense be said to be still in his
possession.”
Footnote 238:
(1893) 2 Q. B. 30, 31.
Footnote 239:
1 Taunt. 458; 10 R. R. 578.
Footnote 240:
6 El. & B. 726.
Footnote 241:
At p. 735.
Footnote 242:
D. 41. 2. 3. 5.
Footnote 243:
These terms, however, are not strictly accurate, inasmuch as the
so-called constructive delivery is a perfectly real transfer of
possession, and involves no element of fiction whatever.
Footnote 244:
For examples of _traditio brevi manu_, see _Winter_ v. _Winter_, 4 L.
T. (N.S.) 639; _Cain_ v. _Moon_, (1896) 2 Q. B. 283; _Richer_ v.
_Voyer_, L. R. 5 P. C. 461.
Footnote 245:
For examples of _constitutum possessorium_, see _Elmore_ v. _Stone_, 1
Taunt. 458; 10 R. R. 578; _Marvin_ v. _Wallace_, 6 El. & Bl. 726. See
supra § 101.
Footnote 246:
_Constitutum possessorium_, also, may be termed attornment in a wide
sense.
Footnote 247:
Delivery by attornment is provided for by the Sale of Goods Act, 1893,
sect. 29 (3): “Where the goods at the time of sale are in the
possession of a third person, there is no delivery by seller to buyer
unless and until such third person acknowledges to the buyer that he
holds the goods on his behalf.”
Footnote 248:
The theory here considered is that which has been made familiar by
Savigny’s celebrated treatise on Possession (Recht des Besitzes,
1803). The influence of this work was long predominant on the
Continent and considerable in England, and it still finds no small
amount of acceptance. A forcible statement of the objections to
Savigny’s doctrine is contained in Ihering’s Grund des
Besitzesschutzes, pp. 160–193.
Footnote 249:
Bruns rejects the definition of possession as consisting in the
continuing exercise of a right, and defines it as the continuous
possibility of exercising a right at will. “Just as corporeal
possession,” he says (Recht des Besitzes, p. 475) “consists not in
actual dealing with the thing, but only in the power of dealing with
it at will, so incorporeal possession consists not in the actual
exercise of a right, but in the power of exercising it at will; and it
is only because the existence of this power does not become visible as
an objective fact until actual exercise of the right has taken place,
that such actual exercise is recognised as an essential condition of
the commencement of possession.” This however seems incorrect.
Possession consists not in the power of exercising a claim in the
future, but in the power of _continuing to exercise it_ from now
onwards.
Footnote 250:
Thus in the Civil Code of France it is said (sect. 2228): La
possession est la détention ou la jouissance d’une chose ou d’un droit
que nous tenons ou que nous exerçons par nous-mêmes ou par un autre
qui la tient ou qui l’exerce en notre nom.
The definition of the Italian Civil Code is similar (sect. 685):
“Possession is the detention of a thing or the enjoyment of a right by
any person either personally or through another who detains the thing
or exercises the right in his name.”
A good analysis of the generic conception of possession, and of the
relation between its two varieties, is to be found in
Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect.
199): “Possession is nothing else than the exercise or enjoyment,
whether by ourselves or through the agency of another, of a real right
which we have or claim to have over a thing. It makes no difference
whether this right is one of ownership or one of some other
description, such as _ususfructus_, _usus_, _habitatio_, or
_servitus_. The old distinction between possession and
quasi-possession, which was recognised by Roman law and is still to be
found in the doctrine of Pothier, has been rejected, and rightly so.
It was in our opinion nothing more than a result of that confusion
between the right of ownership and the object of that right, which has
been at all times prevalent. Possession is merely the exercise of a
right; in reality it is not the thing which we possess, but the right
which we have or claim to have over the thing. This is as true of the
right of ownership as of the right of servitude and usufruct; and
consequently the distinction between the possession of a thing and the
quasi-possession of a right is destitute of foundation.
See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms
of possession consist in the exercise of a right (die Ausübung eines
Rechts).” Bruns, also, recognises the figure of speech on which the
distinction between corporeal and incorporeal possession is based.
Recht des Besitzes, p. 477.
Footnote 251:
Grund des Besitz, p. 179: Der Besitz die Thatsächlichkeit des
Eigenthums. See also at p. 192: Der Besitz ist die Thatsächlichkeit
des Rechts.
Footnote 252:
In saying that possession is the _de facto_ counterpart of ownership,
it is to be remembered that we use both terms in their widest sense,
as including both the corporeal and incorporeal forms. If we confine
our attention to corporeal ownership and possession, the
correspondence between them is incomplete. Many claims constitute
corporeal possession if exercised _de facto_, but incorporeal
ownership if recognised _de jure_. Thus tenants, bailees, and pledgees
have corporeal possession but incorporeal ownership. They possess the
land or the chattel, but own merely an encumbrance over it. The
ownership of a book means the ownership of the _general or residuary
right_ to it; but the possession of a book means merely the possession
of an _exclusive right to it for the time being_. That is to say, the
figurative usage of speech is not the same in possession as in
ownership, therefore much corporeal possession is the counterpart of
incorporeal ownership.
Footnote 253:
Windscheid II. sect. 464: “If we ask what other rights, in addition to
real rights, admit of possession, the answer is that in principle no
right is incapable of possession, which is capable of continuing
exercise (dauernde Ausübung).”
So Ihering, Grund des Besitz, p. 158: “The conception of possession
is applicable to all rights which admit of realisation
(Thatsächlichkeit), that is to say, which admit of a continuing
visible exercise.” Ihering defines possession generally (p. 160) as
“Thatsächlichkeit der mit dauernder Ausübung verbundenen Rechte.”
See also Bruns, Recht des Besitzes, pp. 479, 481.
Footnote 254:
See for example the German Civil Code, sects. 858, 861, 864, and the
Italian Civil Code, sects. 694–697.
Footnote 255:
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1. _Armorie_ v. _Delamirie_, 1
Stra. 504. 1 Sm. L. C. 10th ed. 343. _Bridges_ v. _Hawkesworth_, 21 L.
J. Q. B. 75.
Footnote 256:
Legal persons are also termed fictitious, juristic, artificial, or
moral.
Footnote 257:
Exodus xxi. 28. To the same effect see Plato’s Laws, 873.
Footnote 258:
_Ellis_ v. _Loftus Iron Company_, L. R. 10 C. P. at p. 13: “In the
case of animals trespassing on land the mere act of the animal
belonging to a man which he could not foresee, or which he took all
reasonable means of preventing, may be a trespass, inasmuch as the
same act if done by himself would have been a trespass.” _Cf._ Just.
Inst. iv. 9.
Footnote 259:
D. 1. 5. 2.
Footnote 260:
_In re Dean_, 41 Ch. D. 552.
Footnote 261:
Ibid. p. 557.
Footnote 262:
Hereditas personae vice fungitur. D. 46. 1. 22. Creditum est
hereditatem dominam esse, defuncti locum obtinere. D. 28. 5. 31. 1.
Footnote 263:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 264:
_R._ v. _Raynes_, 2 East P. C. 652.
Footnote 265:
_Foster_ v. _Dodd_, L. R. 3 Q. B. at p. 77: “Whether in ground
consecrated or unconsecrated indignities offered to human remains in
improperly and indecently disinterring them, are the ground of an
indictment.”
Footnote 266:
_R._ v. _Stewart_, 12 Ad. and El. 777. As to the lawfulness of
cremation see _Reg._ v. _Price_, 12 Q. B. D. 247.
Footnote 267:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 268:
2 & 3 Wm. IV. c. 75, sect. 7.
Footnote 269:
_In re Vaughan_, 33 Ch. D. 187; _Hoare_ v. _Osborne_, 1 Eq. 587.
Footnote 270:
_In re Dean_, 41 Ch. D. 557.
Footnote 271:
5 Co. Rep 125 a: _R._ v. _Labouchere_, 12 Q. B. D. 320; Stephen’s
Digest of Criminal Law, sect. 291. 5th ed.
Footnote 272:
7 Co. Rep. 8 b. Compare D. 1. 5. 26: Qui in utero sunt in toto paene
jure civili intelleguntur in rerum natura esse.
Footnote 273:
_The George and Richard_, L. R. 3 Ad. and Ecc. 466.
Footnote 274:
_R._ v. _Senior_, 1 Moody, C. C. 344; _R._ v. _West_, 2 Car. and Kir.
784.
Footnote 275:
_Walker_ v. _Great Northern Ry. Co. of Ireland_, 28 L. R. Ir. 69.
Footnote 276:
The maxim of the law is: Quum duo jura in una persona concurrunt,
aequum est ac si essent in duobus. _Calvin’s Case_, 2 State Trials
584. _Coppin_ v. _Coppin_, 2 P. W. 295.
Footnote 277:
D. 8. 2. 26.
Footnote 278:
German writers term it the _substratum_ or _Unterlage_ of the
fictitious person. Windscheid, I. sect. 57. Vangerow, I. sect. 53.
Puchta, II. 192.
Footnote 279:
Co. Litt. 2. a.
Footnote 280:
8 Ed. VII. c. 48, s. 33.
Footnote 281:
39 & 40 Vict. c. 18, s. 1.
Footnote 282:
18 & 19 Vict. c. 117, s. 2.
Footnote 283:
Corporations sole are not a peculiarity of English law. The
distinction between the two forms of incorporation is well known to
foreign jurists. See Windscheid, I. sect. 57. Vangerow, I. sect. 53.
The English law as to corporations sole is extremely imperfect and
undeveloped, but the conception itself is perfectly logical, and is
capable of serious and profitable uses. Maitland has traced the
history of this branch of the law in two articles in the L. Q. R. XVI.
p. 335. and XVII. p. 131.
Footnote 284:
Savigny, System, sect. 90: “The aggregate of the members who compose a
corporation differs essentially from the corporation itself.” _The
Great Eastern Ry. Co._ v. _Turner_, L. R. 8 Ch. at p. 152: “The
Company is a mere abstraction of law.” _Flitcroft’s Case_, 21 Ch. D.
at p. 536: “The corporation is not a mere aggregate of shareholders.”
_Salomon_ v. _Salomon & Co._ (1897) A. C. at p. 51: “The company is at
law a different person altogether from the subscribers to the
memorandum.”
Footnote 285:
D. 3. 4. 7. 2. Cum jus omnium in unum reciderit, et stet nomen
universitatis. _Universitas_ is the generic title of a corporation in
Roman law, a title retained to this day in the case of that particular
form of corporation which we know as a university.
Footnote 286:
Blackstone, I. 485.
Footnote 287:
Lindley on Companies, II. p. 822 (6th ed.): “A company which is
incorporated by act of parliament can be dissolved only as therein
provided, or by another act of parliament.”
Footnote 288:
That a corporation may survive the last of its members is admitted by
Savigny (System, sect. 89), and Windscheid (I. sect. 61).
Footnote 289:
The leading advocate of this realistic theory is Gierke (Die
Genossenschaftstheorie, 1887. Deutsches Privatrecht, 1895). See also
Dernburg, Pandekten, I. sect. 59, and Mestre, Les Personnes Morales,
1899. In England it has received sympathetic exposition, if not
express support, from Maitland in the Introduction to his translation
of part of Gierke’s Genossenschaftsrecht (Political Theories of the
Middle Ages, 1900). See also, to the same effect, Pollock,
Jurisprudence, p. 113, and L. Q. R. vol. 27, p. 219; Brown, Austinian
Theory of Law, Excursus A; 22 L. Q. R. 178, The Legal Personality of a
Foreign Corporation, by E. H. Young. Savigny and Windscheid are
representative adherents of the older doctrine. For further
discussions of this question see Harvard Law Review, vol. xxiv. pp.
253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly
Review, vol. xxvii. p. 90 (Legal Personality, by Prof. W. M. Geldart);
Gray’s Nature and Sources of the Law, ch. 2; Saleilles, De la
personnalité juridique.
Footnote 290:
The relation between a corporation and its beneficiaries may or may
not amount to a _trust_ in the proper sense of the term. A share in a
company is not the beneficial ownership of a certain proportion of the
company’s property, but the benefit of a contract made by the
shareholder with the company, under which he is entitled to be paid a
share of the profits made by the company, and of the surplus assets on
its dissolution. A share is a chose in action—an _obligation_ between
the company and the shareholder. _Colonial Bank_ v. _Whinney_, 11 A.
C. 426.
Footnote 291:
_Cornford_ v. _Carlton Bank_, (1899) 1 Q. B. 392; (1900) 1 Q. B. 22.
Footnote 292:
_Reg._ v. _Birmingham and Gloucester Ry. Coy._, 3 Q. B. 223; _Reg._ v.
_Great North of England Ry. Coy._, 9 Q. B. 315.
Footnote 293:
As to the liability of corporations, see Salmond’s Law of Torts, § 18;
Pollock’s Law of Torts, p. 60, 8th ed.; _Cornford_ v. _Carlton Bank_,
(1899) 1 Q. B. 392; _Citizens’ Life Assurance Co._ v. _Brown_, (1904)
A. C. 423; _Green_ v. _London General Omnibus Coy._, 7 C. B. (N. S.)
290; _Abrath_ v. _North Eastern Railway Co._, 11 A. C. 247, per Baron
Bramwell; Dernburg, Pandekten, I. sect. 66; Windscheid, I. sect. 59;
Savigny, System, sects. 94, 95; D. 4. 3. 15. 1.
Footnote 294:
D. 3. 4. 7. 1.
Footnote 295:
It is a somewhat curious circumstance that the legal persons created
by one system of law receive full recognition from other systems. This
form of legal fiction has acquired extraterritorial and international
validity. A French corporation can sue and be sued in an English court
of justice as if it were a real person. _The Dutch West India Co._ v.
_Van Moses_, 1 Str. 611; _Newby_ v. _Van Oppen_, L. R. 7 Q. B. 293.
Footnote 296:
_Calvin’s Case_, 2 State Trials, at p. 624: “The King hath two
capacities in him: one a natural body, being descended of the blood
royal of the realm; and this body is of the creation of Almighty God,
and is subject to death, infirmity, and such like: the other is a
politick body or capacity, so called because it is framed by the
policy of man; and in this capacity the King is esteemed to be
immortal, invisible, not subject to death, infirmity, infancy.” As to
the history of this idea see Holdsworth’s History of English Law, III.
pp. 357–362.
Footnote 297:
_Sloman_ v. _Government of New Zealand_, 1 C. P. D. 563. This was an
action brought in England against the “Governor and Government of the
Colony of New Zealand.” It failed because there was no such person or
body corporate known to the law.
Footnote 298:
See _Williams_ v. _Howarth_, (1905) A. C. 551.
Footnote 299:
The Commonwealth of Australia, for example, and also the constituent
Australian states are now to be deemed for certain purposes bodies
politic and corporate. For by virtue of Australian legislation they
can now sue and be sued in their own names, and possess other
attributes of personality; thus an action will now lie at the suit of
the State of Victoria against the State of New South Wales. The
corporate character thus bestowed upon these states, however, is
concurrent with, and not exclusive of the old common law principle
which identifies the state with the King. Public lands in Australia,
for example, are still the lands of the Crown, except so far as they
may be expressly vested in the corporate state by statute.
Footnote 300:
_Supra_, § 112.
Footnote 301:
It has been expressly recognised by the High Court of Australia, so
far as regards the Commonwealth of Australia and the constituent
states: _Municipal Council of Sydney_ v. _The Commonwealth_, 1
Commonwealth L. R. at p. 231, per Griffith, C. J.: “It is manifest
from the whole scope of the Constitution that just as the Commonwealth
and State are regarded as distinct and separate sovereign bodies,...so
the Crown as representing those several bodies is to be regarded not
as one, but as several juristic persons.”
Footnote 302:
Title meant originally a mark, sign, or inscription; _e.g._, the title
of a book; _titulus sepulchri_, an epitaph. “Pilate wrote a title and
put it on the cross.” John xix. 19. Thence more specifically it came
to mean signs or evidence of right or ownership; _e.g._, _titulus_, a
boundary-stone; _titulus_, a title-deed (Ducange). Thence the _ground_
of right or ownership, viz., an investitive fact.
Footnote 303:
Bentham calls such facts _dispositive_.
Footnote 304:
We may term them, with Bentham, _translative_ facts.
Footnote 305:
We here use the term transfer in its generic sense, as including both
voluntary and involuntary changes of ownership. It has also a specific
sense in which it includes only the former. Succession _ab intestato_,
for example, is a transfer of rights in the wide sense, but not in the
narrow.
Footnote 306:
This nomenclature has been suggested and adopted by Sir Frederick
Pollock (Jurisprudence, p. 142). Other writers prefer to indicate acts
in the law by the term juristic acts. The Germans call them
Rechtsgeschäfte.
Footnote 307:
The use of the terms agreement and contract is curiously unsettled.
_a._ Agreement and contract are often used as synonyms, to mean a
bilateral act in the law directed to the creation of an obligation,
that is to say a right _in personam_. The objection to this usage is
that we cannot afford so to waste one of these terms.
_b._ Contract is sometimes used to mean an agreement (in the preceding
sense) enforceable by law. Pollock, Principles of Contract, p. 8.
Indian Contract Act, sect. 2 (h). This, also, seems the sacrifice of a
useful term to an inadequate purpose. Moreover the distinction does
not conform to established usage. We habitually and conveniently speak
of void, invalid, or illegal _contracts_.
_c._ Contract is sometimes used in the wide sense of any bilateral act
in the law. Holland, pp. 225, 226. This, however, is very unusual, and
it is certainly better to use agreement in this sense. Contract, being
derived from _contrahere_, involves the idea of binding two persons
together by the _vinculum juris_ of an obligation. An assignment is
not a contract, and a release is the very reverse of a contract.
_d._ There remains the usage suggested and adopted in the text. An
agreement is a bilateral act in the law. Est pactio duorum pluriumve
in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the
other hand, is that particular kind of agreement which is intended to
create a right _in personam_ between the parties. This is the
distinction adopted by Sir W. Anson in his work on Contracts, p. 2:
“Contract is that form of agreement which directly contemplates and
creates an obligation.” So Pothier, Traité des Obligations, sect. 3;
L’espèce de convention qui a pour objet de former quelque engagement
est celle qu’on appelle contrat. _Cf._ French Civil Code, Art. 1101.
The Germans use _Vertrag_ as equivalent to agreement in this sense;
while a contract is _obligatorischer Vertrag_, or _Vertrag_ in a
narrower sense. Savigny, System, sect. 141. Puchta, sect. 271.
Dernburg, Pandekten, I. sect. 92.
Footnote 308:
_Middleton_ v. _Pollock_, 2 Ch. D. 104; _Sharp_ v. _Jackson_, (1899)
A. C. 419.
Footnote 309:
The terms unilateral and bilateral possess another signification
distinct from that which is attributed to them in the text. In the
sense there adopted all agreements are bilateral, but there is another
sense in which some of them are bilateral and others unilateral. An
agreement is bilateral, in this latter signification, if there is
something _to be done_ by each party to it, while it is unilateral if
one party is purely passive and free from legal obligation, all the
activity and obligation being on the other side. An agreement to lend
money is bilateral, while an agreement to give money is unilateral.
Footnote 310:
D. 50, 17. 69.
Footnote 311:
Summa, 2. 2. q. 57. art. 2.
Footnote 312:
In respect of the efficacy of contracts, there is a special case which
requires a word of notice. A contract may be neither void nor
voidable, but yet _unenforceable_. That is to say, no action will lie
for the enforcement of it. The obligation created by it is imperfect.
See _ante_, § 78. An example is a verbal contract which ought to be in
writing under the Statute of Frauds.
Footnote 313:
D. 50. 17. 45. 1.
Footnote 314:
_Cundy_ v. _Lindsay_, 3 A.C. 459; _Raffles_ v. _Wichelhaus_, 2 H. & C.
906.
Footnote 315:
_King_ v. _Smith_, (1900) 2 Ch. 425.
Footnote 316:
_Smith v. Hughes_, L. R. 6 Q. B. 597.
Footnote 317:
In addition to the ease of misrepresentation, unessential error
affects any agreement which has been expressly or impliedly made
conditional on the existence of the fact erroneously supposed to
exist. A contract of sale, for example, is conditional on the present
existence of the thing sold; if it is already destroyed, the contract
for the purchase of it is void.
Footnote 318:
With the exception of contracts under seal and contracts of record, to
which the doctrine of consideration is inapplicable.
Footnote 319:
_Cf._ D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus,
deinde ex ea stipulatione experiatur, exceptio utique doli mali ei
nocebit. See also D. 12. 7. 1. pr.
Footnote 320:
Salmond, Essays in Jurisprudence and Legal History, p. 219.
Footnote 321:
The French law as to the cause or consideration of a contract will be
found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie,
Obligations, sects. 295–327. Whether the English doctrine of
consideration is historically connected with the _causa_ of the civil
law in a matter of dispute, and there is much to be said on both
sides.
Footnote 322:
We have already seen that the term liability has also a wider sense,
in which it is the correlative of _any_ legal power or liberty, and
not merely of the right of action or prosecution vested in a person
wronged. Supra, § 77.
Footnote 323:
Supra, § 27.
Footnote 324:
Supra, § 34.
Footnote 325:
Supra, § 78.
Footnote 326:
Gaius, III. 211.
Footnote 327:
The distinction between material and formal wrongdoing has long been
familiar in moral philosophy. The material badness of an act depends
on the actual nature, circumstances, and consequences of it. Its
formal badness depends on the state of mind or will of the actor. The
madman who kills his keeper offends materially but not formally; so
also with him who in invincible ignorance breaks the rule of right.
Material without formal wrongdoing is no ground of culpability.
Footnote 328:
Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements
which immediately follow our desires of them are the only human acts,
strictly and properly so called.”
Footnote 329:
It is unfortunate that there is no recognised name for the origin or
initial stage of the act, as contrasted with the totality of it.
Bentham calls the former the _act_ and the latter the _action_.
Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these
two terms are synonymous, and to use them in this special sense would
only lead to confusion.
Footnote 330:
See Salmond on Torts, p. 165, 3rd ed.
Footnote 331:
_Reg._ v. _Coombes_, 1 Lea. Cr. C. 388.
Footnote 332:
_United States_ v. _Davis_, 2 Sumner, 482.
Footnote 333:
_Reg._ v. _Armstrong_, 13 Cox, C. C. 184; _Reg._ v. _Keyn_, 2 Ex. D.
63.
Footnote 334:
_Cowan_ v. _O’Connor_, 20 Q. B. D. 640.
Footnote 335:
_Muller & Co’s Margarine, Limited_ v. _Inland Revenue Commissioners_,
(1900) 1 Q. B. 310; (1901) A. C. 217.
Footnote 336:
_Reg._ v. _Ellis_, (1899) 1 Q. B. 230.
Footnote 337:
The question is fully discussed in the case of _Reg._ v. _Keyn_, 2 Ex.
D. 63, in which the captain of a German steamer was tried in England
for manslaughter by negligently sinking an English ship in the Channel
and drowning one of the passengers. One of the minor questions in the
case was that of the place in which the offence was committed. Was it
on board the English ship, or on board the German steamer, or on board
neither of them? Four of the judges of the Court for Crown Cases
Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and
Cockburn, C.J., agreed that if the offence had been wilful homicide it
would have been committed on the English ship. Denman, J., and
Coleridge, C.J., applied the same rule to negligent homicide.
Cockburn, C.J., doubted as to negligent homicide. Bramwell, B., said
(p. 150): “If the act was wilful, it is done where the will intends it
should take effect; aliter when it is negligent.” For a further
discussion of the matter, see Stephen’s History of Criminal Law, II.
pp. 9–12, and Oppenhoff’s annotated edition of the German Criminal
Code (13th ed. 1896), p. 28. The German doctrine is that an act is
committed in the place where it is begun. See also Terry, Principles
of Anglo-American Law, pp. 598–606, and _Edmundson_ v. _Render_,
(1905) 2 Ch. 320.
Footnote 338:
_Northey Stone Co._ v. _Gidney_, (1894) 1 Q. B. 99.
Footnote 339:
If the law dates the commission of a wrong from the completion of it,
it follows that there are cases in which a man may commit a wrong
after his death. If A. excavates his own land so as to cause, after an
interval, the subsidence of the adjoining land of B., there is no
wrong done until the subsidence happens; _Backhouse_ v. _Bonomi_, 9 H.
L. C. 503; _Darley Main Colliery Co._ v. _Mitchell_, 11 A. C. 127.
What shall be said, then, if A. is dead in the meantime? The wrong, it
seems, is not done by his successors in title: _Hall_ v. _Duke of
Norfolk_, (1900) 2 Ch. 493; _Greenwell_ v. _Low Beechburn Colliery_,
(1897) 2 Q. B. 165. The law, therefore, must hold either that there is
no wrong at all, or that it is committed by a man who is dead at the
date of its commission.
Footnote 340:
Holmes, Common Law, p. 53: “Intent will be found to resolve itself
into two things; foresight that certain consequences will follow from
an act, and the wish for those consequences working as a motive which
induces the act.”
Footnote 341:
It is to be noticed, however, that the part which _was_ intended may
constitute in itself an independent intentional wrong included in the
larger and unintentional wrong of which it forms a part. Intentionally
to discharge firearms in a public street is a wilful wrong, if such an
act is prohibited by law. But accidentally to kill a person by the
intentional discharge of firearms in a public street is a wrong of
negligence.
Footnote 342:
See however § 143, infra, as to constructive intent. Wrongful intent
is sometimes imputed in law when there is none in fact.
Footnote 343:
For a discussion of this matter, see _Ex parte Hill_, 23 Ch. D. 695,
per Bowen, L. J., at p. 704; also _Ex parte Taylor_, 18 Q. B. D. 295.
Footnote 344:
See for example D. 4. 3. 1. pr.
Footnote 345:
It is to malice in one only of these two uses that the well-known
definition given in _Bromage_ v. _Prosser_ (4 Barn & C. 247; 28 R. R.
241) is applicable: “Malice in common acceptation means ill-will
against a person; but in its legal sense it means a wrongful act done
intentionally, without just cause or excuse.” See, to the same effect,
_Mogul Steamship Co._ v. _McGregor Gow & Co._, 23 Q. B. D. at p. 612,
per Bowen, L. J.; and _Allen_ v. _Flood_, (1898) A. C. at p. 94, per
Lord Watson.
Footnote 346:
D. 4. 3. 1. 2.
Footnote 347:
_Allen_ v. _Flood_, (1898) A. C. at p. 123.
Footnote 348:
_Corporation of Bradford_ v. _Pickles_, (1895) A. C. 587 at p. 598.
Footnote 349:
_Allen_ v. _Flood_, (1898) A. C. 92 at p. 152.
Footnote 350:
The Roman law as to the rights of adjoining proprietors was different.
Harm done _animo nocendi_, that is to say, with a malicious motive,
was actionable. D. 39. 3. 1. 12. The German Civil Code, sect. 226,
provides quite generally that the exercise of a right is unlawful when
its only motive is to harm another person.
Footnote 351:
Art. 50, 5th ed.
Footnote 352:
Strafgesetzbuch, sect. 43. _Cf._ the French Code Pénal, Art. 2.
Footnote 353:
_Roberts’ Case_, Dearsly C. C. 539. Per Parke, B., at p. 551: “An
attempt at committing a misdemeanour is not an indictable attempt
unless it is an act directly approximating to the commission of an
offence, and I think this act is a sufficient approximation. I do not
see for what lawful purpose the dies of a foreign coin can be used in
England, or for what purpose they could have been procured except to
use them for coining.” Per Wightman, J., at p. 551: “It is an act
immediately connected with the commission of the offence, and in truth
the prisoner could have no other object than to commit the offence.”
Per Jervis, C. J., at p. 550: “The prisoner was in possession of
machinery necessarily connected with the offence, for the express
purpose of committing it, and which was obtained and could be used for
no other purpose.”
Footnote 354:
_Reg._ v. _Collins_, L. & C. 471.
Footnote 355:
_Reg._ v. _Ring_, 61 L. J. M. C. 116; _Reg._ v. _Brown_, 24 Q. B. D.
357.
Footnote 356:
Leviathan, ch. 27. Eng. Works III. 288.
Footnote 357:
_Reg._ v. _Dudley_ 14 Q. B. D. 273. The law as to compulsion and
necessity is discussed in Stephen’s History of the Criminal Law, vol.
ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I.
51. See also the German Criminal Code, sect. 54, in which the _jus
necessitatis_ receives express recognition.
Footnote 358:
In Roman law negligence is signified by the terms _culpa_ and
_negligentia_, as contrasted with _dolus_ or wrongful intention. Care,
or the absence of _negligentia_, is _diligentia_. The use of the word
diligence in this sense is obsolete in modern English, though it is
still retained as an archaism of legal diction. In ordinary usage,
diligence is opposed to idleness, not to carelessness.
Footnote 359:
_Grill_ v. _General Iron Screw Colliery Co._, L. R. 1 C. P. at p. 612.
Footnote 360:
_Kettlewell_ v. _Watson_, 21 Ch. D. at p. 706: “Fraud imports design
and purpose; negligence imports that you are acting carelessly and
without that design.”
Footnote 361:
An excellent analysis of the conception of negligence is to be found
in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See
especially sect. 32 (1): “negligent wrongdoing is that which is not
intentional, but results from culpable inadvertence (Unaufmerksamkeit)
or indifference (Gleichgultigkeit). The mental attitude of the
wrongdoer consists not in any desire to do harm, but in the absence of
a sufficient desire to avoid it. The law is not satisfied with the
mere absence of any intention to inflict injury, but demands a
positive direction of the will towards the avoidance of it.”
Footnote 362:
The distinction between these two forms of negligence is well
explained by Merkel, Strafrecht, sect. 33 (3).
Footnote 363:
Inst. Just. 4. 3. 7.
Footnote 364:
_Derry_ v. _Peek_, 14 A. C. 337; _Le Lievre_ v. _Gould_, (1893) 1 Q.
B. 491.
Footnote 365:
_Macarthy_ v. _Young_, 6 H. & N. 329; _Coughlin_ v. _Gillison_, (1899)
1 Q. B. 145. For the same reason the occupier of dangerous premises
owes a duty of care to him who comes there on business, but none
towards a bare licensee. _Gautret_ v. _Egerton_, L. R. 2 C. P. 371.
Similarly an arbitrator is liable for fraud, but not for negligence or
want of skill. _Tharsis Sulphur and Copper Co._ v. _Loftus_, L. R. 8
C. P. 1.
Footnote 366:
_Tillett_ v. _Ward_, 10 Q. B. D. 17.
Footnote 367:
_Hammack_ v. _White_, 11 C. B. N. S. 588.
Footnote 368:
_Metropolitan R. Co._ v. _Jackson_, 3 A. C. 193.
Footnote 369:
These negative rules as to negligence commonly assume the form of
rules of evidence to the effect that there is no evidence of
negligence to go to the jury. But to withdraw a case from the jury on
this ground is clearly equivalent to the establishment of a rule of
substantive law that the facts proved do not amount to negligence.
Footnote 370:
_Pluckwell_ v. _Wilson_, 5 C. & P. 375.
Footnote 371:
As to negligence in law, see Holmes, Common Law, p. 111 _sqq._
Footnote 372:
See. for example, Smith’s Leading Cases I. 228, 10th ed. (Notes to
_Coggs_ v. _Bernard_.)
Footnote 373:
See _Hinton_ v. _Dibbin_, 2 Q. B. at p. 661, per Denman, C. J.: “It
may well be doubted whether between gross negligence and negligence
merely any intelligible distinction exists.” _Wilson_ v. _Brett_, 11
M. & W. at p. 113, per Rolfe, B.: “I said I could see no difference
between negligence and gross negligence, that it was the same thing
with the addition of a vituperative epithet.” _Grill_ v. _General Iron
Screw Colliery Co._, L. R. 1 C. P. at p. 612, per Willes, J.: “No
information has been given us as to the meaning to be attached to
gross negligence in this case, and I quite agree with the dictum of
Lord Cranworth in _Wilson_ v. _Brett_ that gross negligence is
ordinary negligence with a vituperative epithet, a view held by the
Exchequer Chamber in _Beal_ v. _South Devon Ry. Co._” _Doorman_ v.
_Jenkins_, 2 Ad. and El. at p. 265, per Denman, C. J.: “I thought and
I still think it impossible for a judge to take upon himself to say
whether negligence is gross or not.” Pollock’s Torts, p. 441, 8th ed.
Street’s Foundation of Legal Liability, I. p. 28. See, however, for a
full discussion of the matter, and an expression of the contrary
opinion, Beven on Negligence, Book I. ch. II.
Footnote 374:
D. 50. 16. 226. See also D. 17. 1. 29. pr. D. 47. 4. 1. 2. D. 11. 6.
1. 1.; Lata culpa plane dolo comparabitur.
Footnote 375:
_R._ v. _Harvey_, 2 B. & C. at p. 264, 26 R. R. at p. 343: “A party
must be considered in point of law to intend that which is the
necessary or natural consequence of that which he does.” _Cf._
_Freeman_ v. _Pope_, 5 Ch. Ap. at p. 540; _Ex parte Mercer_, 17 Q. B.
D. at p. 298.
Footnote 376:
In _Le Lievre_ v. _Gould_, (1893) 1 Q. B. at p. 500, it is said by
Lord Justice Bowen: “If the case had been tried with a jury, the judge
would have pointed out to them that gross negligence might amount to
evidence of fraud, if it were so gross as to be incompatible with the
idea of honesty, but that even gross negligence, in the absence of
dishonesty, did not of itself amount to fraud.” Literally read, this
implies that, though gross negligence cannot _be_ fraud, it may be
_evidence_ of it, but this of course is impossible. If two things are
inconsistent with each other, one of them cannot be evidence of the
other. The true meaning is that alleged or admitted negligence may be
so gross as to be a ground for the inference that it is in reality
fraud and not negligence at all; see also _Kettlewell_ v. _Watson_, 21
Ch. D. at p. 706 per Fry, J.
Footnote 377:
Stephen, Digest of the Criminal Law, Art. 244, 5th ed.
Footnote 378:
Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis
of Criminal Liability, ch. 9.
Footnote 379:
Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the
omission to take such care as under the circumstances it is the legal
duty of a person to take. It is in no sense a positive idea, and has
nothing to do with a state of mind.” _Cf._ Pollock, Torts, pp.
437–439, 8th ed.
Footnote 380:
The question is discussed in Holmes’s Common Law, pp. 81–96 and in
Pollock’s Law of Torts, pp. 136–148, 8th ed.
Footnote 381:
As to _mens rea_ in criminal responsibility see _Reg._ v. _Tolson_, 23
Q. B. D. 168; _Reg._ v. _Prince_, L. R. 2 C. C. 154; _Chisholm_ v.
_Doulton_, 22 Q. B. D. 736.
Footnote 382:
The rule is not limited to civil and criminal liability, but extends
to all other departments of the law. It prevents, for example, the
recovery of money paid under a mistake of law, though that which is
paid under a mistake of fact may be reclaimed.
Footnote 383:
Regula est juris quidem ignorantiam cuique nocere, facti vero
ignorantiam non nocere. D. 22. 6. 9. pr.
Footnote 384:
_Hollins_ v. _Fowler_, L. R. 7 H. L. 757; _Consolidated Coy._ v.
_Curtis_, (1892) 1 Q. B. 495.
Footnote 385:
_Reg._ v. _Prince_, L. R. 2 C. C. 154.
Footnote 386:
Y. B. 17 Edw. IV. 2.
Footnote 387:
_Filburn_ v. _Aquarium Co._, 25 Q. B. D. 258.
Footnote 388:
_Black_ v. _Christchurch Finance Co._, (1894) A. C. 48.
Footnote 389:
_Rylands_ v. _Fletcher_, L. R. 3 H. L. 330.
Footnote 390:
_Pickard_ v. _Smith_, 10 C. B. N. S. 470.
Footnote 391:
_Ellis_ v. _Loftus Iron Co._, L. R. 10 C. P. 10.
Footnote 392:
Exodus xxi. 28.
Footnote 393:
Laws, 873.
Footnote 394:
Thorpe, Ancient Laws and Institutes of England, I. p. 71, sect. 13.
Footnote 395:
9 & 10 Vict. c. 62; Blackstone, I. 300.
Footnote 396:
Inst. Just. 4. 8. and 4. 9.
Footnote 397:
_Chisholm_ v. _Doulton_, 22 Q. B. D. 736. _Parker_ v. _Alder_, (1899)
1 Q. B. 20.
Footnote 398:
Deut. xxiv. 16.
Footnote 399:
Laws, 856. On the vicarious responsibility of the kindred in early
law, see Lea, Superstition and Force, pp. 13–20, 4th ed., and Tarde,
La Philosophie Pénale, pp. 136–140.
Footnote 400:
Salmond, Essays in Jurisprudence and Legal History, pp. 161–163;
Wigmore, Responsibility for Tortious Acts, Select Essays in
Anglo-American Legal History, III. pp. 520–537; Street, Foundations of
Legal Liability, II. ch. 41–43.
Footnote 401:
Substantive law, as opposed to the law of procedure; civil law, as
opposed to criminal.
Footnote 402:
Blackstone III. 143. “The child hath no property in his father or
guardian as they have in him.” Ibid.
Footnote 403:
Leviathan, ch. xxx.; Eng. Wks. III. 329.
Footnote 404:
Treatise on Civil Government, II. ch. v. sect. 27.
Footnote 405:
Ibid. ch. vii. sect. 87.
Footnote 406:
D. 9. 2. 13. pr.
Footnote 407:
Droit Naturel, II. sect. 55.
Footnote 408:
Principles, p. 231; Works, I. 108. So Puchta, sect. 231: Nur an ...
körperlichen Gegenständen ist Eigenthum möglich.
Footnote 409:
Supra, § 87.
Footnote 410:
The full power of alienation and disposition is an almost invariable
element in the right of ownership, but cannot be regarded as
essential, or included in the definition of it. A married woman
subject to a restraint on anticipation is none the less the owner of
her property, though she cannot alienate or encumber it.
Austin (II. p. 790) defines the right of ownership as a “right
indefinite in point of user, unrestricted in point of disposition, and
unlimited in point of duration, over a determinate thing.”
Footnote 411:
Co. Litt. 4 a.
Footnote 412:
On this question see Pollock’s Torts, p. 347, 8th ed.; Clerk &
Lindsell’s Torts, pp. 337–339, 4th ed.; Salmond’s Torts, § 53 (9);
Hazeltine’s Law of the Air; _Pickering_ v. _Rudd_, 4 Camp. 219; 16 R.
R. 777; _Fay_ v. _Prentice_, 1 C. B. 828; _Wandsworth Board of Works_
v. _United Telegraph Coy._, 13 Q. B. D. 904; _Ellis_ v. _Loftus Iron
Coy._, L. R. 10 C. P. 10.
Footnote 413:
Art. 905.
Footnote 414:
Inst. Just. 2. 1. 29. See also Gaius 2. 73: Superficies solo cedit.
Footnote 415:
_Monti_ v. _Barnes_, (1901) 1 K. B. 205.
Footnote 416:
It is only by slow degrees and with imperfect consistency that our law
has worked out an intelligible principle on this matter. The older law
seems to have recognised mere physical attachment as necessary and
sufficient, subject to exceptions so numerous and important, as to
deprive the principle itself of any rational basis. See, for the
modern law on the point, _Holland_ v. _Hodgson_, L. R. 7 C. P. 328;
_Monti_ v. _Barnes_, (1901) 1 K. B. 205; _In re De Falbe_, (1901) 1
Ch. 523; (1902) A. C. 157; _Elwes_ v. _Brigg Gas Coy._, 33 Ch. D. 502.
Similar law is contained in Article 95 of the German Civil Code:
“Things are not part of the land which are attached to it simply for a
temporary purpose.” The case of _Reynolds_ v. _Ashby & Son_, (1904) A.
C. 466, shows, however, that English law has not yet succeeded in
adopting with consistency any single and intelligible rule.
Footnote 417:
Unlike a chattel, a piece of land has no natural boundaries. Its
separation from the adjoining land is purely arbitrary and artificial,
and it is capable of subdivision and separate ownership to any extent
that may be desired. The lines of subdivision are usually vertical,
but may be horizontal. The surface of land, for example, may belong to
one man and the substrata to another. Each story of a house may have a
different owner. In _The Midland Railway Coy._ v. _Wright_, (1901) 1
Ch. 738, it was held that a right had been acquired by prescription to
the surface of land belonging to a railway company, although a tunnel
beneath the surface remained the property of the company as having
been continuously in its occupation.
Footnote 418:
Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights,
regarded as incorporeal things, are properly speaking neither movables
nor immovables. But by a fiction the law classes them as one or the
other according to the nature of their subject-matter.” See also
Dernburg’s Pandekten, I. sect. 74.
Footnote 419:
For example, the jurisdiction of English courts in the administration
of deceased persons’ estates depends on the deceased having left
property in England. Portions of revenue law and of private
international law are also based on the assumption that all
proprietary rights possess a local situation.
Footnote 420:
_Inland Revenue Commissioners_ v. _Muller & Co.’s Margarine, Limited_,
(1901) A. C. at p. 230.
Footnote 421:
Ibid.
Footnote 422:
Dicey, Conflict of Laws, p. 310, 2nd ed.
Footnote 423:
There are certain cases, however, which have been decided on the
assumption that incorporeal property possesses no local situation at
all. For this reason it was held in _The Smelting Company of
Australia_ v. _Commissioners of Inland Revenue_, (1897) 1 Q. B. 172,
that a share of a New South Wales patent, together with the exclusive
right of using it within a certain district of that colony, was not
property “locally situated out of the United Kingdom” within the
meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not
see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a
licence to use a patent, which is not a visible or tangible thing, can
be said to be locally situate anywhere.” See, however, as to this
case, the observations of Vaughan Williams, L.J., in _Muller & Co.’s
Margarine, Limited_, v. _Inland Revenue Commissioners_, (1900) 1 Q. B.
at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901)
A. C. at p. 237. See further, as to the local situation of incorporeal
property. _Danubian Sugar Factories_ v. _Commissioners of Inland
Revenue_, (1901) 1 K.B. 545; _Commissioner of Stamps_ v. _Hope_,
(1891) A. C. 476; _Att.-Gen._ v. _Dimond_, 1 C. & J. 356; 35 R. R.
732; _In re Clark_, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp.
309–314, 2nd ed.
Footnote 424:
The matter has been well discussed by Mr. T. C. Williams in L. Q. R.
IV. 394.
Footnote 425:
Under the head of material things we must class the _qualities_ of
matter, so far as they are capable in law of being in themselves the
objects of rights. The qualities which thus admit of separate legal
appropriation are two in number, namely force and space. Electricity
is in law a chattel, which can be owned, sold, stolen, and otherwise
rightfully and wrongfully dealt with. 45 & 46 Vict. c. 56, s. 23.
Definite portions of empty space are capable of appropriation and
ownership, no less than the material objects with which other portions
of space are filled. The interior of my house is as much mine as are
the walls and the roof. It is commonly said that the owner of land
owns also the space above the surface _usque ad coelum_. Whether this
is truly so is a doubtful point as the law stands, but there is no
theoretical difficulty in allowing the validity of such a claim to the
ownership of empty space.
Footnote 426:
The distinction formerly noticed by us (§ 88) between _corporeal_ and
_incorporeal_ things must not be confounded with the present
distinction between _material_ and _immaterial_ things. The latter is
a logical distinction, but the former is a mere artifice of speech. An
incorporeal thing is a kind of right, namely any right which is not
identified with some material thing which is its subject-matter. An
immaterial thing is not a right but the subject-matter of one. It is
any subject-matter of a right except a material object.
Footnote 427:
Supra § 83.
Footnote 428:
Supra § 90.
Footnote 429:
Encumbrances are not confined to the law of property, but pertain to
the law of obligations also. Choses in action may be mortgaged,
settled in trust, or otherwise made the subject-matter of _jura in re
aliena_, no less than land and chattels. Much, therefore, of what is
to be said here touching the nature of the different forms of
encumbrance is equally applicable to the law of rights _in personam_.
Footnote 430:
Possession by way of _security_ only, _e.g._, a pledge, is
differentiated by its purpose, however, and falls within the class of
securities, not within that of leases.
Footnote 431:
_Beardman_ v. _Wilson_, L. R. 4 C. P. 57.
Footnote 432:
An example of a lease in perpetuity is the emphyteusis of Roman law.
In consequence of its perpetuity the Roman lawyers were divided in
opinion as to the true position of the tenant or _emphyteuta_, some
regarding him as an owner and others as an encumbrancer. The law was
finally settled in the latter sense. Just. Inst. III. 24. 3.
Footnote 433:
The term servitude (_servitus_) is derived from Roman law, and has
scarcely succeeded in obtaining recognition as a technical term of
English law. It is better, however, than the English _easement_,
inasmuch as easements are in the strict sense only one class of
servitudes as above defined.
Footnote 434:
It is only over land that servitudes can exist. Land is of such a
nature as to admit readily of non-possessory uses, whereas the use of
a chattel usually involves the possession of it for the time being,
however brief that time may be. The non-possessory use of chattels,
even when it exists, is not recognised by the law as an encumbrance of
the ownership, so as to run with it into the hands of assignees.
Footnote 435:
An easement, in the strictest sense, means a particular kind of
servitude, namely a private and appurtenant servitude which is not a
right to take any _profit_ from the servient land. A right of way or
of light or of support is an easement; but a right to pasture cattle
or to dig for minerals is in English law a distinct form of servitude
known as a profit. This distinction is unknown in other systems, and
it has no significance in juridical theory. Its practical importance
lies in the rule that an easement must (it seems) be appurtenant,
while a profit may be either appurtenant or in gross.
Footnote 436:
The term security is also used in a wider sense to include not only
securities over property, but also the contract of suretyship or
guarantee—a mode of ensuring the payment of a debt by the addition of
a second and accessory debtor, from whom payment may be obtained on
default of the principal debtor. With this form of security we are not
here concerned, since it pertains not to the law of property, but to
that of obligations.
Footnote 437:
The word lien has not succeeded in attaining any fixed application as
a technical term of English law. Its use is capricious and uncertain,
and we are at liberty, therefore, to appropriate it for the purpose
mentioned in the text, _i.e._, to include all forms of security except
mortgages.
Footnote 438:
As we shall see, a mortgage by way of transfer is none the less an
encumbrance also—an encumbrance, that is to say, of the beneficial
ownership which remains vested in the mortgagor.
Footnote 439:
It is not essential to a mortgage that the right vested in the
mortgagee should in actual fact survive the right secured by it, so as
to remain outstanding and redeemable. It is sufficient that in its
nature it should be capable of doing so, and therefore requires to be
artificially restricted by an obligation or condition of re-assignment
or surrender. This re-assignment or surrender may be effected by act
of the law, no less than by the act of the mortgagee. The conveyance
of the fee simple of land by way of security is necessarily a mortgage
and not a lien, whether it revests in the mortgagor _ipso jure_ on the
payment of the debt, or does not revest until the mortgagee has
executed a deed of reconveyance.
Footnote 440:
This is one of the reforms effected by the Torrens system of real
property law in force in the Australasian colonies. The so-called
mortgages of land under that system are in reality merely liens.
Footnote 441:
Applications of the rule of possessory ownership may be seen in the
cases of _Armory_ v. _Delamirie_, 1 Str. 504; 1 Smith, L. C. 343;
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1; and _Perry_ v. _Clissold_,
(1907) A. C. 73.
Footnote 442:
The term prescription (_praescriptio_) has its origin in Roman law. It
meant originally a particular part of the _formula_ or written
pleadings in a law suit—that portion, namely, which was written first
(_praescriptum_) by way of a preliminary objection on the part of the
defendant. _Praescriptio fori_, for example, meant a preliminary plea
to the jurisdiction of the court. So _praescriptio longi temporis_ was
a plea that the claim of the plaintiff was barred by lapse of time.
Hence, by way of abbreviation and metonymy (other forms of
prescription being forgotten) prescription in the modern sense.
Footnote 443:
It is clear, however, that until a debt or other obligation is
actually due and enforceable, no presumption against its validity can
arise through the lapse of time. Therefore prescription runs, not from
the day on which the obligation first arises, but from that on which
it first becomes enforceable. _Agere non valenti non currit
praescriptio._
Footnote 444:
C. 2. 3. 20.
Footnote 445:
Stat. 8 & 9 Vict. c. 106, s. 2.
Footnote 446:
_Cochrane_ v. _Moore_, 25 Q. B. D. 57.
Footnote 447:
D. 50. 17. 54.
Footnote 448:
The Factors Act, 1889.
Footnote 449:
Continental systems carry much further than our own the doctrine that
the possessor of a chattel may confer a good title to it. Article 2279
of the French Civil Code lays down the general principle that _En fait
de meubles la possession vaut titre_. In other words the ownership of
a chattel involves no _droit de suite_ or _jus sequelae_, no right of
following the thing into the hands of third persons who have obtained
it in good faith. The rule, however, is subject to important
exceptions, for it does not apply either to chattels stolen or to
chattels lost. Speaking generally, therefore, it is applicable only
where an owner has voluntarily entrusted the possession of the thing
to some one else, as a pledgee, borrower, depositee, or agent, who has
wrongfully disposed of it to some third person. Baudry-Lacantinerie,
De la Prescription, ch. 20. See also, for very similar law, the German
Civil Code, sects. 932–935, and the Italian Civil Code, sects.
707–708.
Footnote 450:
Hereditas ... personam ... defuncti sustinet. D. 41. 1. 34. See
Holmes, Common Law, pp. 341–353. Maine, Ancient Law, pp. 181–182.
Footnote 451:
_Brown_ v. _Burdett_, 21 Ch. D. 667.
Footnote 452:
Obligatio est juris vinculum, quo necessitate adstringimur alicuius
solvendae rei, secundum nostrae civitatis jura. Inst. 3. 13. pr.
Footnote 453:
Jacob’s Law Dictionary, cited by Mr. Sweet in L.Q.R. X. at p. 308 n.
Footnote 454:
As to the nature of choses in action, see Blackstone, II. 396;
_Colonial Bank_ v. _Whinney_, 30 Ch. D. 261 and 11 A. C. 426; and a
series of articles by different writers in the L.Q.R.: IX. 311, by Sir
Howard Elphinstone; X. 143. by T. C. Williams; X. 303. by C. Sweet;
XI. 64. by S. Brodhurst; XI. 223, by T. C. Williams; XI. 238. by C.
Sweet.
Footnote 455:
As we shall see, the creditor is not always entitled to _sue_ one
alone of the debtors; but when he has obtained judgment against all,
he can always, by way of execution, obtain payment of the whole from
any one.
Footnote 456:
_Ward_ v. _The National Bank_, 8 A. C. 755.
Footnote 457:
(1899) 1 Q. B. 840.
Footnote 458:
At p. 845.
Footnote 459:
For another illustration, see _Sadler_ v. _Great Western Ry. Coy._,
(1896) A. C. 450.
Footnote 460:
_Morris_ v. _Robinson_, 3 B. & C. 196; 27 R. R. 322.
Footnote 461:
Supra, § 123.
Footnote 462:
It is advisable to point out that the obligation to pay damages for a
breach of contract is itself to be classed as contractual, no less
than the original obligation to perform the contract.
Footnote 463:
A similar relation exists between breaches of contract and crimes.
Breach of contract is not in itself a crime, any more than it is in
itself a tort; yet by undertaking a contractual duty, a man may often
put himself in such a position, that he cannot break the duty without
causing such damage to third persons, as will create criminal
liability. For example, a signalman’s breach of his contractual duty
to attend to the signals may amount to the crime of manslaughter if a
fatal accident results from it.
Footnote 464:
Salmond’s _Law of Torts_, p. 5.
Footnote 465:
_Grant_ v. _Easton_, 13 Q. B. D. 302.
Footnote 466:
Commentaries II. 443.
Footnote 467:
Ibid. III. 159.
Footnote 468:
Ibid. III. 162.
Footnote 469:
Commentaries III. 160. “A cause of action of contract arises not
merely where one party has broken a legally binding agreement with the
other, but where two parties stand in such a mutual relation that a
sum of money is legally due from the one to the other, in which case
the law is said to imply a contract to pay the money.” Clerk and
Lindsell, Law of Torts, p. 1.
Footnote 470:
_Grant_ v. _Easton_, 13 Q.B.D. at p. 303.
Footnote 471:
_Moses_ v. _Macferlan_, 2 Burr. 1005 at p. 1009.
Footnote 472:
_Exall_ v. _Partridge_, 8 T. R. 308; 4 R. R. 656.
Footnote 473:
_Smith_ v. _Baker_, L.R. 8 C. P. 350. See further as to the waiver of
torts, _Lightly_ v. _Clouston_, 9 R.R. 713; 1 Taunt. 112; _Phillips_
v. _Homfray_, 24 Ch. D. at p. 461; Salmond, Law of Torts, § 44.
Footnote 474:
County Courts Act, 1888, s. 116. This classification of actions is
discussed by Maitland in an appendix to Sir F. Pollock’s Law of Torts.
Footnote 475:
Contracts which have no specific name are called by the civilians
_contractus innomnati_.
Footnote 476:
A conclusive presumption is sometimes called a _presumptio juris et de
jure_, while a rebuttable presumption is distinguished as a
_presumptio juris_. I am not aware of the origin or ground of this
nomenclature. The so-called _presumptio facti_ is not a legal
presumption at all, but a mere provisional inference drawn by the
court in the exercise of its unfettered judgment from the evidence
before it.
Footnote 477:
See Bentham, Works, VII. pp. 445–463, and Dumont, Treatise on Judicial
Evidence, Book VII. ch. 11: “If all the criminals of every class had
assembled, and framed a system after their own wishes, is not this
rule the very first which they would have established for their
security?... One could be tempted to believe that those notions had
been taken from the laws of honour which regulate private combats.”
Footnote 478:
Leviathan, ch. 14. Eng. Works III. p. 129.
Footnote 479:
On the history of oaths, see Lea, Superstition and Force, Part I. ch.
2–8; Encyclopædia Britannica, _sub voc._ Oath; Hirzel, Der Eid (1902).
As to their utility, see Bentham’s Works, VI. 308–325.
Footnote 480:
Vide supra, § 10.
Footnote 481:
Supra, § 5.
Footnote 482:
Thorpe, Ancient Laws and Institutes of England, i. 159; Laws of King
Edward, pr.
Footnote 483:
Ibid. i. 171; Laws of Edward and Guthrum, 6.
Footnote 484:
Ibid. i. 181; Oaths, 3.
Footnote 485:
See _e.g._ Mirror of Justices (Selden Society’s Publications, vol.
vii.), _passim_.
Footnote 486:
D. 1. 1. 11.
Footnote 487:
_Jus_ is also used in various other derivative senses of less
importance: _e.g._, a law court (_in jus vocare_), legal or rightful
power or authority (_sui juris esse_: _jus et imperium_), legal
decision, judgment (_jura dicere_). See Nettleship, Contributions to
Latin Lexicography, _sub voc. Jus_.
Footnote 488:
See Clark, Practical Jurisprudence, p. 18. We owe to Professor Clark a
very careful and scholarly investigation of the whole subject-matter
of this inquiry. See also Skeat’s Etymological English Dictionary, sub
voc. _just_; Manuel des Antiquités Romaines, vol. 6, part i. p. 352,
note 4: Miller’s Data of Jurisprudence, p. 33.
Footnote 489:
Nettleship, Contributions to Latin Lexicography, sub voc. _Mos._
Footnote 490:
Practical Jurisprudence, p. 51.
Footnote 491:
_Dike_ is said to be derived from DIK, to show, point out, make known,
this being itself a form of DA, to know; hence, practical knowledge,
skill, the _way a thing is done, custom_. This suggestion might be
considered ingenious, rather than convincing, were it not for the
singular fact that the Teutonic languages exhibit a precisely similar
process of thought. The English substantive _wise_ means way or
manner, and is yet the same word as _wise_, the adjective, and is
derived from the root WID, to know. See also with the German _Weise_
(way), _weisen_(to point out, direct), _weise_ (wise). See Curtius,
Grundzüge der Griechischen Etymologie, sub voc. _dike_. Skeat, sub
voc. Wise, and list of Aryan Roots, 145 and 372.
Footnote 492:
Skeat, Aryan Roots, 162.
Footnote 493:
On the whole matter see Maine, Ancient Law, ch. 1; Clark, Practical
Jurisprudence, p. 42; Liddell and Scott, sub voc. _themis_; Hirzel,
Themis Dike und Verwandtes (1907).
Footnote 494:
Manuel des Antiquités Romaines, vol. 6, part i. p. 351; Nettleship,
sub voc. _Lex._
Footnote 495:
Cited by Nettleship, sub voc. _Lex._
Footnote 496:
Just. Inst. i. 2. 4.
Footnote 497:
See Ducange, sub voc. _Lex._
Footnote 498:
See Ducange, sub voc. _Lex._
Footnote 499:
Ibid.
Footnote 500:
Ibid.
Footnote 501:
See Murray’s New English Dictionary, sub voc. _Doom_.
Footnote 502:
Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of
King Alfred, sect. 49.
Footnote 503:
Ibid. sect. 43.
Footnote 504:
Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In
Scottish legal procedure the word doom is still used in the sense of
judgment; the death sentence is “pronounced for doom”: Miller’s Data
of Jurisprudence, p. 292.
Footnote 505:
Manuel des Antiquités Romaines, vol. 6, pt. i., p. 351, n.
Footnote 506:
See Smith’s Latin Dictionary, sub voc. _lego_.
Footnote 507:
Nettleship, sub voc. _Lex._
Footnote 508:
Clark, p. 31.
Footnote 509:
Muirhead, Historical Introduction to the Private Law of Rome, p. 19.
Footnote 510:
Skeat, sub voc. Law; Clark, p. 68.
Footnote 511:
Much information as to the etymology and early meanings of legal terms
is to be found in Miller’s Data of Jurisprudence, _passim_. See also
Walker’s Science of International Law, pp. 21–25.
Footnote 512:
Supra, § 41.
Footnote 513:
As to the severance of legislative and executive sovereignty in the
British constitution, see Anson, Law and Custom of the Constitution,
Part I. pp. 39–41, 3rd ed.
Footnote 514:
As to the divisibility of sovereign power, see Bryce’s Studies in
History and Jurisprudence, II., p. 70: “Legal sovereignty is
divisible, _i.e._, different branches of it may be concurrently vested
in different persons or bodies, co-ordinate altogether, or co-ordinate
partially only, though acting in different spheres.” For a statement
of the contrary opinion see Brown, Austinian Theory of Law, p. 174.
Footnote 515:
Leviathan, ch. 20. Eng. Works, III. 194.
Footnote 516:
I. 263.
Footnote 517:
The distinction between _de jure_ or legal and _de facto_ or practical
sovereignty—sovereign power in law and sovereign power in fact—is
admirably expressed and analysed in Bryce’s Studies in History and
Jurisprudence II., pp. 49–73.
Footnote 518:
Fragment on Government, ch. 4. sects. 35, 36.
Footnote 519:
We have already seen that the state may and does owe legal duties to
its subjects, but that these duties are necessarily imperfect and
unenforceable. Supra, § 79.
Footnote 520:
For authorities, see § 57.
Footnote 521:
As to the possibility of legal limitations of sovereign power, see
Jellinek, Das Recht des modernen Staates, I. pp. 432–441; Pollock,
Jurisprudence, pp. 270–273; Sidgwick, Elements of Politics, pp. 23–29;
623–638; Bryce, Studies in History and Jurisprudence, II. 71. “Legal
sovereignty,” says Dr. Bryce, “may be limited, i.e. the law of any
given state may not have allotted to any one person or body, or to all
the persons or bodies taken together, who enjoys or enjoy supreme
legislative or executive power, the right to legislate or to issue
special orders on every subject whatever.” Brown, Austinian Theory of
Law, pp. 158–164. “The Austinian position,” says Professor Brown,
“that a supreme legislature is incapable of legal limitation, is a
position which does not rest, as Austin supposes, upon logical
necessities, but upon the humbler ground of expediency.”
Footnote 522:
No small part of this branch of the law of status, however, may be
conveniently dealt with in connexion with various departments of the
law of property and obligations. It may be best, for example, to
discuss the contractual capacity of different classes of persons in
the law of contracts, instead of in the law of the personal status of
these persons.
Footnote 523:
Blackstone, however, is sufficiently scrupulous in respect of logical
arrangement to include them in this department of the law.
------------------------------------------------------------------------
TRANSCRIBER’S NOTES
1. P. 468, changed “In all cases, therefore, sovereign power is
necessarily present somewhere, but it is not in a cases to be
found in its entirety within the borders of the state itself” to
“In all cases, therefore, sovereign power is necessarily present
somewhere, but it is not in all cases to be found in its entirety
within the borders of the state itself”.
2. P. 471, changed “In this view, law and legal obligation are
co-extensive, and the legal limitation of supreme power appears to
involve the subjection of the possessor of it to legal obligations
in respect to the exercise of .” to “In this view, law and legal
obligation are co-extensive, and the legal limitation of supreme
power appears to involve the subjection of the possessor of it to
legal obligations in respect to the exercise of it.”
3. Silently corrected obvious typographical errors and variations in
spelling.
4. Retained archaic, non-standard, and uncertain spellings as printed.
5. Enclosed italics font in _underscores_.
6. Enclosed bold font in =equals=.