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philosophical. Then the general subject would have been exhausted, little would have remained to be discussed under the special titles, several omissions would have been guarded against, many repetitions avoided, the general principles announced more clearly, and the book materially reduced in size.
The authors say ($ 11), “It is said the question whether a party has been negligent in a particular case is one of mingled law and fact. It includes, indeed, two questions: (1) Whether a particular act has been performed or omitted ; and (2) whether the performance or omission of this act was a breach of legal duty. The first of these is a pure question of fact, the second a pure question of law." If this be so the whole question of negligence is one of law. As we understand the question it is as follows: (1) Does the law impose a duty or obligation? (2) What is that duty or obligation? These are questions of law. (3) Was the conduct under investigation a violation of that duty ? This is a question of fact. The legal duty which is generally imposed, is to take that forethought for the rights of others which under the particular circumstances of the case might be reasonably expected from a person of mature age who is not deficient in prudence. Whether that forethought has been exercised is a question of fact. Negligence is conduct arising from want of forethought which violates a legal duty. In our opinion negligence is a question of fact.
The authors say (8 16), “The civil law affirms the existence of three degrees of negligence --- slight, ordinary, and gross. The distinction between these degrees of negligence has been repeatedly recognized in the courts of common law; but of late the existence of such a distinction has been denied Notwithstanding the adverse opinions cited, we think the distinction a real and valuable one.” Grill v. Iron Screw Co., L. R. 1 C. P. 600, a late English case which denies suclr a distinction, is not cited by the authors. We think the introduction of degrees of negligence from the civil law has been productive of no good, but of unqualified harm. The bewildering perplexity which, in this country, surrounds the question of the respective provinces of the court and of the jury in actions for negligence, is, for the most part, owing to the confusion produced by this distinction. A defendant can be said to have been negligent, in the legal sense, only when his conduct, whether by an act of omission or of commission, renders him liable to an action. If it renders him liable to an action, there are no degrees to his liability. He cannot be any thing more than liable. The authors are themselves confused by the division of negligence into degrees. What is the meaning of this ($ 24), “The killing of a human being by culpable negligence being a criminal offence, it is obvious that the law in civil cases ought to follow the criminal law, and even to go beyond it: so that there is a manifest propriety in its punishing civilly a low degree of the same negligence which in a little higher degree it would punish criminally." Here we have two new degrees of negligence. What is meant by punishing civilly? Can the sentence quoted mean that an action can be maintained for an injury resulting in death when no action could be maintained for the same injury not so resulting? The whole section is obscure. It commences, “The common law has a peculiar regard for human life.” “But the common law allowed no remedy by way of a civil action for the death of a human being," $ 290.
Tuff v. Warman, 5 C. B. (N. 6.) 573, is the leading English case upon the subject of contributory negligence. It is a very carefully considered case, and is based upon a review of all the preceding authorities. The rule there laid down is " that mere negligence or want of ordinary care or caution will not disentitle the plaintiff to recover, unless it be such that but for that negligence, or want of ordinary care and caution, the misfortune could not have happened, nor if the defendants might by the exercise of care on their part have avoided the consequences of the neglect or carelessness of the plaintiff.”
This view of the law is fully adopted by the authors of this book. They think, however, that it is opposed by many dicta and by some decisions. The law of Tuff v. Warman is so reasonable in itself, and so consistent with principle. that it will undoubtedly become, if it is not now, the general rule of American law. It has been held in a late Massachusetts case, not yet reported, not to be the law of that State. It is said to be opposed to the settled rule of law in Massachusetts, that the burden of proof is upon the plaintiff to show that he himself has been free from contributory fault. Such is not the English rule as to the burden of proof. It is hard to see why in this class of actions as in all others the presumption is not that a party has acted in all respects properly, until something appears to suggest the contrary. The natural instinct of self-preservation is often an additional ground for such a presumption in this class of cases. The Massachusetts rule is based upon the case of Bullerfield v. Forrester, 11 East, 60, and upon the rule as to the burden of proof in actions against towns for injuries from defects of highways, which are assumed to be analogous to other actions of negligence. Later English decisions show that the case of Butterfield v. Forrester was misunderstood in this particular by the Court of Massachusetts. The analogy in highway cases fails in the only point where an analogy could afford a valid argument. Towns are by the construction of the Massachusetts statute liable only if the injury resulted solely from the defect in the highway. Proof that an injury resulted solely from a defect necessarily involves the proof that the plaintiff's own act did not contribute to it.
The Massachusetts rule concerning the burden of proof as to the plaintiff's negligence has been adopted in some other States. In New York ($ 43), “the jury are at liberty to infer that the plaintiff was sufficiently careful, from the absence of any contrary indications." In most of the States the English rule is probably adopted, which is that, the defendant's negligence being proved, it is for him to show that the injury was also occasioned by the concurring negligence of the plaintiff.
The authors (S$ 102, 112, 388, 401, 490, 505) criticise various decisions of the Supreme Court of Massachusetts, with what justness the reader must judge for himself. They intimate rather plainly (102, n) that they consider the opinions of that court as of but small authority upon questions of negligence. It is certain that some of the Massachusetts decisions are peculiar, and at first view not readily reconcilable with principle.
It is said ($ 48), “It is generally, though not uniformly, understood that an infant is personally chargeable with any negligence or other fault of his guardian whereby he is exposed to an injury.” We think the authors are mistaken as to the generality of that understanding. It is not so understood by the courts of England. The doctrine has been repudiated with some warmth of expression by the highest courts of at least seven of the States of this Union. Some of these cases do not appear to have fallen under the authors' observation. It
appears to us to be a doctrine almost peculiar to New York and Massachusetts. It was first announced in New York, in the case of Hartfield v. Roper, 21 Wend. 615. It was not necessary for the decision of that case. It was first adopted by the Supreme Court of Massachusetts, in the case of Holly v. Boston Gas Light Co., 8 Gray, 123, and afterwards carried to an extent to which it has not been elsewhere carried in the case of Callahan v. Bean, 9 Allen, 401. The Supreme Court of Illinois, in a case published, perhaps, too late to be referred to in this book (Ill. Cent. R. R. Co. v. McClelland, 42 Ill. 356), have extended the law of contributory negligence in a new direction. It seems to be the principle of Hartfield v. Roper carried to its legitimate result. The action was against a railroad company for burning grass and hay in the plaintiff's meadow, by a fire communicated from sparks from a locomotive. The sparks appear to have set fire to the grass outside the plaintiff's premises and the fire spread thence to the plaintiff's grass. " At the time of the fire. of the plaintiff, and in his employ, saw the fire while on his way to the house. Forty or fifty minutes afterward he returned and found the fire had got into the meadow.” The court say, “It was then a proper subject of inquiry by the jury, could the plaintiff's son and servant, by the exercise of reasonable diligence, have prevented the spread of the fire ? He saw the fire in time to arrest its progress, at any rate in time to make some effort to that end, but did not choose so to do. He left the scene and was absent near one hour, and on his return the fire had reached the meadow. Common prudence required that he should have made some effort to prevent this, and it was negligence on his part for which the plaintiff is answerable that he did not.” We should say that this decision was unreasonable were it not that the New York and Massachusetts courts still sustain the doctrine of Hartfield v. Roper. It is hard to say why these courts should not also follow this decision.
In this book, the liability of towns to parties injured by defects in highways is treated of at length. In this class of cases the question does not depend simply upon the construction of the single section of the statute imposing the liability taken by itself; it depends upon the construction of that section taken as a part of a statutory system for the laying out and maintenance of ways. A decision of a court of one State therefore upon such a question is, in our opinion, generally entitled to small weight in the determination of a similar question in another State.
In the table of cases in this book the references are made to the sections. In the table of contents and in the index, they are made to the pages. Such a diverse method of reference is a source of annoyance to one who consults it.
The vague way in which such terms as negligence, care, accident, with numberless qualifying adjectives, are used by the courts, makes it in many instances almost impossible to reconcile the cases in this branch of the law, even where there is in reality no conflict, and also makes it difficult to determine the precise points of the decisions. For this reason the labor which the authors must have bestowed upon the work will not be duly appreciated by the casual reader. We are surprised that they have done as much as they have upon such a perplexing subject. The book is one which has been greatly needed. We know of no work which will be more useful to a lawyer in general practice than this volume on Negligence.
Commentaries on the Law of Agency as a Branch of Commercial and Maritime
Jurisprudence, with occasional Illustrations from the Civil and Foreign Law. By JOSEPH Story, LL.D. Seventh Edition, Revised and Improved, with Important and Valuable Additions. By Isaac F. REDFIELD, LL.D., and WILLIAM A. HERRICK. Boston: Little, Brown, & Company. 1869.
Judge Story's Treatise on the Law of Agency was the first of his Commentaries on Commercial Law, and in general estimation the best; nor has it lost its reputation. On the other topics of Commercial Law, of which he treated, other books have been written as good, and perhaps in some respects better, than his ; but his treatise on Agency yet remains unsurpassed and unrivalled, though, with his wonted modesty, he disclaimed for it any merit beyond that of the presentation of accurate outlines, and left to more gifted minds to enjoy the enviable distinction of having embodied in a durable form the entire details."
The present editors say in their preface that “they have been at considerable labor and pains to have it as acceptable, both to the student and the practical lawyer, as possible, and they believe every thing has been done to insure that result which could properly be expected of them; and they feel justified in expecting that the book will be found satisfactory to all who desire a reliable text-book upon this important subject brought down to the time of publication."
The editorial labors, beside a note on the case of Cornfoot v. Fowke, 6 M. & W. 358, consist of the addition to the notes of forty-one English and one hundred and nineteen American cases. Different parts of the work seem to have been edited with very different degrees of care. To chapter sixth, for instance, on the Nature and Extent of Authority, thirty-three new cases have been added; while in a stretch of nearly one hundred pages, from page 416 to 510, comprising three entire chapters and part of another, there is but one new case added, and that is cited before at an earlier page. We ought not to pass over without commendation the very convenient analyses prefixed to the chapters.
A Treatise on the American Law of Landlord and Tenant; embracing the Statu
tory Provisions and Judicial Decisions of the several United Statez in reference thereto; with a Selection of Precedents. Fifth Edition. Revised and Enlarged. By John N. Taylor, Counsellor-at-Law. Boston: Little, Brown, & Company. 1869.
TAYLOR on Landlord and Tenant was in its first edition a fair book, but the subsequent editions have not been well kept up, and the work needed a thorough revision, which it is has now got. How much it was needed is proved by the statement in the preface that “though the work has not been burdened by the citation of cases, which merely recognize principles previously well established,” yet “more than a thousand additional cases are embodied which exhibit distinct modifications of the law as it previously stood, or present further developments of its leading principles.” This is the way a law treatise should be edited.
The book has been made much more serviceable for general use by the copious notes attached to the chapter on Summary Proceedings, and to that on Forcible Entry and Detainer, in which the practice in the different States is set forth.
The recent American cases have been diligently collected, but we wish that the author had extended his attention to the English cases decided in the last
three or four years: they include several important decisions on the general principles of the law of landlord and tenant, which he seems to have overlooked.
By no means the least commendable feature is the care which has been bestowed in inserting the names of the cases where they were not before given (and by looking at an earlier edition one is surprised to see how often this was the case), and in verifying the references. This is the more worthy of praise, as an editor ton seldom feels disposed to take any pains with correcting the citations in earlier impressions (and indeed often pays little enough heed to his own), so that when an error has once crept in, it is apt to be stereotyped for posterity.
The new matter has no distinguishing mark, and is very compactly given; and it is only on a careful examination that one becomes aware how much the work has been improved in this edition.
A Practical Treatise on the Law of Replevin in the United States ; with an Appen
dix of Forms and a Digest of Statutes. By PHINEAS PEMBERTON MORRIS. Second and Revised Edition. Philadelphia: Kay & Brother. 1869.
Mr. Morris remarks, with truth, in his preface, that “there is no part of the law unblended with public jurisprudence or politics, which has been more obviously improved in the United States than Replevin." In England, except · within the narrow limits to which replevin is practically confined, there is not, since the disuse of the action of detinue, any legal means for recovering possession of personal property, but the injured party is left to the uncertain remedy of damages; while, on the other hand, in this country replevin is in daily use to recover the possession of chattels of every description.
Yet when Mr. Morris first published his treatise, there was no American book on replevin, and, except his treatise, there is none now.
The author certainly has attained his aim “ to place within reach, and in a connected form, information which cannot elsewhere be obtained but at the expense of much time and labor.” His statement of the history and general principles which govern the law is clear, and his illustrations to the point. “We should have been glad if, in this second edition, he had gone more into detail. The obvious criticism on the book is, that, in a work for general use, he has confined his researches too much to Pennsylvania. Of cases published in the twenty years since his first edition, he has given thirty-one from the Pennsylvania reports, which we dare say indicate very well the course of decision there, but from all the rest of the State reports together he has added but fifty cases, which can hardly present all the important points decided in the whole country during so considerable a period.
A Treatise on the Law of Sel-off, Recoupment, and Counter-Claim. By THOMAS
W. WATERMAN, Counsellor-at-Law. New York: Baker, Voorhis, & Company. 1869.
SET-OFF is defined by Mr. Waterman as, technically speaking, a counter demand which the defendant holds against the plaintiff, arising out of a transaction extrinsic to the plaintiff's cause of action.” The right to set-off did not exist at common law, but is wholly the creature of statute. Approaching, however, to the right of statutable set-off, by an analogy more or less remote, are