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Lord Campbell .compares it to a right to light; but that right is created by the express enactment of the third section of the statute before referred to. And it seems contrary to justice and reason, that a man, by building a weak house adjoining to the house of his neighbour, can, if the weak house gets out of the perpendicular, and leans upon the adjoining house, thereby compel his neighbour either to pull down his own house within twenty years, or to bring some action at law, the precise nature of which is not very clear; otherwise, it is said, an adverse right would be acquired against him. But these questions we refer to because they were matters of argument at the bar. It is not necessary to decide them in the present case.
The clefendants' houses were not next adjoining the plaintiff's. * * * The question therefore really comes to this: Is there any authority in the law for the existence of such a right as that claimed by the plaintiff? We find none where the houses do not adjoin; and, although we possibly might have acted upon the cases before referred to if the circumstances had been the same, we are not disposed to extend the principle farther than we feel ourselves compelled by authority. If there be such a rule of law as that suggested by Lord Campbell in Humphries v. Brogden, the plaintiff's contention may be right. But, as already observed, we have not been referred to, and are not aware of, any authority to that effect."
Bramwell B. agreed in the result of the judgment, and did not dissent from any reason given in support of it; but the reasons seemed to his lordship to involve questions of very great difficulty and importance, and he would rather not pronounce an opinion on them without great consideration. There was another ground upon which the defendants were entitled to the judgment of the court : where a house leans, as in this case, the owner of it may make two claims on his neighbour in respect of it-one, a general right to occupy a portion of the neighbour's ground as it were, and to hang over and occupy a portion of air over it; the other, a right to support from the walls of the neighbour's house. The former claim was here out of the question, because the plaintiff's house did not impend over the defendants' land. As to the other claim, supposing it did exist as a matter of absolute right, or of prescription, or under the Prescription Act, or as founded on some supposed lost grant-in any of these cases it could only exist if the benefit which was claimed was one that was enjoyeil as of right. Now, a thing cannot be enjoyed as of right unless it be openly enjoyed. An enjoyment must neither be vi, precario, por clam. In the present case, his lordship thought no one could tell that the house was being supported; and therefore, supposing that the plaintiff for more than twenty years had an
enjoyment which he contended ought now to continue, it was an enjoyment clam, not openly, and consequently not of right.
Martin B. added, that if he had been one of the jury, he should have found a verdict for the defendants on the ground stated by Bramwell B. ; but, if that was the correct view of the case, it was a question for the jury, and not one of law.
On the judgment delivered by the Lord Chief Baron, we have but one remark to make. It is this :--Lord Campbell, in Humphries v. Brogden, does not appear to have intimated that the rule suggested by him was applicable to the case of support of building by building. The ruling of Lord Ellenborough in Stansell v. Jollard, and of Parke B. in Hide v. Thornborough, applies only to cases of support of buildings by the adjoining soil; and we apprehend that it was not the intention of Lord Campbell to extend the rule to the case of support of building by building.
[To be continued.]
Notices of New Books.
[*** It should be understood that the notices of new works forwarded to us for review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in a more elaborate form, in a subsequent Number, when their character and importance seem to require it.]
Social Science Papers.—Papers of the Social Science Association, 1859.
WE were unable to do more in our last Number than briefly notice the doings of the Social Science meeting at Bradford in the autumn of 1859. The papers read on that occasion are now before us, and we refer to them with a view more particularly of drawing attention to what this Association is effecting, or promises to effect, in matters relating to the amendment of the laws of Great Britain. In other departments of science which are within the scope of the Association, many other topics as interesting will be found discussed, which, though by no means beyond the fixed limits which this Review proposes to itself, are yet less immediately connected with the lawyer's profession, and the material he has daily to deal with.
There is a natural and necessary connection between social science and the construction and application of the law. The state of the laws of a country may affect its social condition, by either interfering unduly with the relations between man and man, or by omittiug to enforce the rules which are properly within its province; or, finally, by adopting a machinery for the purpose, which, by being cumbersome, costly, deceptive, or inappropriate, produces an effect injurious to the welfare of the community. Any scientific consideration of the condition of society, or of the laws of a country, which did not embrace the investigation of the mutual relations of society, and the jurisprudence under which it exists, would be imperfect. The measures which concern the prevention and punishment of crime, the reform of the criminal, the modes of enjoying and disposing of property, of making contracts, of protecting the lives and liberties of the inhabitants of a country, fall strictly within the limits of the Association. The remarks in the paper by the common serjeant (Mr. Thomas Chambers) are very pertinent to this subject (vide, p. 159, et seq.) Mr. Chambers illustrates the effect upon society of legislation on commerce, and shows the working of our laws of debtor and creditor, the bankruptcy and insolvency system of our revenue laws, and those which affect capital and labour; and he comments forcibly on the moral effect on national character of the old practice of rendering obligatory in trivial matters" oath taking."
The address of Lord Brougham at the meeting at Bradford has been too widely circulated to justify us in giving an account of it here, or making extracts from it. It will be referred to in future times as a landmark by which the present state of society and of law may be judged, and the progress we are making in jurisprıidence be measured. If the Association had done nothing else, they would have done much in evoking this eloquent and valuable statement of what has been done, is doing, and yet remains to be done. It is indisputably one of the most important of the records of the last year's meeting.
Sir W. P. Wood's speech contains a valuable review of the condition of certain portions of our law, and will be also read with great profit. So also the paper by Mr. W. T. S. Daniel, “ On the Recent Reform in the Court of Chancery," which has particular reference to this court,
as it is, not as it was," deserves attention, emanating as it does from a practical and practised lawyer. There are papers of interest upon the transfer of land and registration of title in this volume-subjects of which we have in previous Numbers fully treated. On the whole, the collection of papers before us justifies us in anticipating a career of growing usefulness for the Association.
The Common-Law Procedure Act, 1852 and 1854; by Thomas Hugh
Markham. Second Edition. Robertson, 1860.
As we felt it our duty, in a preceding Number of this Review, to express dissatisfaction with two of Mr. Markham's productions, we have the greater pleasure in being able to give now very considerable praise to the second edition of his useful work on the Common-Law Procedure.
The great revolution made in the practice of the Common-Law Courts by the Procedure Acts of 1852 and 1854, and the various rules and orders of the judges made in connection therewith, rendered a large portion of the old books of practice useless; and a demand arose not only for new elaborate works of the same character, but also for a book which, taking for granted a previous knowledge in its readers of the old practice, shonld point out the changes that had been effected, while it offered to the practitioners a vade mecum sufficient for many of the matters of practice and pleading which are of daily occurrence.
At this modest and useful object we understand Mr. Markham to have aimed ; and, we think, he has attained it. He has not attempted any disquisition, nor travelled from this object in any way ; but in a small compass he has given the Procedure Acts, Rules, and directions as to taxation of costs, &c. &c. Under each section of the acts are collected and abstracted all the numerous and important decisions relating thereto; the compiler giving very often, as he says, the ipsissima verba of the learned judges. Moreover, with not a few of the principal rules he has pursued the same useful plan, subjoining thereto any decisions relating to them.
By the arrangement which Mr. Markham has adopted, the practiioner, in the hurry of Nisi Prius, or of the practice at judges' chambers,
cin, at a moment's notice, note the current of authorities bearing upon points as they turn up from time to time.
The index to the second edition is a great improvement on that of the last, though there are still one or two deficiencies in this respect. Some few inaccuracies, moreover, we have discovered in the references to cases.
This is an error which law-books should be free from ; for though in those we have noticed we have been able speedily to rectify the blunders, still few things are more annoying at times than to have to look twice before you can find the case referred to. There is one thing, too, we must observe: the book much wants a good table of contents, well paged, the utility of which, in a work of this sort, is most obvious, and Mr. Markham need not fear to have one ; it would only serve to show how much he has contrived to put into a very
The Law of Torts or Private Wrongs. By Francis Hilliard. 2 vols.
Boston : Little, Brown, & Co., 1859. We have not hitherto been able to examine the above important work so closely as it deserves, or we intend. It must suffice us in this Number to mention the publication of what we believe holds forth promise of being accepted as a valuable addition to legal literature. Iv his preface Mr. Hilliard says, “ Torts, so far as I am informed, have never as such been discussed in any treatise or abridgment." This was so, we are inclined to think, until the publication of Mr. Broom's commentaries, the third book of which is not only directed to this subject, but is, we think, perhaps one of the most successful and scientific portions of it. In Selwyn's “ Nisi Prius,” moreover, there will be found spread about much valuable matter relating to the Law of Torts. Nevertheless there is room for Mr. Hilliard's book, if it be, as we hope to find it is, the able and thorough work of a carefu' lawyer.
Costs in the Superior Courts of Common Law, and Probate and
Divorce, and in Conveyancing, Bankruptcy, &c., and in the Procedure under the Railway and Canal Traffic Act, 1854.
By John Scott, Esq., of the Inner Temple. Second Edition. London: Stevens and Norton, 1860.
It has been said of olol, “ If a man will not work, neither shall he eat." But it will equally hold of the legal profession, that “if the lawyer be not paid, neither will he work !” and to be paid he must know how to make his charges. For reasons, the validity of which we do not now discuss, attorneys and solicitors are paid under the fostering care of statutory enactment; and, to obtain remuneration for their