« PreviousContinue »
subject. The authors have added over 160 decided cases, which have been lately reported in the Authorised Reports of England, Scotland, Ireland, the Colonies, and America, and, moreover, there are other indications, not a few, that the writers have attempted to keep apace of the ever ebbing waves of Time. The book will prove useful to many, and we can recommend it to the Profession.
Employers and Employed, being (1) an Exposition of the Law of Reparation for Physical Injury; (2) the Employers’ Liability Act (1880), annotated with special reference to decisions in England and Scotland; and (3) suggested Amendments of the Law as to the Liability of Employers. With Appendices and Indices. By WALTER COOK Srnus, Advocate, Sheriff-substitute for Lanarkshire; and Roasar T. Youncna, M.A., LL.B., Advocate. Glasgow. ]ames Maclehose and Sons, Publishers to the University. 1887.
The distance from Glasgow to London is a long way for a law book to travel, and comparatively few accomplish the journey. To have done so, even though a considerable time has been taken in the transit, is a piece of undeniable commendation that must weigh greatly in arriving at an estimate of the value of the book which has performed the feat. The credit of this achievement must be given to Messrs. Spens and Younger's production. It is to be found in some at least of the libraries of the Inns of Court, and is consulted and deserves to be consulted more than most of its competitors.
As a repertory of decisions, Messrs. Spens and Younger’s work is of the greatest value. \Ve believe that it contains references to more cases than any other treatise going over similar ground. It is not, as most text-books now are, a more or less artistic stringing together of head notes in a series, but contains acute criticisms on many debatable points, and continually forces on the reader the observation that it is the work of a capable and experienced practical man, with most distinctly, as the phrase goes, “ a head for law." But bearing in mind the undoubted knowledge and capacity of the chief author, and this his work never allows us wholly to lose sight of, and applying a standard on a level with the faculties he shews us that he possesses, we must, on the whole, pronounce this work a most disappointing and inartistic performance. Its practical value as a treatise for the practitioner is a wholly distinct matter. For anyone with a case to get up we know no better book. All the reported decisions are to be found somewhere between the covers—most of them two, or even three times repeated. For example, the class of cases of which Grant v. Drysdale is an instance, is canvassed three separate times (pp. 99 et seq., 314, 4.67), besides being twice noted in its connection with the Act at pp. 109 and 297. Opinions, and these most often judicious, are distinctly expressed where there are no decided cases authoritatively to illustrate the law, and where cases apparently conflicting exist, the authors have the rare merit of never leaving the reader in doubt as to their opinion of the respective merits of the decisions, while cognate points are illustrated by a mass of information not often collected in a practical treatise. Iudged, however, by the standard which Mr. Spens' obvious ability warrants us in applying to his work, it does not take high rank; indeed, it cannot be called so much a book as materials for a bookmaterials tossed in anywhere, without order or sifting, abounding with vexatious repetitions, and in some cases being mere magazine or newspaper clippings, or if not these, excerpts of neither higher authority nor value than these.
The matter is distributed into five parts. The first deals with the liability of employers to the public (pp. 1-41). Part II. deals with the Common Law Liability of Employers to their Servants. Part III. discusses the Law as altered by the Employers’ Liability Act. Part IV. is Mr. Younger’s individual contribution on the same topic, and is necessarily largely a repetition. The scope of Part V. is thus indicated by its author at p. 338:—“I propose in this section to discuss numerous subjects which arise in connection with the answer to the following question: —- What alterations should be made on the present law in the light of experience aflorded by the working of the Employers' Liability Act?” There is then an Appendix, and an Index, which, strangely enough, goes no further than to p. 329, thus leaving 260 pages of the book wholly un-indexed. The same observation applies to the Table of Cases. From p. 467 to the end of Part V. there are repeated discussions of and reference to cases which the author must have believed were of importance and interest, yet no reference to any one of them is in the Table of Cases. The disadvantages of the absence of Index are obvious. One we will give: In reading through Mr. Spens' book we are firmly convinced that we had somewhere therein come upon an assertion that by the law of England, in this respect like the law of Scotland, a man could not contract to exonerate another from the effects of such person’s negligence. Armed with the very contrary statement of Blackburn, j., in McCawley v. Furness Ry. C0., L.R. 8 Q.B. 57, we prepared to drag to light the rash statement, and to do what we could in the way of confuting it ; but after a tedious search we have had to abandon our intention, though we are still unwilling to admit we have been misled by a mere ignis fatuus, as we might have been compelled, had there been an Index to decide between us. The prefatory note suggests that Parts I. to III. are written for non-legal persons, that Part IV. is for the Legal Profession, and that Part V. is a contribution either to Political Science or to the material with which practical politics deal. This diversity of aims may account for, though in our opinion it certainly does not excuse, the redundancy and repetition of the work before us. Had the book ended at p. 266, and had a few of the additional cases set out in Part IV. been incorporated in its earlier sections, its practical value would have been every bit as great as at present, and the sphere of its usefulness more than doubled, since the expense of its production would have been lessened by more than half. Sheriff Spens may but justly appraise the worth of his conjectures as to what should be law; but the purchasers of Messrs. Spens and Younger's book, if they purchase on the faith of the title printed large on its back, will be justly aggrieved when they find that one third of the volume is taken up, not merely with the learned Sheriff's juristic speculations (these we may believe they would cheerfully give up their time to enjoy), but with a re-presentation from Blue Books of very conflicting evidence, not as to the law, but as to how best to change it, the resurrection of Employers’ Liabilities Bills now very dead indeed, and, worse still, the reproduction of a circular of the Foreign Otfice, and the, in most cases, very crude information that it elicited from Her Majesty's representatives abroad.
We have already, criticising the work as a law book, very considerably reduced the practical dimensions of Messrs. Spens and Younger's book. Another complaint we have to make to the same effect. The quotations from Messrs. Roberts and Wallace's treatise on the same subject are much too frequent. One instance of this is at pp. 24.4. and 245, where two pages almost are quotations from Messrs. Wallace and Roberts’ book, where Mr. Spens' own conclusion is similar, but, to our mind, much better expressed. Generally speaking, we come across an extract from that book every four or five pages. This is hardly fair on Messrs. Spens and Younger’s part to themselves. When they choose to take the trouble, they express themselves with at least as much point and precision as the authors from whom they prefer to borrow so copiously ; and where they differ from the conclusions set out in the English text book, their reasoning is, in our opinion, in the majority of cases. superior in cogency and point. The only reason, then, apparent, why so much of the English book is incorporated, is that it was too much trouble for Messrs. Spens and Younger to express in their own way what was ready to hand, in what must, to some extent, be a rival work. To the same reason must be referred the very curious way in which they deal with integral portions of their subject. Their work purports to be on “ The law of Employers and Employed, as regards reparation for physical injury." And they must be assumed to have had some intention, when they published, to have informed their readers what the law was. At p. 316, however, we read: “ The various authorities upon the interpretation of Lord Campbell's Act, and the Amending Act will be found collected in Roberts and VVallace. on the Duty and Liability of Employers, 3rd ed., p. 407, at seq.” Again, at p. 320: “ As to the method in which time is to be computed under this section, see Fraser on Master and Servant, 3rd ed." For the practising lawyers who consult the work, this mode of broadening their acquaintance with authorities may be of the greatest benefit to them intellectually; but its effect on their patience and temper is likely to be the reverse of beneficial. We appeal to the learned authors of this treatise to confess what their feelings would be if, in the stress of practice, they took down a work to establish them on some point pressing for a certain reply, and were to find (supposing the point to be one of marriage law), on referring to the title “ Husband ” in the Index, merely “ see Wife; ” turning to the title “Wife,” “ see Marriage ; ” and at “ Marriage" to be met with “ consult Matrimonial Relation;" and at length, when they hoped to have got home, on turning to the text to be met with “ consult Macqueen on Husband and Wife," a work possibly not in their private library. Treatment not dissimilar from this is what they inflict on every legal reader who consults them as specialists on their speciality. Thus at p. 322, “The effect of this section, as regards removal of actions in England, is commented on in Roberts and Wallace upon the Duty and Liability of Employers, p. 328 et seq., and the rules made under sub-section 3 will be found set forth in Appendix E, and commented on at p. 335 et seq. of the same work." At p. 294. there is a similar paragraph, but there a reason-possibly not a good one—-is given for the reference to another text-writer. The passages we have taken give perhaps the worst samples we have found of the fault to which we wish to call attention ; but they are merely a sample. The same fault runs through the whole book after, perhaps, the first fifty pages. This is not book-writing. It is no more than collecting the materials for a book. For which of the classes for whom Messrs. Spens and Younger write their book is this method intended? Clearly not for the intelligent employer, whose intelligence is very unlikely to hamper itself even with the admirable works of Lord Fraser; nor yet for the legislators, who are to diet on Part V. For whom this is the treatment meted out a reference to the passages indicated in the Table of Cases against Weblin v. Ballard and Thomas v. Qnartermaine may shew. In the Index, we remark, the maxim Valenti non fit injuria is most conspicuous by its absence. Again, in the treatment of the legal principle, Mr. Spens, the lawyer, shews a distaste for what we have heard called “ Second Division Law,” but Mr. Spens, the philosophic jurist, is of opinion that ifa working man is hurt, his master should pay for his being hurt. One passage of the book with reference to this point is delicious. After examining (pp. 97-104, and again at p. 467, such is the distracting character of the book) the decisions in McGee v. Eglinton Iron C0., and the rest, he says, at p. 4.68: “English authority is clearly in favour of the view taken by the First Division. See cases referred to ante, p. 94.” Incidentally we again call attention to the inconvenience of the method adopted by Sheriff Spens of discussing in the first pages of his book and ruminating on the discussion in the last. He continues : “ The state of matters then is that in England the law is that laid down by the First Division. In Scotland there is a conflict of authority. It is desirable in any view that the conflict should