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tion of his interests. Yet this course was lately taken in the case in question under these circumstances. The person who became a lunatic was engaged in business, and had an agent who wanted his accounts wound up, and so thereupon, the agent's attornies, without waiting for a commission of lunacy, actually filed a bill in equity against him in the name of the lunatic! A receiver was appointed, and in December, 1871, the case was heard without notice to the family, and a decree obtained for sale of the stock in trade! On the 17th February, 1872, while the suit was still in progress, a petition in lunacy for enquiry was presented, and in March the man was found lunatic. From that time at all events the “next friend” ought to have discontinued his proceedings, but, on the contrary, he still proceeded in it, and passed accounts and obtained orders for disposing of agent's funds, without notice to the family, or the person having charge of the lunacy proceedings. Nevertheless, it was actually contended that all this was regular and right! The Vice-Chancellor, however, thought otherwise, and it is astonishing that any lawyer could have ever dreamt that the proceedings taken in the name of a lunatic for the advantage of another person could be possibly lawful ! If indeed the chief clerk entertained any doubt upon it, then it only shows that we were right in asserting, in our Paper on our Judicial System, that it was a fatal error to abolish the masters and substitute these inferior functionaries, generally attornies, rarely good lawyers, and without the requisite judicial weight or authority. And if, indeed, counsel advised that the proceedings could lawfully be continued, so much the worse for the Bar; and it only shows we are right in our views as to the sad decline of the Bar in knowledge of the law. Of course the Lords Justices held the whole proceeding utterly irregular and unlawful, and set them aside. No competent lawyer could entertain a doubt about it, and if any one did, the powerful and vigorous judgment of Lord Justice James would set aside all doubt for ever. It is a most masterly exposition of the law on the subject, and
will, at once, be an enduring monument of his judicial style, and render the decision a leading case on the subject. Our friend, the Law Times, who, on every subject, leans to the attorney view, encourages an appeal, and expresses sympathy with the attornies, but, with every respect for our contemporary, the appeal is hopeless. The decision is invulnerable and his sympathy with the attorney entirely misplaced. They had a plain course before them which would have secured all interests, and avoided all risk. Why did they not pursue it ? Plainly, as the Lords Justices observed, because they desired the carriage of the proceedings. Otherwise the family attorney, by filing a petition of enquiry in lunacy, would have answered every object. The other attornies thought proper to assume to act on the part of the lunatic without authority, and most justly had to pay the penalty. What possible pretence is there for sympathy ?
CARELESS Text Books.--During the discussion in the Court of Queen's Bench, as to the power of the court to adjourn a criminal trial for the purpose of obtaining further evidence, one of the Judges read the following passage from Arcbold's Criminal Pleading, (p. 145, 14th Sect.) “ Adjournment of trial. Where the witnesses for the prosecution have all been examined, the judge may order the court to be adjourned, and direct another trial to be proceeded with in order to give time for the production of a thing essential to the proof deposited at a distance. R, v. Wenborn, 6 Jurist, 267. And on a trial for murder before Maule, J., at York, 1848, after the opening address of the counsel, it was discovered that in consequence of the detention of the railway train, the witnesses for the prosecution had not arrived in the city, the trial was adjourned, the jury were locked up, a fresh jury was called into the box, and another case was proceeded, with.” R. v. Foster, 3, C. & K., 201. Now will it be believed that in neither of these cases was there any adjournment at all ; but merely a temporary suspension of the trial, for an hour or two; the prisoner being carefully kept in the dock
in order to mark more clearly that there was
no adjournment, but that the trial was still going on; all the judges being of opinion that there could be no adjournment for such purpose, and no adjournment having ever taken place in a criminal trial, except for necessary rest, and from actual physical necessity. In the one case the trial was suspended for an hour or two where a document, accidentally left behind in the assize town, was being fetched; and in the other case the same course was taken to allow time for the arrival of a witness accidentally delayed by the lateness of a railway train. That, as in both cases there was a very suspension of the trial on account of an accident, and in no other case was there any adjournment at all. In a note to the report in the Jurist attention is called to this, and it is stated that the same course is frequently taken at the Old Bailey. So that even although there was no adjournment, the propriety of a suspension of a trial was doubted, and Mr. Justice Willes and Mr. Justice Wightman denied it. (Re Tempest, í Foster and Finlason, Re Fitzgerald 3 Foster and Finlason) and it was even denied in civil cases, prior to the Common Law Procedure Act, 1854 (vide Finlason's Common Law Procedure Acts). Yet we have it stated, in Archibald's Criminal Practice, edited by Welsby that it was settled law that a criminal trial might be adjourned in order to obtain evidence, whereas all the authorities clearly show that
show that a trial could not be adjourned, and could only be suspended for a portion of a day, on account of accident, and that even this was always doubted. This is the way in which text books are edited, even those which bear the names of eminent men. The truth is, however, that such men are often just those who have no time to edit books, and have to leave the editing to pupils or young assistants. Thus it was with men like the late Mr. Welsby, whose practice was enormous, and could not afford time to edit books. The publishers got a great name, and that was enough to secure the book a good sale, but in truth, the book was edited by some young man
who did not know enough of law to know the distinction between a suspension of a trial and an adjournment, and so he abstracted the case according to his own erroneous ideas upon the subject. This is how an enormous quantity of loose or bad law get into the minds of men, and when it is once in their minds it is difficult to get it out of them, and this bad law gets at last confirmed from the bench.
REVIEWS OF WORKS. MAYNES' TREATISE ON DAMAGES. By Lumley Smith.—This is the second edition of a work on the subject of which, as the author avowed, is one of equal difficulty and importance. Most actions being for recovery of money, in the majority of cases, as damages, the question, if one of law, as to damages goes far to settle the amount to be recovered, and then to determine the practical result of the action. Damages, therefore, form the most practical part of the law of actions or legal remedies. “Damages," says the author, “are the pecuniary satisfaction which a plaintiff may obtain by success in an action." • They may rise to almost any amount, or they may dwindle down to any merely nominal sum."
“ They may be governed by rules so strict as to enable the judge to dictate their amount as a matter of law, or they may be left with loose limits almost entirely to the jury. It becomes then a most important enquiry to ascertain the principles on which they are measured, and the species of evidence by which they be aggravated or reduced." The author then proposed “to examine the rules by which damages are measured, the practice as to the assessment of damages, and the cases in which the Court will review the decisions arrived at by a jury."
This latter is the most important head of all, and by far that one of which all the rest practically arises, for it is the exercise of the Court's assumed power to review the decisions of juries as to damages, which has created all the “rules" on the subject. We say “assumed” for the whole jurisdiction has been gained by usurpation, and the course and progress of the usurpation can be clearly traced, as a matter of legal history, since the Revolution. Nay, it has been largely advanced within the last thirty or forty years, and has almost, indeed, in its present form been created within living memory. By law, the juries are absolute in
damages; as old judges used to say, the "juries are chancellors in assessing damages;” that is, they could take equitable considerations into account. And it was clear law, even within living memory, that their verdicts could not be set de as to the amount of damages, unless on the ground of downright misconduct,—that is, in giving only a shilling for a grievous injury; or,
the other hand, in giving such gross excessive damages as no honest and sensible
could possibly have agreed in awarding. As to cases of tort it was not from all to give any rules of law, and as to contracts the only rule that could be laid down was that the jury were to give damages for the natural consequences of the breach of contract. The jury were not only the best but the only possible judges as to what were natural and reasonable consequences of a breach of contract. The judges, however, desirous to introduce as much certainty as possible into this branch of the . law, tried to lay down and apply more precise rules. But then these only introduced fresh difficulties and continual differences in judicial opinions upon questions really dependent on matters of fact and business with which judges were very little acquainted and very ill qualified to deal. And as the application of rules must after all be left to the jury, and their verdicts could only be altered through the cumbrous and costly process of a new trial, the remedy was often far worse than the imaginary evil it was to redress, the result was an unusual accumulation of cases, which we see collected in this work, and which are stated with the utmost ful. ness, care, and correctness. And, no doubt, these cases afford a great deal of very valuable guidance as to the probable practical result of an action, and must very much tend to assist practitioners in their judgment. Mr. Lumley Smith has performed his task as editor with great care and has introduced all the new cases down to the time of publication—the Long Vacation of 1872. The author has noticed American as well as English cases on the subject, and the American decisions often afford the only judicial guidance that can be gained upon a question. Thus, for instance, as to the damages to be allowed for the recovery of land from a purchaser, for failure of title, where the damages are the entire value of the estate. The author says: " Then arises the question-how is the value to be calculated ? is it to be the value at the time of eviction? I am not aware of any English case in which a rule has been laid down on the point, but it has formed the subject of frequent discussions in America. And then the American cases are stated, from which it appears that the judicial decisions conflict as to whether the value of