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NOTES OF IMPORTANT DECISIONS

SPECIFIC NUMBER OF MILES PER HOUR OF AUTOMOBILE NEED NOT BE STATED IN INSTRUCTIONS, WHEN -It is held by the Supreme Court of Missouri, in Banc, in the case of Bradley v. Becker, 246 S. W. 561, that the particular number of miles per hour at which a truck was going is not an essential allegation in an action for injuries, and hence, where the essence of the allegation is that the truck was being driven at high, dangerous, and negligent rate of speed, an instruction authorizing a finding if the truck was proceeding at a high and dangerous speed without re ferring to the speed of 25 miles, as alleged in the petition, is not subject to the criticism that it broadens the issues. In part the Court said:

"It is not denied that, if the matter alleged under the videlicet is rejected, a

cause of action is stated by what is left. In Hoagland v. Kansas City Rys. Co. (Mo. App.), 209 S. W. 569, on second appeal, it was found that the petition had been amended by striking out the reference to a particular speed, and the judgment was affirmed on evidence and instructions, as far as the point in question is concerned, like those in the case on the first appeal.

“In the instant case the essence of the allegation is that the truck was being run at a high, dangerous, and negligent rate. The particular number of miles per hour is not an essential allegation, and the very office of the videlicet, even at common law, is to mark that the party does not undertake to prove the precise circumstances alleged.' 3 Bouvier's Law Dictionary, 3400. "The effect and object of the videlicet is to mark that the party does not undertake to prove the precise fact.' Andrews' Stephen on Pleading 2d Ed.) p. 381; Brown v. Berry, 47 Ill. loc. cit. 177; Chicago T. T. Co. v. Young, 118 Ill. App. loc. cit. 229. Some of the more technical rules in this connection have no great force under our system of pleading. The videlicet does not render material that which is immaterial, and that which is immaterial may, in a case like this, be rejected under the Code, though it be not repugnant to the precedent matter."

demnity policy providing that liability thereon should not attach until judgment was obtained against insured and the same had been satisfied of record, entered into an arrangement by which money procured from a third person was paid into court, and was then paid to the attorneys for the judgment creditor, who satisfield the judgment and repaid the money to T., who executed his note for the amount of the same, which note came into the hands of one not a party to the transaction. Held, by the Supreme Court of Washington, in Silvian v. Tabusa, 210 Pac. 782, that the consideration of the note, being either the satisfaction of the judgment or the reloaning of the money paid thereon, was not illegal; the fraud, if any, not entering into the consideration. Further, the Court in this repect, said:

“Appellants admit the execution of the notes, and that they have not been paid, but contend that they were given in consideration of what they claim was a fraudulent sal. isfaction of the original judgments, and for the purpose of deceiving and defrauding the insurance company.

The trial court found that there was no fraud or intent to defraud in the transaction, and, since fraud is never presumed, we are satisfied that the finding is sustained by the weight of the evidence. But, were the facts otherwise, we fail to see how appellants could now profit thereby. Admittedly they were liable to the amount of these notes on the original judgments. They say that they have never paid either the original judgments or the notes. How can they escape liability? If there was an attempt to defraud the insurance company, they were parties thereto, and shall they now be permitted to plead their own wrong as a defense to an admitted liability existing prior thereto? If there was an attempt to defraud the insurance company, which it might have asserted as a defense, appellants were not injured, nor was their liability in any wise increased thereby, and shall one be per: mitted to plead a fraud against a third party, even though his own hands be clean, which in no wise affects his own pre-existing liability? The case of Davies v. Maryland Casualty Co., 89 Wash. 571, 154 Pac. 1116, 155 Pac. 1035, L. R. A. 1916D, 395, 398, upon which appellants rely, does not bear upon these points, and no authorities have been cited which so hold. Even if the facts warranted it, we would be slow to lay down such rules. Appellants seem to have failed to distinguish between fraud and an illegal consideration. The consideration for these notes was either the satisfaction of the judgments or the re

NOTE GIVEN TO SECURE SATISFACTION OF JUDGMENT TO ENABLE JUDGMENT DEBTOR TO SUE ON INDEMNITY POLICY HELD SUPPORTED BY LEGAL CONSIDERATION.--T., against whom judgment for tort was rendered, in order to recover on an in.

loaning of the money paia thereon, and was in either case both valuable and entirely legal. The fraud, if any there was, did no: enter into nor affect the consideration."

THE DOCTRINE OF COMMON LAW'S

CONTINUITY
By Borris M. Komar

are

NOXIOUS GASES AND WORKMEN'S COMPENSATION.—Now that so many cases of enteritis and other illnesses, fatal or otherwise, are being traced to the very unexpected source of an escape of gas from a leaking pipe or main, householders may be faced with claims from employees under the Workmen's Compensation Act or at Common Law. It is therefore useful to consider for a moment the legal possibilities. As regards Workmen's Compensation, a claim is probably excluded on the grounds given in two well-known and much quoted leading cases, Broderick's Case, 1908, 2 KB. 677, and Eke's Case, 1910, 2 K.B. 677, as they are familiarly abbreviated in the more recent decisions. In the former case a workman contracted enteritis by the inhalation of sewer gas in the course of his employment. In the latter case, the claimant was a working gardener who was ordered to open up certain cesspools and subsequently died of scarlet fever which undoubtedly was occasioned thereby. Attempts were made in each case to show that the sudden stroke of a current of gas or the escape of cesspool effluvium was analogous to the impingement of a bacillus of anthrax on the eye, which had been held to be an accident in Brinton v. Turvey, 1905, A. C. 230. But the courts, Scottish and English, refused to accept this view, holding that the contraction of disease is not an accident and therefore not the subject of statutory compensation. As regards common law liability, everything would depend upon who is responsible for the repair and safeguarding of the drains or pipes. Presumably in most cases this would be the local authority, and the gas undertakers or the owner of the premises, and not the householder. -Solicitors' Journal (Eng.).

Our common law lays claim, and justly so, to considerable antiquity. Ostensibly, it was formed during the latter part of the thirteenth century, but its sources much more ancient than that. However, we are not concerned here with the question of the origin of our common law. Here we want to investigate or probably merely lay the foundation for the proper study of the doctrine of continuity of the common law of England and the United States.

This question of continuity of the main part of our system of law is a peculiarity of the common law. Other systems of law deriving their authority from legislative enactments have no occasion to consider the point. Whether a legislative act was based on a change in the sentiment of the people, or was called by the change in the economic or other surroundings of a nation, or owns its origin to a development of a previous law, is entirely immaterial, as the new act derives its force and effect by, through and as of the date of its a doption by the proper legislative authority. The sources of the new act may interest legal historians, but are of no importance to nor affect the validity of the enactment as such.

The case of the common law in the Anglo-American legal system is entirely different. It is professedly and confesscdly based on the law as it existed in the thirteenth century and claims an orderly development through an application of the rules and doctrines then defined to the facts of a given case. Such application presupposes certain latitude of the development. Of the founders of our common law cannot be said in the words of the poet that “They made a molten statue

And set it up on high;
And there it stands unto this day

To witness, if I lie."

THAT AUTOMOBILE WAS NOT LICENSED, NO DEFENSE IN ACTION AGAINST TOWNSHIP.-In an action by an automobile passenger against a township to recover for injuries caused by insufficient barrier where a bridge had been destroyed, it was held by the Supreme Court of Michigan, in Jones v. Brookfield Twp., 190 N. W. 733, that an instruction requested by defendant that the fact that the automobile was being operated without license prevented recovery, was properly refused. The court cited the case of Spencer v. Phillips & Taylor, 219 Mich. 353, 189 N. W.

a

204.

Our common law is not a “molten ridge gave what may be termed a rough statue” but the latitude of its development chastisement to the cut and dried doctrine

' is limited. Had it been otherwise, there of. continuity of common law, unlesss

, would not have been room for the rise of changed by an act of legislature. our equity jurisdiction nor necessity of Another reason lies in the fact that our legislative amendment of both equity and law ceased to be formal, but lays nowadays common law. “The forms of action, we emphasis on the substance and the soundhave buried, but they still rule us from ness of the applied principles as such. their graves" is the striking conclusion of

It may be pointed to us that the above not less an eminent authority than the late cases are better illustrative of the excepProfessor Maitland.1

tions than of the rule itself. Nevertheless, In other words, there is a natural inter- assuming that a perusal be made of the dependence between our present day com- several hundred decisions that divide a mon law and that of the thirteenth cen- modern case from its predecessor in the tury. Without an open acknowledgment thirteenth century, the result arrived at of this continuity it would be impossible will be approximately the same.

The to maintain the theory of judicial prece- changes and modifications in the course of dent--the mainstay of our judge-made law. the development of a legal doctrine are so

a And yet, a mere reference to the books numerous and often so far reaching that and reports containing the description of without a thorough study of the subject, our early common law, will not fail to con- the inquirer will still be lacking the convince the inquirer of the vast difference viction that the common law administered existing between its rules and principles today is a direct and substantially identiand those in force today. We even doubt, cal exposition of law as it existed in the if a modern Anglo-American jurist, al- time of the Crusades. though versed in our legal history, could We do not propose in this paper to disfollow with sufficient intelligence a year cuss the application of the doctrine of the book report.

common law's continuity as revealed in The explanation of this phenomenon lies the judicial decisions or to define the in many directions. To mention few—the limits and limitations of such application. development of our common law was not

All we want to give, to borrow a convenall in one continuous straight line: there ient term, is a close up" of its actual were jerks, jumps and sudden leaps. Here

Here working. The value of such a picture is are some illustrations: in the famous case

undeniable. It is important from the point of Omychmund v. Barker? all the pre

of view of the methodology of common law. viously established doctrines and decisions

It illustrates our working by the system of were declared not law-true, on the ground judicial precedents. It visibly clarifies on that they were contrary to the principle, a few pages the course of the historical but how are we to arrive at the principles, development of common law, which would if not through the study of earlier deci- take volumes to explain otherwise. It prosions? In the not less celebrated case of vides a microscopic slide of our common Coggs v. Bernard3 Lord Holt imported law mysteries affording easy means of infrom Roman law the whole doctrine of struction both for the teacher and the bailments with certain modifications. student. Equally instructive is the case of Regina

To achieve the above purposes we dev. Ramsey and others, 4 where Lord Colecided to leave aside all the doctrines of the F. W. Maitland "Equity," p. 296.

substantive common law, as too compli(2)

cated and involved in their development, (3) (1704) 1 Lord Raymond, p. 909.

and to choose some doctrine of the pro(4) (1883) Cab. & Ellis, 126 at pp. 135, 136.

4

(1)

(1744) 1 Atk. 21.

or

cedural law. Our object was to take some rules the court when the judge is called on curiosity of common law, a quaint and odd to define the limits of the doctrine originprovision of the early law, and trace its ated therefrom. The ancient almanac still development into a modern doctrine, pre points its bony finger in warning to an senting a well-recognized and rational rule attorney trying to expand the modern docof law. In this quest our choice fell upon

trine in derogation of its origin based upon almanacs. By almanacs here we do not the ancient rule. mean to imply those publications that are

If we would open nowdays any treatise ordinarily known today as literary, health,

upon the law of evidence and look into the weather, nautical, mystic similar

section dealing with the facts that the almanacs. In England, the almanac is the

court takes judicial notice of, we will find calendar annexed to the Act of Parliament,

that "time" is one of those events a judge being 24 Geo. 2 c. 23 passed in 1751, while

should be acquainted with ex officio. In in the United States it is the calendar at.

the words of Foster, J., in a Maine case: tached to the ancient common prayer book.5

“Among other things of which the Are you, my reader, familiar with “the

Court takes judicial notice is the comtrial by almanacs''? If not, no shame

putation of time and upon what day of need attach to your confession of non scimus, for according to Lord Mansfield no

the week a certain day of the month falls less an illustrious person than Lord Chief

or that a certain day of the month falls Justice Parker declared in the case of The

on Sunday."? Stationers Company v. Partridge that he

Yet, only a century and a half ago no never heard of such a thing as a trial by

similar declaration could have been found almanacs. "6 So that, to quote a handy old

in the reports of judicial decisions. A long saying:

and arduous fight was carried on in the “And this ensample added hereunto,

courts for centuries until these rules

gained universal recognition. That if gold rust, what shall the iron do."

Let us now consider the development of There was a time when our modern trial, as now understood in the sense of a con

the trial by almanacs in detail and follow test of evidence between two or more oppos

the cases one by one in their chronological

order. We must bear in mind that the ing parties, did not exist. A“proof” was used instead-a mode of showing conclu

battle for the establishment of the rules sively one's innocence. These proofs were

relating to “time” was fought on two

fronts-one was devoted to the ex officio many-a trial by ordeal, abolished by the Lateran Council in 1215; a trial by battle,

cognizance by the court of the days of declared void in 1819; a trial by compur

the month in so far as they coincide with

a certain week day and another-for a gators, wiped out by a British act in 1833 ;

similar recognition of the days of legal a trial by witnesses, dead by about the

term. middle of the thirteenth century; a trial

The weapon used was the almanac by certificate of bishop; a trial per par

or calendar and the issue was the right of

ex officio reference to it by the Court. entes; a trial per almanacs and the trial per pais. With the exception of the last

The earliest case seems to be that of two, the remainder is long out of use. And Braynford v. Countess of Kent.8 A debt we expect to show conclusively that not proved by obligation dated February 4, only the trial by almanacs in its modern (7) (1891) First National Bank of Bar Harbor

v. Kingsley & others, 84 Me. 111, at p. 112, and form lives and thrives in the present day

see Webb v. Kennedy (1874). 20 Minn, 419; Hautsch

v. Levan (1869), 1 Woodw. 456. system of common law but that it still (8) (1340) Y BB. 14 Ed. 3 (R. S.), at p. 136

"W. Thorpe: "Cel an quartus dies Februaril de (5) (1703) Brough v. Perkins, 6 Mod. 81.

quele il ad counte fut par un Dimanche; jugment (6) (1769) Millar v. Taylor, 4 Burr, - 2303, at p.

Keshulle: "Jeo vyle Kalende et il acorde a moun counte." Et adjournantur

de counte.'

2403.

1334, alleged to have been Saturday. De- A hundred years later an attempt was fendant's counsel said it was Sunday, but made to supplant the trial by almanacs in plaintiff declared that he saw the Kalendar the matters of time by the trial by jury. and it was in accord with his allegation. A writ of error

was brought on the The court adjourned. The curious point ground that the court below where judg. about this case is that February 4, 1334, in ment was obtained was held on Sunday: reality fell on Friday, so that both sides

"And it was ruled, this examination were wrong.

(of that year's almanacs) was sufficient The next case, practically a hundred

and a trial per pais was not necessary, and fifty years later, tells of a servant of although it were an error in fact.''11 the Bishop of Lincoln indicted for mur

But this incident was only a step in the der, which was said to have been com

long journey of the almanac towards full mitted in Festo Sancti Petris anno 2H. 7.o recognition as a matter of judicial knowlIt was alleged that there were two feasts

edge. In the seventeenth century the of St. Peter-one Sancti Petri Cathedralis

Court of Exchequer said that it will not and another-Sancti Petri Ad Vincula.

take cognizance of a date, unless it be exThe Court held that the feast mentioned in pressly assigned an error, for this class of the Calendar was the correct one.

cases came within the rule of the cases of Five years later a writ of error was

error on the record. 12 However, by the brought to ascertain the day of St. Boni

end of this century an opinion got at large face. The Book of Martyrs (Mertlage)

that the Court could in its discretion take was referred to and when asked by Hussey, notice of the time ex officio. In Kynaston

, J.: “What do you understand by this

v. Jones :13 Book of Martyrs’'? Houston, a counsel, answered: “This is a calendar universal in

“An exception was taken to the ver

dict for that they have not found the the church of this realm

* "10
The

award to be made before Easter, and the reasoning bristles with legal suggestions of

Court cannot take notice ex officio that great subtlety, but the report as a whole

the 15th of April was before Easter." is poorly transcribed.

But the time was not in issue. (9) (1487) Y. BB. 3H. 7. pl. 2. "Et mota fuit quaestio pro eo quod sunt duo Festa S. Petri,

And upon this reason Mr. Hale told videlicet Festum Cathedralis S. aliud Festum S. Petri quod dicit Ad Vincula. Et

me the Court rested for that point, for per eo in Calendario continentur quodlibet Festum cujuslibet Sancti cum additione et si fuit con- he held that the Court otherwise could cordat cum Calendario."

Bonifaces and the printed calendar

proves (10) (1482) Y. BB 9H. 7, 14b. "A writ of error

Wherefore, etc. was brought, and error was assigned, in that one • Huston to the contrary: *And in the mertlage brought an action for debt in a court which was

there is only one.' granted by patent and had a day of continuance

"Hussey (C. J.): 'What do you mean by this till Monday next before St. Boniface's day; and mertlage? What is it' the defendant pleaded, and on Monday

calendar universal in the next the defendant appeared; found against him; church of this realm which priests are bound to and assigned for error, that St. Boniface's day was keep and nobody else; and although a new saint past before the day given as Monday next before were canonized beyond the sea there is no reason St. Boniface. In fact, there were

why people are bound to recognize him; and so face's days in the printed calendar, and in the a continuance to such a saint's day is not good. mertlage only one Boniface. It was moved whether

So here, for in this realm there is only one Boniface and whether there are

two or not, I know “Kingsmil: 'Although there are not two Boni

not, but it seems not, for he is not in the mertlage, faces in every book, if there be two Bonifaces, The printed calendar is not to the purpose and the continuance be good There are two in the

may be false; and may be there are two Bonicalendar; and so the continuance is good and will faces beyond sea and only one in England.'' be referred to the Boniface who is to come and

The judges sent to the Common Bench about not the one past. There are diverse saints who the matter. Brian (g. J.) thought the continuare not in the calendar and yet a continuance to

not good unless two Bonifaces were recog. such and such a day of such and such a saint is nized in England and in the mertlage; or at least good if any such saint there be. As St. Swithin recognized for the printed calendar is of no authorhere at Winchester is not in the calendar yet a ity. Vavisor J. to the contrary. And we were continuance to this day is good

for if the in doubt. Those in the King's Bench held the day be known there, it is enough, though it be pontinuance good." not in the calendar (which the justices agreed to).

Thayer's Preliminary Treatise

on Evidence, pp. 292, 293. They say there are a hundred saints who are not

(11) in the calendar; people, also, here in the South

(1587) Page V. Faucet, Cro. Eliz. 227. do not recognize them; and yet the continuance

(12) (1626) Morris v. Fletcher, Cro. Car. 53 to one of the days is good. Just so there are two (13) (1672) Al. 85 at p. 87.

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