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 III. 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." 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 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 satis field 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 sat 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 permitted to plead a fraud against a third party, even though his own hands be clean, which in no wise affects his own pre-existing liabil ity? 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 loaning of the money paia thereon, and was in either case both valuable and entirely legal. The fraud, if any there was, did not enter into nor affect the consideration." 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 K B. 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.). 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 a license prevented recovery, was properly refused. The court cited the case of Spencer v. Phillips & Taylor, 219 Mich. 353, 189 N. W. 204. THE DOCTRINE OF COMMON LAW'S CONTINUITY By Borris M. Komar 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 are 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 adoption 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 confessedly 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 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, thereof. 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 legislative amendment of both equity and common law. "The forms of action, we have buried, but they still rule us from their graves" is the striking conclusion of not less an eminent authority than the late Professor Maitland.1 In other words, there is a natural interdependence between our present day common law and that of the thirteenth century. Without an open acknowledgment of this continuity it would be impossible to maintain the theory of judicial precedent-the mainstay of our judge-made law. And yet, a mere reference to the books and reports containing the description of our early common law, will not fail to convince the inquirer of the vast difference existing between its rules and principles and those in force today. We even doubt, if a modern Anglo-American jurist, although versed in our legal history, could follow with sufficient intelligence a year book report. The explanation of this phenomenon lies. in many directions. To mention few-the development of our common law was not all in one continuous straight line: there were jerks, jumps and sudden leaps. Here are some illustrations: in the famous case of Omychmund v. Barker all the previously established doctrines and decisions. were declared not law-true, on the ground that they were contrary to the principle, but how are we to arrive at the principles, if not through the study of earlier decisions? In the not less celebrated case of Coggs v. Bernard3 Lord Holt imported from Roman law the whole doctrine of bailments with certain modifications. Equally instructive is the case of Regina v. Ramsey and others, where Lord Cole (1) F. W. Maitland Equity," p. 296. (2) (1744) 1 Atk. 21. (3) (1704) 1 Lord Raymond, p. 909. (4) (1883) Cab. & Ellis, 126 at pp. 135, 136. Another reason lies in the fact that our law ceased to be formal, but lays nowadays emphasis on the substance and the soundness of the applied principles as such. It may be pointed to us that the above cases are better illustrative of the exceptions than of the rule itself. Nevertheless, assuming that a perusal be made of the several hundred decisions that divide a modern case from its predecessor in the thirteenth century, the result arrived at will be approximately the same. The changes and modifications in the course of the development of a legal doctrine are so numerous and often so far reaching that without a thorough study of the subject, the inquirer will still be lacking the conviction that the common law administered today is a direct and substantially identical exposition of law as it existed in the time of the Crusades. We do not propose in this paper to discuss the application of the doctrine of the common law's continuity as revealed in the judicial decisions or to define the limits and limitations of such application. All we want to give, to borrow a convenient term, is a "close up" of its actual working. The value of such a picture is undeniable. It is important from the point of view of the methodology of common law. It illustrates our working by the system of judicial precedents. It visibly clarifies on a few pages the course of the historical development of common law, which would take volumes to explain otherwise. It provides a microscopic slide of our common law mysteries affording easy means of instruction both for the teacher and the student. To achieve the above purposes we decided to leave aside all the doctrines of the substantive common law, as too complicated and involved in their development, and to choose some doctrine of the pro cedural law. Our object was to take some curiosity of common law, a quaint and odd provision of the early law, and trace its development into a modern doctrine, presenting a well-recognized and rational rule of law. In this quest our choice fell upon almanacs. By almanacs here we do not mean to imply those publications that are ordinarily known today as literary, health, weather, nautical, mystic or similar almanacs. In England, the almanac is the calendar annexed to the Act of Parliament, being 24 Geo. 2 c. 23 passed in 1751, while in the United States it is the calendar at tached to the ancient common prayer book.5 Are you, my reader, familiar with "the trial by almanacs"? If not, no shame need attach to your confession of non scimus, for according to Lord Mansfield no less an illustrious person than Lord Chief Justice Parker declared in the case of The Stationers Company v. Partridge "that he never heard of such a thing as a trial by almanacs." So that, to quote a handy old saying: "And this ensample added hereunto, That if gold rust, what shall the iron do." There was a time when our modern trial, as now understood in the sense of a contest of evidence between two or more opposing parties, did not exist. A "proof" was used instead a mode of showing conclusively one's innocence. These proofs were many a trial by ordeal, abolished by the Lateran Council in 1215; a trial by battle, declared void in 1819; a trial by compurgators, wiped out by a British act in 1833; a trial by witnesses, dead by about the middle of the thirteenth century; a trial by certificate of bishop; a trial per parentes; a trial per almanacs and the trial per pais. With the exception of the last two, the remainder is long out of use. And we expect to show conclusively that not only the trial by almanacs in its modern form lives and thrives in the present day system of common law but that it still (5) (1703) Brough v. Perkins, 6 Mod. 81. (6) 2403. (1769) Millar v. Taylor, 4 Burr, 2303, at p. rules the court when the judge is called on to define the limits of the doctrine originated therefrom. The ancient almanac still points its bony finger in warning to an attorney trying to expand the modern doctrine in derogation of its origin based upon the ancient rule. If we would open nowdays any treatise upon the law of evidence and look into the section dealing with the facts that the court takes judicial notice of, we will find that "time" is one of those events a judge should be acquainted with ex officio. In the words of Foster, J., in a Maine case: "Among other things of which the Court takes judicial notice is the computation of time and upon what day of the week a certain day of the month falls or that a certain day of the month falls on Sunday."7 Yet, only a century and a half ago no similar declaration could have been found in the reports of judicial decisions. A long and arduous fight was carried on in the courts for centuries until these rules gained universal recognition. Let us now consider the development of the trial by almanacs in detail and follow the cases one by one in their chronological order. We must bear in mind that the battle for the establishment of the rules relating to "time" was fought on two fronts-one was devoted to the ex officio cognizance by the court of the days of the month in so far as they coincide with a certain week day and another for a similar recognition of the days of legal term. The weapon used was the almanac or calendar and the issue was the right of ex officio reference to it by the Court. The earliest case seems to be that of Braynford v. Countess of Kent.8 A debt proved by obligation dated February 4, (7) (1891) First National Bank of Bar Harbor v. Kingsley & others, 84 Me. 111, at p. 112, and see Webb v. Kennedy (1874), 20 Minn, 419; Hautsch v. Levan (1869), 1 Woodw. 456. (8) (1340) Y. BB. 14 Ed. 3 (R. S.), at p. 136 "W. Thorpe: "Cel an quartus dies Februaril de quele il ad counte fut par un Dimanche; jugment de counte." Keshulle: "Jeo vy le Kalende et il acorde a moun counte." Et adjournantur 1334, alleged to have been Saturday. Defendant's counsel said it was Sunday, but plaintiff declared that he saw the Kalendar and it was in accord with his allegation. The court adjourned. The curious point about this case is that February 4, 1334, in reality fell on Friday, so that both sides were wrong. The next case, practically a hundred and fifty years later, tells of a servant of the Bishop of Lincoln indicted for murder, which was said to have been committed in Festo Sancti Petris anno 2H. 7.9 It was alleged that there were two feasts of St. Peter-one Sancti Petri Cathedralis and another-Sancti Petri Ad Vincula. The Court held that the feast mentioned in the Calendar was the correct one. Five years later a writ of error was brought to ascertain the day of St. Boniface. The Book of Martyrs (Mertlage) was referred to and when asked by Hussey, J.: "What do you understand by this Book of Martyrs'? Houston, a counsel, answered: "This is a calendar universal in the church of this realm 10 The reasoning bristles with legal suggestions of great subtlety, but the report as a whole is poorly transcribed. (9) (1487) Y. BB. 3H. 7, pl. 2. "Et mota fuit quaestio pro eo quod sunt duo Festa S. Petri, videlicet Festum Cathedralis S. Petri unum et aliud Festum S. Petri quod dicit Ad Vincula. Et per eo in Calendario continentur quodlibet Festum cujuslibet Sancti cum additione et si fuit concordat cum Calendario." (10) (1482) Y. BB 9H. 7, 14b. "A writ of error was brought, and error was assigned, in that one brought an action for debt in a court which was granted by patent and had a day of continuance till Monday next before St. Boniface's day; and the defendant pleaded. • and on Monday next the defendant appeared; found against him; and assigned for error, that St. Boniface's day was past before the day given as Monday next before St. Boniface. In fact, there were two St. Boniface's days in the printed calendar, and in the mertlage only one Boniface. It was moved whether this be error or not. "Kingsmil: 'Although there are not two Bonifaces in every book, if there be two Bonifaces, the continuance be good There are two in the calendar; and so the continuance is good and will be referred to the Boniface who is to come and not the one past. There are diverse saints who are not in the calendar and yet a continuance to such and such a day of such and such a saint is good if any such saint there be As St. Swithin here at Winchester is not in the calendar yet a continuance to this day is good * for if the day be known there, it is enough, though it be not in the calendar (which the justices agreed tɔ). They say there are a hundred saints who are not in the calendar; people, also, here in the South do not recognize them; and yet the continuance to one of the days is good. Just so there are two A hundred years later an attempt was made to supplant the trial by almanacs in the matters of time by the trial by jury. A writ of error was brought on the ground that the court below where judg ment was obtained was held on Sunday: "And it was ruled, this examination (of that year's almanacs) was sufficient and a trial per pais was not necessary, although it were an error in fact."11 But this incident was only a step in the long journey of the almanac towards full recognition as a matter of judicial knowledge. In the seventeenth century the Court of Exchequer said that it will not take cognizance of a date, unless it be expressly assigned an error, for this class of cases came within the rule of the cases of error on the record.12 However, by the end of this century an opinion got at large that the Court could in its discretion take notice of the time ex officio. In Kynaston v. Jones:13 "An exception was taken to the ver dict for that they have not found the award to be made before Easter, and the Court cannot take notice ex officio that the 15th of April was before Easter." But the time was not in issue. "And upon this reason Mr. Hale told me the Court rested for that point, for he held that the Court otherwise could Bonifaces and the printed calendar proves it. Wherefore, etc. Huston to the contrary: there is only one.' 'And in the mertlage "Hussey (C. J.): 'What do you mean by this mertlage? What is it' "Huston: 'It is a calendar universal in the church of this realm which priests are bound to keep and nobody else; and although a new saint were canonized beyond the sea there is no reason why people are bound to recognize him; and so a continuance to such a saint's day is not good. So here, for in this realm there is only one Boniface and whether there are two or not, I know not, but it seems not, for he is not in the mertlage, The printed calendar is not to the purpose and may be false; and may be there are two Bonifaces beyond sea and only one in England.'" The judges sent to the Common Bench about the matter. Brian (Q. J.) thought the continuance not good unless two Bonifaces were recog nized in England and in the mertlage; or at least recognized for the printed calendar is of no authority. Vavisor J. to the contrary. And we were in doubt. Those in the King's Bench held the continuance good." Thayer's Preliminary Treatise on Evidence, pp. 292, 293. |