Scriven Brothers v. Schmoll Fils & Co. Inc., BANK; Cheque; Negligence, 76. CHARITABLE TRUST; "For benefit of New South Company; Promoter; Secret Profits, 136. Quarter Sessions; Jurisdiction; Larceny on King's Ship in Scottish Waters, 52. Statutory Offence; Coal Mines Act, 136. Statutory Offences; Sale of Margarine; HUSBAND AND WIFE; Desertion; Husband Divorce; Evidence of Husband, 174. Restitution of Conjugal Rights; Petition by Wife after Dismissal of Nullity Suit brought by Husband, 15. INSURANCE; National Health; Approved International Law; Government Department Immunity from Civil Proceedings; Privi- LANDLORD AND TENANT; Agricultural Holding; Monthly Tenancy; Notice to Quit; Proper PRINCIPAL AND AGENT; Agency of Necessity, Negligence; Liability of Owner of Motor REPARATION; Negligence; Damage to Pre- Motor Car left unattended on Public Revenue; Corporation Profits Tax; Club for Promotion of Social Intercourse, 36. Entertainments' Duty; Club; Right to Window let to View a Procession, 27. No Profits in Year of Assess- Schedule E; Employer Paying Tax Super-tax; Distribution of Undivided Profits as Debenture Stock, 183. Distribution of Undivided Profits on SHIP; Collision; Duty of turning Vessel; Statutes; Agricultural Holdings Act, 1908, Anglo-Portuguese Commercial Treaty Act, Anglo-Portuguese Commercial Treaty Act, Bills of Exchange Act, 1882, 76, 119, 174. Statutes-continued. Companies (Consolidation) Act, 1908, 136. Customs and Inland Revenue Act, 1869, 136. Finance Act, 1894, 99. Finance (1909–10) Act, 1910, 112, 196. Finance (New Duties) Act, 1916, 27, 136. Finance Act, 1920, 36, 184. Finance Act, 1922, 27. Income Tax Act, 1918, 104, 174, 188. Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, 140. Larceny Act, 1861, 52. Statutes-continued. Stage Carriages Act, 1832, 136. Act, 1895, 15. Wills Act, 1837, 99. Workmen's Compensation Act, 1906, 32, 40, 67, 99. Succession; Will; Construction; "Patriotic or Charitable," 36. Revocation; Intention, 99. TRADE MARK: Goods purchased from Manufacturer and sold in Country to which he was previously Sole Importer, 148. False Description; "Tarragona Port," 15. WORKMEN'S COMPENSATION ; "Accident arising out of and in the course of the Employment," 32, 40, 99. Appeal on the Ground of Surprise, 67. C 1 LAW LORD HAILES. TIMES 1924. "Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue." 1 Rarely has education and training played a more important and striking part in the career of a man than in that of Lord Hailes. The sympathies of the Dalrymple family, staunchly Hanoverian and pro-Union, in all probability greatly influenced Sir James Dalrymple in sending his eldest boy for his earlier education to Eton. After a distinctly successful career there, David Dalrymple was sent to Utrecht to study law, and thereafter spent a considerable time travelling in France. He thus lived the greater part of his earlier life away from the companionship of his own compatriots, and acquired a very different outlook from most of his contemporaries; his "predilection for English modes and manners" 2 and his speech noticeably accentuating the differences between him and the majority of educated Scots, for at that time the vernacular held sway in the Scottish Courts, being in use alike by counsel, litigants, and Bench. The very fact that he could neither express nor appreciate fully the variations and distinctions of the different Scots phrases or words in common use must from the first have been a drawback to him in his ordinary work at the Parliament House. In As a judge, the characteristics that had combated success at the Bar in his profession shewed themselves, but to much less an extent. an age when the Bench was noted for lack of feeling, insobriety, and laxity of morals, the genuine qualities of his character shew up to great advantage, though doubtless affording less interesting reading than the vices and eccentricities of his fellow judges. As a foil to Justice-Clerk Braxfield, who was earning for himself the sobriquet of the "Hang Socially it tended to widen the gulf between ing Judge," Hailes was distinguished for his him and the literati in Edinburgh, and encouraged the literary acquaintanceship which he had formed in England to ripen gradually into deeper friendship. James Boswell (bio grapher of Dr Johnson) seems to have been the only prominent literary Scotsman with whom he was on terms of intimacy. Admitted to the Bar on the 23rd February 1748, Dalrymple was for several reasons unable for long to acquire that position in his profession which was confidently expected of him by his friends. His "weak, ill-tuned voice," that type of pedantry which is so often associ 1 Bacon's Essays, "Of Judicature." 2 Ramsay's "Scotland and Scotsmen," I. 394. humanity and fairness. In civil causes he was remarked for patience and assiduity as well as for restraint in the use of that irony of which he was so great a master. And yet his pedantry and insistence having dismissed a case lines: 66 دو As legal historian he had great aptitude. a mark more notable than that of any out The small specimen of his work on statute law contemplated but, owing to lack of support, not completed, is sufficient to shew both what has been missed by posterity and the thorough nature of all work undertaken by him. The suggestion of this thesis probably came from a work then recently published in England by Barrington on "Ancient English Statutes." 1 It is, however, as a protagonist of the historical method that posterity owes most to Lord Hailes. His critical and analytical ability is shewn at its best in his "Annals of Scotland from the Accession of Robert sirnamed Bruce to the Accession of the House of Stuart." 66 This work was formed on the model of President Hénault's Abrégé Chronologique de l'histoire de France." "Lord Hailes' ' Annals of Scotland," writes Johnson, "have not that painted form, which is the taste of this age; but it is a book which will always sell, it has such a stability of dates, such a certainty of facts and such a punctuality of citation. I never before read Scottish history with certainty." Dr Johnson's views of its merits were not, however, shared by his contemporaries, for the reception accorded to the book discouraged Hailes from attempting a continuation of the work. A people so race-conscious as the Scots were not likely to appreciate the destroyer of their most treasured legends; nevertheless, subsequent generations of his countrymen recognise the value of his opinions and appreciate his "Annals." Dalrymple's work was all the more praiseworthy in rejecting from the true the mass of fable and gloss with which up to that date Scottish history had been interlarded. Its unfavourable reception hurt Lord Hailes' feelings, and undoubtedly prevented him from continuing his work, which he had intended to continue to the end of the Stuart dynasty. To sum up, Lord Hailes' life seems to shew the advantages and to accentuate the disadvantages of a type of education vastly different from that of a man's national contemporaries. With many of the marks and abilities of greatness, Lord Hailes seems to fall short of its attainment by pedantry and by lack of perseverance. His legal accomplishments are marred by the former, and his historical achievements curtailed by the latter; and yet in spite of these defects, his probity and moderation, his fairness and uprightness of personal life leave 1 "Memoirs of Lord Kames," I. 208. standing judicial decision or literary masterpiece of his day. A. G. E. H. "THOU SHALT NOT STEAL”! In the several thousand years which have passed since Moses first read those words in the Tables of the Law, we might have supposed that humanity would have obtained a clear idea of their meaning. Many years' experience of public prosecution has, on the contrary, satisfied the writer that this is not so. There is no class of crime as to which prosecutors have more frequently to reject charges, and because such charges usually arise out of ill-will, a considerable amount of bad feeling is transferred from the complainer to the unhappy prosecutor. Even his professional brethren do not always see clearly in this matter, and it may be desirable that the writer should explain certain things which are necessary before a man can charge his neighbour with a breach of the eighth commandment. 66 If a hundred persons were asked to say what was their idea of theft, ninety-nine would at once reply : Taking the property of another without his consent." The answer would be true, but not the whole truth, and the portion of truth omitted is most important. Let us look at a few definitions. Hume (I. 57): "The felonious taking and carrying away of the property of another, for lucre." This is a free translation of Digest (XLVII. ii. 3): “Contrectatio rei fraudulosa, lucri faciendi gratia." The derivation of the word furtum, suggested by the Roman lawyer Labeo, indicates the characteristic feature of the crime, associating it with blackness or darkness (furvum), because theft is normally committed secretly, hiddenly, and often by night. Alison (I. 250): "The secret and felonious abstraction of the property of another, for the sake of lucre, without his consent." This definition adds two qualifications-the abstraction has to be secret and without the consent of the owner. Macdonald (p. 18) : "The felonious taking and appropriation of property without the consent of the owner or custodier." Here the author abandons secrecy and the desire for lucre, but introduces the custodier. In every one of these definitions the word "felonious" occurs. What is felonious appropriation? Lord Young, in an embezzlement case (Lee, 1884, 5 Coup. 492), explained the term acting wickedly and feloniously," as acting dishonestly, acting with the mind of a thief or a knave, and intending to take his neighbour's property." Assuming that his 66 |