SANDEMAN v. Gold, 15.

Scriven Brothers v. Schmoll Fils & Co. Inc.,
156.

Sheehan v. Dreamland, Margate Ltd., 48.

St Helens Colliery Co. Ltd. v. Hewitson, 32.

UNDERWOOD, A. L., LTD. v. Bank of Liverpool

and Martins Ltd., 76.

Upton v. Great Central Railway Co., 40.

Sutton v. New Tabernacle (Old Street Con- VERGE v. Somerville and Others, 68.

gregational) Approved Society, 51.

TETLEY, In re, 36.

WHELAN v. Henning, 188.

Wing v. Dent Main Colliery Co. Ltd., 136.

P

(vii)

DECISIONS IN THE ENGLISH COURTS.

INDEX OF MATTERS.

After a distinctly successful career there, David Dalrymple was sent to Utrecht to study law, and thereafter spent a considerable time travelling in France.

2

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 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.

ated with an insistence on accuracy in every detail, however apparently unimportant, served to hide a very real ability and a sound knowledge of the law.

In spite of these failings he nevertheless gained a solid reputation, especially in plea It may be remarked in passing that plea writing writing, as a very learned and accurate lawyer. in the process of the law than it does at the played a very much larger part in those days

present time.

at their best in his pleading in the Countess of His real merits as a lawyer were perhaps shewn Sutherland's case. This he wrote as her

guardian, and after he was raised to the Bench. It won the cause, was for many years the model of such pleadings, and is to the present day descent through females in the older Scottish referred to by peerage lawyers to demonstrate

titles.

and took the title of Lord Hailes.
In 1766 Dalrymple was raised to the Bench

In

bated success at the Bar in his profession shewed
As a judge, the characteristics that had com-
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
tricities of his fellow judges.
interesting reading than the vices and eccen-

earning for himself the sobriquet of the "Hang-
As a foil to Justice-Clerk Braxfield, who was
ing Judge," Hailes was distinguished for his
humanity and fairness.

In civil causes he was remarked for patience

Socially it tended to widen the gulf between him and the literati in Edinburgh, and encouraged the literary acquaintanceship which he had formed in England to ripen gradually and assiduity as well as for restraint in the. into deeper friendship. James Boswell (bio-use of that irony of which he was so great a grapher of Dr Johnson) seems to have been the master. And yet his pedantry and insistence only prominent literary Scotsman with whom he was on terms of intimacy.

Admitted to the Bar on the 23rd February 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

66

Ramsay's Scotland and Scotsmen," I. 394.

have been intensely annoying to his con-
on strict accuracy even in small matters must
temporaries. The incident related of his
having dismissed a case because a document
final "e
contained the word "justice" without the
at the end is commemorated in the

lines:

"To judge of this matter, I cannot pretend,
For justice, my Lord, wants an 'e' at the end." 1

1 "Court of Session Garland," Boswell.

a

THOU SHALT NOT STEAL"!

As legal historian he had great aptitude. a mark more notable than that of any outThe small specimen of his work on statute law standing judicial decision or literary mastercontemplated but, owing to lack of support, piece of his day. A. G. E. H. 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."

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.

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.

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 His legal accomplishments are marred by the " felonious occurs. What is felonious approformer, and his historical achievements cur- priation? Lord Young, in an embezzlement tailed by the latter; and yet in spite of case (Lee, 1884, 5 Coup. 492), explained the these defects, his probity and moderation, his term "acting wickedly and feloniously," as fairness and uprightness of personal life leave" acting dishonestly, acting with the mind of a thief or a knave, and intending to take his neighbour's property." Assuming that his

1 "Memoirs of Lord Kames," I. 208.