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No. 361.

PRICE 18.

WHENEVER the arrears of business in our courts are mentioned, the evil which is generally uppermost in men's minds is the delay of justice which the poor suitors suffer. And, indeed, it is natural that it should be so; for this is an evil of a tangible nature, and one which is often and painfully felt. But to us, who, with observant eye, regard the wide field of law, and mark the growth of this or that particular tree, and how far it affords shelter and protection to those who seek its shade, another evil of no slight magnitude seems to arise from the pressure of business. Lord Bacon has said, that affected despatch is one of the most dangerous things to business that can be; and every one in thought, if not in practice, agrees with him. A multiplicity of business in a court, we have said, may be productive of one of two evils:-its judges may proceed in their ordinary way, giving due audience to each suitor that comes before them, careless of the crowd of clamorous expectants that wait without, and so deal out just, though tardy, redress; or they may suffer their eyes to wander from the present individual to those who follow behind him, and, in their anxiety about them, dismiss him with a hasty and ill-considered answer, or, rather, may suffer the whole crowd to break in and then get rid of them as best they can. But, unfortunately, the mischief does not end here; the words uttered in judgment, whether hasty or deliberate, ill-conwell-considered, are caught up by ever watchand committed to paper, in due time to appear in printed volumes of imposing look, as "Reports of Cases argued and determined in the Court of," and

sidered or

ful

pens

serve as

guide-posts and landmarks to future suitors. We should be sorry to speak harshly; but who that has read the old reports the time-honoured storehouses of lawcan have failed to contrast the arguments and decisions of

VOL. VII.

V V

ralty Courts Court of Review

........

Commons.

W. W. COOPER, Esq. of the Inner Temple, Barrister at Law.

the present time with the untiring research and mature deliberation there exhibited? How, by bar and by bench, the question was turned and twisted in every possible way, all its consequences considered, its every corollary examined, and not till then was any decision pronounced. We do not indeed expect that modern courts can do all this. Those were the happy times when "the justices of England sit not in the King's courts above three hours in a day, that is to say, from eight of the clock in the forenoone till eleven compleat; for in the afternoones those courts are not holden or kept, but the suters then resort to the perusing of their writings, and elsewhere consulting with the serjeants-at-law and other their councellours. Wherefore the justices, after they have taken their refection, do pass and bestow all the residue of the day in the study of the laws, in reading of Holy Scripture, and using other kind of contemplation at their pleasure, so that their life may seem more contemplative than active. And thus do they lead a quiet life, discharged of all cares and troubles." A state of legal bliss, now, alas! to be enjoyed by one only of her Majesty's superior courts.at Westminster. Perhaps the real reason why the privilege of the Serjeants is retained is respect for the memory of Fortescue-a wish that we of modern times, having before our eyes the coif-guarded sequestered spot where they are wont to contemplate, may be prevented from supposing, that, in the passage above quoted, that sober writer was indulging in an unwonted freak of imagination. But though we cannot expect of modern courts, that they should labour their cases as did the ancient sages of the law, it may be hoped that they will not run into the opposite extreme. If they cannot give a whole day to a single case, it does not follow that they should dismiss it in an hour.

The foregoing observations have been suggested by the perusal of a case which was reported in our last

number, concerning which, and one connected with it, we cannot forbear making some remarks to our readers. Many of them, perhaps, will remember the case of Smith v. Marrable, decided by the Court of Exchequer in last Hilary Term. We have now before us three reports, (11 M. & W. 5; 12 Law Journ., N. S., Exch., 223; and 7 Jur. 70), all agreeing in the account they give of it. The action was for use and occupation, and the defence was, that the house was infested by bugs. The Lord Chief Baron, before whom the cause was tried, is said to have told the jury, that, in point of law, every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable. The jury, acting upon this, found a verdict for the defendant, and upon a motion for a new trial, on the ground of misdirection, the following judgment was delivered :-" This case involves the question, whether, in point of law, a person who lets a house must be taken to let it under the implied condition that it is in a state fit for decent and comfortable habitation, and whether he is at liberty to throw it up when he makes the discovery that it is not so. The case of Edwards v. Etherington appears to me to be an authority very nearly in point. There, the defendant, who held a house as tenant from year to year, quitted without notice, on the ground that the walls were in so dilapidated a state, that it had become unsafe to reside in it; and Lord Tenterden, at Nisi Prius, held these facts to be an answer to an action by the landlord for use and occupation, telling the jury, that, although slight circumstances would not suffice, such serious reasons might exist as would justify a tenant's quitting at any time, and that it was for them to say, whether, in the case before them, such serious reasons might exist as would justify-as would exempt the defendant from the plaintiff's demand, on the ground of his having had no beneficial use and occupation of the premises. The jury found for the defendant, and the Court of King's Bench was afterwards moved for a new trial, on the ground of misdirection, but they refused to disturb the verdict. There is also another case, of Collins v. Barrow, in which Bayley, B., held, that a tenant was justified in quitting without notice premises which were noxious and unwholesome for want of proper sewerage. These authorities appear to me fully to warrant the position, that, if the demised premises are encumbered with a nuisance of so serious a nature, that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. This is not the case of a contract on the part of the landlord, that the premises were free from the nuisance; it rather rests in an implied condition of law, that he undertakes to let them in a habitable state." And Lord Abinger says, "I am glad that authorities have been found to support the view which I took of this case at the trial; but, for my own part, I think no authorities were wanted, and that the case is one which common sense alone enables us to decide. A man who lets a ready-furnished house surely does so under the implied condition or obligation-call it which you will —that the house is in a fit state to be inhabited.”

Who among our readers would not, upon reading the above judgment, consider this case as deciding, as stated in the placita of two of the reports, and marginal note of

the third, that it is an implied condition, in letting a house, that it is habitable, and free from any serious nuisance; and that, too, upon a principle applicable not merely to the letting of a house, but to the letting of land or any other tenement? Not so, however; and we and others, who may have thought that such was the meaning of the court, have been much mistaken. "Expressum facit cessare tacitum" is a well-known legal maxim; but our readers will see, that, in this instance, it ought rather to be said, "Tacitum facit cessare expressum." IN THE JURIST of last week (p. 1065) is a report, of which we have no reason to doubt the correctness, of a case of Sutton v. Temple. This was an action of assumpsit for the use of certain pasture land, and the eatage of the grass growing thereon, which had been let by the plaintiff to the defendant. After the defendant had put in his cattle, it was found that a quantity of refuse paint was scattered over the land, and several of them were poisoned by it. The defendant, being advised, no doubt, that his case came within the principle laid down in Smith v. Marrable, insisted that he had a right to give up possession of the land, and so must Lord Abinger, who tried the cause, have thought; for he told the jury, that, if the land was so poisoned as to be unfit for eatage by cattle, the defendant was only liable for the time he had actually occupied. When the case came to be argued before the court, the defendant's counsel relied of course upon Smith v. Marrable. The counsel on the other side took several objections to that case, but apparently not doubting its applicability to the point in question. But not so the court. We must ask our readers to refer to the judgment, as it is too long to be inserted here; but they will there be told, that Smith v. Marrable rests on a principle altogether different from that in question in the later case; that the contract there was partly for goods and partly for the hire of a house; and it was because the goods-the furniturefailed to answer the purpose for which they were hired, that the contract was not binding*. Now, we would again refer our readers to the report of Smith v. Marrable in each of the three books that we have named, and ask them if they can find in that report one word leading ordinary lawyers to the supposition that the court meant to put the decision on the ground of the contract being for goods, as distinguished from a contract for the letting of a house; whether, on the contrary, the judg ment is not so worded, as to induce a belief that what was decided, was, that on the demise of a house generally, whether furnished or not, there is an implied warranty that it shall be fit for habitation. If the ground of that decision was not that which appears in the three several reports, but the totally distinct one stated in Sutton v. Temple, why was it not stated plainly at the time? And how is it that the case was decided he professedly on the authority of other cases, (Edwards v. Etherington and Collins v. Barrow), in which there was no hiring of goods at all?

Whether Smith v. Marrable is now law or not, it is

*We will observe, en passant, that the contract in Smith. Marrable was simply for a house." On the face of the agree with it. This, we presume, was not pressed upon the row. Iment, it did not appear that there was any furniture to pass of the learned judges, who explained that case in Sutton Y. Temple.

sed

not easy to say. Certainly it is not, as originally decided, if Sutton v. Temple is, and it can only be taken to be so with the explanation that has lately been given. But whether the case explaining it is itself law, it is equally impossible to say with any certainty, if a new judicial practice is to be adopted, according to which the next case on the subject may explain away all the grounds of decision apparent in the report of Sutton v. Temple, with as much facility as that case has explained away Smith v. Marrable.

REMARKS ON THE ACT FOR THE IMPROVEMENT OF THE LAW OF EVIDENCE SO FAR AS IT RELATES TO THE EXAMINATION OF PARTIES TO THE SUIT IN EQUITY.

The recent act for the improvement of the Law of Evidence (6 & 7 Vict. c. 55) may well be considered a great boon to the litigating world; and, therefore, (since no man can insure himself against becoming a member of that unenvied community), to the public at large. In it we see the abandonment of a theory which was reared in prejudice and narrow views of the disposition of the human mind, but which had no support either in reason or convenience. It is calculated to promote the cause of the honest man, whose reliance is in truth, for it furnishes those means of arriving at the truth which have hitherto been rejected. To suppose that, because a man is subject to a bias, he is therefore unworthy of all credit, and to reject his evidence when he clearly spoke the truth against his own interest, in order to bear out this hypothesis, was indeed sacrificing more practical good to a general principle than any theorist of moderate stubbornness could have desired, "To keep the current of evidence pure and uninfected," is no doubt a wise and just endeavour; but, for this purpose, to dam up one of its chief sources, is mischievously absurd. Such, however, was the effect of the rule of our law, which declared the testimony of a party inadmissible propter lucrum damnumve. When we say that that rule worked in many cases a denial of justice, we may appeal to the experience of practical men for the truth of the assertion, and ask whether they cannot call to mind many cases in which a righteous cause has been lost for want of evidence, which our law locked up in the breast of a party, against whose integrity there was no ground for suspicion, and who would have spoken the truth at all hazards; or whom, possibly, although his honesty was not proof against temptation, the knowledge, or even the apprehension, that the means of conviction were at hand, deterred from testifying falsely? The answer to this question will bear us out in alleging that the above statute, which attacks a frightful error in principle, has conferred more real and essential benefit upon suitors than any score of the many recent enactments, which are directed merely to remedy abuses in the practice, or inconvenience in the forms, of legal proceedings. It is, however, only to the general principle of the act that our admiration as Chancery practitioners can extend; for in those of its provisions which relate to proceedings in equity we think that we discover a dereliction of principle and an inconsistency, which we hardly know whether to attribute to design or to error-to some lingering fondness for the old rule, or some miscarriage in giving effect to the new We had come to this conclusion, and, in fact, had made the following observations upon the points, which a careful consideration of the statute had suggested to us, before a pamphlet*, written by a learned Lord and quondam Lord Chancellor, professedly treating on the * "Letters on Law Reform, to the Right Hon. Sir J. R. G. Graham, Bart., &c., from Lord Brougham.”

one.

3

subject of legal reform and codification, but, in reality, glancing at a great variety of legal, political, and personal subjects, fell into our hands. In that pamphlet we found one or two passages which, it must be owned, did make us pause, and which, perhaps, our readers may think, should altogether have repressed our intended criticism. "This," says his Lordship," is certainly the greatest measure that has been carried under the head of judicial procedure since the Statute of Frauds—that is, since the Restoration. It places the law of evidence, at length, upon a rational footing, and makes its provisions consistent with themselves. It protects judges and juries and parties from the miscarriages heretofore constantly produced by the exclusion of important testimony, wisely opening the door to the witness, but reserving the estimate of his credit and the value of his evidence to those who are to judge the cause. It also sweeps away the numberless nice and subtle distincdisencumbers our jurisprudence of a heavy load of usetions in which the profession was wont to luxuriate, less decisions, resting upon refinements and not principles, and abridges the trial of causes by shutting out those debates that used daily to arise upon the admission of proofs, which the common sense of mankind at itself did receive in other instances not distinguishable once pronounced should be received, and which the law by the naked eye of plain reason. There have been few greater improvements in our judicial system than those which are effected by this valuable statute." (pp. 45, 46). We are willing to believe that these remarks are intended by his Lordship to apply rather to the principle which the statute has set up, than to the mode in which that principle is thereby attempted to be carried out in all its details, and thus to persuade ourselves that our humble notions on the subject are not, in fact, at variance with the high authority of his Lordship's deliberate opinion. Under the influence of this persuasion, and with all submission to the weight of the above-quoted eulogistic declaration, we propose

to consider

First, whether, and how far, the old rule as to the examination of parties to a suit in equity has been altered by the statute.

ciple upon which the statute is founded, its provisions And, secondly, how far, consistently with the prinshould have extended to the admissibility of the evidence of parties to a suit in equity.

any

excluded, by reason of incapacity from interest, from First, the act, after declaring that no witness shall be or criminal, in any court, &c., provides, that it shall giving evidence in any suit, action, or proceeding, civil not render competent any party to any suit, action, or proceeding, individually named in the record, &c.; and by a further proviso enacts, that, in courts of equity, may be examined as a witness on the behalf of the plaindefendant to any cause pending in any such court tiff, or of any co-defendant, in any such cause, saving just may have in the matters, or any of the matters in quesexceptions; and that any interest which such defendant tion in the cause, shall not be deemed a just exception, &c. Now, it will be remembered, that, according to the practice of the court before the act passed, it was competent for a plaintiff to examine a defendant as a in like manner, examine a co-defendant; but in both witness, saving just exceptions, and a defendant would, cases it was necessary that the leave of the court should be obtained, which, however, was always granted as a matter of course. With regard to the examination of a defendant by the plaintiff, there were certain restrictions and inconveniences beyond the mere question of inadmissibility on the score of interest. In the first place, the plaintiff could take no adverse decree against a defendant whom he had examined; and it followed, as a necessary consequence from this rule, that the plaintiff could obtain no relief against the other defendants to

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