hire or reward." In Wyld v. Pickford, 8 M. & W. 443, Parke, B., seems to claim a distinction between gross negligence and ordinary neglect, but admits ordinary neglect may be correctly defined in the above cases. But in Hunter v. Debbin, 2 Queen's B. 644, Denman, Ch. J., said in regard to gross negligence, "it might have been reasonably expected that something like a definite meaning should have been given to the expression." "In none of the numerous cases referred to on the subject is any such attempt made, and it may well be doubted whether between 'gross negligence,' and negligence merely, any intelligible distinction exists." But the English cases all seem to agree in defining ordinary negligence as that which a prudent man does not allow in the conduct of his own affairs, and most of the later cases, where the question has arisen, both English and American, repudiate the old attempt to distinguish three distinct degrees of diligence and the cumulative degrees of negligence. In Wilson v. Brett, 11 M. & W. 113, Baron Rolfe makes some very pertinent remarks upon this subject. "I said I could see no difference between negligence and gross negligence, that it was the same thing, with the addition of a vituperative epithet." And in Austin v. The Manchester R. R. 11 Eng. L. & Eq. 513, Cresswell, J., refers to the language of Lord Denman quoted above, with approbation; and in the Steamboat New World v. King, 16 Howard U. S. 474, Mr Justice Curtis seems to adopt a similar view in regard to these distinctions being more or less unintelligible, and in practice often leading to misconstruction and misunderstanding. It seems too that these distinctions are repudiated by many of the continental jurists in Europe, as producing more uncertainty than they need, 6 Toullier's Droit Civile, 239, 11 id, 203; and although it seems we have adopted these distinctions in the degrees of diligence and negligence from the Roman civil law, I do not find the commentators on that law adopting our loose manner of expressing what is required of a bailee for hire. Domat, part 1, book 1, tit. IV., sec. VIII., art. III., thus expresses the care of such bailees: "He who undertakes to keep cattle, ought to preserve that which is entrusted with all the care that is possible to be taken by persons who are the most watchful and diligent." And this is really synonymous with the rule adopted by the English courts. Mr Justice Story, Bailments, § 11, in order to mention the old definition of three grades of diligence, defines it much in the manner it was done in the present case. "Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns," which certainly leaves upon the mind a different impression from the definition of Domat and the English judges, and we cannot but regard it as one calculated to mislead juries; and this very writer, in § 13, adopts the diligence of "prudent men," as the measure of common diligence, and it seems to us nothing short of this will do justice in a case like the present. It may with some plausibility be said, that one who employs a man known to the employer to be habitually indifferent to the management of his own concerns, has no right to expect him all at once, even for reward, to assume a wholly different character, and the jury would be likely so to decide, the question being ordinarily one of fact, when the testimony raises any doubt; and when one employs a man of skill and talent in the management of his own affairs, he may justly expect him to exert the same skill and talent, to the same extent, in the management of the business which he undertakes for others; and in the case of a public officer who is selected for his fitness for the particular trust, every one may justly expect all the care and diligence, which men entirely competent and careful could reasonably be expected to exert in their own business of equal importance. And this, it seems to us, is the true measure of liability in all cases of bailment. The bailee is bound to that degree of diligence which the manner and the nature of his employment makes it reasonable to expect of him; any thing less than this is culpable in him, and renders him liable. (Briggs v. Taylor, 5 A. L. R. 239.) PARTNERSHIP.-Powers of Partners.-The Wisconsin District Court, in Bowen v. Clark, 5 A. L. R. 203, held that two of three partners cannot make an assignment of all the partnership property and effects of an insolvent firm, to a trustee with preferences, after the third partner has refused to secure any one of the creditors in preference to others, or to distinguish between them, and in his absence, not out of the country, but where he might be again consulted without unnecessary delay. In the course of the judgment, it is observed, it is a consequence of a partnership, that each acting partner is the general agent of the firm; that is, has an implied authority to act for the firm, in all business within the scope of the business transacted by it. In all that the firm has undertaken to do, or usually does, an acting partner is identified with the company. In the case of Rogers v. Batchelor, 12 Peters, 230, Mr Justice Story remarks: "The implied authority of each partner to dispose of the partnership funds strictly and rightfully, extends only to the business and transactions of the partnership itself, and any disposition of these funds by any partner, beyond such purposes, is an excess of his authority as partner, and a misappropriation of those funds for which the partner is responsible to the partnership. Whatever acts, therefore, are done by any partner in regard to partnership property, or contracts beyond the scope and objects of the partnership, must, in general, in order to bind the partnership, be derived from some further authority, express or implied, conferred upon such partner, beyond that resulting from his character as partner." One partner can, in the name of the firm, replenish the stock in trade, and even sell or dispose of it, in the usual course of the business. He can dispose of an article of the stock in trade in payment of a debt of the firm. He can mortgage the stock, or dispose of a portion of it, to raise funds to preserve the credit or to pay debts of the firm. In the absence of a copartner from the country, the acting partner may assign to a trustee, for certain creditors of the firm, the cargo of a certain ship, and of certain debts, to raise funds in aid of the credit of the firm (Harrison v. Sting, 5 Cranch, 289); and under like circumstances, in the absence of one partner from the country, who could not be consulted, an assignment of the whole property of the concern, by one partner, was held valid by Marshall, C. J., in Anderson and Wilkins v. Tompkins, 1 Brock. 456. But the authority in a single partner to dispose of partnership property, is not an inseparable legal consequence of an interest in the partnership. It is an actual agency, implied from the supposed assent of the other members; an express notice, therefore, from one member of the firm, that he will not be bound by the act of another partner, puts a stop to the implied authority. See 1 Am. Leading Cases, 292, and cases cited. This agency does not exist where the partners are present, or can be consulted. In Anderson and Wilkins v. Tompkins, it is asserted, that "this power would certainly not be exercised in the presence of a partner without consulting him; and if it were so exercised, slight circumstances would be sufficient to render the transaction suspicious, and perhaps to fix upon it the imputation of fraud. In this respect, every case must depend on its own circumstances." The principle to be extracted from nearly all the decisions appears to be this, "that as a general assignment, if it does not dissolve the partnership, at least takes away from the partners the right of disposing of the effects assigned, all the members, if they are present, have a right to be consulted upon such a step; that an assignment by one partner against the known wishes of the other, would be a fraud upon him, and invalid; and an assignment without his knowledge would be presumptively so. But if one partner has left the country, he must be considered as having vested in the other implied authority to act in all matters for the benefit of the firm; and an assignment under such circumstances, if fairly made, and beneficial to the interests of the company, will be sustained."1 Am. Lead. Cases, 444. In this case the third partner was not absent from the country; but he was at Washington, where he might have been written to or seen personally in four days, or telegraphed to in one day. Especially was this the duty of the agent of the plaintiffs, as they had full notice from him of his objection to preferring any of the creditors of the firm. His assent to the assignment was therefore essential, under the circumstances, to its validity, as to him. THE JOURNAL OF JURISPRUDENCE. AN OLD FICTION EXPOSED. BLESSED be the long vacation! It frees one from the frightful thraldom to Shand's Practice, Tait's Index, the Daily Rolls, and Macfarlane on Issues, and all that kind of dreary reading. It sends one to the green fields, and wide-awakes, and the chirping of birds, and the delightful relish of a country appetite!— Now the air Is rich in fragrance! fragrance exquisite ! Of new mown hay, of wild thyme dewy washed, Yet And yet how comes it, that even while toying with the small trout, on the margin of the little stream which feeds the said lake, or rather loch, things of the earth earthy, things juridical, and therefore at such times to be abominated,-will ever intrude themselves upon the mind unbidden,-will rise to the surface of one's thoughts and float away all our philosophy. The mind we presume has fot its bent; and habit asserts its domination of a second nature. be it far from us now to imitate that literature abhorred! Though juridical our subject, it does not belong to Scotch law; and our object has not the slightest pretension to the "practical improvement" of any human being. After this protest, the startled reader, who anticipated another heavy burden on his memory,-already overburdened by the addition made every year to the mountain of undigested matter constituting our laws, may read in perfect security. If he be instructed, let him be thankful; but he may rest assured that he may forget all that we are now about to say, without losing a client or a fee. The matter was suggested thus: A very learned judge,—a man whose judgments it is alike profitable and pleasant to read, even when much is misunderstood by a lawyer of another country, did, when pleading as an advocate in a great case before the House of Lords, make this interesting statement: "The civil law, the law of Pagan Rome,-though, of course, it VOL. I.-NO. X. OCTOBER 1857. PPP existed long before the period to which we are referring in the history of Englaud, may be considered to have had its origin, that is, to have been first brought to the notice of the world, when the Pandects were discovered at Amalphi, in the year 1130.”—(Queen v. Millis, Dix's Report, p. 211.) And another great advocate, now a Privy Councillor, who delivers the most elaborate judgments as a member of the Judicial Committee of the Privy Council, thus expressed himself in the same case : "About the years 1150 and 1154, Justinian's Institutes were discovered. It is matter of history: The discovery of Justinian's Pandects was in 1150 I think."-(Ibid. p. 167.) The first speaker was Vice-Chancellor Kindersley; the second was the Right Honourable Thomas Pemberton Leigh. It will, we suppose, be admitted that these two passages prove the necessity for legal education in England. If the foremost men in the profession, in that land of technical jurisprudence, are so ignorant as to confound the Institutes with the Pandects, and so much behind the age in general learning, as to repeat a fable exploded for half a century, as if it were a historical fact, in what condition of utter darkness must be the legal mechanics who constitute so large a section of the English bar! And yet it is by men thus ignorant of a branch of legal knowledge, which it is not so much a merit to know as a disgrace to be unacquainted with, that the law of Scotland,founded on the civil law, is denounced as "barbarous,"-while it is faithfully copied. They have at last got our law of divorce,the law of Scotland for three centuries. O what puerilities that divorce debate gave rise to! And what novel things were said of the Scotch law of divorce and its working! Surely some one will collect the Bishop of Oxford's, Lord Redesdale's, Mr Gladstone's, and Mr Malin's etourderies for the benefit and amusement of succeeding times. The Amalphi fable furnishes one of the most curious chapters in the history of fiction. It was supported by such an imposing array of authority, as to dazzle the critical sagacity even of the historian of the Decline and Fall. In his text he adopts it. "The Pandects themselves have," he says, "escaped with difficulty and danger from the common shipwreck; and criticism has pronounced that all the editions and manuscripts of the West are derived from one original. It was transcribed at Constantinople, in the beginning of the seventh century, was successively transported by the accidents of war and commerce to Amalphi, Pisa, and Florence, and is now deposited as a sacred relic in the ancient palace of the Republic." In the notes, however, the doubt is suggested which Savigny turned into certainty at a later day. "The whole story, though unknown to the twelfth century, embellished by ignorant ages, and suspected by rigid criticism, is not, however, destitute of much internal probability.”—(Gibbon, chap. 46.) 1 Savigny, in the third volume of his Geschichte des Römischen Rechts im Mittelalter, has discussed the subject with the learning and the sagacity of the prince of modern historians, after Gibbon.1 The current theory, the theory of the Vice-Chancellor and the Privy Counsellor is, that after the fall of the Western Empire, the civil law passed into a sleep of 600 years. The conquerors trampled in the dust the laws and institutions, as well as the empire of the Romans; and Europe, during the middle ages, had no laws, but the few simple rules which the invaders had brought with them from their native wilds. A fortunate accident, however, restored to the world the principal part of the compilations of Justinian. All Europe was then seized as if by the fury of a contagion; and the civil law became a universal study. The Pandects, as we possess them, are copies from that celebrated original now lying in the great library at Florence, bound in vellum and gold. This famous copy was discovered at the siege of Amalphi in 1135. It was the sole copy then existing among mankind of the famous Digest of Tribonian and his friends. The siege arose out of a struggle for the Papal throne. The cause of one candidate was embraced by the Emperor Lothaire the Second, and (on his instigation) by the inhabitants of Pisa; that of the other, by Roger, King of Sicily and Naples. Amalphi, forming part of the kingdom of Naples, having been taken by the emperor and his allies, was given up to plunder; and while engaged in this object, some soldiers accidentally discovered the copy of the Pandects. Lothaire, as a reward to the Pisans for the effective assistance they had given him in the siege, immediately, on their earnest petition, delivered to them this precious relic, which they carried in triumph to Pisa, "ut spolia opima."-(Terrasson Histoire de la Jurisprudence Romaine, p. 371.) The manuscript remained at Pisa until the beginning of the fifteenth century, when that city was besieged and taken by the Florentines, who carried off amongst their booty the reward which the Pisans had so dearly earned. Here its migrations terminate; the Florentines having kept possession of it up to the present time. Lothaire, the emperor, through whose instrumentality this happy result had been produced, published an edict, declaring, that throughout the empire, the Roman jurisprudence should become the law of the empire,—rather a summary proceeding even for a Is there no one who will translate Savigny's history? Mr Elias Cathcart gave us the first and driest volume; and from want of encouragement, there the matter has stood. This is not creditable to the English people. The work of Savigny takes rank with that of Tacitus and of Gibbon,-works which leave the class of compilations, and are recognised among all mankind as of the highest order of genius. Savigny's work is not a history of law, so much as a history of the northern conquerors, of education, of the universities, of the burghs of the middle ages; and Gibbon's work is incomplete without Savigny's as an appendage. Surely Mr Bohn would find it more profitable to give us the work of this great historian, than such antiquated rubbish as translations of Strabo or the life of Appollonius of Tyana. |