mate legal reasoning; the first is thus stated, towit: "That the defendant is not liable may be strongly argued from the circumstance that no such action as the present has ever been sustained in any of the courts of this country, although the occasions for it have been frequent and pressing." Whatever might have been the condition of things in 1866, when this was written, it is no longer true that "no such action has been maintained in any of the courts." Such actions have not been frequently brought, it is true. Railroads, steamboat lines and mill owners have occasionally had to suffer, but the general digest and the American digest show not more than half a dozen cases in half a dozen years in which individuals not engaged in one of these vocations have had to make good the loss occasioned by their negligence. Many reasons for the infrequency of such actions suggest themselves, but it cannot be said that they have never been sustained. Littleton's maxim, "that which never has been ought never to be," can no longer be pleaded in bar of the right. The second argumentum ad hominem advanced by the court in Ryan's case is thus stated: "A man may insure his own house or his own furniture, but he cannot insure his neighbor's building or furniture, for the reason that he has no interest in them. To hold that the owner must not only meet his own loss by fire, but that he must guarantee the security of his neighbors on both sides and to an unlimited extent, would be to create a liability which would be the destruction of all civilized society." To this it may be pertinently replied that nobody, since the statute of 6 Anne was passed, in 1707, has contended that a man was the "insurer of the security of his neighbors on both sides and to an unlimited extent." When one uses the care that may be reasonably expected from a reasonable man, he is not liable to any action for negligence, and it surely is not "destruction to all civilized society" to hold its members to that degree of care, by making them liable for the damages that follow in ordinary and natural sequence from their reckless disregard of the rights and property of others. "if the fire spreads from the matter first ignited, an argumentum ad hominem, rather than legitithe intervention of considerable space, or of various physical objects, or a diversity of ownership, does not preclude recovery by the party injured, or affect the defendant's liability for the first negligent act." But let us suppose that the property of A, B, and C is all insured in the same insurance company, and through the negligence of A all the houses are burned, what is the status of the matter so far as the insurance company is interested. In the first place, the negligence of A would not be a defense to the insurance company in an action brought by either one of the insured on his policy, if the policies were of any of the ordinary forms. Of course, this is true as to the loss of B and C, for neither their own negligence nor their default had aught to do with the loss. It is also true as to the loss of A, because the ordinary contract between the insurance company and its policy holder provides for an insurance against any loss by fire except such as is expressly excepted in the conditions and limitations of the policy, and loss arising from the negligence of the insured is not usually among the expressed exceptions. Having paid, however, the amount of damage due B and C, under their policies, what would prevent the recovery by the insurance company against A of a sum sufficient to make good the loss sustained by it in its payments to B and C? Even without the provision usual in the standard policy that the insurer shall be subrogated to all the rights and actions that the insured would have had, the doctrine of subrogation would of itself operate to vest in the insurer the cause of action that had been in the insured, to the amount of the payment on the loss by the insurer to the insured. While there is a contract between A and the insurance company that would prevent the recovery by the insurance company from A for damages to indemnify it for the loss paid to A himself, this does not apply to the cases of B and C-as to their property there is no contractual relation between A and the insurance company-and there seems to be no reason why even the same insurance company that had insured A and paid him the amount of his loss on his own property could not maintain an action just as could B and C, or an insurance company to which A was a stranger, for the damage that had come to it in the burning of the houses of B and C, as the proximate result of the negligence of A. Against these views there are two arguments made by the New York court in Ryan's case, supra, each of which may be not disrespectfully termed 15 Hall v. R. R., 13 Wall. 367; Ins. Co. v. Frost, 37 Ill. 333; Ins. Co. v. R. R., 25 Conn. 265; Day v. Lumber Co., supra. This, though, suggests a counter-remark that it might be beneficial to, rather than destructive of, civilized society for people to learn practically that they are liable for negligence in handling fire just as they would be in handling any other thing. There are cases, too frequent, of property owners who, being fully insured themselves, are not so careful as they would otherwise be with the fire on their premises, and are not careful in either their inquiry as to whether the property of their exposed neighbor is protected even as theirs. This is one evil, but it is not so great as another that might be named: appeared to really know where the interesting event took place. His father was Archibald Cockburn, then Sheriff of Midlothian, afterwards a Baron of the Scotch Court of Exchequer. Through his mother Cockburn claimed kinship with the county and, indeed, country - potentates, the Dundases of Arniston, his mother and the wife of Henry Dundas, Viscount Melville, being sisters. Cockburn was in due course sent to the High School of Edinburgh, where, among his fellow pupils, was Henry Brougham, distinguished even then for a sturdy independence. At school Cockburn gave little indication of future success, and he passed from it in 1793 to the University, but slenderly equipped for its curriculum; but in its atmosphere, more genial than that of the High School, his mind, in course of time, expanded, and he could intelligently, and even enthusiastically, appreciate the lectures of Dugald Stewart and some of the The annual aggregate of fire loss in this country is so enormous as to be past comprehension.16 Much of it is covered by insurance, and some people, who regard only their own localities, would be inclined so subtract the amount of insurance from the aggregate loss, and call only the balance that might be left the net loss. This is a mistake; when an insurance company pays to the insured a sum of money there has been no creation of value nor increase of wealth, there has been simply a change of ownership of so much money; but when improvements on realty, or personal property, is burned there has been an actual decrease of wealth there has been, to all practical purposes, an annihilation of value-there has been a decistavit of the assets of the country-whether there is insurance to cover the loss or not. It is not unlikely that the annual fire loss would be materially decreased by the enforcement of the duty of reasonable care in the use of what is, though a necessary, still a dan-other professors. As befitted one who was destined gerous, agency. With a decreasing annual fire loss would come decreasing insurance premiums, and this would be a "good diffused, and in diffusion ever more intense." Knoxville, Tenn. JUNIUS PARker. SOME NOTABLE SCOTCH LAWYERS. O one has a better claim to be enrolled in the N° sional eminence as of itself would entitle him to a Henry Cockburn was born on the 26th October, 1779, either in Edinburgh or its vicinity; he never for the Bar, he joined the celebrated Speculative Society, the cradle of so many famous lawyers, which contributed its share in transforming an unpromising speaker into a practiced orator. At the University he took the usual arts and law courses, and, having passed his legal examination, he was, in December, 1800, admitted a member of the Faculty of Advocates. With such a connection as he was born into-relationship to the Dundases-success might have been predicated of any man, for his uncle was then, and had been for many years, the autocrat of Scotland, setting up and putting down whom he chose. But young Cockburn, notwithstanding his upbringing and the obvious advantages to be gained by a continuance in the political faith of his father and other relations, courageously threw in his lot with the little band of Whig lawyers who, then and for many years more doomed to almost complete professional proscription, were destined ultimately to confer unfading lustre on the Scottish bar. At the outset of his career, he tells us that he was esteemed a fortunate youth in being noticed by Adam Rolland, a pedantic old lawyer, who is said to have sat to Scott for the portrait of Pleydell, in Guy Mannering;" but little came of this, except the sapient advice to eschew all reading except Scots and civil law, the first volume of Blackstone, and a modicum of constitutional history, and a caution against philosophy, which was the vice of the a piece of advice which the recipient very effectually disregarded, for he became a very great lover and reader of books. Of his early circuit experience he has left us some interesting accounts, which throw a good deal of light on the social habits of the time. One of these related to a circuit dinner at Stirling, where Lord Hermand, whose glorification of the virtues of the bottle appears in 66 16 It seems to me impossible for there to be reliable statistics on this subject, but any statistics, honestly gathered, will, of course, err on the side of an under-statement, not an over-statement. The Chronicle Fire Tables for 1895 gives the total prop-age" erty loss in the United States during 1894 as $140,006,484, and of this sum $89,574,699 was covered by insurance. These tables also have statistics as to the causes of fire, and from these it appears that of the 62.12 per cent of fire loss whose causes were reported, 28.47 per cent, or very nearly half, was because of exposure to burning property. 66 many a pleasant anecdote, presided. The dinner was characterized by the usual predominance of sack, and, ere long, young Cockburn observed that the social circle became gradually thinner and thinner, yet nobody was seen to go out at the door. His companions, he found, had disappeared below the table; he took the hint and also retired beneath the mahogany, and there he lay till morning, when, as he tells us, the judge and some others equally accustomed to deep potations coolly walked upstairs, washed their hands and faces, came down to breakfast, and resumed their places in court, apparently none the worse for their night's debauch. In 1807, much to his own surprise, he was, while on a visit to London, sent for by his uncle Lord Melville and Robert Dundas, the Lord Chief Baron, and offered the post of Advocate-depute. There are four Advocates-depute, who assist the Lord Advocate and Solicitor-General in the criminal courts; their duties are similar to those performed by the junior counsel for the Treasury with us, but there is this difference in their position-they go out of office with their political party. Cockburn had serious misgivings about accepting the post, as, his political views not being in accord with those of the Dundases, it might be considered that he had been bought over. He was assured, however, that he was not expected to renounce his Whig opinions, and that the offer was made solely on the ground of the family connection. With this assurance he entered on the office, to which it may be said a salary of between £300 and £400 was then attached, and he continued to perform its duties till 1810, when he "had the honor of being dismissed by the Lord Advocate from being one of his deputies." Retaining the independence he had stipulated for on accepting office, he had voted against the Lord Advocate at a meeting of the Faculty a few days before his dismissal, and this brought matters to a climax. The Lord Advocate, who had not had anything to do with the appointment, had never taken kindly to the novel position of having a depute who differed from him, and this active opposition of Cockburn's was seized upon as an excuse for bringing the connection to an end. It then appeared that the young advocate's scruples in 1807 had been considered as "a mere youthful fervor" which would speedily vanish on his tasting the sweets of office. It is much to Cockburn's credit that his principles stood the test so thoroughly. To Cockburn, as to Jeffrey and Moncrieff, the establishment of the jury court in 1816 opened up a fertile field. Till then trial by jury in civil causes was unknown north of the Tweed, and the new tribunal excited a good deal of interest. Being modeled on the English system, unanimous verdicts were a feature of the new court, and this aroused great opposition. Cockburn tells us that the grounds of opposition to it were various, but "the religious objection which resolved into the perjury (as it was called) of the minority, sacrificing its conscience to the conscience of the majority, was the one that made the deepest impression on the Scotch mind." He himself did not regard this feature with favor, and, experience not in the least diminishing the objections felt to it by the majority of Scotch practitioners, it had to be abandoned, and now a majority verdict is permitted if the jury have been deliberating for three hours. In this new court Cockburn won many triumphs. His power over juries was immense; as great, although in a different line, as Jeffrey's. Jeffrey luxuriated in an ornate style which Cockburn never attempted. Cockburn's speeches were clothed in what, in comparison with Jeffrey's, was the plainest language; they were uttered with a strong Scotch accent. slowly and deliberately, and, being plentifully interspersed with allusions to matters with which his audience were quite familiar, they produced a telling effect. For the narration of a simple story with true pathos, Cockburn was far before Jeffrey and his other rivals; he could touch the hearts of the jury where Jeffrey, with his dazzling oratory, could only excite wonder. "Of all the great pleaders of the Scottish Bar," wrote Lockhart, he is the only one who is capable of touching, with a bold and assured hand, the chords of feeling; who can, by one plain word and one plain look, convey the whole soul of tenderness, or appeal with the authority of a true prophet, to a yet higher class of feelings." In the criminal courts, too, he was even more effective and successful. He appeared in several important trials, notably in that of Stuart of Dunearn (to which reference was made in the sketch of Jeffrey). and in that of Burke and Macdougal, theresurrectionists." In the former of these cases he made a remarkably able speech, which called forth this encomium from Sir James Mackintosh in the House of Commons: "The admirable speech of Mr. Cockburn, in the case of Mr. Stuart, had not been surpassed by any effort in the whole range of ancient or modern forensic eloquence. It was a speech characterized by calm and forcible reasoning, by chaste and classical diction, by the utmost skill, delicacy, and address in the management of the most difficult topics, and by a rare combination of zeal and ability in the cause of his client, with respect to the feelings of all the parties concerned, and a reverence for the rules of law and the austere decorum of a court of justice. It was a speech, in short, which, as a specimen of forensic eloquence, considered with reference to the peculiar difficulties with which the advocate had to contend, was unrivalled by any similar effort in ancient or modern times." In the other case, Cockburn was leading counsel for the woman Macdougal, the associate of Burke and Hare in their hideous crimes. Well aware of the tremendous weight of prejudice against which he had to fight, he made a very impressive appeal to the jury to discard from their minds all that they had heard of the case and to devote their attention solely to the evidence given. The appeal was successfully made; the woman got off on a verdict of not proven. In connection with this case it was stated in a book by a Quaker, dealing with the principles of morality, that Cockburn, in addressing the jury, whispered to his colleagues, Infernal hag! "the gudgeons swallow it" - and this was, of course, severely animadverted upon as a piece of professional fraud. The astounding statement has merely to be stated to be refuted. garding it, Cockburn said: "It is utterly untrue. No one could be more honestly convinced of anything than I was, and am, that there was not sufficient legal evidence to warrant a conviction of Helen Macdougal. Therefore no such expressions or sentiment could be uttered. At any rate, none such, and none of that tendency, were uttered.” Re In 1830 Cockburn became solicitor-general, and remained in that post till 1834. He never entered Parliament, but he was kept busy in connection with the important questions which then engaged the attention of the Legislature. The Scotch Reform bill was drafted by him, and on the cognate question of burgh reform he also did much to put an end to the maladministration of Scotch municipal affairs which had so long been rampant. In 1834 he became a judge, with the title of Lord Cockburn. Among the notable judgments to which he was. a party were the Auchterarder case, the action against the soi-disant Earl of Stirling, in which the claims of the pseudo-Earl were very forcibly demolished, and the Glasgow Cotton Spinner's case, where he clearly and emphatically laid down the law on the question of trade conspiracies. In these, as indeed in all the cases which came before him, his judgments were characterized by great clearness and force. He was considered not to be so strong in his law as some of his colleagues, but he had frequently the satisfaction of finding his judgments, after being reversed in the Inner House, restored in the House of Lords. In his Circuit Journeys," which contains a record of his judicial perambulations, he tells many amusing stories regarding the cases which came before him. Speaking of the trial of several women, he mentions that he was greatly diverted by overhearing the opinion entertained by one of the accused of himself and his learned colleague. The virago remarked to one of her associates in the dock: "Twa d―d auld grey-headed blackguards. They gie us plenty o' their law, but deevilish little joostice." In the same volume he also records an amusing retort of a jury man to a medical witness A woman was being tried for the murder of her child. It appeared that the child had been found with its throat crammed full of pieces of coal, and with the marks of a thumb and two fingers on the neck. All these, says Cockburn, had little eñect on the medical gentlemen called for the defense, who stated that these marks, however they might startle the ignorant, were of little consequence in the eyes of a medical man; he had himself seen hundreds of children born with similar marks on the neck. "Ay, but Doctor," remarked a country juryman, "did ye ever see ony o' them born wi' coals i' their mooth?" The whole book, like his "Memorials," is full of good things, and can be read with pleasure over and over again. Cockburn, however, was not a mere chronicler of the good things uttered by other people; he had a genuine vein of humor himself. He had been detained one day in court much beyond the usual hour by the dull prosing of a dry advocate. A friend meeting the judge afterwards, said that Mr. was certainly inclined to be tedious. "Tedious!" exclaimed Cockburn, "he not only exhausts time, but encoaches on eternity!" He sat on the bench till within a week or two of his death, which occurred on the 26th April, 1854, at his country seat of Bonaly, a charming house nestling at the northern base of the Pentlands. Carlyle wrote of him as "a bright, cheery-voiced, hazel-eyed man; a Scotch dialect with plenty of good logic in it, and of practical sagacity. A gentleman, I should say, and perfectly in the Scotch type, perhaps the very last of that peculiar species." He was a thoroughly excellent man, and one of whom his country was justly proud. of his His writings, besides several contributions, chiefly on legal subjects, to the Edinburgh Review, consisted Memorials of His Own Time;" "The Life of Jeffrey," which, though a fine tribute to the the "Memorials;" his "Circuit Journeys," "Jourmemory of his friend, is hardly so interesting as nal," and "Sedition Trials." The "Memorials" was a good deal criticised in the Law Review on their appearance, but their accuracy was maintained with much force in an interesting article in the Edinburgh Revier. One other characteristic of his deserves mentionthat was his continued protest against the acts of vandalism, under the guise of "improvements," which were always being perpetrated in his beloved Edinburgh. His efforts did much to preserve the natural beauty of the northern metropolis, and after his death a society, called after him the “Cockburn Society," was founded, and still exists, for the purpose of continuing his labors in this direction. -. Law Times. Abstracts of Recent Decisions. FRAUDS, STATUTE OF-VENDOR AND PURCHASER. -Where an agent, who was orally appointed by a married woman with her husband's sanction, purchased land at auction, and the auctioneer made a memorandum in his book of the purchaser's name and terms of sale. the purchase is binding on the woman, as the transaction is not within the statute of frauds. (Moore v. Taylor [Md.] 32 Atl. Rep. 320.) INJUNCTION OBSTRUCTION OF SIDEWALK.-An action cannot be maintained, at the suit of a private party, to enjoin an obstruction or other nuisance in a public street or highway, where he has not suffered any special or peculiar damages to himself, his property or business, but his damages are the same in kind as those sustained by the public in common with himself. (Gundlach v. Hamm [Minn.], 64 N. W. Rep. 50.) INSURANCE PROOFS OF LOSS WAIVER.-Au in surance adjuster, by telling assured that as to her household furniture everything was satisfactory, but that he wanted to get bills as far as possible of her store goods, and that as soon as she notified him about getting things ready he would meet her, did not waive conditions in the policy requiring assured to make and keep an inventory of her stock, and in case of fire to furnish certain proofs of loss, where, long before the expiration of the time for filing proofs, assured was notified that the company would insist on the performance of the terms of the policy, and she sued on the policy several months before the time for filing the proofs had expired. (Allen v. Milwaukee Mechanics' Ins. Co. [Mich.], 64 N. W. Rep. 15.) NATIONAL BANKS INSOLVENCY DISSOLUTION. The appointment of a receiver for an insolvent national bank, under Act Cong. June 30, 1876, § 1, which authorizes the comptroller, when satisfied of the insolvency of a banking association, to appoint a receiver, "who shall proceed to close up such association, and enforce the personal liability of the shareholders," does not dissolve the corporation. (Chemical Nat. Bank of Chicago v. Hartford Deposit Co. [Ill.], 41 N. E. Rep. 225.) PLEADING-REVIEW ON APPEAL. It is error to render a judgment for the plaintiff upon a petition which does not state a cause of action in his favor. The error, being apparent from the record and inherent in the judgment, may be taken advantage of on appeal, without exceptions or motion for new trial in the District Court. (Oakland Home Ins. Co. v. Allen, [Kans.], 40 Pac. Rep. 928. RAILROAD COMPANIES-STOCKHOLDERS' BILL FOR RECEIVER. Where a stockholders' bill asks for the appointment of a railroad receiver, not with a view to enforcing any lien or debt, but merely to secure a better management of the property until arrangements can be made for discharging its debts, the mere filing of the bill and service of process do not draw the property of the company into the possession of the court, so as to prevent the company, prior to the appointment of a receiver, from surrendering steel rails lying along its right of way, but not yet attached to its road, to the creditor from whom they were purchased, as part of a larger lot, in partial extinguishment of debt for the purchase price. (Illinois Steel Co. v. Putnam, U. S. C. of App., 68 Fed. Rep. 515.) New Books and New Editions. AMERICAN STATE REPORTS, VOL. XLIII. This last volume of the reports is published with its usual good arrangement and excellent index and continues the series of this practical and valuable work. It may not be superfluous to say that the selection of cases excellently made by the editor gives a series of reports of all the States of the most important and valuable decisions. This volume contains parts of the following reports: Arkansas 59, California 104, Florida 34, Houst 9, Illnois 152, Indiana 136, Iowa 87, Michigan 100, Minnesota 55, Mississippi 122, Montana 14, Nebraska 41, New York 144, Pennsylvania Statutes 163, Washington 9 and Wisconsin 88. Published by Bancroft, Whitney & Co., San Francisco, Cal. HISTORY OF THE AUSTRALIAN COLONIES. The history of the Australasian Colonies by Edward Jenks, M. A., Professor of Law in University College, Liverpool, and formerly dean in the faculty of law in Milbourne. This is a most interesting and excellent history touching on many new and interesting bits of events of Australia and the surrounding islands and gives, perhaps, a clearer idea of the founding of the different colonies of Australia, New Zealand and the other governments than any previous work. The first few chapters deal with the founding of the colonies of New Zealand, New South Wales, Western Australia, South Australia and their developments. The subsequent chapters are of practical value to the lawyer and deal with the responsible government and modern constitutions. This is followed by chapters on internal explorations of Australia; the Maori wars in New Zealand and present day questions, including an exposition of politics and the federation question and the Tongan question. Price $1.60. Published by MacMillan & Co., 66 5th avenue, New York city. |