HUMOUR OF THE LAW.

Otago Witness, Issue 2894, 1 September 1909, Page 79

HUMOUR OF THE LAW.

__Nbt, if you please, the^nodern "humour" that sets the facial muscles on the stretch,' for such an* element is mostly wanting in the Jaw ; but ' 'humour" of the ' good old kind wiiieh gave to ancient Pistol the will of Corporal Nym, and had some care to its enforcement. Of this type, at all events, there is no lack, and despite the trite prejudices of Charles Macldxn that the la-w te: a "hocus pocus science, of maiT use to the professors of it than to justice," the {ration's observer will find ite ultimate conolmeions running pretty evenly with commoc sense, as, indeed, Lord Coke long since declared they -ought to. In truth there is seldom serious trouble as to what the law Is wit4f regard -td' ajiy particular' i?sue; the difficulty :s: s to get at "the. actual facts ojf the lase, and this being accomplished, it us comparatively easy to apply the appropriate legaJ principles. In every instance the initiated may see over again Wendell -Holmes's famous paradox, or at least its wraith, Tor fere then- -not, "first, the fact? as the plaintiff believes them ; secondly, the facts as the defendant bc- [ lieves them ; and lastly, the facts as the judge believes them? Throw in a pinch of untruth en the part of plaintiff or defendaut. and a measured suggestion of bia« on the w itnesses, and a pretty mixture you have in the forensic cauldron ! When the High Court, and perhaps the Privy Council, take a hand at starsing — but in mercy one must pause. In short, the so-called uncertainty of the law .is, Jn substance, the inevitable result of the- conflict of human testimony, and of the . inability of interested parties to sac touch in tha'; nakedness A-hich the 10-pc of an. exact science demands. The «uitor, however, who rises ; to the spirit of the occaeior frill cast aside '. his proverbial melancholy, and take heart of grace thai the confusion ie no worse. Besides, lias not every litigant who submits bi« quarrel to th* court the »ltruistic joy of knowing that he secures to his fellowe the benefit of a timely warning, ' or the advantage of instructive guidance? j For example, quite recently o the Old Country a married womar brought tinned ' salmon" from a grooer, ate some of it, became ill in consequence, and died, leaving hucband aiul children. Had the husband j any claim for damages? Ordinarily the fact of death does not give ? right to sac, unlt:-s Parliament has specially provided \ a remedy, as' in relation to death caused i ■by negligence. But bare the husband was, abe io show that the fish contained poison, j and liad been sold by the grocer a« fit for hvjman food. Directly these facts were established the court the legal rule by saying that the grocer had "mpiiedly warranted the salmon to be eound and free from injurious matter, for that is what the buyer would expect, and the seller said nothing tr the contrary. Hence the grocer committed -t breach of his undertaking, and as the liusbaod had lost the services and society of his wife, he was wronged by the grocer's improper act, and so damage were awarded — not, however, for the death, but for the loss produced by the death. Thus the law did justice, and at the same time saved its technical principles intact. This ruling has, on® may note, a general application to sales of food by -braders, and means that grocers have to guarantee their goods free from any substances deleterious to health, independently altogether- of the Pure Foods Act or of kindred legislation.

and of mere statutory penalties. H falls somefcinies tc the province of the law to immortalise subjects neglected by the kindred arts of poetry and song, rtm -so it comes that a sow, which lay one day not long since, basking in the sun in a Berkshire lane, has been enshrined in the fega 1 temple of fame. The sow was still. when suddenly a horse and car treached the spot. Just then a motor whizzed along in the opposite direction to that followed by the horse and cart. At the critical moment of passing-the sow jumped up, the horse shied across the way, the motor struck the cart, and both were jammed against- a stone wall, the motor being smashed. In short, there -frevt allthe makings of a pretty catastrophe^ But what then? The owner of the motoV was bent upon suing somebody, .but whom? The proDiietoi of the sow was at last picked out. Here, said the plaintiff, '« ti*e true cause of the mischief, for if you bad not let the sow stray on the road my motor would not have been, damaged. Bu£ the court rejected the appeal, holding that the owner of the sow committed tio breach* of the common law of tlw" realm in letting his pig wander~ at large r and, there being no wrong "by him, " there-^ocs&ld be no" redress. The plaintiff pointed in vain to injpoimding- statutes. These/. 1 said the .court, prescribe r remedy for tbe illegality which they create, but where do they empower us to award damages caused to people using the highway? A special regard for children is on« of the most amiable features of legal administration. If an odul* voluntarily runs into harm, "with hi eyes open, he must bear the penalty. Not so, however, the case of tender -youth,. A child of eleven saw a gap in a, hedge,- and some distance within a railway turn^abley upon which other children were' playing. Very naturally he went in also -jitd joined the game. Presently his leg was crushed *n the machine, and he sued the railway company which owned the hedged "land and turntable for damages — or at least his fathei did co, using the child's name. The railway company protested that -t had never given any of the children leave to enter the field or to touch the turntable, and 1 that the fault lay entirely with the trespasser. . - The House of Lords, however, decided , that the railway company was liable for \ the injury, on tie. ground- that ihe danger ; -j ous machinery ouglit not to have been left j unguarded in s place to which, a&, the ■ company knew,!' children ," would be likely, i tc- be attracted by toe verj cir*UTOstanca of the ;turn*feßle being <tftere r \ and available for their amueement. In .other ; "words,- having regard to the proclivities . of young - children,- - the company seally, : Jaid/a- trap forHhemj and rottst suffer fow its ' Thk principle, by thei way, was applied in the Victorian courts i -some years ago, in a oase in which a crane on a wharf was allowed ~to remain unfaet'ened, so that a ohiW meddling with it was hurt. Why is it that you. have to answer for the carelessness of your servant, when he injures somebody in the course of carrying out bis duties — say, in driving a delivery cart? • Because, when you engage another person U d« acts whict you do not wish to. perform personally, you make him your alter ego for the time being, and if there is failure to select a, competent and careful agent, then the blame in that particular lies .at jour. door. Now, supposing you ' haYe ' a i savage dog, it is youi obvious , duty to keep 'it in restraint, or else to destroy it, and if the animal bites a third person it is' your privilege to pay the piper. The other day the own«r of a j dog~ of this kind sent it out for a run in charge of a servant, who was specially! ordered not to let the animal be loose. The servant, meeting some, friends, said! jokingly to the dog, "Go *t, boy !" The dog took tihe bint literally, and bit one of the friends. The master said', ir repl». to an actior for damages, that the fault' was not his, but that of iris servant, who had deliberately disobeyed his directions. The court, however, heW the owner liable, for he should have employed v servant whose fidelity to orders could be* relied" upon. When are wives entitled U maintenance orders against their husbands? Not merely because the wiff chooses to live away from the husband's home Her duty, as the High Court recently pom-bed rout, is to reside with her husband, and bear right to. be nwintatner" presupposes performance of her obligations. If the husbemd in good faith offers a home, th«t wife has to make the best of it, even though not to her taste. .It is the "fear better, for worse" principle put into effect by the secular arm af tbe law in compliance with the precepts of the ecclesiastical. The court, however, puts fair limits upon the need ioa wifely complaisance/ If * husband seriously threatens his spouse or. treats her so cruelly that she cannot stay in the houre with reasonable comfort and safety, the law allows h&t to go her. own way, and to sac the erring husband .for support. In tbe good old days (for males) the husband was permitted to chastise his wife, provided he used % stick v* thicker than his - little finger, and the' happy folk then had their reformed K&therines at every single, nook. Modern law discard* the ancient rule, and on every reasonable provocation, lays tbe cudgel about tihe husband's back. We live in progressive times. — The Age.