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time, that the same protection must be extended to counsel, even to counsel who deliberately and maliciously slanders another person, if he does so in reference to and in the course of the judicial inquiry. As Brett M. R. says in that case (p. 604) :

• The reason of the rule is, that a counsel, who is not malicious, and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel may never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.'

So in Russell v. Men of Devonthe Court of King's Bench held that an action would not lie against the inhabitants of a county for injury sustained owing to a county bridge being out of repair, upon what Ashhurst J. (p. 673) calls 'a general principle of law,' 'that it is better that an individual should sustain an injury than that the public should suffer an inconvenience'; for he adds, 'if this action could be sustained, the public would suffer a great inconvenience; for if damages are recoverable against the county, at all events they must be levied on one or two individuals, who have no means whatever of reimbursing themselves; for if they were to bring separate actions against each individual of the county for his proportion, it is better that the plaintiff should be without remedy.'

So again in Evans v. Evans ? Sir William Scott says :

* The repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered, that the general happiness of the married life is secured by its indissolubility. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.'

And for a case where the law lets palpable dishonesty go free, rather than depart from a general principle which on the whole operates beneficially, we may look at the law of sale, and the application of the maxim caveat emptor. The desired illustration could not be given more concisely than by one of the examples in Sir William Anson's work on Contracts 3 :

A sells X a piece of china. X thinks it is Dresden China. A knows that X thinks so, and knows that it is not. The contract holds. A must do nothing to deceive X, but he is not bound to prevent X from deceiving himself as to the quality of the article sold.'


(1788) 2 T. R. 667; 1 R. R. 585, 591. 2 (1790) 1 Hagg. Cons. Cas. 35, at p. 36.

(uth ed.) p. 156.

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Yet it would require a considerable power of drawing delicate moral distinctions to point out how far, if at all, A is morally better than a thief. Again, what more detestable piece of roguery could there be than sending to a public market pigs which one knows to be infected with a contagious disease, though the same be not obvious to the eye, and allowing an innocent purchaser to buy them, take them home, and place them among his own pigs, even if one does declare the sale to be with all faults,' and that no warranty will be given, and that the pigs are open to inspection. Yet this is exactly what the defendant did in Ward v. Hobbs?, and yet the plaintiff in whose hands the pigs died, as well as other pigs with whom they had been placed, was held to have no remedy, inasmuch as the conduct of the defendant in exposing the pigs for sale in the market, could not be said to amount to a representation that they were free from disease. Yet Brett L. J. says ? : 'Such conduct seems to me to be immoral and dishonest, and dishonest to a high degree, yet there is no remedy because there is no representation. And Lord Selborne says, in the same case, in the House of Lords (p. 29) :

• The argument which, for some time, most weighed with me was, that for a man to sell to another, without disclosing the fact, an article which he knows to be positively noxious, and which the other man does not know to be so (even though he expressly negatives warranty, and says that the purchaser must take his bargain with all faults) is an actionable wrong. I confess I should not be sorry if the law were so; but I know no authority for the proposition that such is the law, even with respect to the particular case of infectious disease in animals sold.'

It is some consolation that in a subsequent but very analogous case a distinction was drawn, turning on the presence or absence of a declaration that the sale is ' with all faults.' In Clarke v. Army and Navy Co-operative Society" it was held that where the vendor of a tin containing disinfectant powder knew that it was likely to cause danger to the person opening it, unless special care was taken, and that the danger was not such as presumably would be known to or appreciable by the purchaser, unless warned of it, the duty was, independently of any warranty, cast upon the vendor, to warn the purchaser of the danger.

And we may find an example of the law practically condoning negligence in order to maintain intact a beneficial general principle, in such cases as Winterbottom v. Wright 4. There the defendant had contracted with the Postmaster-General to provide a mail coach to




1 (1877-8) 2 Q. B. D. 331 ; 3 Q. B. D. 150; 4 App. Cas. 13. 3 Q. B. D. at p. 162. (1903] 1 K. B. 155.

* (1842) 10 M. & W. 109; 62 R. R. 534.




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convey the mail bags along a line of railway, and certain other parties had contracted to horse the coach, and had hired the plaintiff as driver. The plaintiff sustained injuries while driving the coach owing to its breaking down through latent defects in its construction. The Court of Exchequer of Pleas, however, held that the action could not be maintained. Lord Abinger says (p. 114)

• Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I see no limit, would ensue.'

While Rolfe B. adds (p. 116):

• This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque iniuria. It is no doubt a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.

This case was followed, and the same principle applied, in Earl v. Lubbock 1, where the plaintiff, a driver in the employment of owners of vans, brought an action to recover damages from the defendant, who was under a contract with the owners of the vans to repair them, for an injury received from the wheel of a van, which he was driving, coming off. Mathew L. J. says (p. 259):–

. It is impossible to accept such a wide proposition, and indeed it is difficult to see how, if it were the law, trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade.'

So, lastly, in regard to the maxim Ignorantia iuris neminem excusat, Mr. Justice Holmes says in his work on the Common Law:

• Every one must feel that ignorance of the law could not be admitted as an excuse, even if the fact could be proved by sight and hearing in every case. Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder. It is no doubt true that there are many cases, in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law has determined to make men know and obey, and justice to the individual is readily outweighed by the larger interests on the other side of the scale.'

Selden in his Table Talk (Temple Classics, p. 72) explains the policy of the rule a little differently, saying :

Ignorance of the law excuses no man; not that all men know the law, but because 'tis an excuse every man will plead, and no man can tell how to confute him. ?'

1 [1905] 1 K. B. 253.

2 Austin assigns the same reason : “If ignorance of law were admitted as a ground of exemption, the Court would be involved in questions which it were scarcely possible to solve,' &c.: 5th ed., Lect. xxv, p. 482.


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But here a very important and obvious distinction is to be noticed. Judges in making case-law do frequently, as we have seen, base it upon considerations of public policy and convenience, even at the cost of individual wrong; but it is a noteworthy principle of English law, and may, perhaps, be justly numbered among the bulwarks of British liberty, that where a legal right already exists, no considerations of public convenience, or national policy, can deprive the possessor of the right of his proper remedy. Thus in Stretton v. Great Western and Brentford R. W. Co.', where the plaintiff having obtained judgment in ejectment against a railway company, which had constructed its line over about an acre of his land without taking the

proper steps to expropriate it, was put into possession, and when his possession was disturbed by the railway company, was granted an injunction to restrain it, Lord Hatherley L. C. says (p. 761) :

With regard to what is said as to public interests, I am not inclined to listen to any suggestion of public interest as against private rights acquired in a lawful way.'

So, again, in Walker v. Ware, dic., Ry. Co.,? where the owner of land taken by a railway company was held entitled to a lien on the land taken for the purchase money, and for compensation for severance, Sir J. Romilly M. R. says (p. 19) :

• The Company cannot take property without paying for it, and then say that it is for the interests of the public that the property should be used by them, and so deprive the vendor of his lien. The public can have no rights springing from injustice to others': and the company appearing to have no funds in hand sufficient to answer the claim, a reference to ascertain the amount due was directed, to be followed by payment or sale in the usual way. So, again, in Caldwell v. Vanvlissingen 3, where an injunction was granted restraining subjects of the kingdom of Holland from the unlicensed use of the plaintiff's patented invention on board their ship within the dominions of England, the invention being a method of propelling vessels, Turner V.-C. says (at p. 430):

One principal ground of inconvenience suggested was that if foreign ships were restrained from using this invention in these dominions, English ships might equally be restrained from using it in foreign dominions; but I think this argument resolves itself into a question of national policy, and it is for the legislature, and not for the Courts to deal with that question.'

(7) Other practical considerations as primary sources of case-law. In

many cases we find judges grounding the law upon practical " (1870) L. R. 5 Ch. 751.

(1865) 12 Jur. N. S. 18; L. R. 1 Eq. 195. 3 (1851) 9 Ha. 415.




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considerations which can hardly be said to be of the dignity implied in the term 'public policy.' Thus in Limpus v. London General Omnibus Co.1 the defendants who were omnibus owners were, in accordance with the direction of the trial judge, held responsible, where a driver of one of their omnibuses, though he had been specially instructed by them not to obstruct any omnibus, had driven it across the road in front of a rival omnibus, which was thereby overthrown, and damaged : and there was authority for so holding. It is, however, · interesting to observe the ground on which the judges defend the law thus laid down. Thus Byles J. says (p. 541) :

. · If we were to hold this direction wrong, in almost every case a driver would come forward and exaggerate his own misconduct, so that the master would be absolved'; and Willes J., in like manner, says (p. 539):

• It is well known that there is virtually no remedy against the driver of an omnibus, and, therefore, it is necessary that, for injury resulting from an act done by him in the course of his master's service, the master should be responsible ; for there ought to be a remedy against some person capable of paying damages to those injured by improper driving. ... The law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability.'

Thus again in Ridgway v. Hungerford Market Co., where the Court of King's Bench laid down the rule, apparently for the first time, that in the case of the dismissal of a servant it is not necessary that a master, having a good ground of dismissal, should either state it to the servant or act upon it, but that it is enough if it exist, and if there be improper conduct in fact, Patteson J. says (p. 179)

'If we were to hold that it was necessary to trace the dismissal to an act which is to justify it, it would follow that a master, who had made up his mind to dismiss a servant, would give the servant, if he discovered his master's intention, licence to act just as he pleased afterwards.'

While Coleridge J. (p. 180) gives a somewhat different reason for the law, namely, that, ' when a master, sued for wages, defends himself upon the ground that he had dismissed the servant, and that there was in fact something which justified the dismissal, that presents an intelligible issue to a jury : whereas if the inquiry were to be, whether this justifying cause operated in the master's mind, a jury, in the great majority of cases, could not pronounce a satisfactory verdict.'

Again, in Toogood v. Spyring", the point came before the Court 1 (1862) 1 H. & C. 526.

2 (1835) 3 A. & E. 171; 42 R. R. 352. 3 (1834) i C. M. & R. 181; 40 R. R. 523 ; followed in Taylor v. Hawkins (1851) 16 Q. B. 308 ; 83 R. R. 471.



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