REVISED REPORTS BEING A REPUBLICATION OF SUCH CASES IN THE ENGLISH COURTS OF COMMON LAW AND EQUITY, FROM THE YEAR 1785, AS ARE STILL OF PRACTICAL UTILITY. EDITED BY SIR FREDERICK POLLOCK, BART., D.C.L., LL.D., CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF oxford. ASSISTED BY O. A. SAUNDERS AND ARTHUR B. CANE, BOTH OF THE INNER TEMPLE, BARRISTERS-AT-LAW. VOL. LVI. 1840-1842. 12 SIMONS; 1,2 DRURY & WALSH; 1 MANNING & GRANGER; LONDON: SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE. BOSTON: LITTLE, BROWN & CO. 1902. PREFACE TO VOLUME LVI. We now enter on the series of Manning and Granger's reports in the Court of Common Pleas, rendered particularly valuable, as is known to all studious lawyers, by the wealth of erudition contained in Serjeant Manning's frequent notes. At p. 341 is a note, consisting simply of a familiar sentence of Horace, conveying the learned and ingenious reporter's opinion of the bias of special juries, in the early years of the late Queen, in an action against a brother magistrate. Nixon v. Hamilton, p. 246, is one of the class of cases, perhaps unfortunate in their inception, which went far to defeat the policy of the Acts establishing registries of deeds. in Ireland and some parts of England. If, however, an earlier unregistered deed was ever to prevail over a later registered one, the facts in Nixon v. Hamilton could lead to no other result. It was not a case of constructive notice; the solicitor concerned, whose knowledge in the same transaction was imputed to his principal by the general rule of the law of agency, had kept the first deed off the register by gross and deliberate fraud. The decision is perfectly consistent with mere omission not to make every possible inquiry, in such circumstances that the omission is not even negligent, not being held to have the like effect: Agra Bank v. Barry, L. R. 7 H. L. 135. In Newton v. Harland, p. 488, it was elaborately discussed whether the statutes prohibiting forcible entry made such entry a civil trespass as well as an offence as between an occupier holding without title and the person entering under a rightful title but by force. It cannot be said that the reasoning of the majority of the Court is satisfactory, or that, in the absence of any decision of a Court of Appeal, a final solution has been reached. The best opinion at present deducible from the authorities appears to be that "the wrongful possessor" ejected by force "has no remedy in respect of the exercise of the right of entry, because he has no civil right of possession-at least, as against the owner and the statutes do not confer such right upon him. But when he complains of the assault on himself, or the damage to his goods, he complains of a violation of his admitted rights, and all that the law does is to prevent his assailant from pleading lawful possession by way of justification": Lightwood, Possession of Land, p. 142. This may be what the majority in Newton v. Harland decided, but it is not what they said. Merry v. Green, p. 819, is important in the line of authorities, perhaps not wholly consistent, certainly not easy to reconcile, which deal with the position of a finder or unconscious receiver of goods. The decision was that the purchaser of the bureau did not acquire any rightful possession of its unknown contents, unless it was in fact the intention of the seller to dispose of all the contents known. or unknown. If such was not the intention, the question remains whether the buyer got no possession at all, or a possession in itself trespassory, but excusable in the first instance. The last case in which these problems were discussed was an almost exact repetition, in Ireland, of R. v. Ashwell, and there was an almost equal division of the Judges R. v. Hehir [1895] 2 I. R. 709. Doe d. Gilbert v. Ross, pp. 639, 643, lays down the canon that "the law makes no distinction between one class of secondary evidence and another," when the best evidence is once shown to be unobtainable and secondary evidence held to be admissible. The task of discrimination is then removed from the Court to the jury. A curious and somewhat idle question was raised in Willmett v. Harmer, p. 864-namely, what exact meaning, if any, the Common Law will attach to an imputation of polygamy. F. P. |