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rived either from the ancient Britons or the

Anglo-Saxons. We are often told that an Englishman's house is his castle, but we find the same idea quite as strongly expressed in class

ical Roman law at a time when neither Briton

nor Teuton had any houses worth mention. The system of trial by jury was of Roman origin. The presence in the Pandects of every important doctrine of habeas corpus is an interesting fact and suggests that the proceeding probably came to England as it did to Spain, from the Roman law. It seems certain that this writ might have been applied for in Britain during the five centuries of Roman occupation, at least, when not suspended by a condition of martial law.

common law rule identical with it, has not been construed to apply to defendant's negligence, and the liability of a defendant, for the damages sustained by another because of his negligent use of fire depends on the same principles and learning as his liability for negligence in any other way, or with any other element. It is therefore unquestionably true, if fire is thrown by A's negligence, and falls directly on B's property and destroys it, that A is liable in damages."

The courts have not, though, answered unanimously the question as to A's liability when the fire is not communicated to B's property immediately. by A's negligence, but immediately and through the burning of A's property. Ryan v. Railroad, decided by the Court of Appeals of New York, in 1866, had these facts for its basis, to wit: In the city of Syracuse, the defendant, by careless management, or through the insufficient condition of one of its engines, set fire to its woodshed and a large quantity

tance of 130 feet from the shed, took fire from the heat and sparks, notwithstanding diligent efforts were made to save it. Plaintiff sued to recover

"The law of England is like a composite photograph to which many features have contributed their influence to form eventually one pic-of wood therein. Plaintiff's house, situate at a disture. It has become distinctly national like the English language itself, and like the language, it has spread to the uttermost parts of the earth. It is not a mere mosaic, but a living organism, a true body of doctrine which has gathered and assimilated its nutriment from many ages."

LIABILITY FOR LOSS BY FIRE.

damages. The court held that he could not recover, and in the course of its discussion said: "If an engineer upon a steamboat or locomotive, in passing the house of A, so carelessly managed its machinery that the coals and sparks from its fires fall upon and consume the house of A, the railroad company or steamboat proprietors are liable to pay the value of the property. If, however, the fire communicates from the house of A to that of B and his loss? And if it spread thence to the house of that is destroyed, is the negligent party liable for

C, and thence to the house of D, and thence con

IF F the property of A is burned, and the fire is thence communicated to the property of B, which also burns, and thence, the fire spreading from B's property, the property of C is also burned, where is the legal liability for the loss? It is a brief discussion of this question, and its sub-secutively, through the other houses, until it reaches and consumes the house of Z, is the party liable to divisions, or possible phases, that is intended in pay the damages sustained by the twenty-four sufthis paper. ferers? Where is the principle upon which A recovers and Z does not?" Finally, in accordance with this argument, the court concludes that "the remoteness of the damage forms the true rule on which the question should be decided, and which prohibits a recovery by the plaintiff in this case." The Pennsylvania court in Railroad v. Kerr, followed the Ryan case, but the courts of the country generally have not done so. Indeed the New York court itself, in a case decided in 1872, and in subsequent cases has, to say the least, not strongly supported the

By the ancient law of England, the person in whose house a fire originated, which afterwards spread to his neighbor's property and destroyed it, must make good the loss, whether the origination of the fire was due to his default or negligence or not.1 This never became the common law of the States of America, however, but in most, if not all, of the common law States the rule is, as it was made in England in 1707, by statute of 6 Anne, that "no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby,' ," and the word accidentally has been construed properly to include the negligence of strangers. This statute, though, or rather the

3

1 Anonymous, Cro. Eliz., 10.

26 Anne, chap. 31, § 6.

3 Wharton on Neg. § 867.

Wharton on Neg. § 867.

5 Day v. Lumber Co. (Minn.), 56 N. W. 243; S. C. 23 L. R. A. 513, and annotations.

"Wharton on Neg., § 867; Bishop on Non-contract Law, § 833, or any work on negligence or torts. 735 N. Y. 210.

$ 62 Penn. St. 353.

power.

reasoning in its own earlier decision. The Supreme imperfection, by a responsible human agent, in the
Court of the United States has expressly refused to discharge of a legal duty, as produces, in an ordi-
follow Ryan's case in Railroad v. Kellogg, and has, nary and natural sequence, a damage to another."
in that case, as it seems to me, layed down the That fire will communicate from one house to an-
rule:10 "The primary cause may be the proxi- other, and thence to another, and thence again to
mate cause of a disaster, though it may operate another, is the "ordinary and natural sequence" of
through successive instruments, as an article at the the negligent act that sets fire to the first house;
end of a chain may be moved by a force applied to and the fact that it is the ordinary and natural se-
the other end, that force being the proximate cause quence is shown in any particular case by the fact
of the movement, or as in the oft cited case of the that in that particular case it has done that very
squib thrown in the market place. (Scott v. Shep-thing without the intervention of a new causative
herd, 2 W. Bl. 892.) The question always is,
"Was
there an unbroken connection between the wrongful
act and the injury—a continuous operation? Did
the facts constitute a continuous succession of
events, so linked together as to make a natural
whole, or was there some new and independent
cause intervening between the wrong and the in-
jury?" To the same effect is the very persuasive
voice of Mr. Cooley," who, after mentioning Ryan's
case and Kerr's case, adds: "But a different view
prevails in England and in most of the American
States. The negligent fire is regarded as a unity;
it reaches the last building as a direct and proxi-
mate result of the original negligence, just as a
rolling stone, put in motion down a hill, injuring
several persons in succession, inflicts the last injury
as a proximate result of the original force as di-
rectly as it does the first; though if it had been
stopped on the way and started anew by another
person, a new cause would have intervened, back
of which any subsequent injury could not have
been traced. Proximity of cause has no neces-
sary connection with contiguity of space
of nearness in time. The slow match which causes
an explosion after such time and at a considerable
distance from the ignition, and the libelous letter
which is carried from place to place by different
hands before publication, produces an injurious re-
sult which is as proximate to the cause and as di- |
rect a sequence as if in the one case the explosion
had been instantaneous, and in the other the author
had called his neighbors together and read to them

his libel."

It would seem, therefore, clear on principle, that if A's house is burned by A's negligence, and the fire is communicated to B's house and burns it, and is thence communicated to C's house and burns it, and there has been no independent negligent act, nor "act of God," intervening between the negligence of A and the infliction of the damage, then A is liable to pay the damage done to both B and C. The question asked by the court in Ryan's case, supra, as to what reason there is for the first sufferer's being able to recover and not the last, when they are both damaged by the negligence of the defendant, does not need to be answered until some reason is given, or some principle invoked, to preclude the last sufferer from his action. Of course, this doctrine would not give a cause of action to any one damaged when he or any other whose duty it was to stay the progress of the flames had, purposely or negligently, failed in that duty. If the fire company, for instance, ought to have prevented the fire's spread from A's proporerty, and did not do so, the further damage suffered was not the proximate result of A's negligent act, but of the intervening neglect of the fire company. So, if during the fire there arises a wind of extraordinary force, and it carries the fire to distances beyond the line of ordinary danger, A will not be liable, for the damage is the proximate result, not of A's negligence, but of the intervening act of God. These are limitations on the rule enforced by the logic of the rule itself. "Fraud is not purged by circuity," is a maxim, and it is true as well of negligence, or any other wrongful act.' As long as the chain of events is found by the triers of the facts to be unbroken and following in ordinary and natural sequence from one causative act or neglect, that act or neglect is the proximate cause of the damage, and the tort feasor must answer for the damage that is suffered anywhere in the chain; or, as has been recently said by the Supreme Court of Kentucky, 14

It is impossible to resist, by any legal reasoning,
I think, this doctrine. It is involved in the most
elementary law, of negligence, and indeed in the
very definition of the term. Dr. Wharton's defini-
tion of negligence is as follows, 1 and it is free
from any but hypercritical objection: "Negli-
gence, in its civil relations, is such an inadvertent

9 Webb v. R. R., 49 N. Y. 429; Pollett v. Long,
56 N. Y. 200; Lowery v. R. R., 99 N. Y. 158.
10 94 U. S. 469; S. C., 24 Law Ed. 256.

11 Cooley on Torts, 87.

1 Wharton on Neg. § 3.

13 Cooley on Torts, 84.

13

1421 S. W. Rep. 347; see, also, among recent cases, Martin v. R. R. (Conn.) 25 At. Rep. 239; Face v. R. R., 22 N. Y. State, 958.

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"if the fire spreads from the matter first ignited, the 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. 15 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.

can

an argumentum ad hominem, rather than legitimate 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," 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: 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.

"A man

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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:

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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 devistavit 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 dangerous, 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.

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JUNIUS PARKER.

SOME NOTABLE SCOTCH LAWYERS.

HENRY COCKBURN.

O one has a better claim to be enrolled in the catalogue of notable Scotch lawyers than Henry Cockburn. Not only did he attain to such profes

sional eminence as of itself would entitle him to a place in this series, but by his books, with their charmingly fresh and striking portraits of the great lawyers, both on the Bench and at the Bar, among whom his lot was cast, he has made for himself a much more enduring claim to remembrance. To his works, it is almost needless to state, we have been under a deep obligation for much interesting information relative to Erskine and the other lawyers whose careers have been already sketched.

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 other professors. As befitted one who was destined 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 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

chose.

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Henry Cockburn was born on the 26th October, 1779, either in Edinburgh or its vicinity; he never 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.

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

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aroused great opposition. Cockburn tells us that the grounds of opposition to it were various, but "the religious objection which resolved into the

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 thin-perjury (as it was called) of the minority, sacrificing ner, 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

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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, the "resurrectionists." 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

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