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rived either from the ancient Britons or the common law rule identical with it, has not been Anglo-Saxons. We are often told that an Eng- construed to apply to defendant's negligence,' and lishman's house is his castle, but we find the the liability of a defendant, for the damages sussame idea quite as strongly expressed in class- tained by another because of bis negligent use of
fire depends on the same principles and learning as ical Roman law at a time when neither Briton
his liability for negligence in any other way, or nor Teuton had any houses worth mention. with any other element. It is therefore unquesThe system of trial by jury was of Roman tionably true, if fire is thrown by A's negligence, origin. The presence in the Pandects of every and falls directly on B's property and destroys it, important doctrine of habeas corpus is an inter- that A is liable in damages. esting fact and suggests that the proceeding
The courts have not, though, answered unaniprobably came to England as it did to Spain, mously the question as to A’s liability when the fire
is not communicated to B's property immediately from the Roman law. It seems certain that
by A's negligence, but immediately and through the this writ might have been applied for in Britain burning of A's property. Ryan v. Railroad, decided during the five centuries of Roman occupation, by the Court of Appeals of New York, in 1866, had at least, when not suspended by a condition of these facts for its basis, to wit : 1 In the city of Syramartial law.
cuse, the defendant, by careless management, or “The law of England is like a composite pho- through the insufficient condition of one of its entograph to which many features have contri- gines, set fire to its woodshed and a large quantity buted their influence to form eventually one pic-tance of 130 feet from the shed, took fire from the
of wood therein. Plaintiff's house, situate at a disture. It has become distinctly national like the
heat and sparks, notwithstanding diligent efforts English language itself, and like the language, it
were made to save it. Plaintiff sued to recover has spread to the uttermost parts of the earth. damages. The court held that he could not reIt is not a mere mosaic, but a living organism, cover, and in the course of its discussion said : "If a true body of doctrine which has gathered and an engineer upon a steamboat or locomotive, in assimilated its nutriment from many ages.
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 LIABILITY FOR LOSS BY FIRE.
company or steamboat proprietors are liable to pay F the property of A is burned, and the fire is
the value of the property. If, however, the fire
communicates from the house of A to that of B and thence communicated to the property of B, which also burns, and thence, the fire spreading that is destroyed, is the negligent party liable for
his loss? And if it spread thence to the house of from B’s property, the property of C is also burned,
C, and thence to the house of D, and thence conwhere 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 suf
ferers ? By the ancient law of England, the person in
Where is the principle upon which A rewhose bouse a fire originated, which afterwards
covers and Z does not ?" Finally, in accordance spread to his neiglibor's property and destroyed it,
with this argument, the court concludes that "the must make good the loss, whether the origination remoteness of the damage forms the true rule on of the flre was due to his default or negligence or
which the question should be decided, and which not. This never became the common law of the prohibits a recovery by the plaintiff in this case.” The States of America, however, but in most, if not all, | Pennsylvania court in Railroad v. Kerr, followed of the common law States the rule is, as it was the Ryan case, but the courts of the country generally made in England in 1707, by statute of 6 Anne, that have not done so. Indeed the New York court itself, sono action shall be maintained against any person
in a case decided in 1872, and in subsequent cases in whose house or chamber any fire shall acci- has, to say the least, not strongly supported the dentally begin, or any recompense be made by such person for any damage suffered or occasioned + Wharton on Neg. $ 867. thereby," and the word accidentally has been con
"Day v. Lumber Co. (Minn.), 56 N. W. 243; S.C. strued properly to include the negligence of
23 L. R. A. 513, and annotations. strangers. This statute, though, or rather the
• Wharton on Neg., § 867; Bishop on Non-conAnonymous, Cro. Eliz., 10.
tract Law, § 83:3, or any work on negligence or torts, 26 Anne, chap. 31, $ 6.
35 N. Y. 210. 3 Wharton on Neg. $ 867.
562 Penn. St, 353.
reasoning in its own earlier decision.' The Supreme imperfection, by a respousible human agent, in the Court of the United States has expressly refused to discharge of a legal duty, as produces, in an ordifollow Ryan's case in Railroad v. Kellogg, and bas, 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 anrule:10 “The primary cause may be the proxi- other, and thence to another, and thence again to mate cause of a disaster, thougli 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 sethe 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. Shiep- thing without the intervention of a new causative herd, 2 W. Bl. 892.) The question always is, “Was | power. there an unbroken connection between the wrongful It would seem, therefore, clear on principle, that act and the injury—a continuous operation? Did | if A's house is burned by A's negligence, and the the facts constitute a continuous Succession of fire is communicated to B's house and burns it, events, so linked together as to make a natural and is thence communicated to C's house and burns whole, or was there some new and independent it, and there has been no independent negligent cause intervening between the wrong and the in- act, nor "act of God," intervening between the jury?” To the same effect is the very persuasive negligence of A and the infliction of the damage, voice of Mr. Cooley," who, after mentioning Ryan's then A is liable to pay the damage done to both B case and Kerr's case, adds: “ But a different view and C. The question asked by the court in Ryan's prevails in England and in most of the American
case, sprit, as to what reason there is for the first States. The negligent fire is regarded as a unity; sufferer's being able to recover and not the last, it renches the last building as a direct and proxi- when they are both damaged by the negligence mate result of the original negligence, just as a of the defendant, does not need to be answered rolling stone, put in motion down a hill, injuring until some reason is given, or some principle inseveral persons in succession, intlicts the last injury voked, to preclude the last sufferer from his as a proximate result of the original force as die action. Of course, this doctrine would not give rectly as it does the first; though if it had been a cause of action to any one damaged when he stopped on the way and started anew by another or any other whose duty it was to stay the progress person, a new (ause would have intervened, back of the flames had, purposely or negligently, failed in of which any subsequent injury could not have that duty. If the fire company, for instance, ought been traced. Proximity of cause has no neces to have prevented the fire's spread from A's propsary connection with contiguity of space erty, and did not do so, the further damage suffered of nearness in time. The slow match which (auses was not the proximate result of A's negligent act, an explosion after such time and at a considerable but of the intervening neglect of the fire company. distance from the ignition, and the libelous letter So, il luring the fire there arises a wind of extrawhich is carried from place to place by different ordinary force, and it carries the fire to distances hands before publication, produces an injurious re- beyond the line of ordinary danger, A will not be sult which is as proximate to the cause and as di- liable, for the camage is the proximate result, not rect a sequence as is in the one case the explosion of A's negligence, but of the intervening act of God. had been instantaneous, and in the other the author These are limitations on the rule enforced by the had called his neighbors together and read to them logic of the rule itsell. · Fraud is not purged by his libel."
circuity," is a maxim, and it is true as well of negliIt is impossible to resist, by any legal reasoning, gence, or any other wrongful act... as long as the I think, this doctrine. It is involved in the most chain of events is found by the triers of the facts to elementary law. of negligence, and indeed in the be unbroken and following in ordinary and natural very definition of the term. Dr. Wharton's defini- | sequence from one causatire act or noglect, that act tion of negligence is as follows, 8 and it is free or neglect is the proximate cause of the damage, and from any but hypercritical objection : “ Negli- the tort person must answer for the damage that is gence, in its civil relations, is such an inadvertent suffered anywhere in the chain; or, as has been
recently said by the Supreme Court of Kentucky, ! • Webb v. R. R., 49 N. Y. 429; Pollett v. Long, 56 N. Y. 200; Lowery 1. R. R., 99 N. Y. 158.
1: ('ooley on Torts, 84. 10 94 U. S. 469; S. C., 24 Law Ed. 256.
14.21 S. W. Rep. 317: ser, also, among recent Cooley on Torts, 87.
cases, Martin v. R. R. (Conn.) 25 At. Rep. 239; 1: Wharton on Neg. $ 3.
Face v. R. R., 22 V. Y. State, 958.
“is the fire spreads from the matter first ignited, an argumentum ad hominem, rather than legitithe intervention of considerable space, or of various mate legal reasoning; the first is thus stated, tophysical objects, or a diversity of ownership, does wit : " That the defendant is not liable may be not preclude recovery by the party injured, or affect strongly argued from the circumstance that no such the defendant's liability for the first negligent act." | action as the present has ever been sustained in any
But let us suppose that the property of A, B, and of the courts of this country, although the occaC is all insured in the same insurance company, and sions for it have been frequent and pressing." through the negligence of A all the houses are Whatever might have been the condition of things burned, what is the status of the matter so far as in 1866, when this was written, it is no longer true the insurance company is interested. In the first that “no such action has been maintained in any place, the negligence of A would not be a defense of the courts." Such actions have not been freto the insurance company in an action brought by quently brought, it is true. Railroads, steamboat either one of the insured on his policy, if the poli lines and mill owners have occasionally had to cies were of any of the ordinary forms.
suffer, but the general digest and the American this is true as to the loss of B and C, for neither digest show not more than half a dozen cases in their own negligence nor their default had aught half a dozen years in which individuals not en- ET to do with the loss. It is also true as to the loss of gaged in one of these vocations have had to make A, because the ordinary contract between the in- good the loss occasioned by their negligence. surance company and its policy holder provides for Many reasons for the infrequency of such actions an insurance against any loss by fire except such as suggest themselves, but it cannot be said that they is expiessly excepted in the conditions and limita- have never been sustained. Littleton's maxim, tions of the policy, and loss arising from the negli
*that which never has been ought never to be," gence of the insured is not usually among the ex no longer be pleadeil in bar of the right. pressed exceptions. Having paid, however, the The second argumentum ad hominem advanced by amount of damage due B and C, under their policies, the court in Ryan's case is thus stated :
" A man what would prevent the recovery by the insurance may insure his own bouse or his own furniture, but company against A of a sum sufficient to make he cannot insure his neighbor's building or furnigood the loss sustained by it in its payments to B ture, for the reason that he has no interest in them. and C? Even without the provision usual in the To hold that the owner must not only meet his own standard policy that the insurer shall be subrogated loss by fire, but that he must guarantee the sccurity to all the rights and actions that the insured would of his neighbors on both sides and to an unlimited have had, the doctrine of subrogation would of extent, would be to create a liability which would itsell operate to vest in the insurer the cause of be the destruction of all civilized society." To this action that had been in the insured, to the amount it may be pertinently replied that nobody, since the of the payment on the loss by the insurer to the in- statute of 6 Anne was passed, in 1707, has consured. 15
While there is a contract between A and tended that a man was the “insurer of the security the insurance company that would prevent the re of his neighbors on both sides and to an unlimited covery by the insurance company from A for dam- extent."
When one uses the care that may be ages to indemnify it for the loss paid to A himsell, reasonably expected from a reasonable man, he is this does not apply to the cases of B and C—as to not liable to any action for negligence, and it their property there is no contractual relation be- surely is not “ destruction to all civilized society" tween A and the insurance company—and there
to hold its members to that degree of care, by makseeins to be no reason why even the same insurance ing them liable for the damages that follow in company that bad insured A and paid him the ordinary and natural sequence from their reckless amount of his loss on his own property could not disregard of the rights and property of others. maintain an action just as could B and C, or an in This, though, suggests a counter-remark that it surance company to which A was a stranger, for
might be beneficial to, rather than destructive of, the damage that had come to it in the burning of civilized society for people to learri practically that the houses of B and C, as the proximate result of they are liable for negligence in handling fire just as the negligence of A.
they would be in handling any other thing. There Against these views there are two arguments
are cases, too frequent, of property owners who, made by the New York court in Ryan's case, supru,
being fully insured themselves, are not so careful as each of which may be not disrespectfully termed
they would otherwise be with the fire on their
premises, and are not careful in either their inquiry 15 Hall v. R. R., 13 Wall. 367; Ins. Co. v. Frost, as to whether the property of their exposed neigh37 Ill. 333; Ins. Co. v. R. R., 25 Conn. 265; Day v. bor is protected even as theirs. This is one evil, but Lumber Co., supril.
it is not so great as another that might be named:
The annual aggregate of fire loss in this country is appeared to really know where the interesting event so enormous as to be past comprehension.'' Much took place. His father was Archibald Cockburn, of it is covered by insurance, and some people, who then Sheriff of Midlothian, afterwards a Baron of regard only their own localities, would be inclined the Scotch Court of Exchequer Through his so subtract the amount of insurance from the aggre- mother Cockburn claimed kinsbip with the gate loss, and call only the balance that might be county — and, indeed, country potentates, the left the net loss. This is a mistake; when an in- | Dundases of Irniston, bis mother and the wife of surance company pays to the insured a sum of IIenry Dundas, Viscount Melville, being sisters. money there has been no creation of value nor in- Cockburn was in due course sent to the High crease of wealth, there has been simply a change of School of Edinburgh, where, among his fellow ownership of so much money; but when improve- pupils, was Henry Brougham, distinguished even inents on realty, or personal property, is burned then for at sturdy independence. At school Cockthere has been an actual decrease of wealth – there burn gave little indication of future success, and he has been, to all practical purposes, an annihilation passed from it in 1793 to the University, but slenof value — there has been a hıristurit of the assets derly equipped for its curriculum; but in its atmoof the country — whether there is insurance to sphere, more genial than that of the High School, cover the loss or not. It is not unlikely that the his mind, in course of time, expanded, and he could annual fire loss would be materially decreased by intelligently, and even enthusiastically, appreciate the enforcement of the duty of reasonable care in the lectures of Dugald Stewart and some of the 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 for the Bar, he joined the celebrated Speculative would come decreasing insurance premiums, and Society, the cradle of so many famous lawyers, which this would be a “good diffused, and in diffusion contributed its share in transforming an unpromever more intense.”
ising speaker into a practiced orător. Jt the l'ni. JUNIt'S PARKER.
versity he took the usual arts and law courses, and, Knoxville, Tenn.
having passed his legal examination, be was, in De
cember, 1800. admitted a member of the Faculty of SOME NOTABLE SCOTCH LAWYERS.
Advocates. With such a connection as he was born LLENRY COCKBURN.
into-relationship to the Dundases--success might one has a better claim to be enrolled in the I have been predicated of any man, for his uncle was
catalogue of notable Scotch lawyers than Henry then, and had been for many years, the autocrat of Cockburn. Not only did he attain to such profes- Scotland, setting up and putting down whom he sional eminence as of itself would entitle him to a
chose. But young Cockburn, notwithstanding his place in this series, but by his books, with their upbringing and the obvious advantages to be gained charmingly fresh and striking portraits of the by a continuance in the political faith of his father great lawyers, both on the Bench and at the Bar, and other relations, courageously threw in his lot among whom his lot was cast, he has made for him with the little band of Whig lawyers who, then and self a much more enduring claim to remembrance. for many years more doomed to almost complete To his works, it is almost needless to state, we have professional proscription, were destined ultimately been under a deep obligation for much interesting to conser unfading lustre on the Scottish bar. At information relative to Erskine and the other law
the outset of his career, he tells us that he was yers whose careers have been already sketched.
esteemed a fortunate youth in being noticeal by Henry Cockburn was born on the 26th October,
Adam Rolland, i perlantic olid lawyer, who is said 1779, either in Edinburgh or its vicinity; he never
to have sat to Scott for the portrait of Pleyılell, in
· Guy Mannering;" but little came of this, except 1• It seems to me impossible for there to be the sapient ulvice to escher all reading except reliable statistics on this subject, but any statistics, Scots and civil law, the first volume of Blackstone, honestly gathered, will, of course, err on the side of and a modicum of constitutional history, and a cauan under-statement, not an over-statement. The I tion against philosophy, which wils the vice of the Chronicle Fire Tables for 1895 gives the total prop- ' age il piece of advice which the recipient very erty loss in the United States during 1994 is $140,- effectually disregarderl, for he became a very great 006,484, and of this sum $89,574,699 was covered i lover and reader of books. Of his early circuit exby insurance. These tables also have statistics is perience he has left us some interesting accounts, to the causes of fire, and from these it appears that which throw it good deal of light on the social of the 62.12 per cent of fire loss whose cituses were habits of the time. One of these related to a circuit reported, 28.47 per cent, or very nearly hall, Wils dinner at Stirling, where Lord Hermand, whose because of exposure to burning property.
glorification of the virtues of the bottle appears in
many a pleasant anecdote, presided. The dinner aroused great opposition. Cockburn tells us that was characterized by the usual predominance of the grounds of opposition to it were various, but sack, and, ere long, young Cockburn observed that “the religious objection which resolved into the 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. its conscience to the conscience of the majority, His compavions, he found, had disappeared below was the one that made the deepest impression on the table; he took the hint and also retired beneath the Scotch min.l.” He himself did not regard this the mahogany, and there he lay till morning, when, feature with favor, and, experience not in the least as he tells us, the judge and some others equally ac- (liminishing the objections felt to it by the majority customed to deep potations coolly walked upstairs, of Scotch practitioners, it had to be abandoned, washed their hands and faces, came down to break- and now a majority verdict is permitted if the jury fast, and resumed their places in court, apparently have been deliberating for three hours. In this new none the worse for their night's debauch.
court Cockburn won many triumphs. His power In 1807, much to his own surprise, he was, while over juries was immense; as great, although in a on a visit to London, sent for by his uncle Lord | different line, as Jeffrey's. Jeffrey luxuriated in an Melville and Robert Dundas, the Lord Chief Baron, ornate style which Cockburn never attempted. and offered the post of Advocate-depute. There Cockburn's speeches were clothed in what, in comare four Advocates-depute, who assist the Lord parison with Jeffrey's, was the plainest language; Advocate and Solicitor-General in the criminal they were uttered with a strong Scotch accent, courts; their duties are similar to those performed slowly and deliberately, and, being plentifully inby the junior couusel for the Treasury with us, but terspersed with allusions to matters with which his there is this difference in their position—they go out audience were quite familiar, they produced a tellof office with their political party. Cockburn had | ing effect. For the narration of a simple story with serious misgivings about accepting the post, as, his true pathos, Cockburn was far before Jeffrey and political views not being in accord with those of his other rivals; he could touch the hearts of the the Dundases, it might be considered that he had jury where Jeffrey, with his dazzling oratory, could been bought over. He was assured, however, that only excite wonder. "Of all the great pleaders of he was not expected to renounce his Whig opinions, the Scottish Bar," wrote Lockhart, “he is the only and that the offer was made solely on the ground of one who is capable of touching, with a bold and the family connection. With this assurance he assured hand, the chords of feeling; who can, by entered on the office, to which it may be said a one plain word and one plain look, convey the salary of between £300 and £100 was then attached, whole soul of tenderness, or appeal with the auand he continued to perform its duties till 1810, thority of a true prophet, to a yet higher class of when he “bad the honor of being dismissed by the feelings.” In the criminal courts, too, he was even Lord Advocate from being one of his deputies." more effective and successful. He appeared in Retaining the independence he had stipulated for on several important trials, notably in that of Stuart accepting office, he had voted against the Lord
of Dunearn (to which reference was made in the sketch Advocate at a meeting of the Faculty a few days of Jeffrey), and in that of Burke and Macdougal, before his dismissal, and this brought matters to a the “resurrectionists." In the former of these cases climax. The Lord Advocate, who had not had he made a remarkably able speech, which called anything to do with the appointment, had never forth this encomium from Sir James Mackintosh in taken kindly to the novel position of having a depute the House of Commons: “ The admirable speech of who differed from him, and this active opposition Mr. Cockburn, in the case of Mr. Stuart, had not of Cockburn's was seized upon as an excuse for been surpassed by any effort in the whole range of bringing the connection to an end. It then ap- ancient or modern forensic eloquence. It was a peared that the young advocate's scruples in 1807 speech characterized by calm and forcible reasoning, had been considered as a mere youthful fervor” | by chaste and classical diction, by the utmost skill, which would speedily vanish on his tasting the delicacy, and address in the management of the sweets of office. It is much to Cockburn's credit most diflicult topics, and by a rare combination of that his principles stood the test so thoroughly. zeal and ability in the cause of his client, with re
To Cockburn, as to Jeffrey and Moncrieff, the spect to the feelings of all the parties concerned, establishment of the jury court in 1816 opened up and a reverence for the rules of law and the austere a fertile field. Till then trial by jury in civil causes decorum of a court of justice. It was a speech, in was unknown north of the Tweed, and the new short, which, as a specimen of forensic eloquence, tribunal excited a good deal of interest. Being considered with reference to the peculiar difficulties modeled on the English system, unanimous ver with which the advocate had to contend, was undicts were a l'eature of the new court, and this | rivalled by any similar effort in ancient or modern