PARTIES TO ACTIONS.*
AT first sight, nothing seems clearer than the mechanism of an action at law, or the method of recovering by legal process a debt that is owing, or the compensation due for an injury. It must occur to every one that the person aggrieved should have the power of suing, and that the person aggrieving should be the one to be sued. This, no doubt, is the principle which underlies our law, but its application is complicated by the various relations of life. The person aggrieved may be a married woman, and therefore under what is called a legal disability. The person aggrieving may be under twenty-one years of age, and may therefore be under that protection which the law accords to infants. Or again, the grievance inflicted may be one which the law does not consider an injury. It may proceed from one who has a right to inflict it, or it may affect one who has no right to be guarded against it. Many similar considerations have to be taken into account before it can be decided that a given person may bring an action. We cannot pause to cite particular instances, but if any of our readers are curious, they will find the whole subject admirably treated by Mr. Dicey. Although he enters into the question too exhaustively to suit the general public, his clearness and the lucidity of his arrangement would enable everybody to understand him. To the lawyer and the student such a work will be invaluable. For the first time, if we are not mistaken, a logical plan has been adopted, law has been reduced to positive rules qualified by excep- tions, cases have been adduced in their relative bearings, and that which in the hands of most writers of text-books is a contradictory labyrinth, has been traced and mapped out, step by step, with order and precision. We may seem to be giving Mr. Dicey high • A Treatise on the Rules for Me Selection of the Parties to an Actin. By A. V. Dicey, Esq., Barrister-at-Law. London: Maxwell. 1870.
praise when we say that he has proved the possibility of a code, but we do not think we are exaggerating. It is certain that with the help of this treatise an exact view of the branch of the law with which it deals is within the reach of all who are possessed of an average understanding and use ordinary diligence, while the clearness with which existing contradictions are brought to light may do much towards the establishment of sounder rules and a better system.
Having praised Mr. Dicey as he deserves, we think it right to point out a few errors. Perhaps by enabling him to remove them, we may be doing his book some service. First of all, we think it would add to the value of the book if all the rules were placed together. It is true this would increase the bulk, but it would give the means of a general survey, and would make both clear- ness and logical sequence more apparent. We may next remark that one or two statements are loose, one or two are vague, and one or two are contradictory. A graver fault is that, either in his desire for clearness or from misapprehension, Mr. Dicey has sometimes drawn inferences from cases which they do not warrant. Thus he says, "no one can sue for an interference with the current of air to his mill," and he refers to a case which merely decides that the current of air to a mill is not such an easement as can be acquired under the Prescription Act. One of the judges, indeed, asked in that case whether windmills existed in the time of Richard I. ; but as the mill then in question was built in 1829, there could be no claim of prescription at common law, and that was carefully excluded from the judgment. This is not the only instance in which Mr. Dicey has failed to distinguish between prescription at common law and prescription under the statute. He says in the next line, " nor has any one an absolute right to support from a house adjoining his own," and a few pages further on, " the right of the owner to support from the adjacent land extends only to the land in its natural unincumbered state, and not with the additional weight of buildings upon it." It is true that support may be acquired for land alone, and that if, after the support has been acquired, new buildings are erected on the land, they would not be entitled to the support which had been acquired for the land without them. But if the houses are ancient they may also acquire support, as is directly implied in the cases referred to by Mr. Dicey. Another subject on which Mr. Dicey seems to be in error is the law as to equitable pleas and replications. He cites a case decided before the passing of the Common Law Procedure Act, 1854, to show that if a man who has assigned a debt to another brings an action for that debt for his own benefit, the right course is to apply to a Court of Equity to restrain him from issuing execution. Yet it is clear that under these circumstances an equitable plea would serve the purpose, as Mr. Dicey will find by referring to "Jeffs v. Day," L. R. 1, Q. B. 372. He says, too, that " an equitable replication cannot be allowed which sustains an equitable claim," though there "seems to be an exception" where a fraudulent release is pleaded and is answered by an equitable replication. In our judgment, he is wrong in both respects. If the equitable claim is inconsistent with the legal claim advanced in the first instance, the plaintiff is no doubt debarred by a techni- cal rule of law from varying his first demand, and in like manner, if the plaintiff has no legal claim, but merely an equitable one, he must go to a Court of Equity. But if his equitable claim supplies a defect in his legal claim, or establishes his legal claim against some legal defence, it may very properly be made the subject of a replication. In the first case cited by Mr. Dicey, the plaintiff sued for a trespass. The defendant pleaded that the trespass was committed more than six years before, and that the claim was therefore barred by the Statute of Limitations. To this the plain- tiff wished to reply that the trespass had been fraudulently con- cealed from him during the six years, and the Court refused to allow the replication. It is clear that fraudulent concealment of a fact does not affect the truth of that fact, and when the question to be decided was whether a trespass had been committed, and if so, how long it was since it had been committed, the plaintiff's knowledge and the defendant's concealment were both irrelevant. Mr. Dicey says the legal right was barred, and the only right, if any, was a right in equity to an account. But the legal right was only barred in that particular form of action. If the plaintiff had sued for the fraudulent concealment itself, the Statute of Limitations would not have been an answer. We refer Mr. Dicey to the " Imperial Gas Light Company v. the London Gas Light Company," 10 Ex., 39.
This discussion has occupied too much space, and we are afraid it has been too technical. It may be more easy to appreciate the contradictions in our law which are so clearly brought out by Mr. Dicey. Thus, we are told that the obstruction of a highway is
considered to cause peculiar damage to a man whom it impedes in his business, but none to a man whom it injures in his trade. The owner of a dog is not liable for its biting other men, unless he knew of its fierceness, but without any such knowledge he is liable for its biting cattle. If a horse is allowed to stray, and it kicks a child, the owner is not liable, for "it is not the ordinary course of the nature of a horse to kick a child." But if a horse strays into a field and kicks another man's horse, the owner is liable, because, we presume, it is in the ordinary course of the nature of a horse to kick another horse. If a man builds chimneys which must smoke in a certain direction, and another man lights fires which cause smoke to go up the chimneys, any damage caused by the smoke must be made good by the man who lighted the fires, not by the man who built the chimneys. A tradesman sold a man a lamp which was to be used by the man's wife. The lamp was so badly made that it exploded, and the man's wife was injured. It was held that she could not recover. Another tradesman sold a man some hair-wash to be used by the man's wife. The hair-wash was so badly made that the man's wife was injured. It was held that she could recover. In some of these cases, the extreme subtlety of the dis- tinctions causes an apparent contradiction, while it is hard to say that either case is wrongly decided. The absence of definite rules, the necessity of complying with precedents while endeavouring to do justice in each particular case and to decide it upon the merits, give rise to most of these difficulties. We can appreciate the nicety of our law when we observe that if a man agrees to build a house his death does not put an end to the contract, but it does if he agrees to build a lighthouse. Again, the question whether a husband has reduced his wife's property into possession or not has given rise to very fine distinctions. In one case, a wife's trustee had paid the wife the rent of some property settled on her, and had borrowed from her part of the money which was so paid. It was held that this money was reduced into possession by the husband, and that after his wife's death he might recover it from the trustee. In another case, a man who had received money for a wife, wrote to her and told her that he held the money at her disposal. It was held that after the wife's death this money did not pass to her husband. Another question of some difficulty is whether a servant who is sent by his master to sell a horse can warrant the horse so as to bind his master. The servant of a horse-dealer can bind his master by a warranty, even though his master has forbidden him to warrant. A servant sent to sell a horse at a fair, and not authorized to warrant, a servant sent to cell a horse at Tattersall's, and authorized to give a limited warranty, were also held to bind their masters. But where one man applied to another for a horse, and the owner of the horse sent it by his farm bailiff, the farm bailiff's warranty was held not to bind the owner. We might give many similar instances, but these will be enough to show the nature of the distinctions with which Mr. Dicey has had to deal. By putting these cases together and reducing them to a system, be avoids that confusion which so many books of case-law produce in the minds of their readers, if not of their writers. Here, at all events, if there are contradic- tions, they are made manifest, and can be remedied ; if there is a distinct principle underlying the mass of decisions, it is clearly stated, and is in less danger of being forgotten than when it has to be picked out from reports and judgments.
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