"A warranty will not extend to guard against defects which are plainly and obviously the object of one's senses: as if a horse be warranted perfect, and wants either a _tail_, or an _ear_: unless the buyer in this case be blind."--3 _Blackst. Comm_. 166.

Note 18. Page 310.

On the 22d August, 1843, (since the publication of this work,) a brief but most important statute (6 and 7 Vict. c. 85) was enacted, "for improving the Law of Evidence"--the chief object of which was, to remove all such difficulties as that which formed the subject of Mr.

Parkinson's inquiries. Witnesses are now no longer "incompetent" to give evidence by reason of _crime_ or of any _interest_ which they may have in, or in respect of, the subject-matter of the action.

Note 19. Page 346.

Whether Mr. Aubrey was _justified_ in doing this, under his circ.u.mstances, is a question which the author has seen, and heard, several times keenly discussed. It is surprising how much may be said on both sides of the question, by ingenious casuists.

Note 20. Page 405.

For this glorious and inestimable safeguard of the liberty of the subject, we are indebted to the ancient common law of England, strengthened from time to time by the legislature, and now made secure against the insidious encroachments of tyranny. The chief statute pa.s.sed with this view is known as _The Habeas Corpus Act_ (31 Car. II. c. 2), and "has been incorporated into the jurisprudence of every state in the Union" in America.--STORY, _Commentaries on the Const.i.tution of the U.

S._, vol. iii. p. 208.

"It is a very common mistake," says Mr. Hallam, and the Lord Chief-Justice of the Queen's Bench had occasion, during Michaelmas Term 1844, publicly to make a similar observation, "not only among foreigners, but many from whom some knowledge of our const.i.tutional laws might be expected, that the statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history; but though a very beneficial enactment, it introduced no new principle, nor conferred any right upon the subject.... It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if, indeed, not much more ancient,) that the statute of Charles II. was enacted; but to cut off the abuses by which the government's l.u.s.t of power, and the servile subtlety of crown lawyers, had impaired so fundamental a privilege."--3 HALL. _Const. Hist._, pp.

16, 17.

Note 21. Page 421.

The general character of the Newspaper Press, both in London and the country, has so greatly improved of late years, as (with a very few despicable exceptions) to render the appearance now-a-days, of such a paragraph as that in the text, exceedingly rare. The Press is now, in most instances, presided over by educated and gifted _gentlemen_. It was far otherwise in 18--(the period named in the text.)

Note 22. Page 433.

Before perusing this opinion, the reader should refer to the pedigree, _post_ 441; without which the opinion will not be fully understood.

Note 23. Page 435.

See the note on page 437.

Note 24. Page 437.

Till within a few years before the period in question, the law of England regarded the act done by Mr. Steggars as amounting only to a _breach of trust_, and consequently subjecting him to no _criminal_ liability; on the ground that the 700 _never having been actually in his master's possession_, could not be the subject of a _felonious taking_. The alarming consequences of this doctrine led to the pa.s.sing of stat. 39 Geo. III. c. 85, [pa.s.sed on the 12th July 1799,] which declared such an act of embezzlement to be felony, punishable with fourteen years' transportation: this was lately repealed, but re-enacted by stat. 7 and 8, Geo. IV. c. 29, -- 47, [pa.s.sed on the 21st June, 1827,]

on the occasion of consolidating that branch of the criminal law.--See 4 COLERIDGE'S _Blackst. Comment._ p. 231 (_note_).

Note 25. Page 442.

The popular maxim that "possession is nine-tenths of the law," is founded on the salutary and reasonable doctrine of the law, that the party _in possession_ of property is presumed to be the owner until the contrary shall have been proved. Consider how intolerable, and, in fact, destructive of civil society would be an opposite rule--if every one in the enjoyment of property were liable to be called upon to explain to any one challenging his right, how that right had been acquired! By the operation of the rule laid down in the text, a defendant in ejectment may (except in the case of landlord and tenant) always defeat the action, simply by showing the real t.i.tle to be in _some third party_--without showing that the defendant holds possession with the consent, or under the authority of the real owner.--(_Roe_ v. _Harvey_, 4 Burr. 2484; _Doe_ v. _Barber_, 2 T. R. 749.) The defendant's evidence is thus altogether confined to falsifying his adversary's proofs, or reb.u.t.ting the presumptions which arise out of them.--ADAMS _on Ejectment_, p. 319.--(3d Ed.)

Note 26. Page 443.

See the note to Vol. II., Chapter V.

Note 27. Page 443.

Lynx is here glancing at a rule of the Roman law on a point of great difficulty, interest, and importance--_i. e._ where two persons above the age of p.u.b.erty perished by the same accident, the younger was presumed to have been the survivor; but if one was _under_ the age of p.u.b.erty, the other was presumed to have been the survivor.--(Dig. lib.

34, t.i.t. 5, ---- 9, 22, 23.) It is very curious to see how this question is dealt with in modern times. The _Code Civile_ (in France) adjusts the presumption to specific periods of life. If those who perished were all under 15 years of age, the eldest is presumed to have survived; if all above 60 years, the youngest. If some under 15, and others above 60, the former shall be presumed to have survived. If all were between 15 and 60 years of age, the male, (when the ages are equal, or within a year of being so) shall be presumed the survivor. If of the same s.e.x, that presumption shall be admitted which opens the succession in the order of nature--of course the younger being presumed to have survived the elder.--(_Code Civ_. ---- 720-722.) It has been objected, that, though these rules are generally equitable, they are imperfect: for a man above sixty ought surely to be held to have survived a mere infant; and no provision is made for the case of persons under 15, and under 60 years of age perishing together. By the _Mohammedan law of India_, "when relations perish together, it is to be presumed that they all died at the same moment, and the heir of each immediately succeeds." The difficulty of the case arises, of course, from the circ.u.mstance of there being no evidence whatever as to the _actual fact_ of survivorship. Our English law has not adopted any definite rule on the subject, but leans in favor of the survivorship of the party possessed of the property in dispute; and _some_ regard seems to be had to the probability of the survivorship of the stronger party. Several very interesting cases of this kind have arisen in this country; and, generally speaking, our courts appear to have required some evidence of the _fact_. A singular case occurred in Queen Elizabeth's time, (1596.) Father and son were hanged at the same time, in one cart; being joint tenants of property, which, on their death, was to go to the _son's_ heirs. According to one report (Noy) the _father's_ feet were seen moving after the son's death; but other witnesses swore to the son's "shaking his legs" after his father's death. This the jury believed; found that the son survived; and his widow was therefore held ent.i.tled to her dower!--(_Broughton_ v.

_Randall_, Cro. El., p. 502.)

Note 28. Page 443.

Chapter X., _ante_, p. 411.

Note 29. Page 470.

See the note prefixed to Chapter V. Vol. II., for a full explanation of the above, and another important legal topic introduced into this work.

Note 30. Page 477.

Not many years ago, the fate of an important case turned upon the existence of a tombstone: and a forged one was produced in court!--The validity of a great Peerage case is at this moment depending upon the genuineness of one of these dumb and gloomy witnesses. [1844.]

Note 31. Page 485.

When the Judges of a.s.size preside in the _Crown_ side (_i. e_. in the Criminal Court,) they wear their scarlet and ermine robes, and full-bottomed wigs.

Note 32. Page 486.

This is a step often taken in trials of importance, when the counsel for either party apprehends danger to his client, from his opponent's witnesses remaining in court and hearing all the evidence which they are afterwards called to contradict. Either counsel has a _right_ thus to exclude witnesses. The Court usually, in such cases, orders all the witnesses to withdraw.

Note 33. Page 499.

See, for a discussion of this point, the preliminary note to Vol. II.

ch. v.

END OF VOL. I.