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Henry I was de furto seisiatus.116 It was a "question of life and death whether the thief was taken in seisin of the stolen goods." 117 It seems likely that to a lawyer of the time of Edward I "disseisin of chattels" would sooner have suggested theft or the proceedings in replevin than trespass. Any unlawful ouster from land, it would seem, would from the first have subjected a man to the assize. The claim of freehold was important where the act was less than ouster and so of doubtful import.118 Likewise it would seem that any unlawful taking of a chattel would have been considered a disseisin whether under claim of property or not.

Whatever analogy there may have been between the assize and trespass for an asportation and the appeal, it was not an active one in the Year Books. It did not result in trespass being used against the second trespasser 119 nor for a tortious transfer by the bailee, 120 and far from allowing the appeal against the second thief on analogy to the assize, it was put on the ground that the property had not been changed by the first theft.121 On the other hand, the analogy between trespass to chattels and trespass to land was most active, and there is strong reason for thinking that so much of disseisin as drifted through to trespass for an asportation did so by way of trespass for a disseisin of land.122 In the early examples of trespass quare vi et armis the destruction or asportation of goods is generally complained of as an incident to trespass to land 123 and it was only slowly that the subforms of the general action developed.124 The development of these subforms does not appear to have gone very far in the reign of Edward III.125

Viewed either as a commentary on the "his" of the writs of replevin and trespass or as another way of stating that one waived the property in a chattel by proceeding in trespass, the notion that

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118 If an act less than an ouster was done a second time, the assize held notwithstanding a disclaimer of freehold by the defendant. I BRITT. (NICHOLS), 343; BRACT. 216 b.

119 As to the failure of the analogy in this respect, see especially 2 P. & M., 2 ed., 168 n. 2.

120 See AMES, 3 SELECT ESSAYS, 550.

121 Supra, p. 380-1.

122 Supra, p. 381, and see 2 P. & M., 2 ed., 167.

123 2 P. & M., 2 ed., 166.

124 Ibid.

125 Y. B. 20 Edw. III (R. S.) XXXVIII.

the "property" in a chattel could be changed by a trespass would seem to have been neither fundamental nor old. That it had what vogue it had with the glossators of the Year Books would appear to have been due partly to the great authority of whatever came from Brian, C. J., but principally to the contrast made between felony and trespass in proceedings against the third hand.126 It had early been held that a taking by way of distress did not alter the "property" in the goods,127 and this was re-affirmed in the year preceding the case against the second felon.128 The distrainor did not claim property in the distress but took it as security for the performance of some obligation. When the argument was made that the property had been altered by the first theft, the case of distress evidently presented itself and the same point was made as to the thief that he does not claim property. He does claim property in the accepted sense in which that phrase is used in connection with disseisin,129 but evidently it was not disseisin that the judges had in mind. We now say that a taking is not a theft if it is under bonâ fide claim of right.130 A taking under a dispute as to title is not felonious. It was this that the judges had in mind and they were laying down a valid distinction between larceny and trespass when they said that "a felon does not claim property" however far removed this may have been from disseisin.

The contrast between felony and trespass is brought out in Fitzherbert's report of the case by the addition, after the words "for felony does not claim property," of "otherwise is it of trespass." 131 A like diversity between trespass and the appeal is emphasized in the case from 1489 already quoted.132 In the latter case the procedural character of the contrast is evident. Fitzherbert's addition seems to be an assertion that trespass claims property and not necessarily that it alters it, but Brooke gives the latter explanation of the case against the second trespasser, 133 while Finch ex126 FITZ. ABR., Cor. 39; Y. B. 13 Edw. IV, 3−7; Y. B. 4 HEN. VII, 5-1; supra, p. 380.

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131 ABR. COR. 39. Compare this with the "it is otherwise if he who took the beasts

claimed the property" of the case of distress referred to supra, p. 379.

132 Supra, p. 387.

133 BRO. ABR., TRESP. 358; supra, p. 383.

plains Professor Ames' case where the defendant was charged with carrying off the plaintiff's horse and killing it 134 by the "pretence of title" attributed to the trespasser in this case against the second thief.135 The statement made by Finch, however, was of the broadest kind,136 and in this he was followed by Viner.137

"And so we arrive at this lamentable result which prevails for awhile: If my chattel be taken from me by another wrongfully but not feloniously, then I can have no action against any third person who at a subsequent time possesses it or meddles with it; my one and only action is an action of trespass against the original taker. A lamentable result we call this, not so much because it may have done some injustice to men who are long since dead and buried, as because for centuries it bewildered our lawyers, made them ascribe 'property' to trespassers and even to thieves, and entailed upon us a confused vocabulary, from the evil effects of which we are but slowly freeing ourselves." 138


134 Supra, p. 381.

136 Ibid., 199, 210.

Percy Bordwell.

135 FINCH, LAW, 199.
137 ABR. PROP. (E. 4).

138 2 P. & M., 2 ed., 167.



E are living in a period of great legislative activity. The amount of statute law upon our shelves is already discouragingly large, but there is no indication of any decrease in the output. It was stated on good authority not long ago that 62,014 statutes were passed by our national and state legislatures during the five years from 1909 to 1913 inclusive, and there has certainly been no diminution in the industry of the lawmakers since that time. If there has been any change it has been in the direction of greater speed. This article, however, is not to be a jeremiad on modern legislation. Unwise and hasty as much of it may be, there can be no doubt that there will have to be much more legislation if we are to have laws which shall fit the conditions which modern industrialism and increasing population are bringing upon us. That the changed conditions will be met and provided for I have little doubt; there will doubtless be much unsatisfactory and experimental legislation enacted during the process, but this does not lead my mind to the conclusion that there is no help in legislation, but rather that we need more scientific legislation, and this means that the educated and thoughtful citizen, and especially the educated lawyer, owes a duty to the state to familiarize himself with the legislation of the day and render any aid that he can in making it more perfect. This, however, is another story. This article is not intended to be hortatory, but suggestive.

There are many things in connection with modern legislation, especially that class of legislation designed to correct real or supposed defects in the existing laws concerning labor and social conditions, which deserve serious thought, and among them there is to my mind nothing more significant than the tendency to take from the courts the duty of settling disputed questions of fact and impose it upon an arbitration committee, or an administrative board or officer with provisions requiring the determination to be made summarily without the aid of a jury and without regard to the strict rules of evidence enforced by the courts.

A striking instance of this tendency is to be found in the socalled Workmen's Compensation Acts which have been placed upon the statute books in a score or more of states during the last few years.

Out of nineteen of these acts passed prior to the year 1914, not one (with the possible exception of the Kansas act) provides for the determination of the facts by the old-fashioned method of a jury trial. The majority of them provide for the trial of disputed facts by an arbitration committee with revision by a commission, or by the commission itself in the first instance, and if there be a judgment entered (which is the case in many of the laws) it is entered as matter of course on the decision of the committee or commission and is not generally subject to review, except a review in the nature of a common law certiorari which simply ascertains whether the tribunal has acted within its jurisdiction. Two or three of the laws provide for the trial of the issues by a judge of a court of general jurisdiction, but even in these instances the trial is summary, no jury is called, and every means is taken to free the proceeding from the ordinary rules of procedure and evidence.

The same tendency is to be observed in other modern laws, such, for instance, as the laws regulating public utilities in the various states, in which the frequently recurring controversies of fact between the utility on the one side and the citizen or the public on the other are almost invariably tried and decided by a commission or by some other administrative board or officer subject perhaps to review by the courts by certiorari or some like remedy.

This feature of these very important laws is certainly calculated to arrest the serious attention of the lawyer and the judge. If the issues of fact arising under these laws can be more satisfactorily determined by administrative boards than by the courts, why should not the same principle apply to other questions of fact and why should not the courts ultimately retire from business as the triers of such questions and only survive as reviewers of the acts of administrative boards to determine whether or not they have acted within their jurisdiction?

Unquestionably this new policy reverses the precedents of the past. The determination of controversies of fact by courts rather than by executive or administrative officials has long been a marked

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