Say, I lie drunk, a trespasser besides,

On Marcus' avenue; and Marcus rides,

Or stumbles o'er me: still, first question is,
(Be it, the broken bones are mine or his,)
Could Marcus, by an ordinary care,

Have shunned the danger, and so gone elsewhere?
If yea, he pays me for my hurt; altho'

I was in act the first to blame: if no,

Since but for me he ne'er had been o'erthrown, pay him for his hurt and bear my own.

I

What then, whene'er by night I walk or ride,
Must I a link-boy or a scout provide,
Lest Davies' donkey in my path should roll,*
Or Forrester have left his building polef
To trip me up? nay, Law was never heard,
To sanction charge of caution so absurd.
I must not, if I'd not be brought to book,
Run blind-man's muck, and leap before I look;
(Though some that leap'd and never looked, have found
A verdict 'twixt the foot-board and the ground ;)‡

But if with eye-sight such as bless'd withal,
I keep my head from contact with the wall
By ordinary care, the law demands

No weightier charge of caution at my hands.
But say I'm blind; or one of tender years,
Insensible to age's prudent fears?

Your case thereby nor better is nor worse,
Your leader answers for you, or your nurse.§

Of these collateral moot-points enough,
Return we now to Warman versus Tuff.

* Davies v. Mann, 10 M. & W. 546.

† Butterfield v. Forrester, 11 East, 60.

Scott v.

Dublin and Wicklow Ry. Co., 11 W. C. L. R. 377.

Lynch v. Nurdin, 4 P. & D. 672. Waite v. Nth. Ln. Ry. Coy., 1 Ell.

Bl. & Ell. 719.

VOL. XVII.-NO. XXXIV,

R

The judgment's truly neither less nor more
Than, done in doggrel, is set down before ;-
One's first in fault; then, could the other one
That fault's effects by common caution shun?

But there you stop: else, caught in Pleaders' Pound,
Each cries Tu quoque! in an endless round.
As, say that when, a log, in Marcus' way
By want of ordinary care I lay,

Marcus athwart me falling breaks his head,
And brings his suit: if, in defence 'tis said.

"You might have shunned me, had you used your eyes;
And Marcus then with Wightman, J., replies
"And you shunned me!" the altercation tends
To circular dispute that never ends. (c)
Or, say two runners, each a careless spark,
Have clashed their heads together in the dark;
It lies not in the mouth of one to say

66

Sir, you by caution could have kept away, And so I had not dashed, and lost, my tooth

'Gainst your Os frontis:" for the other youth,

With equal justice may in turn reply,

"Nor had I dashed 'gainst yours, and lost, my eye."

For here the active fault of both concurr'd

And left to neither, in the law, a word. (a)

Or say two barges insecurely moor'd

Drift in a stream, with neither crew on board :
Borne in an eddy of the wind or tide,

The barques approach, and with a crash collide:
My planks stove in afford as little room
For just complaint, as does your broken boom.
For here, the passive fault of both together
Has shut the mouth of each against the other. (b)

But two, each so in fault, will yield no more
Predicaments of blame, but only four : *

And Wightman's canon, as above we see,
Holds not, of these, in categories three:
Wherefore his "Plaintiff's non-disabling fault,"
Must needs be taken with three grains of salt,
And limited to that one category

Where Plaintiff's fault's the first contributory.
As if, say last, when Marcus o'er me rode,
Broad day-light had the present danger show'd,
And I, as Plaintiff, my crushed ribs had mourn'd,
Whereto "Tu quoque" Marcus had return'd,
Then, in that case, but in that only one,
May I reply as Wightman, J., has done,

"True, 'twas my first default that brought me there,
But you, good Marcus, could with common care,
Have shunned me where I lay, and in that state
Of things, 'tis lawful to recriminate.” (d)

ye

By Wightman's judgment, then, 'twas never meant
That Plaintiff's negligence should not prevent
Plaintiff's success, in any of the three
Firstly above-put cases :-Wherefore
Who scan that clause so oft misunderstood,
Read "If Defendant by due caution could
(When Plaintiff has been first to blame in fact)
Have shunned the consequence of Plantiff's act,
The Plaintiff shall not thereby be undone,"
So shall the Law and Judgment be at one.

ART. IV. THE PEERS, BARONETS, KNIGHTS, AND LANDED GENTRY, AND THE BOOKS ABOUT THEM.

The Historic Peerage of England, being a new Edition of the Synopsis of the Peerage of England," by the late Sir Harris Nicolas, G. C.M.G. By WILLIAM COURTHOPE, Esq., Somerset Herald. 1857. Murray: Albemarle

Street.

The Noblemen and Gentlemen of England. Attempted by EVELYN PHILIP SHIRLEY, Esq., M.A., F.S.A., one of the Knights of the Shire for the Co. of Warwick. Westminster: J. B. Nichols and Sons.

The Peerage, Baronetage, and Knightage of Great Britain and Ireland for 1864, including all the Titled Classes for 1864: twenty-fourth year. By ROBERT P. DoD, Esq. Whittaker and Co.

A Dictionary of the Peerage and Baronetage of the British Empire. By Sir BERNARD BURKE, Ulster King-ofArms. 26th Edition. 1864. Harrison: 59, Pall Mall. A Dictionary of the Landed Gentry of Great Britain and Ireland. By Sir BERNARD BURKE. 4th Edition. 1863. Harrison 59, Pall Mall.

THE

HE Peers, Baronets, Knights, and Landed Gentlemen of the United Kingdom form a subject of peculiar interest to lawyers, for upon these upper classes and their vast territorial possessions and manifold affairs the major portion of the legal operations of the country turn. They and their connections are the dramatis personæ of most of not only the parliamentary but the forensic events of the time. Equity and the civil side of the common law would have but confined action without these prominent personages, and, to their honour may it be said, there is only the criminal law with which they come little in contact. It is indeed an undoubted truth that from age

to age down to the present time, the nobles and upper classes have, compared with the rest of society, been singularly free from criminal prosecutions other than those of a political nature. Look back for the last two hundred years. The charge of murder against a peer, if we except Lord Ferrers' crime-the act of a madman-and some cases of duelling, is utterly unknown. This is so; but the brighter side of jurisprudence is ever bringing the nobleman or gentleman forward. Their conveyór ances and their wills, their contracts and their dealings bring substantial wealth to the barrister and the solicitor, and sharpen and keep sharpened the intellect of both. The affairs of Parliament are in close alliance with the affairs of Westminster Hall. The law is, too, ever busy with the daily transactions of nobles and gentry in every county in the realm. These superior classes so link one with another that, in conveyancing particularly, reference to their status, alliances, and descents, becomes frequently indispensable. A knowledge therefore, of the peerage, baronetage, knightage, and gentry of the United Kingdom cannot but prove of very great advantage to all practising lawyers.

In another sense, British rank and dignity must ever be of interest to the British bar: for it is the goal to which all successful members of that bar have a right to aspire. Every French soldier, it is said, carries a Marshal's bâton in his knapsack; the observation may be also ventured that every barrister bears in his forensic bag the patent of a peerage. At any rate, if any barrister thinks that too strong an assertion, and will not indulge in such proud pleasures of hope, he has at least the pleasures of memory. Let him but look over the past roll of nobility of the United Kingdom, and how illumined will he find it with the talent and the virtue that the bar has brought it. The peerage is big with the history of the bar. The peerage, however, includes Wellington and Nelson, and therefore we cannot say of it that cedant arma toga, yet, in the acquisition of titled rank, the bar has done much to acquire a parity of fame. Histories,