ART. IV.-LAW MAXIMS.-ACTS OF GOD OR THE LAW. ACTUS Dei nemini facit injuriam.1 Actus legis nemini est damnosus [or facit injuriam].o Nemo punitur sine injuriâ, facto, seu defaltâ.1 We will venture to paraphrase the first of these apophthegms thus, "The act of the Almighty injures no one:" or, "is so viewed or dealt with by the law, as to affect no one injuriously.” The others may stand as follows; "The act of the law or of a court shall not damage or oppress any [innocent] person. No one is punished without wrong, [guilty] act, or default [proved against him]. The above is the outline of legal dealing with the results of all paramount disposing power, as well as inevitable accident, in their influence on human affairs. The "act of God" in the maxim, has been limited by Lord Mansfield to the meaning of some natural necessity, and inevitably such, as storms, lightnings, and tempests; viz. something in opposition to the act of man, or which could not happen by his intervention: for every thing might be called the act of God, as happening by his permission and knowledge. Yet the misfortunes arising from tempest cannot be said to be directed by God, but like any injurious act of man, as robbery, &c., to be permitted by him.6 5 Death, however, is one of those dispensations which has in all time produced effects on society occasioning the most constant application of the first maxim. One of the most familiar instances is that where the right to occupy land depends on the continuance of the life of the occupier, or some other person, and is put an end to by the death of either occurring after any artificial crop which returns an annual profit, has been planted, but before its severance at maturity. Under these circumstances, it has been always held, that the occupier, who lawfully planted the land, is by himself or his 1 2 Bla. C. 122. 3 Jenkins's Centuries, 118. 2 2 Inst. 287; 2 H. Bla. 333. • See Trent Navigation v. Wood, 3 Esp. C. 131; and Forward v. Pittard, 1 T. R. 33. 6 See Forward v. Pittard. legal representative entitled to the year's profits, if the crop be of a species which ordinarily repays the labour by which it is produced within the year in which it is bestowed ;1 whereas if it proceeds annually of itself, without necessity for labour or manurance of man, as grass does, or is permanent in its nature, as young oaks, fruit trees, &c.3 or, as it seems, if it be a crop which does not come to perfection for two years, as teazles, or if the occupier has severed one mature crop since his right to hold terminated,5 the sudden devesting of that right by the act of God, does not confer on him any right to indemnity. Such profits are called "emblements" (literally, "sowings," from the old Norman word "embleer"), and the right to them rests entirely on the uncertainty of the occupier's estate, which has determined by the act of God before the year's crop was ripe and severed.6 66 Where a party demised for fifty years, if he should so long live, at a rent payable quarterly, at Lady-Day, &c. or within thirteen weeks after," and died before the extreme time for payment, viz. within thirteen weeks after Lady-Day, it was held, that her executor had no remedy for the quarter's rent due at Lady-Day; for the extreme time limited for payment by any contract, is the legal time for making it, and before 11 Geo. II. c. 19, s. 15, and 4 Will. IV. c. 22, the executor of a tenant for life could not claim a rateable pay 1 Graves v. Weld, 5 B. & Adol. 105; and see Bulwer v. Bulwer, 2 B. & Ald. 470; 2 Bla. C. 122; Eaton v. Southby, Willes, 131. 2 So, though tenant improve its quality, Co. Litt. 69 a; 5 B. & Adol. 114. 3 Co. Litt. 55 b; 2 Bla. C. 122, though planted by tenant. 4 Though in one case teazles were held to be the subject of emblements, Kingsbury v. Collins and Elmes, 4 Bing. 202, the attention of the Court does not seem to have been drawn to the biennial return of the crop (see 5 B. & Adol. 114). However the decision may have turned, on their being like emblements, on the ground of the labour required in the second year, and so within the rule as to hops, id. 120. Quære, as to liquorice, madder, &c. id. 109. • Graves v. Weld. The crop was barley, with clover sown on it at a subsequent time, before the death in question. The party who sowed took the barley crop, with such of the clover as could be cut with it: Held, that his right to emblements of the clover stopped there, and did not continue longer than a year from the sowing. 6 Com. Dig. tit. Biens (G 2). 7 Clun's case, 10 Co. 127 a; see Arundel v. Combe, Dyer, 262. ment of rent down to the death of the tenant for life, if occurring before a fixed day of payment. Where by an irruption of the sea, part of land demised to a tenant is surrounded or covered with it, and thereby entirely lost to him without his default, this act of God entitles him to a rateable apportionment of rent ;-for in ordinary intendment there is neither probability of regaining the soil, or exclusive right in the tenant to any casual profit of fish, &c.1 but a distinction is made where a similar loss occurs from fresh water, e. g. floods, &c., because such injuries are usually temporary, and the tenant having the sole right to the casual profit of fish, &c. must run the hazard of casual losses, and not throw their burden entirely on the lessor. Nor will a court of equity relieve him.3 Again, the burning part of the land with "wildfire,” [qu. lightning], is said to be no reason for apportioning the rent: for the land remains, and its former fertility may be renewed, by the tenant's labour. A man granted a lease for years of land and a flock of sheep, at a certain rent. All the sheep died, and after several arguments, the lessee was held entitled to apportionment of the rent, on the ground that he had been guilty of no default, though several of the judges held him still liable for the whole rent, for as the death of the sheep was the act of God, there was no default in lessor or lessee.5 This decision seems analogous to the law of apportionment of rent on eviction; for rent is apportionable when part of the demised premises is recovered or evicted by title paramount to that of the lessor, and independent of any act of his, but not where the lessor himself, by his own act, e. g. previous demise of a part, has prevented the second lessee from having lawful possession of that part; in which case the second demise is wholly void as to it, and the lessor cannot distrain for the whole or any part of the rent.6 1 Roll. Abr. tits. Apportionment (C.), Act de Dieu; 7 Bac. Abr. 49, tit. Rent (M. 2); Dyer, 56, though in part contrary, is merely illustration. 2 Ibid.; and see Paradine v. Jane, Aleyn's Rep. 79, as cited 6 T. R. 752; Snape v. Dobbs, 1 Bing. R. 204; 7 Bac. Abr. 50. 3 Harrison v. Lord North, 1 Chan. Cas. 83. 4 Roll. Abr. ubi supra. 5 Dyer, 56 a. 6 Neale v. Mackenzie, 1 M. & W.747; Cam. Scacc. (in Error); see 1 M. & Gr. 747. By the custom of the realm, that is, by the common law, a carrier of goods is in the nature of an insurer of them liable for every accident, however inevitable, if occasioned by human means (e. g. irresistible force of robbers), and not by the act of God, as storm, lightning, &c. or the king's enemies.1 For to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows the loss was occasioned by act of the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. Every thing done by the carrier which the law does not excuse, is negligence in him, e. g. loss of goods in his hoy, owing to a leak made by rats. Whereas in the case of a similar loss from the sinking a hoy by a sudden gust of wind, in shooting old London Bridge, the carrier was exonerated. However, in the case of injuries to passengers, carriers are only liable for their own or their servants' negligence, and not for unavoidable accident.5 2 A power of attorney, or to represent another, necessarily determines with the death of the person to be represented, particularly if coupled with an interest.7 The death of a plaintiff or defendant who sues or is sued singly, if happening before interlocutory judgment or verdict, (i. e. before the first day of an assizes or sittings after term in London or Middlesex,8 or before the actual day of trial of a cause at the sittings in term,9) puts a stop to and abates the action, thereby making any subsequent final judgment against either reversible as an error in fact:10 but a like event taking 1 Coggs v. Bernard, 2 Ld. Raym. 909; Year Book, 9 Edw. 4, 40; Mors v. Slue, Sir T. Ray. 220, 1 Vent. 190, 238, 1 Mod. 85, S. C.; Syms v. Chaplin, 5 Ad. & E. 634. 2 See per Cur. Forward v. Pittard, 1 T. R. 33; Bac. Abr. tit. Carriers (B). 3 Per Lee, C. J., Dale v. Hall, 1 Wils. 282, cited 1 T. R. 31. 4 Amies v. Stephens, Stra. 128. 5 Aston v. Heaven et al. 2 Esp. N. P. C. 533, per De Grey, C. J.; see Wakeman v. Robinson, 1 Bing. 213; Christie v. Griggs, 2 Campb. 79; and 3 Bing. 319. 6 1 Bac. Abr. tit. Authority (A); see Co. Litt. 52 b; Wallace v. Cook, 5 Esp. C. N. P. 118; Lessard v. Vernon, 2 Ves. & B. 51. 7 Watson v. King, 4 Camp. 272. 8 Jacobs v. Miniconi, 7 T. R. 31; see 1 Salk. 8; 2 Lord Ray. 1415. Taylor v. Harris, 3 B. & Pul. 549. 10 Cases collected, Tidd, 9th edit. 1136. 2 place on or after the first day of an assizes or sittings after term in London or Middlesex, or on the day of any sittings in term there, at which a verdict may be obtained, will not now prevent final judgment being entered on it within two terms afterwards.1 Another act hinders the abatement of an action by the death of one of several plaintiffs or defendants, where the cause of action survives to or against the rest, or by the death of any such plaintiff or defendant, sued or suing singly, if occurring after interlocutory judgment,3 thus distinctly recognizing the maxim "actio personalis moritur cum personâ," in actions not arising like the above, ex contractu. If a defendant submits to a verdict against him, having leave to move for a nonsuit, and dies in the term after the trial, after the rule granted, but before the argument, his representatives may avail themselves of the rule being afterwards made absolute, to enter up judgment, as of the term next after the trial, so as to get the costs of the judgment; for the delay was the act of the Court. And though a judgment has no longer any relation back but to the day when signed, the Court or a judge may still order judgment to be signed nunc pro tunc in the above cases.5 Again, the death of a defendant while charged in execution, or after an elegit issued against him, will not prevent the plaintiff from having a new execution against his land or goods; for the defendant's death is no satisfaction to the plaintiff, but is the act of God, which shall not turn to his prejudice. Though this was held otherwise both before and after Blumfield's case, on the principle of "mors solvit omnia;" st. 21 Jac. I. c. 24, now enforces the doctrine above laid down. Our space will only allow the illustration of our maxim thus far by tracing some of the broader effects of the death of a litigant party pending the suit; but we will add, that 1 17 C. 2, c. 8. 3 Id. s. 6; 4 Burr. 2277. 2 8 & 9 Will. 3, c. 11, s. 7. 4 Toulmin v. Anderson, 1 Taunt. 385; see other cases, Tidd, 9th edit. 932. 5 Lanman v. Lord Audley, 2 M. & W. 535; Evans v. Rees, 12 Ad. & E. 167 ; Harden v. Forsyth, 1 Adol. & Ell. (New Series) 177. 6 Blumfield's case, 5 Co. 87 a; Cro. Fl. 555; S. C. citing Trewinyard's case, Dyer, 60; Godbolt, 273; see Nadin v. Battie and another, 5 East, 147; other cases collected, Tidd, 9th ed. 1034. |