Section 21 of the Matrimonial Causes Act, 1857, provides that a wife deserted by her husband may apply to a metropolitan police magistrate for an order for the protection of her earnings; and the statute further provides that it shall be lawful for the husband and for his creditors to apply to the magistrate who made the order for the discharge thereof. A Mrs. Sharpe obtained such an order, and in 1864 her husband wished to apply for its discharge. He discovered that the magistrate who had made the order was dead; and the question what was now his proper course of action came before a bench composed of Cockburn C.J., Blackburn and Shee JJ., who decided unanimously that this was a casus omissus, and that it was not competent for the husband to apply to some other metropolitan magistrate who might present the advantage of being alive. Forthwith, and in the same year, there was passed the Matrimonial Causes Act, 1864, which consists of one section only, and which provides that ‘if the said magistrate shall have died or been removed or have become incapable of acting, then in every such case the husband... may apply to the magistrate for the time being acting as the successor or in the place of the magistrate who made the order.

The determination of the true measure of damage in any individual case is seldom easy. It depends upon considerations of causation, and causation is primarily a matter for philosophic rather than legal inquiry. Hume was not prepared to adopt the ordinary conception of causation. ‘It were infinite for the law to judge the causes of causes and their impulsion one of another,’ said Bacon. In a modern case the same thought has been expressed in the words ‘Causation is not a chain but a net.’ Faced with metaphysical uncertainty the lawyer must find some base on which to build his structure, and he does it by following the course of the pragmatist and asking of any particular decision: Does it work ? If it does he has to fit it into a scheme which should be consistent with a number of other decisions which also work, but are not always governed by the strict rules of logic.

In Mills v. Armstrong Lord Bramwell, in commenting on the judgments in Thorogood v. Bryan, said: ‘At present I will only observe that the four judges were great lawyers, and I believe that an experienced lawyer may be, as it were, instinctively right without at the moment being able to give a good reason for his opinion.’ Although such intuitive judgments may be satisfactory as doing justice between the litigants in a particular case, there is always the danger that they may prove to be misleading from the standpoint of the further development of the law, for it is natural to assume that as the judge has reached conclusion X by means of reason Y, therefore if conclusion X is correct then reason Y must be correct also. In future cases reason Y is accepted without further consideration because it has in the precedent case apparently led to a desirable result, even though, in fact, there may be no valid connexion between the reason given and the result. It may be suggested with all respect that the recent case of Cutler v. United Dairies (London), Ltd. may in the future have such an effect on the development of English law for, although the conclusion reached in it is obviously just and in accordance with established law, nevertheless some of the reasons advanced by the Lords Justices in support of their judgment are of doubtful validity, and may, if accepted apart from the facts of the particular case, lead to unfortunate results.

The origin and growth in continental law of the doctrine of unjustified enrichment is not merely an object lesson of the greatest importance to comparative lawyers. It is also of peculiar interest to English lawyers because it affords an admirable illustration of the working of the system of precedent in the continental countries. Moreover, it furnishes abundant proof—if any be needed—of the fact that an elaborate system of rules based on judicial precedent can, and does, exist side by side with the provisions of codes which in their inception were designed to prevent case law from coming into existence.

The law is not called upon to intervene merely because the assets of one person may happen to be increased as the result of a corresponding diminution in the assets of another person. But it is always possible, in particular circumstances, that the enrichment of one person owing to the impoverishment of another is manifestly unjust, and this would seem to give rise to an obligation to make restitution which is based on principles of natural justice. The Civil Law has a moral basis and is consequently called upon to provide the necessary means to enable justice to be done in such cases.

When we contemplate the havoc which has been wrought in the field of English law by the enunciation of maxims of a rhetorical character —some of which are of uncertain origin and still more uncertain operation—it may, perhaps, seem strange that our law is so unreceptive when it comes to be a question of applying a broad general principle such as that of unjustified enrichment. The explanation seems to be that our law of quasi-contract, such as it is, has developed along a channel which was carved out for it by indebitatus assumpsit, and that this has proved to be too restricted to permit of the growth of remedies of a non-contractual nature, though it did not interfere with the destructive force of maxims of a negative character, as, for instance, when Lord Ellenborough applied the maxim of ignorantia iuris haud excusat in Bilbie v. Lumley to the case of money paid under a mistake of law.

Now people in the street,’ said a learned judge in a modern case, ‘before they begin to think about it, is a very easy thing to say what amounts to an “attempt,” but when you come to analyse it, it becomes a little difficult.’

The text-books tell us a that at Common Law every attempt to commit any indictable crime, whether that ulterior crime be a felony or a misdemeanour, is itself a misdemeanour. Professor Sayre, of Harvard, in an article in the Harvard Law Review, has traced the growth of this rule which, he thinks, did not take its modern comprehensive form until a judgment of Lord Mansfield in 1784 in R. v. Scofield. Until that date there seems to have been no recognition of the doctrine that an attempt to commit any crime at all was itself a crime.