The case of Hislop v. Hislop is a reminder of the special difficulties that may beset a person who attempts to transfer some chose in possession to another person resident in the same household. These difficulties occur where the chattel or collection of chattels in question, which due to size or quantity are not readily susceptible of actual manual delivery, have been used and enjoyed by both grantor and grantee together before the transfer of title and will continue so to be used thereafter. To a bystander the chattels appear to remain in the same situation after as before the transaction, yet ownership or possession or both may have passed with important consequences.

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

Classification of Animals

In Roman law all animals are either wild or domestic.

(i) Wild: this category includes particularly those of an innate or natural feritas, and generally all animals not normally owned. Wild animals may, however, be owned and, as will be seen later, the owner may be under legal liability in respect of any damage done by them.

(ii) Domestic: these are normally owned. As a species they do not show feritas, though individually they may. Those which do show feritas are therefore regarded as acting contra naturam (of the species). So a horse which is a kicker, or a bull which gores, both of vicious disposition, are nevertheless governed by the rules relating to domestic animals; and a fortiori the domestic animal which has temporary lapses into feritas, e.g., the mare which is touchy, does not cease to be a domestic animal in law.

The argument of the preceding part of this article has progressed as follows. Jurisprudence, it has been contended, is thought about law, including analysis of its internal structure and exploration of its external relations. Only confusion results, however, in the absence of a preliminary indication, with some degree of precision, of the subject-matter to which the term “law” is to be applied. Jurisprudence cannot presuppose, but must begin with, a definition of the term “law.” The distinctive characteristic of a lawyer's jurisprudence is the criterion it adopts in framing such a definition. This, it has been suggested, is utility to lawyers, a specialised professional group whose specific interests and experience differ from those of citizens, politicians, sociologists, philosophers, or whom you will. In particular a lawyer's concept of law should be judged by its power of ordering, conceptually, the elements of the lawyer's professional experience. The best definition will be that whose analysis displays the maximum degree of coherence to be found amongst the largest number of the most important elements in that experience.

In my recent book on the Action on the Case (1951) I advanced the view that the famous Humber Ferryman Case was in the true line of descent of the action on the case. I dealt with it mainly, however, in connection with carriers' liability and a few further remarks may be necessary, in order to explain how far, if at all, my views differ from those put forward in the textbooks. The report in the Book of Assizes may be found translated in Professor Plucknett's treatise and in Mr. Fifoot's book but, as it is brief, it may be worth while beginning with Professor Plucknett's translation, viz.:

“J. de B. complained by bill that G. de F. on a certain day and year at B on Humber undertook to carry his mare, [taken] in his boat, across the water of Humber safe and sound; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his tort and damage.

This imposing quarto volume is offered to the public as a permanent memorial of the 150th anniversary of the Conseil d'Etat. It is a remarkable book, not unworthy of the very remarkable institution which it seeks to portray.

Although the Conseil, as the Conseil du Roi, goes back a very long way in French history, it suffered an interruption at the French Revolution. The interruption proved indeed to be a minor one, lasting nine years only. Nevertheless, the Conseil was in some sense reformed by Napoleon under the Constitution du 22 Frimaire; and as the Conseil d'Etat it met for the first time on Christmas Day 1799 (a day then disguised as 4 Nivose An VIII) under conditions of no small informality. It is its first meeting under Napoleon which has been selected as the new terminus a quo of an institution in reality a great deal older.

The book consists of some 50 articles (of very unequal length, one of them being an extensive monograph) and is divided into two parts. The second, shorter, part (though of over 200 pages) consists of contributions by persons who are not French and is concerned mainly with the influence of the Conseil d'Etat outside France, though it also includes articles on administrative questions in the United Kingdom (by Prof. W. A. Robson) in the United States, and in Canada (by the Chief Justice of Canada). It is proposed in this review wholly to neglect this part, however great its interest, principally because the English reader will find greater profit in the account given of the functioning in France of the authentic, the French, Conseil d'Etat: which may fairly be called the creator of the only system of administrative law properly meriting that title.