The first step on this primrose path of judicial legislation was taken in 1863.

contract

In Taylor v. Caldwell, the Court had to construe a whereby the defendants had agreed to let the plaintiffs have the use of the Surrey Gardens and Music Hall for four days for the purpose of giving concerts and fêtes during those four days, and the plaintiffs agreed to pay to the defendants £100 for each day. The defendants were also to supply bands, and a variety of entertainments, while the plaintiffs were to supply the performers.

Before the time for performance had arrived, the music hall was destroyed by fire, so that the performance of the entertainments became impossible.

The action was brought by the parties who were to have the use of the grounds, and it does not appear whether they had been tendered and refused the use of so much of the subject-matter of the agreement as remained uninjured. This point is probably immaterial as the declaration seems to have aimed at damages for the failure of the defendants to carry out those terms of the contract which had become incapable of fulfilment.

The Court of Queen's Bench, composed of Cockburn, C.S., Wightman, Crompton, and Blackburn, JJ., held that both parties had become excused from the performance of the contract on the ground which has now become so familiar, that

"Where from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such

continuing

there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered as a positive

existence as the foundation of what was to be done;

contract,

shall be

but as subject to an implied condition that the parties excused in case, before breach, performance becomes im

possible from the perishing of the thing without default of the

contractor.

2(1863) 3 B. & S. 826.

The foundations on which this assumed principle was said to rest were stated in the judgment to bei. The analogy of the Civil Law.

ii. The rule with regard to the liability of executors under contracts of a personal nature.

iii. The rule that where in a contract of sale, the property in specific chattels, which are to be delivered by the vendor at a future date, has passed to the purchaser, the loss of those chattels falls on the purchaser. iv. The law with regard to bailments.

The principles of the Civil Law are admittedly no guide to the principles of the Common Law. The two systems are so widely divergent, so different in origin and development, that it does but create confusion to engraft parts of the one system upon the body of the other, and on more than one occasion the Common Law has vigorously resisted endeavours to dilute its strength by infusions from the rival system.

The rule with regard to the liabilities of executors on the personal contracts of their deceased rested in 1863 on two dicta in Hyde v. The Dean of Windsor,3 and Marshall v. Broadhurst, neither of which was necessary in the slightest degree to the actual decisions. Moreover, the existence of one anomaly, if indeed it existed, seems no good reason for the introduction of another, of far greater extent and effect.

The rule in contracts of sale is nothing but a logical application of the principle, firmly rooted in other branches of the Common Law, that the loss lies where it falls. The property in the chattels having, ex hypothesi, passed to the purchaser, the loss of those chattels would naturally be upon the owner.

The law of bailments which lies under the suspicion of being a violent wrenching of the Common. Law to make it conform to the subtle refinements of the Civil Law, ought not, as has been submitted above, to be applied to the construction of express written or oral promises.

3 Cro. Eliz. 552, 553.

41 Tyr. 348, 349.

The purity of the simple principles of the Common Law had been signally maintained only four years before the decision in Taylor v. Caldwell.

In Hall v. Wright, the Queen's Bench and the Exchequer Chamber had had to consider the principles applicable to a contract of marriage which could not be consummated without danger to the life of one of the parties, where such danger arose from a state of bodily health caused by inevitable misfortune, and which had therefore become impossible of performance in the sense that an attempted performance would lead to the death of the party in default.

By a

majority, the Court of Exchequer Chamber held that such an impossibility afforded no answer to an action for breach of the contract.

The refinement of reading a promise, in terms unconditional, as subject to an implied condition, is dealt with in few words by no less a master of the Common Law than Willes, J.:

"The contract in this case is stated by the plaintiff in the declaration, and admitted by the defendant in his plea, to have been in terms an unconditional one; and it is guesswork, not construction, to read it as conditional."

Martin, B., after stating the rule laid down in Paradine v. Jane, continues:

"I think it very much better to adhere to the rule than to create an arbitrary exception for which, no doubt, plausible reasons may be given. To admit exceptions of this kind utterly destroys the certainty of the law, and in my opinion is inconvenient."

Throughout the judgments runs the same plain reasoning to the effect that if a man promises, he can always perform his promise or pay damages for fail

ure to

be so.

Perform, and that the latter performance is absolutely impossible, however relatively it may

by reason of the non-existence of the subject-matter Moreover, the case of impossibility of performance

5 (1859) E. & E. 746.

Aleyn. 26.

of the contract had already twice come before the Exchequer Court in years recent when Taylor v. Caldwell was decided; and on both occasions the impossibility of performance was held to be no answer to the plaintiff's complaint.

In Hills v. Sughrue, the owner of a ship had agreed to bring to Falmouth a cargo of guano to be loaded at the island of Ichaboe: in fact, no guano was to be found there. The shipowner was held to be not absolved from his positive obligation to procure and bring back a cargo of guano. Parke, B., says:

"If the parties meant to refer to any unforeseen cause which might have prevented the loading of a cargo, they would have said so; but they have not .. if the defendant do not perform his positive contract, by loading a cargo, he is to be answerable in damages. . it is a positive obligation to procure and load a cargo."

Again in The Marquis of Bute v. Thompson, there was an absolute covenant by a lessee to raise a certain quantity of coals in each year, and it was held to be no answer that no coals were to be got. Pollock, C.B., says:

"It appears to us to be a stipulation on the part of the defendants that they would work and get that quantity (of coals), and that if they did not get it, they would pay a fixed rent to the landlord; and we cannot import into that covenant a condition that there should be coals to that extent."

In both cases "plausible reasons might have been given" for the implication that the parties only contracted on the basis that in the one case guano, in the other coal, should be forthcoming in the appropriate quantities. But the implication of such a condition would have "destroyed the certainty of the law." Victoria, B.C. E. C. MAYERS.

7 (1846) 15 M. & W. 253.

8 (1844) 13 M. & W. 487.

(To be continued.)

THE ART OF CROSS-EXAMINATION.

It is not the purpose of this article to speak of the rules governing the cross-examination of witnesses, but rather the method and subject of such examination. It is thought that there are fewer lawyers who are really successful and proficient in the cross-examination of witnesses than in any other branch of the practice of law. An experience extending over a good many years has led me to believe that many attorneys who are excellent in the drawing of pleadings, and who are fairly capable in the conduct of the examination in chief, are flat failures when it comes to cross-examination.

The following statement is credited to Ex-Governor Davis of St. Paul: "I have seen more good cases ruined by cross-examination by the lawyer who ought to have suppressed his curiosity or vanity than by any other one cause."

There are various reasons for this. I have seen many lawyers cross-examine a witness, often at considerable length, when there was nothing in the examination in chief which called for a cross-examination at all, and when the cross-examination brought out absolutely nothing for the benefit of the party on whose behalf it purported to be made. These lawyers seem to suppose that their credit is concerned in getting up some kind of a cross-examination, and look upon a witness leaving the stand without it as an opWould attribute it to a lack of skill or knowledge on portunity lost, and apparently feeling that their clients their part if the cross-examination did not take place. So they put question after question which does not in any way concern the issue and often does more harm than good. I once heard a very prominent counsel in this province cross-examine a witness at considerable length, and when the examination was over he came directly to me, as I was sitting at the lawyers' table,

and said,

"I don't think that examination helped us