Editorial Committee of the Cambridge Law Journal

The Common Law in India by M. C. SetalvadReview by: R. N. GoodersonThe Cambridge Law Journal, Vol. 20, No. 1 (Apr., 1962), pp. 105-107Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504777 .

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C.L.J. C.L.J. Book Reviews Book Reviews 105 105

Master and Servant, etc., are similarly dealt svith. PartIII, entitled Consequential Matters, covers Damages Generally, Remoteness of Damage, Joint Tortfeasors and Third Parties, Practice, Evidence and Costs. The Index (31 pp.-two columns per page) is a master- piece. Apart from what may be called conventional indexing, such as Animals, Children, Common Law, Master and Servant, Negli- gence and Statutory Duty, which are all logically broken down or subsclassified, the index specifies the things or objects with which the cases are concerned. Some random examples are, Ampoule, Cracked; Barrier Cream Efficacy Doubted; Cashier Throwing Money; Coffin Breaking Open; Cricket Ball; Dry Rot; Embalm- ing; Goggles; Lavatory-climbing out of, lookixIg for in darkness; Loan of Car; Married Gear; Refusal to Undergo Treatment; Spats; Tyre Burst; Vomit; and Zebra Crossing. Every known situation involving negllgence can be-traced with the minimum of time and effort; there is no better or speedier reference work.

The author, in his Preface p. riii, probably has in mind the dictum of Lord Somervell in Qualcast (Wolvethampton) Ltd. s. Haynes [1959] A.C. at p. 758 that " if decisions on que6tions of fact are to be treated as law and citable, the precedent system 11 die from a surfeit of authorities," when he states that a decision on one set of facts can hardly ever be put forward as a reliable guide to the prospects of a similar claim. He adds, " but nevertheless those whose duty it is to assess the prospects and probable value of a claim at any stage in its progress have to do so on the best material which is available to them, and in practice this must usually consist of the knowledge and experience possessed by the person concerned of the trend of recent judicial decisions on 8imilar facts." The book has already proved satisfactory to the author and others who have used it, and doubtless will be a boon to practitioners dealing with personal iniury claims.

T. RI.T.TS LEWIB.

The Common LQW in India. BY M. C. SETALVAD, Padma Vibhufas, Attorney-General of India. [London: Stevens & Son8, Ltd. 1960. viii and 227 pp. 21s. net.]

T]IIB book, embodying the Hamlyn Lectures delivered in Lincoln's Inn in 1960, is a fascinating study of the reception into India of English law by virtue of the great codes of the nineteenth century, coupled with judicial decisions of the Privy Council and of Indiswn courts in the performance of their duty to apply the principles of iustice, eqwty and good conscience. This little book covers a very wide field, and the subject retains its great practical importance, despite the attainment of independence and the abolition of appeals to the Privy Council, since Indian courts from the new Supreme Court downwards continue to treat decisions of the Priery Council

Master and Servant, etc., are similarly dealt svith. PartIII, entitled Consequential Matters, covers Damages Generally, Remoteness of Damage, Joint Tortfeasors and Third Parties, Practice, Evidence and Costs. The Index (31 pp.-two columns per page) is a master- piece. Apart from what may be called conventional indexing, such as Animals, Children, Common Law, Master and Servant, Negli- gence and Statutory Duty, which are all logically broken down or subsclassified, the index specifies the things or objects with which the cases are concerned. Some random examples are, Ampoule, Cracked; Barrier Cream Efficacy Doubted; Cashier Throwing Money; Coffin Breaking Open; Cricket Ball; Dry Rot; Embalm- ing; Goggles; Lavatory-climbing out of, lookixIg for in darkness; Loan of Car; Married Gear; Refusal to Undergo Treatment; Spats; Tyre Burst; Vomit; and Zebra Crossing. Every known situation involving negllgence can be-traced with the minimum of time and effort; there is no better or speedier reference work.

The author, in his Preface p. riii, probably has in mind the dictum of Lord Somervell in Qualcast (Wolvethampton) Ltd. s. Haynes [1959] A.C. at p. 758 that " if decisions on que6tions of fact are to be treated as law and citable, the precedent system 11 die from a surfeit of authorities," when he states that a decision on one set of facts can hardly ever be put forward as a reliable guide to the prospects of a similar claim. He adds, " but nevertheless those whose duty it is to assess the prospects and probable value of a claim at any stage in its progress have to do so on the best material which is available to them, and in practice this must usually consist of the knowledge and experience possessed by the person concerned of the trend of recent judicial decisions on 8imilar facts." The book has already proved satisfactory to the author and others who have used it, and doubtless will be a boon to practitioners dealing with personal iniury claims.

T. RI.T.TS LEWIB.

The Common LQW in India. BY M. C. SETALVAD, Padma Vibhufas, Attorney-General of India. [London: Stevens & Son8, Ltd. 1960. viii and 227 pp. 21s. net.]

T]IIB book, embodying the Hamlyn Lectures delivered in Lincoln's Inn in 1960, is a fascinating study of the reception into India of English law by virtue of the great codes of the nineteenth century, coupled with judicial decisions of the Privy Council and of Indiswn courts in the performance of their duty to apply the principles of iustice, eqwty and good conscience. This little book covers a very wide field, and the subject retains its great practical importance, despite the attainment of independence and the abolition of appeals to the Privy Council, since Indian courts from the new Supreme Court downwards continue to treat decisions of the Priery Council

This content downloaded from 62.122.79.78 on Thu, 12 Jun 2014 16:10:57 PMAll use subject to JSTOR Terms and Conditions

lOB The Cambridge Law Journal [1962]

and of English courts uvith flatteriIlg respect, as the leatned author testifies, and anyone familiar with modern Indian case-law can conS.

The great Indian codes were often ahead of the common law, and embody improvements upon it that in some cases have ulti- mately been introduced Into English law by statute, and in others still await acceptance although many regard the changes as desir- able reforms. The fusion of law and equity, to speak of which in England today still smacks of heresy, was already an accomplished fact in India before 1878. Tl2e rules of descent upOxI intestacy for real and personal property were assimilated as early as 1865 by the Indian Succession Act. The Statute of Frauds was never applied in India. The difference between felonies and misdemeanours was not taken over. The Indian Courts refused to accept the doctrine of common employment. It is perhaps ungrateful to advert to omissions when the learned author has given so plenteously of the fruits of his learning, but brief mention could well be made of the main differences in the law of endence in the two countries: the inadmissibility of confessions to the police, unless something is discovered as a result, the prohi- bition of cross-examination of tlle accused, the extension of dying declarations to all cases, cinl as well as criminal, and the admissi- bility of self-corroborative statements. In criminal law, there might be reference to the fact that swdultery and trespass are criminal in India, that there is no such crime as larceny by a trick, and that the uncertainty of what amounts to grievous bodily harm is replaced by a precise definition of grievous hurt. In criminal procedure, it should be mentioned that irl India the government may appeal against an acquittal, and in contract that sgreements between master and serarant restricting the actinties of a servant after the termination of his employment are void however reasonable they may be.

As to Indian law, it could be explained at p. 57, for the sake of clarity, that in India a persoll who has agreed to buy land has no interest in the property legal or equitable until conveyance. In the passage orl frustration (8S87), it could be made clearer that the burning question in India is whether an agreement can be regarded as impossible of performance when there has been a change of circumstances, such as that in Krell v. Henry [1903] 2 K.B. 740. The passages at pp. 55 and 86 regarding Tweddle v. Atkinson (1861) 1 B. & S. 393 are contradictory. It is first suggested that Tweddle does not apply in India, but later that the Law Commis- sion of India has proposed modification of the doctrine that a party to the contract alone can sue to enforce it. The answer is of course that there is iIs Illdia a conflict of judicial opinion on the subJect: see para. 15, 18th Report of the Commission (1958). There are mistakes and misunderstandings of English criminal

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C.L.J. C.L.J. Book Reviews Book Reviews 107

law. It is not appreciated that in England, just as in Indias lar- celly is essentially a crime against possession, however misleading the definition in the Larceny Act, 1916, may be (134). The moral wrong doctrine of mens rea is accepted too readily as the common law rule ( 138). It should be mexItioned that section 84 of the Indian Penal Code in defining the defence of insanity, i8 contrary to the English law as laid down in Windle [1952] 2 Q.B. 826 (147). Irresistible impulse was never a defence in English law: Kopsch (1925) 19 Cr.App.R. 50 (154). Provocation is no defence to inten- tional homicide: Holmes [1946] A.C. 588 (ibid.). Words could be sufficient prosocation even at common law: Owen ( 1950) The Times, January 18; and this is made statutory by section 4, Homi- cide Act, 1957 (155). The distinction between principals and accessories is found only in misdemeanours (156). An agreement to stifle a proseclltion is illegal: Williams v. Bayley (1866) L.R. 1 H.L. 200 (165). The case referred to at p. 160 n. 18 is not Cross but Taylor.

The quotation from Maine suggesting that it is as much by accident as by design that EnglisbX principles have found favour in India does less than justice to the Indian judges who have con- structed a jurisprudence of which modern India may rightly be proud (62). The interpretation of " personal liberty " protected by the Indian Constitution is based upon the words of Lord Wright in Liversidge v. Anderson [1942] A.C. 206, 260 (210). This is regrettable, as this decision is generally regarded in England as representing the negation of liberty, and as excusable only as a wartime decision. The author's explanation for t}}e wider delega- tion by the Indian legislature in the striving for the goal of a social welfare state (191) is somewhat naive: the.re is iTnrnigration to BritaiIl not least from India because our ideal is the same. In fact in many spheres the ideals are the same in the two states and in the two laws. In Britain the author's dislike of " preventive deten- tion " would be shared (218). We endorse his opinion that Indian law IS now something more than Westers, and that while the evolu- tion of Indian law has been largely influenced by English law, the time is not far distant when we shall be recognising Indian contri- butions to legal thought and principles.

R. N. GOODERSON.

The Tudor Constitution. lvocuments and Commentary. BY G. R. ELTON. [Cambridge Unsversity Press. 1960. xvi and 496 PP. 52S. 6d. Bet.]

THI8 book is a most vswluable collection of documents wvith an excellent commentary for all who have occasion to study the Tudor constitution. Dr. Tanner's admirable book, which has served so well a generation of sixteenth-century historians, W8S inevitably in

107 law. It is not appreciated that in England, just as in Indias lar- celly is essentially a crime against possession, however misleading the definition in the Larceny Act, 1916, may be (134). The moral wrong doctrine of mens rea is accepted too readily as the common law rule ( 138). It should be mexItioned that section 84 of the Indian Penal Code in defining the defence of insanity, i8 contrary to the English law as laid down in Windle [1952] 2 Q.B. 826 (147). Irresistible impulse was never a defence in English law: Kopsch (1925) 19 Cr.App.R. 50 (154). Provocation is no defence to inten- tional homicide: Holmes [1946] A.C. 588 (ibid.). Words could be sufficient prosocation even at common law: Owen ( 1950) The Times, January 18; and this is made statutory by section 4, Homi- cide Act, 1957 (155). The distinction between principals and accessories is found only in misdemeanours (156). An agreement to stifle a proseclltion is illegal: Williams v. Bayley (1866) L.R. 1 H.L. 200 (165). The case referred to at p. 160 n. 18 is not Cross but Taylor.

The quotation from Maine suggesting that it is as much by accident as by design that EnglisbX principles have found favour in India does less than justice to the Indian judges who have con- structed a jurisprudence of which modern India may rightly be proud (62). The interpretation of " personal liberty " protected by the Indian Constitution is based upon the words of Lord Wright in Liversidge v. Anderson [1942] A.C. 206, 260 (210). This is regrettable, as this decision is generally regarded in England as representing the negation of liberty, and as excusable only as a wartime decision. The author's explanation for t}}e wider delega- tion by the Indian legislature in the striving for the goal of a social welfare state (191) is somewhat naive: the.re is iTnrnigration to BritaiIl not least from India because our ideal is the same. In fact in many spheres the ideals are the same in the two states and in the two laws. In Britain the author's dislike of " preventive deten- tion " would be shared (218). We endorse his opinion that Indian law IS now something more than Westers, and that while the evolu- tion of Indian law has been largely influenced by English law, the time is not far distant when we shall be recognising Indian contri- butions to legal thought and principles.

R. N. GOODERSON.

The Tudor Constitution. lvocuments and Commentary. BY G. R. ELTON. [Cambridge Unsversity Press. 1960. xvi and 496 PP. 52S. 6d. Bet.]

THI8 book is a most vswluable collection of documents wvith an excellent commentary for all who have occasion to study the Tudor constitution. Dr. Tanner's admirable book, which has served so well a generation of sixteenth-century historians, W8S inevitably in

This content downloaded from 62.122.79.78 on Thu, 12 Jun 2014 16:10:57 PMAll use subject to JSTOR Terms and Conditions