The case of Sinclair v. Brougham has been generally regarded as an authority of first-rate importance. I think it has been properly so regarded, though my reasons for so thinking may not altogether agree with the reasons emphasized by some lawyers. I regard the case as primarily significant as embodying the leading principles on which the Court acts in exercising its equitable jurisdiction to give relief in order to prevent unjust enrichment, or to achieve restitution, if we accept the useful term which has been employed in the recently published American Restatement of the Law of Restitution. The word itself is only an echo of language which will be found in English judgments, indeed, in this very case of Sinclair v. Brougham. The case shows how the Court can do justice by applying equitable principles where the Common Law would have been powerless. But since every Court is now bound in the same proceeding to apply either law or equity or both as the circumstances may require, the distinction between law and equity is now only important in the sense that the differences of method and rules must be observed. In the case we are considering a company had borrowed money for purposes for which it was ultra vires for it to borrow. There could in law be no claim for money lent and no claim in law for the repayment on the ground of quasi-contract or, to use the now obsolete phrase, contract ‘implied in law’, because to allow such a claim as a merely money claim would be to sanction an evasion of the public policy forbidding ultra vires borrowing by companies. Further, as the money lent or its products could not be identified in the company's possessions, a claim in law could not be maintained. But the powers of the Court were not exhausted. The problem was further complicated by the conflicting claims of the shareholders.

There are differences between the law of Scotland and the law of England on Defamation which cannot readily be accounted for by any differences in the sources of the two systems. In some chapters of jurisprudence Scots law has derived from the Civil law or the Canon law characteristics which distinguish it from English law. But Scotland has not made substantially larger draughts on these special sources than has England in forming the principles of its law of defamation. Nor can it be said that Stair, who contributed so much to the formation of Scots law, made any marked contribution here. In the one brief passage (Inst. I, ix, 4) in which he treats of defamation he leaves it to be supposed that the law of Scotland, so far as claims for damages for defamation are concerned, and apart from minor differences of procedure, is identical with the law of England. ‘Such actions’, he says, ‘upon injurious words, as they relate to damage in means, are frequent and curious among the English, but with us there is little of it accustomed to be pursued, though we own the same, grounds, and would proceed to the same effects with them, if questioned.’ It sometimes happens that differences between Scots law and English law are to be explained by differences in the history of the Courts and of jurisdiction in the two countries. But this explanation is at first sight of little avail in the chapter of defamation, and some at least of the distinctive differences which will be described must be referred to other causes.

According to the general principles of the common law, no man is bound by a contract to which he was not a party. It is true that the personal representatives of a deceased person may be liable upon his contracts after his death, and that covenants contained in a lease may bind assigns of the lease or reversion; but the common law admits no other importanta exceptions to the general rule. Equity, however, evolved an exception of great importance. The decision in Tulk v. Moxhay shows that a negative covenant restricting the user of the covenantor's land may be enforced by injunction against his successors in title; and, when this occurs, the burden of the restrictive covenant ‘ runs with ’ (i.e. is attached to) the land in equity.

Juries are divided into juries of presentment and juries of issue; this paper is concerned with the latter kind, commonly called trial juries. Modern writers are singularly chary of committing themselves to any opinion about juries. The eulogies of Blackstone are definitely unfashionable. The current opinion is perhaps on these lines: jury trial in civil cases is sometimes satisfactory and sometimes most unsatisfactory, and hence the restriction of jury trial has been a wise development; however, there is much to be said for jury trial in criminal cases and (in the past, at least) in cases where the liberty of the subject is concerned. If juries have in the past protected persons against political oppression, and if the conditions under which they did so are still existing or reasonably possible, then we have a point of such importance that it should receive priority in discussion.

Everybody knows how Rabelais dumbfounded, ere they had yet found time to speak out, those unruly spirits who would not trust his account of the miraculous nativity of the horrific Gargantua. Pourquoy ne le croiriez vous? he exclaimed. Pour ce, dictes vous, qu'il n'y a nulle apparence. Je vous dicz que pour ceste seule cause vous le debvez croire en foy parfaicte. Car les Sorbonistes disent que foy est argument des choses de nulle apparence. Fortunately enough, modern interpolationists have not yet made use of this argument. And it is still possible, there-fore, to put in a word for some good classical texts and concepts which we are asked to regard as the miraculous offspring of the horrific Tribonian.

In what are generally known as ‘running-down’ cases, that is to say, actions of negligence by pedestrians against motorists who have caused them injuries, the pedestrian, like every other plaintiff, has to discharge the burden of showing that the accident was due to the negligence of the motorist. This burden is made heavier by the fact that in most cases the pedestrian will have been disabled at the time of the accident from observing accurately the exact circumstances of the case and from enlisting the support of eye-witnesses. This latter disadvantage is a very real one if one takes into consideration the extraordinary reluctance of the average citizen to come forward and testify voluntarily in legal proceedings. The appalling wastage of human life and the suffering caused by road accidents in recent years is reflected in the anxiety of legislators to devise regulations for the protection and safeguarding of all road-users, and pedestrians in particular. The time is apt, therefore, to consider once again the desirability of altering in this class of cases the common law burden of proof of negligence.