My justification for accepting an invitation to write some pages in this Journal on the life and work of Percy Winfield is our friendship and our close association in the Cambridge Law School during almost the whole of his career. I do not feel competent to appraise his contributions to the law, and I am glad that I have succeeded in persuading Mr. P. A. Landon, Fellow of Trinity College, Oxford, to undertake this task.

Anyone who studies side by side the Roman law of furtum and the English law of larceny must be struck by the fact that, whereas Roman thieves and English thieves behave much alike, Roman lawyers in discussing theft usually assume that a civil action is being brought, for money damages, but English lawyers are mainly concerned with criminal prosecution, leading to a fine, or imprisonment, or, in former times, to the gallows.

In the second part of his decision in Re Forsey and Hollebone's Contract Eve J. held that, as a consequence of the statutory notice effected by section 198 of the Law of Property Act, 1925, (i) a purchaser of land was not entitled to object to incumbrances registered at the date of the contract; and (ii) that this was true even where the contract expressly provided that the sale should be free from incumbrances.

It is submitted that both conclusions are erroneous as well as inconvenient.

The objection to conclusion (i) is that a purchaser is bound to accept incumbrances only if he has waived objection to them, and he cannot be said to show an intention to waive by acts done when the necessary knowledge was not actually in his mind; and, furthermore, section 198 is a provision about the doctrine of notice and should be confined to that subject—it has nothing to do with the construction of a contract or of acts of the parties.

The objection to conclusion (ii) is a fortiori, since the purchaser has expressly protected himself against incumbrances. To say that this right depends on the vendor's inability to give oral evidence of a waiver is incorrect: the right arises ex vi contractus, and the effect of the special stipulation about incumbrances is to rebut any allegation that the purchaser waived his right by entering into the contract with knowledge of an incumbrance. An act of waiver can always be proved by oral evidence, and its effect is a question of intention. If there is no question of waiver, there is nothing relevant which the vendor can prove by any evidence of any kind, either written or oral.

This article will tell some elementary stories about the history of contract and tort. Its purpose is primarily pedagogic: although the stories are largely old, they are not very clearly explained in the books, and in particular they are done something less than justice in the standard work, Mr. Fifoot's invaluable History and Sources of the Common Law. Since the present aim is to explain what the stories are, rather than to prove that they are true, their telling will be as little encumbered as possible with old cases and their technicalities. A secondary purpose is to set the stories together, and show how far they turn out to be the same story. It is doubtful whether even Ames, who first stated the most important of them, fully realised how far the point was the same in each; and since in one guise or another it is the point of much legal history it deserves more emphasis than it has had. Finally, since Professor Plucknett freed us from the sterile delusion that case was somehow “like” trespass, there has grown up a new background of ideas in which the old stories must be set afresh.

Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.