Page:Harvard Law Review Volume 10.djvu/528

502 502 HARVARD LAW REVIEIV. the plaintiff has rescued the defendant's property from destruction without request (the defendant being quite ignorant of the dan- ger), but expecting nevertheless to be compensated for his ser- vices.^ Having no principle of justice, the author can only say that it seems to him unjust that the defendant should not pay for the benefit received, and in fact that is all that he does say. He does, it is true, argue that the preservation of property is bene- ficial to the public as well as to the owner, and that therefore the public interest should weigh in the plaintiff's favor ; but he de- stroys his own argument by admitting that, if the plaintiff expected no compensation at the time of rendering the service, when the pubhc interest would have been just as great as if he had expected compensation, the plaintiff should not succeed. His position, there- fore, resolves itself into a mere statement that it is unjust that the defendant should not pay the plaintiff, and he has no valid argu- ment to meet the counter proposition. It is worthy of remark that in this particular instance he admits that the weight of authority is against him.^ The absence of definition renders it impossible to construct such a notion of his theory as will render criticism of it either profitable in itself or free from the charge of not accurately repre- senting him. The utmost that can be done is to consider some of his specific instances. The first to be considered will be a case in which, agreeing with the learned author that there is injustice, I should find it in a breach of obligation. A second will be a case in which I can find no injustice, because there is no breach of obligation, although the learned author holds otherwise. These two will suffice to define the difference of view. I. In Exall V. Partridge,^ the facts were these. It was at that time the law of England that a landlord to whom rent was in arrear might enter upon the premises, and seize by judicial process and in satisfaction of the rent due whatever property might be found there, whether it belonged to the tenant or to somebody else. The defendants, of whom there were three, had all been originally tenants of one Welch, but two of them had assigned their interest to the defendant Partridge, without however procuring from their landlord Welch any release of their liability to him. They were thus under a legal obligation to the landlord to pay the rent ; but as between themselves and Partridge they had no interest in the 1 Page 354 et seq. 2 Page 354. « 8 T. R. 308.