Page:Harvard Law Review Volume 10.djvu/530

504 504 HARVARD LAW REVIEW, The plaintiff's carriage was on the premises without the request of the defendants other than Partridge. They therefore owed him no duty of a consensual nature, and they committed no tort against him. Consequently the doctrine of restitution has no application to them. I can discover no obligation of any character which they owed to the plaintiff, and which they failed to perform, and therefore I can see no reason for a recovery on any theory. The learned author, however, would sustain the recovery upon the principle that the plaintiff had paid the money under com- pulsion, and was not therefore what he calls an " officious volun- teer." 1 He does not define the meaning of officious, but apparently he regards it as a valid principle of law that, when the plaintiff has rendered the defendant a service, and in rendering it was not offi- cious, the plaintiff can recover its value.^ His cases which he (decides according to the principle of officiousness hardly help to ^n understanding. For example, according to him, a plaintiff who saves the defendant's property from destruction without expecta- tion of compensation is officious, and cannot recover, while if he had expected compensation he would not be officious and could re- cover.^ I submit that such a distinction in no wise accords with the common notion of officicusness. Apart from any such verbal criticism, however, without an explanation the word lends no assist- ance to the decision of the question. To prove, that one who is officious cannot recover is by no means to prove that one who is not officious can recover. So to argue is to commit the fallacy of un- distributed middle. It was therefore, at the very least, incumbent upon the author to establish that, by precedent at any rate, the doctrine of unofficious volunteers is an admitted principle of our jurisprudence. This he has failed even to attempt, and it is at least questionable if such be the fact. Finally, the learned author has hardly shown the plaintiff to be unofficious. The plaintiff put his carriage upon the premises knowing its liability to seizure, and, so far as these defendants were concerned, without request. He was quite as officious therefore in assuming that risk voluntarily as he would have been in voluntarily paying the rent itself without request and without the seizure. Having officiously put himself in a position of danger, he cannot afterward say that he was unoffi- cious in paying the penalty. I submit, therefore, that the learned author has given no sufficient argument in support of his proposi- 1 Page 391. 2 Page 350. « Pagg 354.