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Although it may not be probable that any particular man may have an unusually thin skull or a weak heart, nevertheless it is a fact which is easily foreseeable. A man who strikes another ought to foresee that his victim may be suffering from some weakness. We all know that the average man in the street is not necessarily the average man.

It is therefore submitted that there are three questions in every case of negligence:

(a) What consequences resulted from the defendant's act?

(b) Was the defendant under a duty to avoid by reasonable care the consequences which resulted from his act?

(c) Did he use reasonable care to avoid them? Whether he did use reasonable care would depend, inter alia, upon whether a reasonable man placed in his position would have foreseen them as possible. NOTE I.

It is interesting to note that the judgments in the Polemis case1 go further than do the famous articles Legal Cause in Actions of Tort by Judge Jeremiah Smith, which appeared in the Harvard Law Review.2 He said3:

A probability that some harm may happen, not necessarily the specific harm which did actually result, is legally essential to raise a duty of care and thus establish the existence of negligence. But, if negligence is thus made out, such probability is not a legal requisite to establish the existence of causal relation between defendant's negligent conduct and plaintiff's damage.

This is qualified by the following words:

He [the defendant] need only foresee that some injury of a like general character is not unlikely to result from failure to use care.

1 [1921] 3 K.B. 560.

2 25 H.L.R. 103, 223, 303. Reprinted in Selected Essays on the Law

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How Judge Smith reconciles these two propositions it is difficult to see. Either the person guilty of "negligent conduct" ought to be held responsible for all the consequences of his conduct, or only for those consequences which he should have foreseen and avoided. There seems to be no logical reason for limiting the responsibility to injuries "of a like general character."


In Hambrook v. Stokes Bros.,1 Sargant, L.J. said: In re Polemis and Furness, Withy & Co.' dealt with a case in which there was a duty by contract between the plaintiff and the defendant, while here we have to determine, in the absence of contract, what is the extent of the duty of the defendant, and whether the plaintiff's wife fell within the area of the duty as so defined.

It is submitted that the rule in the Polemis case cannot be limited to duties by contract. The fact that there was a contract in that case does not affect the ratio decidendi which does not distinguish between contract and tort. The case of Smith v. L. & S.W. Ry. Co.,3 quoted with approval in the Polemis case, is one of pure tort.

1 [1925] 1 K.B. 141, 164.

[1921] 3 K.B. 560.

3 (1870) L.R. 6 C.P. 14.

The Origin and Historical Development of the Profession of Notaries Public in England



THE origin of the notarial profession in England is shrouded in obscurity, and the materials from which its history has to be reconstructed are so scanty and unreliable, that much of it must of necessity rest on conjecture rather than on any definite documentary evidence. The continental notaries can trace their descent in an unbroken line from the "tabelliones' of the Western Empire, but in England an organised body of notarial practitioners did not come into existence until late in the middle ages.1 Owing to this and other causes, the growth of the profession under the régime of the Common Law has been distinct from its development in countries subject to the Civil Law; and it has thus come about that the English Notary Public occupies a very different position from that of his professional colleagues in Scotland and on the Continent of Europe. In theory he is an officer of the Ecclesiastical Courts, but in reality he is, at the present day, a non-forensic legal practitioner, almost entirely concerned in matters relating to international intercourse, chiefly of a commercial nature. The manner in which this came about constitutes a curious and more or less

1 Holdsworth: History of English Law, Vol. V., p. 115. The early history of the Notarial Profession on the continent is outlined in Brooke's Notary. A somewhat fuller account will be found in Ars Notariatus, a handbook for Scottish Notaries published in the 18th century. The matter is dealt with at length in Michot, Origines du Notariat.

unexplored episode in the history of the development of the legal profession in England. Its true significance can only be grasped by emphasising the fact that the English notary is not in the real sense a descendant of the "tabellio"; that he owes his existence very largely to political, and, more especially to commercial, exigencies; and that it was only with very great difficulty that he was able to consolidate his position and to avoid the danger of extinction owing to the competition of numerous and powerful rivals.

The history of the English notaries falls into three periods. The first, which extended approximately to the end of the 13th century, is relatively unimportant. The profession was at this time nonexistent in England, though isolated instances are to be found of notaries carrying on a practice of a somewhat desultory kind. These notaries were not recognised by the law of England, but were officers of the Canon or Civil Law, deriving such authority as they possessed from some foreign source. The second period, which ends with the Reformation, saw the establishment of a body of English notaries independent of foreign control, and also witnessed the exclusion of foreign notaries from practice in England. In the third period, which concludes with the decision of the Court in the case of Harrison v. Smith1, we are concerned with the story of the bitter struggle between the various non-forensic branches of the legal profession, culminating in the triumph of the attorneys and solicitors over their rivals, the scriveners and the notaries.2

1 (1760). A full transcript of the proceedings and judgment in this case is contained in Freshfield: Records of the Society of Gentlemen Practisers.

In order to avoid complication it is thought well to refrain from dealing with the history of the Ecclesiastical Notaries. The two branches of the profession are quite distinct, and have always been so ever since the establishment of an organised body of Notaries Public in England. The Ecclesiastical Notary is an officer of the Courts of the Church, and can hardly be described as a legal practitioner.

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