Lawyer and Clerk.
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a man knows he is hurt, but the law does not. The common-law maxim, " A smart feels better when it quits hurting," applies to cases of damnum absque injuria. The application of this profound maxim of Justinian, wisely transplanted into the common law, and of the damnum with the que part left off, is the only remedy the injured party has in damnum absque injuria cases. When a man runs against another's open gate and is hurt, it is damnum absque injuria, because, the court said in a leading case, the gate was made to open and it had not travelled out of its usual path of duty, although the plaintiff was within his. a "Waste" is where a tenant for life, or a. term of years, injures the reversion by cutting off timber. It is the same if he snatch it off unlawfully as in this case. It was held not to be waste in a leading English case, where the stump was taken off unskilfully by a surgeon, although the court said that it would have been had he unskilfully removed the wooden leg. This case rested chiefly upon the maxim de minimis lex non curat, because, although the law takes care of the tree, it cannot undertake to look after the stumps. 4 " Leg-bote." The tenant, at common law, was allowed to commit waste, or use certain timber for certain purposes, which was thus called " fire-bote," " plough-bote," etc. Some curious distinctions were made at common law. Thus the right of leg-bail belonged to every Briton but him who had lost a leg. In " Fleta " it is said that no one-legged man can have leg bail at common law, because it can avail him nothing and the common law is guilty of no absurdities. Blackstone re-states this as the law. But the tenant was allowed "leg-bote," and the vassal who had lost a leg in his lord's service was entitled to use timber for wooden legs, and the right of leg-bail appertained to wooden-legged persons. 8 " Rep-leg-iando." The writ de homine replegiando was used instead of habeas corpus in certain cases. • " Capias in withernam " was issued in certain cases to fetch in one who unlawfully detained another. It was used instead of habeas corpus. They had more writs in those days than the Romans had gods. They searched the land like a fine-toothed comb. ' " Fi. fa." Short forfierifacias, or fiery-fetch-it, a writ of execution at common law. 8 " Ca. sa.," common-law writ of capias ad satisfaciendum, by which the person of the debtor could be reached. • " Severed," etc. A thing may be realty to-day, personalty to-morrow : thus growing grain is realty, and passes with the estate; severed, it becomes personalty. A wooden leg is personality when attached and walking off; when detached, it becomes personalty. It is never realty. Lord Coke said that this was because the wooden legee can never realize it, can't realize on it, and can scarcely stand on it. The learned lawyer said in this connection that it is better to stand on one good hand at poker than to stand on two legs when one of them is a wooden leg. With some exceptions the principles of severance which govern in other cases have been applied, with some important exceptions, to wooden legs. In an action by the College of Surgeons against a bodysnatcher, it was held that the wooden leg did not pass with the remainder of the body, although it was detached by the defendant before delivery of the body. When a man broke another's wooden leg breaking a man's head with it, held not to be waste, although he snatched it from the stump, but a personal injury. The decision was affirmed in the House of Lords. The Lord Chancellor said that the British law is so jealous of the rights of persons that it cannot even con sider a wooden leg as subject to the laws of property. See authorities on Waste and Feme on Contingent Remainders in the chapter on the remainder-man. As to whether wooden legs are a part of the person, personal property, or mixed in character, the American authorities are in a state of hopeless conflict. This subject, along with that of divorces, seems to call for national legislation. In an action growing out of a Chicago divorce suit, the court held that a woman who had married a man with a wooden leg was not lawfully divorced, because the decree failed to divorce her from the wooden leg as well as from the rest of the man. In a well considered case the Supreme Court of Illinois, reviewing the authorities, overruled the former case, although, out of abundant caution, the court allowed a decree nunc pro tunc to be entered, granting an absolute divorce. In a recent North Carolina case a man who chopped off another's wooden leg was held guilty of mayhem, and the Supreme Court of Arkansas unanimously held a man who had kicked another upon the wooden shin guilty of assault and battery. In a case under a statute of Connecticut, which allows the heirs to sue for injuries to the person of a deceased ancestor, the court was doubtful whether a right of action could descend through a wooden leg on account of a failure of heritable blood. The injury in that case occurred in the winter, when the sap was down. The cause was dismissed; but afterwards an action of trespass quare clausum fregit was maintained
