make a decree opening the accounts if sufficient cause is shown" (1 Dru. and W. 605). Now, this language was referred to as if these words "sufficient cause had not been used. It was in the showing of a sufficient cause that the difficulty in many of these cases lay. Lord Thurlow, in a case that had not been cited in argument, Welles v. Middleton, 1 Cox, 112, laid down the law in these terms. He said (p. 125), "In the case of attorneys, it is perfectly well known that an attorney cannot take a gift while the client is in his hands, nor instead of his bill; and there would be no bounds to the crushing influence of the power of an attorney who has the affairs of a man in his hands if it were not so. But once extricate him, and it may be otherwise." There it would seem that Lord Thurlow's opinion was, that an attorney could not take a sum of money from his client instead of delivering a bill of costs while the relation subsisted, but that when the client was once extricated from the pressure of that relation he might do so. That extrication from "the crushing influence," to use Lord Thurlow's language, of the relationship in which a solicitor stood to his client, might be effected in a very easy way, namely, by the intervention of third parties, who would remove the ordinary cause of the infirmity of any arrangement between the parties, and by which the client might be put in such a situation as to be able to bind himself and settle with his solicitor, and give him a gross sum instead of the delivery of the bill of costs. That was only one way by which the extrication might be effected. Per V. C. Stuart. So where the client executed in favour of the solicitor a mortgage (prepared by the latter), without the intervention of a neutral party, for securing payment of a gross sum without a bill of costs, the deed was held to be only a security for what might actually be found due.—(Morgan v. Higgins, 7 W. R. 273.)

RAPE-Definition-Girl incapable of consent.-The English Court of Criminal Appeal has adopted the Scotch and American definition of rape, in Reg. v. Fletcher, 32 L. T. Rep. 338. The prisoner was charged with having committed a rape upon one Jane Jones, a girl thirteen years of age. It appeared that she was of an intellect so weak as to be unable to distinguish right from wrong; and was, in fact, never permitted by her mother to go about by herself; indeed, the learned judge upon the trial ascertained, by himself examining the girl, that she did not possess sufficient intellect to be sworn. It appeared that the prisoner met the girl, who had left her mother's house without her knowledge, and had sexual intercourse with her; but she was not shown to have offered any resistance, though she did exclaim, whilst the prisoner was in the act, he hurt her. The Court held that the offence of rape had been committed, holding that this crime consists in having sexual intercourse with a woman without her consent, though, under the peculiar circumstances, it may not be against her will, as where she is in such a condition as not to be enabled to exercise any will upon the subject. Lord Campbell, C.J., said: “I am of opinion that the conviction must be affirmed. The case has been very ably argued. The definition of rape may now be considered as res adjudicata. The question is-What is the proper definition of the crime of rape? It is carnal knowledge of a woman against her will, or it is sufficient if it be without the consent of the prosecutrix. If it must be against her will, then the crime was not proved in this case; but, if the offence is complete where it was by force and without her consent, then the offence proved was that charged in the indictment, and the prisoner was properly convicted. Camplin's case, 1 Cox's C. C. 220, 1 Den. C. C. 89, settles the definition of the offence, and all the ten judges concurred in that. That definition includes the present case; the only difference in this case being that pointed out, that here the prosecutrix was not capable of giving consent. But then the prisoner knew her condition at the time. The law, therefore, must now be taken to be settled, and ought not to be disturbed. It would be monstrous to say that these poor females are to be subjected to such violence, without the parties inflicting it being liable to be indicted. If so, every drunken woman returning from mar

ket, and happening to fall down on the roadside, may be ravished at the will of the passers-by."

REPARATION-Negligence-Pupil.-Plaintiff, a child of five years of age, was under the charge of its grandmother, who purchased tickets for herself and the child for a journey on defendants' railway. In crossing the line, which was necessary to be done, a passing train struck the grandmother, killing her on the spot, and severely injured plaintiff. The learned judge told the jury that in such a case as this, the party injured had conduced by her own rashness to the injury in question, and that the defendants, although guilty of negligence on their part, were not liable in the action; and in answer to the question put to them, they found: first, that there was negligence in the defendants; and secondly, that there was negligence in Mrs Park, under whose care and control the plaintiff was, which had conduced to the accident in question. A verdict was eventually entered for plaintiff, with leave for defendants to move to enter it for them. The Court below held that the verdict should be entered for defendants, on the ground that the grandmother was identified with the child, so as to make her negligence the negligence of the child; and such negligence being conducive to the accident, defendants were not liable. The plaintiff now appealed. The Ex-C. affirmed the decision. Cockburn, C.J.—I am of opinion that the judgment of the Court below should be affirmed, upon the ground that, where a child of tender and imbecile years is brought to a railway station, or to any other place for the purpose of being conveyed along a railway, or otherwise, the child being unable to take care of itself, is undertaken by the company, or other person who conveys it to be conveyed, subject to the condition that the person in whose care it is will take proper care of it. If it were not so, the child, from its own natural incapacity, might get into serious danger, and so great inconvenience might arise. Here the plaintiff was a child of five years of age, and under the care of its grandmother; and the defendants, a railway company, admitted it as a passenger, and so to say, it became identified with the grandmother, and her care or negligence became the care or negligence of the child. The pleas allege, and the jury find, that the negligence of the grandmother contributed to the accident, and so no negligence is directly imputable to the defendants. (Waite v. N.E. Railway Co., 7 W. R. 311, 32 L. T. Rep. 334.)

CONTRIBUTORY-A Shareholder by Mistake.-B., a shareholder in a company, made a will, but did not dispose therein of his shares. On his death, his heir-at-law, supposing the shares to have passed to him, attended a meeting at which it was proposed to dissolve the company, and there executed a deed, which was produced by the directors, by which he bound himself to make certain payments as a shareholder. It was subsequently discovered, however, that the shares were by the deed of settlement of the company declared to be personal estate, and therefore that they had passed to the executors. Actions being brought against him upon the deed he had signed, the V. C. relieved him, and the Court of Appeal confirmed the decision as a case of mistake on both sides, and surprise on the part of the plaintiff. (Broughton v. Hutt, 32 L. T. Rep. 306.)

INSURANCE COMPANY-Limitation of Shareholders' Liability.—The Court of Appeal has confirmed the decision of Wood, V.C., that where a policy of insurance contained the usual condition, that the capital and property of the company should alone be liable to answer any claim under the policy, and that no director or shareholder should be personally liable beyond the amount of his shares, was a sufficient limitation of the liability of the shareholders to the amount unpaid on their shares, and that no call could be made for the purpose of satisfying a claim upon a policy upon a shareholder who had

paid his shares in full.-(Re Athenæum Assurance Company, 33 L. T. Rep. 3; 7 W. R. 300.)

EXECUTOR-Fluctuating Stock-Failure to realise.-A testator died in 1836, possessed of numerous railway shares, which his executor did not sell till 1840, and then at a loss. Wood, V.C., allowed to the executor certain payments in respect of such shares,-observing, that the Court was in the habit of requiring sales to be made with convenient speed, that was, with the utmost speed, but in not less than a year, within which the executor was allowed to see how he could best dispose of his testator's property. Every testator believed that his property would be realised with all convenient and reasonable speed, but an executor must have time to look about him, and must act with due consideration. Evidence was not required to show that he consulted stockbrokers and others. If the executors got beyond the year, the case assumed a different aspect. Considering, however, the immense masses of property, in the form of shares, held by testators in this country, he should be laying down a rule which would tend to prevent any one from accepting the office of executor in such cases if he were to say the executor was not to have time for that reasonable consideration which would enable him to know how to dispose of the property. It must be remembered that where, as in this case, there were so many shares, much more consideration was necessary. The Court could not hold out any encouragement to executors to speculate. It was one thing, however, to defend speculation, and another to hold that waiting so many months after the testator's death was such a degree of speculation that the executor was to be fixed with the consequences of not having sold in time. The sums in question must therefore be allowed. (Street v. Street, 33 L. T. Rep. 8, 7 W. R. 351.)

THE

JOURNAL OF JURISPRUDENCE.

THE CRIMINALITY OF IRREGULAR MARRIAGE.

OUR Scotch law of marriage has been the subject of much vehement attack, and of not less vehement defence. Opponents declare that its laxity is a scandal to a Christian community; while friends allege that this very laxity is conservative of public morality. The objections generally brought forward are based upon the ease with which marriages are celebrated, the non-requisition of many of those ceremonies which are elsewhere esteemed necessary preliminaries to so solemn a proceeding. Objectors on these grounds will have their views strengthened by the decision in H. M. Advocate v. Ballantyne. In this case the prisoner was accused, both at common law and under 1 Chas. II., c. 34, of the crime of "clandestinely, inorderly, and irregularly celebrating marriages." The case had been certified by Lord Ivory from the Glasgow Winter Circuit, and came on for trial before a full bench towards the close of last session. Various objections were taken to the relevancy; but one only was based upon other than technical grounds, namely, that the celebration of clandestine marriages is not a crime at common law. This objection, after a lengthened debate, was sustained by the whole Court; and it may not be without interest to inquire into the grounds of the judgment. Clandestine marriages being, in the indictment against Ballantyne, interpreted as meaning marriages celebrated without proclamation of banns, it is desirable to see when banns were introduced into this country, and whether the proclamation of them was ever required by our common law. It is hardly worth while investigating whether Erskine is right in his opinion, that banns originated with the fourth Lateran Council, or whether, on the other hand, they had been in use from the earliest ages of the Church. However that may have been, they were first introduced into Scotland by the canons of the Provincial Councils at Perth in 1242 and 1269, in the following terms:-"Nullus sacerdos presumat aliquas personas matrimonialiter conjungere nisi prius terna denunciatione in ecclesia publice et solempniter premissa, secundum formam concilii

VOL. III.-NO. XXXI. JULY 1859.

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generalis, ita quod qui voluerit et valuerit legitimum impedimentum opponat." The motive of the Romish Church in requiring the observance of this ceremony is abundantly obvious. It was ordained in order to secure that marriages should not take place within the forbidden degrees without the permission of the Church. Why the Reformed Church preserved the practice is not so clear; but that it did so, is quite certain. Banns are enjoined by the First Book of Discipline, by the Directory for Public Worship, and by a series of Acts of Assembly extending from 1565 to 1784.

In 1661, however, the statute law took the matter up. By 1 Chas. II., c. 34, it is enacted, that the parties contractors of an irregular and clandestine marriage shall be subject to fine and imprisonment, and that the celebrator shall be banished forth of Scotland, never to return upon pain of death. By 1698, c. 6, it is further enacted that, besides the above penalties, the celebrator of such marriages shall be subject to further punishment "by pecunial or corporal pains," as the Lords of the Privy Council shall think fit to inflict. The subsequent statutes of 10 Anne, c. 7, and 4 and 5 Will. IV., c. 28, merely extend the privilege of celebrating marriage to Episcopalian clergy and to Dissenters respectively; leaving the sanction by which the proclamation of banns is enforced the same as before. Such being the state of matters, the point comes to lie very much in the following question :-Can we find any good grounds for concluding that, prior to the statute of 1661, the non-proclamation of banns would have been regarded as an offence at common law? Probabilities would seem to lead us to a negative answer. And this mainly for two reasons.

In the first place, the punishments which attended the neglect of this ceremonial were purely ecclesiastical. In the times of the Romish Church we have it laid down, " Clandestina quoque matrimonia fieri prohibemus, inhibentes ne quis sacerdos talibus interesse presumat; et qui contra hæc fecerit, canonice puniatur."-Can. 65. And the nature of the said canonical punishment is set forth in one of the canons in the Lambeth MSS. :"Si quis vero sacerdos proprii honoris immemor, statuti contrarium facere presumpserit, non solum per triennium ab officio sit suspensus ipso facto, sine spe gratiæ, verum etiam totius suæ promotionis spem omittat, nisi per nos secum fuerit misericorditer dispensatum." The Reformed Church treated this offence in the same spirit. In 1567, Mr Patrick Craig of Ratho was suspended from his office for this offence (The Booke of the Universall Kirk of Scotland, vol. i., p. 114). In 1587, a Mr William Chillane was deposed for marrying, "without banns and privately,

1 A body of Scottish ecclesiastical law discovered by Cosmo Innes, Esq., in the library of the Archbishop of Canterbury, probably the Canons of the Diocesan Synod of St Andrews. They will, we understand, be included in a new edition of the "Statuta Ecclesiæ Scoticanæ," shortly to be published.

2 A Collection of the Acts and Resolutions of the General Assemblies of the Scotch Kirk. Published by the Bannatyne Club. 1839.