harshly on that class of borrowers, or would-be borrowers, who have nothing in the way of available security to offer but personal chattels, whether trade or domestic, the actual possession of which would in most instances only be surrendered as a dernier ressort. This hardship, whatever be its extent, is one the remedy for which, as it appears to us, must be sought from the Legislature rather than from the Judges. We are disinclined to believe that the unanimous decisions of the Courts of Queen's Bench in Badger v. Shair, of the Common Pleas in Spackman v. Miller, and of the Exchequer in Freshney v. Carrick, will be set aside by a dictum of Vice-Chancellor Malins, which, as we think, without sufficient consideration, has been made the foundation of Sir James Bacon's The Bills of Sale Act of 1854, as we judgment in Re Homan. regard it, is altogether a disabling and in no wise an enabling statute, a statute made entirely in the interests of creditors, and not in the slightest degree validating by registration bills of sale which, if the Act had not passed, would have been invalid or impeachable. As the Lord Chief Justice remarks, in Badger v. Shaw, "It seems to me that the Bills of Sale Act was intended to be a protection to creditors and not to the bill of sale." INDECENCY IN THE PUBLIC PRESS. We have frequently drawn attention to some of the difficulties attending the operation of Lord Campbell's Act so as to suppress publications offensive to the public sense of decency and morality, and it is perfectly plain that without some more stringent law the Society for the Suppression of Vice will find itself powerless to purify our periodical literature. But if a law of this kind is to exist at all, restraining, that is, the publication of matter calculated to degrade public morality, and to contaminate the minds of the innocent and the young, it is difficult to see how it can stop short of the reporting by the press generally, at greater or less length, of the cases which have been so numerous of late, involving details of a most objectionable character. We need not go so far back as the cases of Mordaunt v. Mordaunt, Newsome v. Newsome, and Godrich v. Godrich, in the Divorce Court, or the prosecution of Boulton and Park, in the Queen's Bench, for within the last few days large spaces of our daily contemporaries have been occupied with details of the evidence given in the cases of Firebrace v. Firebrace, in the Divorce Court, and Reeve v. Perren at the Guildhall. The question, therefore, naturally recurs to the mind as to how far the course adopted by the daily and other papers. in this respect is justifiable or excusable. The motive of those who conduct the papers is of course manifest; it is that of gain. They well know (it is sad that we should have to confess it) that by publishing any gross scandal or the reports of disgusting and indecent trials, they vastly increase the circulation of their papers. They pander, therefore, to the lowest and basest instincts of human nature, and with one or two exceptions, this indictment applies to all our daily papers. At present the newspapers are under no control. The only restriction they labour under is that which courts of law impose upon them—that is, the enforcement of silence during the progress of pending trials, and of course they are amenable to the law for wrongs done to private individuals. Beyond that they enjoy the utmost freedom and licence. Is it desirable that this should be so? We think not; for, as indicated above, we find that there is a considerable abuse of their powers, an abuse which calls for correction. The only remedy for this is for the Legisla ture to place certain restrictions on the press with regard to the Our courts of justice have in cases of reporting of indecent cases. gross indecency the power to order the exclusion of all women and children. This is invariably done at the assizes in cases of rape. Divorce cases and cases of seduction should most undoubtedly be treated in the same way. But they are not so, for whoever has visited the Court for Matrimonial Causes must have had the sad experience of witnessing it crowded with women, in a way in which no other court is crowded. During the progress of the Mordaunt case the galleries of the court were crammed by those of high social position. But it may be said that if women and children merely are turned out, it would not prevent the cases from being reported. We admit this, but why should it not be made law that any newspaper which published any details of cases in which the Judge ordered the exclusion of women and children should be This really would be no punishable as for contempt of court? hardship. It would only be keeping newspapers within proper bounds, while the good results of such a measure would, we feel sure, be incalculable. Curiously enough at the very time we suggest what may be looked upon as a retrograde movement, some papers are actually advocating the removal of the only restraint under which they labour, and complain that it is unfair to them and prejudicial to the public interest and to justice that they should be precluded from commenting on a pending case, and discussing on its merits every trial. This, of course, has arisen owing to the cause célèbre which is now the subject of universal discussion. We certainly should be very sorry to see the abrogation of the power of courts of law to deal with papers as well as with persons guilty of contempt. Such power is most beneficial, and produces the most healthy and salutary results. Nothing could be more calculated to warp the adminis tration of justice-especially as long as trials by jury last-than CRIME AND ITS PUNISHMENT. very detri A SUBJECT which has received a very considerable share of the attention of the Legislature for some years has been the bestmeans of repressing crime. In 1869 the Habitual Criminals Act became law, and during the last session of Parliament this Act was improved and re-enacted in the Prevention of Crime Act. Any person who has been at all concerned in the administration of our criminal law must have noticed that latterly the number of indictable offences has, in most parts of the country, decreased to no inconsiderable extent, and we believe that an inspection of the calendars of the various courts of assize and quarter sessions would fully bear out this statement. This state of things naturally suggests an inquiry as to the causes of decrease and as to whether the remedies applied in the case of the more serious offences could not be effectually applied in the case of those of a lighter character. There are several causes we could mention, such as the severity now displayed in our prisons, and the supervision exercised by the police under the Habitual Criminals Act and the Prevention of Crime Act; but these in themselves are scarcely sufficient to account for the diminution. The greatest preventative to crime is manifestly the great care which is now taken to trace out the history of all prisoners charged with felonies, and the consequent Both at assizes and sessions severe punishment of old offenders. the presiding Judge has before him a complete list of the number The consideration of the effect of this system of cumulative Considering the undoubted deterrent effect produced by the cumulative punishment of felonies, we venture to suggest that the same system should be applied to such offences as we have mentioned; in fact, to every offence except simple drunkenness. We are convinced that if the Legislature were to enact that justices should have power to commit to the quarter sessions all offenders who have been in prison more than a certain number of times, say ten, and that the quarter sessions should thereupon be empowered to pass a long sentence of imprisonment or penal servitude, the consequences would be even more satisfactory than in the case of felonies. Not only should we have fewer of these minor offences, but the punishment of these would have a very marked effect upon the commission of crimes of a graver character. At present our streets are overrun by persons of disorderly character who necessarily mix with the criminal classes; prostitutes do not require much inducement to become thieves, nor do drunken rioters hesitate long before they commit felonious assaults. Let these persons be punished severely before they are enabled to enrol themselves among the still more dangerous class, and we shall have gone one step further towards that state of society which a country which expends vast sums annually in the repression of crime should strive to attain. THE SCOTCH COURTS. (Continued from page 156.) THE evidence of aged and infirm witnesses may in all cases be taken by a commissioner (advocate or solicitor) appointed by the court, the examination taking place at the instance of the parties, as in court. To avoid the risk of such evidence being lost, either of the parties may, as soon as the case is in court, apply for such a commission to take the evidence to lie in retentis. Again, if witnesses reside in England or Ireland, though they may be compelled to attend in the Scotch courts, the judge may, in his dis cretion, order their evidence to be taken on commission; and this is the only course when witnesses reside abroad and refuse to come to Scotland. Even though witnesses are resident in Scotland, the court may, if it thinks it desirable, appoint the whole or part of the evidence to be taken on commission. The evidence so taken being reported to the court by a commissioner, a hearing and judgment follow in the Outer House, with an appeal to the Inner, as in other cases. On the question of taking evidence it only remains to mention that each party may, after the record is closed (and in very exceptional cases before), apply for a Commission and Diligence to recover documents from the opposite party, or from third parties. The applicant must show that he is entitled to call for such documents, and when recovered he must prove them, unless they are duly tested, before putting them in evidence. Such is a sketch of the procedure in an ordinary action in the Court of Session. In its normal state its principal features are (1) accuracy of pleading, secured by the closed record, yet not so inflexible as to prevent justice being done between the parties, if amendments or additions are found necessary; (2) that the evidence in the great mass of cases is taken in presence of a judge who decides both on the law and facts of the case in the first instance, and assigns the grounds of his judgment; and (3) that an appeal on both fact and law lies to a tribunal of four judges. The other means of judicially ascertaining disputed facts is by a jury trial. Jury trial in civil cases in Scotland is an exotic. It was first introduced into Scotland in 1815, and has never thriven. That it was accompa nied with many of the forms of the English system, from which it was transplanted, may be one reason of its ill success. But the expense and cumbrousness of the procedure as conducted in Scotland, and the uncertainty of the verdict, often the result of sympathy or feeling, are the main reasons why litigants and their advisers have always been anxious to avoid it. The general opinion, both of the public and the profession, was strongly expressed by an advocate of much experience, when examined lately before the Courts' Commission. (a) "In regard to jury trial, I have only to say that I think it the biggest farce that ever was instituted for the investigation and settlement of civil rights. You put men into the box who are not accustomed to continuity of thought, or to the compressed position in which they are kept for hours, and who are actuated very frequently, in a great many popular causes, with other than just notions of right and wrong. In a number of cases, unless the judge descends into the arena and takes the thing out of their hands altogether,-in case of a road, for example,-the verdict is sure to be one way; or where a widow claims damages against a railway company; or in a case of breach of promise of marriage; or seduction, where the pursuer is a pretty woman,-the defender has no chance at all. In other cases, again, the jury must go along with the charge of the judge, and practically the verdict is the verdict of the single judge. Now, if that is sufficient, we should get it without all the formality of a jury trial. But, apart altogether from my own opinion as to jury trial, the practical result is this, that we have now tried it for fifty years, and it has entirely failed. You can't bring people to the jury court. Merchants in Glasgow say that they would rather resign their rights and interests altogether than submit their case to a jury. You compel them to go to arbitration, or to give up their just and legal rights." Jury trial is, in England, almost the universal mode of trying disputed questions of fact, and gives satisfaction. The work is done quickly, and without undue expense, and juries are willing to be led by the Bench, and to return unanimous verdicts,-for in England the twelve jurymen must be unanimous, both in civil and criminal cases. This unanimity was required in Scotland in civil cases for many years, but it was found a terrible bondage; and the risk of the trial proving abortive was much increased, for it was too much to expect that twelve independent Scotchmen should, in questions of really disputed facts, always agree, or that they could be driven into agreeing by time or hunger. All the more was this enforced unanimity irksome, that Scotch juries had been accustomed from time immemorial to bring in verdicts in criminal cases by a majority. Indeed, Scotchmen cannot understand how jury trial with unanimous verdicts is possible, or how it is still so tenaciously clung to in England. Scotland obtained relief in this matter, in 1854, by an act which allows juries in civil cases after an absence of six hours to return a verdict by a majority of nine to three, and the period was reduced in 1859 to three hours. In Scotland, as in England, the verdict of a jury may be set aside on two grounds. The unsuccessful party may challenge it as being against evidence. If a jury find the issue established where there is absolutely no evidence, or the only evidence is directly to the opposite effect, the court sets aside the verdict and grants a new trial. If there be evidence on both sides, however much it preponderates against the verdict, the court will not interfere; for it is the peculiar function of the jury to judge of the (a) Patrick Fraser, LL.D., author of the Scotch Law of the Personal and Domestic. Relations. weight and credibility of the evidence. The verdict may also be challenged on the ground that the judge has refused to direct, or misdirected, the jury on questions of law material to the issue; and this may result either in the verdict being entered up in favour of the other party, or of a new trial being granted. When jury trial in civil cases was first introduced into Scotland, permission was given to employ it in all cases where matters of fact had to be proved; but a few years after the class of cases was specially pointed out, and comprehended all actions founded on delinquency or quasi delinquency, where damages were claimed. To these were added some years later actions on mercantile and maritime contracts, and for reductions of deeds on the ground of insanity, facility, force, and fear, &c.; and all such actions were specially appropriated to jury trial. This rule has since been relaxed, and now the determination of the mode of trial is left to the parties, and to the judge; and by the latter even questions of damages are often tried, and the amount assessed, without a jury,-an appeal of course lying to one of the divisions; and this practice is likely to grow. Recently, by borrowing from the procedure of England, great facilities have been given for decision of cases where the parties are agreed upon the facts, and only differ upon the application of the law. A special case is prepared, containing a joint statement by the parties of the facts, setting forth also (but without argument) what each maintains to be his legal rights. The case concludes with articulate questions on which the court is asked to give its opinion and judgment. Such special cases are presented i at once to the Inner House, without going before a Lord Ordinary; and they have been found a very expeditious and economical form of process, especi ally in the construction of settlements, wills, and other deeds. Besides the disposal of properly litigated cases, the Court of Session. exercises a large administrative jurisdiction in the appointment and superintenderce of judicial factors on partnership, trust, and other estates as to which those interested are in dispute, or when the trustees have all died; the appointment of guardians to minors, insane persons, &c., and the control of the management of their estates; and also in regard to the selling, burdening, improving, or disentailing of estates held under entail, where the interests of succeeding heirs need protection. In all these the actings of the Lord Ordinary are subject to the review of the Inner House. The Court of Session is also invested with an undefined authority, styled its nobile officium, in supplement of its ordinary powers and jurisdiction; and this is exercised by the Inner House alone. The custody of children in the event of the separation or divorce of the parents, and the interim appoint ment in some cases of Crown and other officials, are cases in which this nobile officium is invoked. The Court of Session also acts as a court of appeal from judgments pronounced in the local courts. This is an important part of its functions. The amount of money involved in such cases is not necessarily small, and many mercantile questions come before the court in this shape on appeal from such commercial centres as Glasgow, Dundee, Greenock, and Aberdeen. In each county or division of a county, there is a sheriff court presided over by a resident sheriff (called sheriff-substitute), before whom the local solicitors practise. The sheriff-substitutes are for the most part drawn from the Bar of the Court of Session, and are appointed by the sheriffdepute of the county, subject to the approval of the heads of the Court of Session. The sheriff-depute is so called because he is subordinate, as a Crown officer, to the high sheriff and lord-lieutenant of the county, who is generally a landed proprietor of influence, but is not a professional man. The sheriff-depute (who is also commonly called sheriff, or sheriff. principal, in reference to his substitute) is always an advocate, is not resident in his county, and is generally in practice at the bar of the Court of Session. A system of closed records and proof, similar to that in the Court of Session, prevails in the sheriff courts. In simpler cases the summons and defences contain short statements of the grounds of action and defence, without details of facts or pleas in law though these may be ordered if deemed necessary. The evidence cannot at present be taken in shorthand; but the courts' commission recommends that this should be sanctioned. Sheriffs are not authorised to try civil cases before juries. The judgment of the sheriff-substitute may be appealed to the sheriff, and the sheriff's judgment to one or other of the divisions of the Court of Session. It is possible also to appeal directly from the sheriff-substitute's judgment to the Court of Session; but the prospect of the case taking end before the sheriff prevents this course being much adopted. Appeals from the sheriff court to the Court of Session are only competent if the amount in dispute be above 251. This sum the courts' commission proposes to raise to 50%., with power, however, to the sheriff, having regard to the nature of the case as involving a principle of importance or general application, to grant leave to appeal. The disposal of appeals from the sheriff courts constitutes a large part of the business of the Court of Session. The jurisdiction of the sheriff court is very extensive. It has no limit in point of amount. A million sterling might be sued for before a sheriff-substitute. It extends over all defenders within the sheriffdom, and over all movable property situated there. But the sheriffs have a very limited jurisdiction over heritable rights and property. They can regulate interim possession, and enforce payment of rent, &c.; but they cannot decide any question of disputed heritable title. Neither have they jurisdiction over persons in questions of status. Questions of marriage, divorce, judicial separation, permanent aliment (but not interim aliment), between husband and wife, legitimacy, &c., are appropriated to the Court of Session. The heir to landed property, however, makes up his title to the deceased in the sheriff court by proving his propinquity, &c.: whereupon he is served heir by the sheriff. This title may afterwards be challenged within twenty years in the Court of Session by anyone showing a better right, and if there be several competitors at the beginning, the case may be removed to the Court of Session at once. Executors also obtain a title to the movable estate of the deceased in the sheriff court on proving propinquity, or on production of the deeds under which they are appointed; but the sheriff's functions in these matters are rather administrative than judicial. The sheriffs are also the Judges under whom the bankruptcy law is administered, and the judgment of one (not of both) must first be taken in questions arising between the bankrupt, the trustee in the sequestration, and the creditors, with an appeal to the Court of Session. For claims below, or restricted to 121, there is a special summary court held by the sheriff or sheriff-substitute, called the small-debt court. The claim is stated shortly, and appended to a printed form for citing the defender. The parties appear personally without professional assistance, unless both parties consent (which in important case they usually do); the evidence, if any, is taken, but no record of it kept, and the sheriff gives his decision at once. This judgment is final and not subject to review, except on the ground of corruption, malice, or oppression on the part of the judge, or want of jurisdiction. This court has been found most serviceable and satisfactory, especially in the great centres of industry. The Courts' Commissioners propose to extend its jurisdiction to 201., and to repeal the provi sion excluding professional assistance, leaving the sheriff to decide whether the aid of a solicitor was necessary, and the amount of his remuneration; and they also propose that, in order to prevent diversity in the decisions of the different small-debt courts, the sheriff should have power, in important cases of law and practice, to state a special case for the opinion of the Court of Session. The sheriff courts have been in existence in Scotland since the middle of last century, and have been gradually developed into their present satisfactory state. Their great fault is the delay that occurs in recording oral evidence, for the sheriff-substitute has with his own hand to write out full notes of the depositions of witnesses. This leads to numerous adjourn ments of diets of proof, often for weeks at a time. The employment of a shorthand writer and the continuity of proof recommended by the commission, will doubtless remove these defects. The propriety of the existence of the double sheriffship, as it is called, has been greatly questioned of late in Scotland. An appeal, it is said, from one judge to another of similar professional grade, is not only anomalous, and without parallel in any other court, but is contrary to sound principle. It also causes much delay and expense. On the other hand (and this is the view of the Courts' Commissioners), the system has been found to work satisfactorily. It provides for a review of the resident sheriff's judgment with little delay, there being only a few stages in a case at which the appeal is competent. It is an economical appeal, and may be obtained at an average cost of 21. 10s. It is not an appeal to a judge of the same professional standing, for the sheriffs are, as a class, men of greater legal weight and authority. The list of sheriffs from time to time embraces the first men in the profession; at present, ten of the existing judges, and both of the law officers of the Crown, have held sheriffships. Besides, the best test of the satisfactory nature of the appeal is that, in the great mass of cases, the judgment of the sheriff on appeal is acquiesced in; and the same deference could not be expected to be paid to the judgment of a single resident sheriff. The County Courts of England were only established in 1846, and differ essentially from the Scotch sheriff courts in these respects, that they have no jurisdiction above 501., and that the appeal lies direct from the County Court Judge to the Supreme Court in cases above 201. Below that sum the jurisdiction of the Supreme Court is practically excluded by the rule that a plaintiff who resorts to it, when he could have sued in the county court, forfeits his right to costs. Like the Scotch sheriff courts the English County Courts have no jurisdiction in questions of heritage where title is involved, or in questions of status. In ordinary cases there are no written pleadings beyond the initial writ. If the defence be a denial of liability, the defender need only appear at the hearing and establish it. If the defence be founded on a separate ground, as set-off, &c., it must be stated beforehand in writing. If the sum sued for exceed 51., a jury trial may be claimed. In Scotland, if the amount sued for in the sheriff court exceed 401., either party may claim a jury trial and carry the case to the Court of Session for that purpose. Owing to recent changes before explained, this procedure is now very much superseded, jury trial being avoided rather than courted. Such are the main features of the judicial system of Scotland in civil causes, elaborated after many experiments and failures. As the result of practical experience it may contain suggestions worthy of the adoption of other courts and countries. We must defer till another time a sketch of the Scotch criminal courts and the procedure preparatory to trial, which are in several respects peculiar, and have been found very efficient in the detection and punishment of crime, as well as in the prevention of improper accusations against the innocent. INVESTMENT JOURNAL. STOCK AND SHARE MARKETS. The following are the fluctuations of the week. Fri. Sat. Mon, Tues Wed. Tua 2891 210 240 240 924 921 92 Bank of England Stock 3 Cent. Red. Ann.... 37 Cent. Cons. Aun 923 924 SOLICITORS' JOURNAL. NOTES OF NEW DECISIONS. SETTLEMENT - WIFE'S ESTATE- ULTIMATE IN DUE TRUST" LEGAL REPRESENTATIVES 1118 Consols, for Acc.... India 5 Cent. for Acc Do. 5 AN EVENING BEVERAGE-CACA'OINE. -The Food Journal says:-By a new process to which the nibs are subjected, the principal part of the oil is effectually removed; a thin beverage, well adapted for afternoon or evening use, as a substitute for tea, being the result. attraction to all."Each packet or tin is labelled, The flavour of Caca oine will, in addition, be a great "JAMES EPPS & Co., Homeopathic Chemists, London." Also makers of Epps's Milky Caca'oine (Caca'oine and Condensed Milk.) IRISH PRACTICE CASES. (a) CONSOLIDATED CHAMBER. Wednesday, June 21. him. The court refused to set aside the defence as em- ford, held the said part of the said lands as tenant from year to year to the said Elizabeth Beresford, at the rent of 11. 14s. an acre. And the defendant further saith that while he was in possession of the said part of the said lands, to wit, on July 2, 1870, the said Elizabeth Beresford died, and on her death the said Patrick Kenna and James Kenna became entitled to the reversion in the said lands, of which the said Elizabeth Beresford was seised only of an estate for her own life, and thereupon the yearly tenancy of the defendants came to an end; and thereupon the defendant, being entitled to emblements out of said lands, was entitled to retain possession of same in lieu of emblements up to 1st Nov. 1870, being the last gale day of the then current year, and the defendant continued in possession of the said part of the said lands. And the defendant saith that, after the 2nd July aforesaid, and whilst the defendant was in possession of the said part of the said lands, the said Patrick Kenna and James Kenna represented, and caused it to be represented to him, that they were ready and willing to demise the said part of the said lands to him as tenant from year to year, to commence from 1st Nov. 1870, at a certain increased rent, to wit, after the rate of 21. an acre for the said part of the said lands, and that, without any lease thereof in that behalf being made, he would be allowed to remain in possession of the said part of the said lands as tenant from year to year, so long as the said increased rent was duly paid. And the defendant says that, after the said representations were so made, and before any demise was made of the said part of the said lands, or any contract for a demise of the said part of the said lands was entered into between the defendant and Pleading-Equitable defence to ejectment on the and demur. MOTION that the second defence filed by the de- tofore and during the life of one Elizabeth Beres. (a) From the Irish Law Times Reports. said increased rent, of which the said Patrick Kenna and James Kenna, in fraud of the said re presentations and the expectation which the said Patrick Kenna and James Kenna had so created, and before the defendant had received the benefit of his said expenditure so made by him as before mentioned, now brings this ejectment." Armstrong, Serjt. (with him Murphy, Q.C. the said meeting, to any of the officers or men, or other members of the Metropolitan Police Force in relation to the said meeting? State to whom and when such orders were given, and what the said orders or directions were. 7. State with particularity whether you gave to the said police, or any of them, verbal orders to prevent, disperse, or interfere with the holding of the said meeting. 8. State with particularity each such order, what it was, when given, and name the person or persons to whom such were given. 9. State with particularity whether you gave any verbal order to any member of the said police force to prevent, disperse, or in any way interfere with the said meeeing? If so, state the names of the persons to whom such orders were given, when they were given, and state the terms of each such order separately. S. Walker (with him Naish), for the plaintiffs. The pleas are founded on Clarke v. Reilly (Ir. R., 3 C. L. 422). But there the plea was based upon a contract of which every condition had been fulfilled, and the court gave leave to demur, though they would not set aside the plea. The represen tations in these pleas alleged are not stated to have been made so as to amount to a contract between the parties. There is merely a unilateral representation, acted on by the defendants. It does not appear that any intention of the defenlants to act upon said representation was ever communicated to the plaintiffs, or that the plaintiffs had notice or knowledge of the defendants Dermott, contra.-It would be improper to having acted or intended to act upon the repre- describe him as resident at the Marshalsea. "Mill 10. Were you in the Phoenix Park at any time sentation, or to make any improvements. It does | View-terrace" does not cease to be his residence, on Sunday, the 6th Aug., and, if so, state what not appear that the defendants ever paid or whether he be temporarily or compulsorily sojourn hour or hours, where in the said park were you, tendered the increased or any rent of the pre-ing elsewhere, whether at an hotel, watering-place, how long you remained there, and what part, if mises. The improvements alleged are not speci- or prison: (Dunstan v. Patterson, 5 C. B., N. S., any, you took in preventing, dispersing, or interied either in nature or value, and they are in no 271.) [O'BRIEN, J.-Having regard to the defering with the sail meeting, or causing such preway referable to the plaintiff's representations. cision cited, I consider that the affidavit is sub. vention, dispersion, or interference? It should be shown that they were such as a court stantially sufficient, and that it is unnecessary to of equity would act upon to entitle the defendants describe the deponent "now re-ident at the Marto relief. If we demur, this will be taken against shalsea, and late of Mill View-terrace."] us, and yet it may be that only a slate on the roof The interrogatories were as follows: was in fact repaired. To be answered by the Right Hon. The Marquis of Hartington. Butt, Q.C. (with him Martin), for the defendant Tallon. We seek to raise the question put forward in Ramsden v. Dyson (L. Rep. 1 H. of L. 129), and not that to which Clarke v. Reilly (sup.) gives rise. It is the same thing as if the plaintiffs had allowed us to build on their grounds on the faith of their representation: (Kerr on Injunction 40; Clavering v. Thomas, 6 Hare 301.) [HUGHES, B.-No mutuality is shown. What remedy have the plaintiffs for the increased rent?] They might sue for use and occupation, and the measure of compensation would be the increased rent. We do not say there was a contract, but a representation, and on that we continue in possession. The improvements mean substantial improvements, and on that they can take issue. If they require the nature and value specified, they should ask for a bill of particulars. Monahan, Q.C., for the defendant Brien.-It has never been held that an equitable defence should set ont evidence in the shape of a bill in equity. HUGHES, B.-The defence would not be open unless a court of equity would give a perpetual injunction. But here, would not the decree be merely for compensation? We say a perpetual injunction would be granted; but that question is one for a demurrer. The judge, at the trial, would direct the jury that the defence was not true if only a triflug improvement were proved. Naish replied. HUGHES, B.-As the defences stand, the plaintiffs have the advgntage of having the question as to the sufficiency of the improvements open to them. If substantial improvements were specified, that would not aid the plaintiffs on demurrer, and if they want assistance at the trial by having the nature and value of the improvements set out, that should be sought by asking for a bill of particulars. As to its not appearing that the representation made amounted to a contract between the parties, or that the defendants' intention to act upon it was communicated to the plaintiffs, or that they knew of it or of the defendants acting on it, or that the defendants paid or tendered the increased rent, these are all grounds, not for setting aside the defences, but for demurrer. Let the defence stand, the plaintiffs to have liberty to demur, and to reply taking issue. Leave to reply and demur. Wednesday, Dec. 12, 1871. Practice-Interrogatories-G. O. 1854, 132, 140, of his arrest. Butt, Q.C. (with him H. H. M'Dermott), moved on behalf of the plaintiff, to exhibit interrogatories to the defendants, the Marquis of Hartington, Thomas H. Burke, and Colonel Lake. The action was brought for assault, laying damages at 10001. The motion was grounded on the joint affidavit of the plaintiff and his attorney. 1. Were you aware, previously to the 6th Aug. that meeting, give, or cause to be given, instruc- and to whom they were given. 4. State whether you, with or without the co- 5 to the Commissioners of Police, by the defen- Commissioners of Police. T. H. BURKE. Similar interrogations were addressed to the defendant, Burke, the fifth being altered mutatis mutandis, and the following being added :-"Who were the Commissioners of Police to whom the said letter was addressed; what became of said letter, and in whose custody is it at prosent ?" The interrogations to Colonel Lake were as follows: 1. Did you on the 6th Aug. last, and previously thereto, fill the office of Commissioner of the Dublin Metropolitan Police ? 2. Were you on the 6th Aug. last, and previously thereto, a magistrate of the county of Dublin, and, if so, have you acted as such magistrate, and on what occasion? 3. Were you previously to the Cth Aug. last aware of the intention to hold on that day a public meeting in the Phoenix-park? 4. Did you on that day, or at any time previously, give or issue any order or directions to any of the Dublin Metropolitan Police in reference to the said meeting. If so, were such orders or directions in writing; and, if so, where and in whose custody is or are such writing or writings, and are they in your power or procurement? State fully and particularly what and how many written orders you gave respecting the holding of the said meeting, when and where delivered, and to whom. 5. State with particularity any orders or directions given or issued by you to the Dublin Metropolitan Police body, its officers or men, for the prevention or dispersion, or in any way interfering with the said meeting, and the names of the persons to whom such orders or directions were given or issued, and what was contained in the said orders or directions. 6. Did you give any verbal orders or directions previously to the said meeting, or at the time of the italicised words therein respectively, and substitut (a) The interrogatories were amended, by expunging ing those which appear within brackets. 11. Did you send or order any hody of police to the said park on said Sunday? If so, how many, and under what officers; and state whether you saw the police so sent again on the same day. State when and where. State did you accompany to the said park, or join said body during said day at said park; how long you remained with the said body; and state whether, in dispersing the said meeting. they acted under your direction, or with your sanction with your knowledge. 12. State when you left them, and where you went. 13. State whether any body of police were posted in the said park by your directions, or with your sanction, in order to prevent or interfere with said meeting; and, if so, when and where, and, if not by your orders, state by whose orders they were so posted. 14. Did you see any persons assembled in the said park on the said Sunday, in order to attend the said meeting, or attending same? if so, when and where in said park, and did you see any of and, if so, when and where? said persons, or any persons, struck by the police, 15. Did you see any police in the said park on that Sanday? If so, describe what they were doing, and when and where you saw them. Armstrong, Serjt.-We object to the generality and ambiguity of the term "sanction," in the fifth interrogatories to the Marquis of Hartington and to T. H. Burke. It might mean an operation of the mind, a chance_expression or an observation at a dinner-table. I presume it is intended to refer to some official act. [Butt, Q.C.-Certainly] We also object to the words on what occasion," in the second interrogations. Also to the word "sanction" in the eleventh, addressed to Colonel Lake. The object is to involve him in the commission of a trespass. [Butt, Q.C.-Supposing that he was present in charge of the police, and did not interfere, that would be a sanction on his part.] The inference might be fairly drawn that, if he stood by and said nothing, his silence implied consent; but what is the distinction between "directing" and "sanctioning"? [M Dermott referred to O'Connell v. Barry, Ir. Rep. 2 C. L. 648]. From what now takes place nothing is to be inferred as to what course we may take hereafter, nor are we to be precluded from then objecting to answer any of the interrogatories which we are privileged to reject. The interrogatories having been amended in these particulars O'BRIEN, J.-The defendants will not be precluded from insisting that, as to certain interrogatories, they are not bound to answer. They may be administered as now settled, the defendants to have until Jan. 8 to answer. Motion granted. INTERNATIONAL LAW. THE ANGLO-AMERICAN ARBITRATION. The Times correspondent writes from Philadel phia, on Dec. 18;- The Anglo-American Civims Commission, at Washington on December 16, decided three more cases which may be regarded as laying down rules for its future guidance. Anthony Barclay made a claim against the United States, and in his memorial stated that he was a British subject, resident for many years in the United States, that for the greater part of the time he was in Her Majesty's service, being from 1842 to 1856 British Consul at New York; that in 1858 he took up his residence in Georgia and managed three plantations, two owned by himself, one devoted to cotton and the other to rice culture, and the third being held under lease; that meant to change his nationality or give up his in changing residence and occupation he never allegiance to the Queen; that he abstained from 12 all intermeddling in the rebellion, conformed to the Queen's Proclamation of neutrality, and in all respects as faithfully conducted himself towards the United States as any loyal citizen could have done without taking actual part in the war; that under the President's proclamation of blockade in 1861 and the subsequent proclamation of July, 1861, confiscating property which should be found passing from the insurrectionary into the loyal States, it was at no time possible for him to withdraw his effects from the scene of the insurrection; that various acts of plunder and devastation were committed on all three of his plantations by the United States' forces under General Sherman in Dec. 1864; that under special orders of General Sherman, in Jan. 1865, two of his plantations were occupied by United States forces and by emancipated negroes; and that for these injuries to his real and personal property, and for the occupation of the plantations, he claims damages to the amount of 275,000 dols. and upwards. To Mr. Barclay's memorial the United States demurred, stating that the acts alleged are not a valid claim under the Treaty; that they are not such acts as the United States are responsible for; and that the claimant in consequence of his domicile is not entitled to claim the position of a British subject under the treaty, the facts stated making the strongest case imaginable of permanent absolute domicile. The demurrer added that under the circumstances it cannot be said the claimant was desirous of leaving the territory, and was prevented from doing so by any act of the United States. The British counsel, in answer to the demurrer, maintained that the wanton and malicious destruction of the property of such a person is not a necessary act of war, nor justified by the law of nations. Independently of what may be the proper mode of redress under the law of nations for such acts, they are condemned by the modern law of nations, and if this be so, then it seems undeniable that injuries so inflicted would be the proper subject of compensation in the case of a neutral. Admitting that the claimant, by his residence in the United States, was a citizen thereof and owed in the sense of international law a temporary allegiance thereto, and as such had assumed many obligations, it by no means follows that he did not continue to be a British subject. It is perfectly well settled that a man may owe a temporary allegiance to one Sovereign and a permanent allegiance to another, and where the two obligations conflict the former gives way to the latter. reason In deciding upon the demurrer, the Commission say the question of jurisdiction is first to be decided, and this depends upon whether the claimant is, within the meaning of the treaty, a British subject. That he is so in fact they say there is no doubt, but it is contended that his United States domicile prevents his being included among those so regarded under the treaty. The Commission argue this point at length, and declare that they can see no to suppose it was intended by either Government to put the limited meaning upon the words contended for in the argument in support of the demurrer, so as to exclude from the Commission's jurisdiction a British subject who has never renounced his original allegiance, or been naturalised in any other country. The fact of the claimant having his domicile in one of the Confederate States will, of course, have a material bearing on the point, also raised in the demurrer, as to the liability of the claimant's property to seizure and destruction by the United States' Army. It is difficult to lay down a general rule applicable in all cases to the rights of an invading army, nor in this particular case is that necessary. The statements contained in the memorial are, for the purpose of this argument, assumed to be true, and one of the statements is that part of the claimant's property was taken possession of by the Federal Army, without any military necessity or provocation, and plundered, and that part was wantonly destroyed. Supposing this to be true the Commission are not prepared to say whether some liability might not be established against the United States. The demurrer, therefore, is disallowed, but the United States' Government will be at liberty, if they think fit, to take issue upon the facts alleged in the memorial. The second case decided was that of James Crutchett against the United States, who in his memorial alleges that he is a British subject; that he has resided in Washington in the United States for 25 years; that in 1856 he became largely engaged in manufacturing, in a building known as the Mount Vernon Factory," owned, with its furniture, &c., by him, and used for the manufacture of articles of peculiarly American character, interest, and value, from timber previously purchased by him from the Mount Vernon estate, and intended as memorials of George Washington. Shortly after the breaking out of the war this factory was taken possession of by the United States for military purposes, and possession retained many years. The claimant admits payment to him by the United States for this use of 3016 dols., and a further sum of 1200 dols. for repairs, but alleges this to be insufficient compensation, and that he received it under protest. He, therefore, claims a balance due to him by the United States of 173,581 dols. for rent, &c. The United States demurred on the ground that, as in Barclay's case, Crutchett was not a British subject within the purview of the treaty, and also submitted the point that no claimant can have a standing for hearing by the Commission, to enforce a claim for the vindication of which ample means are afforded through the municipal tribunals of the country, which are always open to him without possibility of exclusion. The British counsel, in answer to the demurrer, quote the decision in Barclay's case, and add that Mr. Crutchett has a lawful claim against the United States, and has exhausted every effort to obtain compensation, but has utterly failed. Congress alone had power to grant it, and for years they have entirely disregarded his petitions. In deciding this case the Commission say that in addition to the points already decided as to the effect of domicile there is the further point raised that the claimant had his remedy under the municipal laws and authorities of the United States. The court referred to in the argument as the one to which the claimant had the right to apply is the Court of Claims, but by Act of July 4, 1864, it was provided that the jurisdiction of the Court of Claims shall not extend to or include any claims against the United States growing out of the destruction or appropriation of or damage to property by the army or navy engaged in the suppression of the rebellion from the commencement to the close thereof. The demurrer, therefore, is disallowed, and, as in the case of Mr. Barclay, the United States are allowed to take issue upon the facts alleged in the memorial. The third case decided was that of William Dunn, against the United States, for personal property destroyed by the United States' army. This claim was submitted on the memorial and claimant's proofs, and it was ordered that the claims be disallowed. The Commission then adjourned until Jan. 24. The decisions as to domicile cover a large number of claims. MAGISTRATES' LAW. NOTES OF NEW DECISIONS. GUNPOWDER-KEEPING IN AN UNLICENSED purpose “ ammu PLACE CARTRIDGES.-23 & 24 Vict. c. 139, s. 6, with regard to the enacts that certain regulations shall be observed "manufacture and keeping of ammunition," one of which is, that no nition containing 5lb. of gunpowder shall be kept in any place not licensed for that An information preferred against the appellant, a gunmaker, who bought and kept ready-made cartridges to sell by retail, but did not manufacture them, alleged "that he did unlawfully keep certain ammunition (to wit) 50,400 cartridges, containing 5lb. weight and upwards of gunpowder without a licence (to wit) 80lb. of gunpowder, in a certain place under the above section and sect. 7 (penalty clause), fined and adjudged to forfeit the ammunition in excess of the quantity which might be lawfully kept. On a case stated: Held, that sect. 6 of 23 & 24 Vict. c. 139, applies only to manufac. turers of explosive compositions keeping the same, and that, therefore, the conviction under it of the appellant, who was not a manufacturer of the ammunition he kept, was wrong: (Webley v. Woolley, 25 L. T. Rep. N. S. 629. Q.B.) He was convicted A QUARTERLY meeting of borough magistrates was held at the police court, Dale-street. Mr. Raffles, stipendiary magistrate, presided, and the other magistrates present were Messrs. Livingston, Clint, Robertson Gladstone, Castellain, Stitt, Whitty, and Holder. Mr. Clint, chairman of the Watch Committee, said he should like to say a few words for the satisfaction of the Bench and the public with respect to the ninety-five disorderly houses. Up to the present time it had been assumed that, although they were the resort of thieves and prostitutes, convictions could not be obtained against the keepers. Doubt had been thrown upon that, and some odium upon the police. The police did their best, but their knowledge of those ninetyfive houses had not been such as to get a conviction against them, or if a conviction were obtained before the magistrates, possibly that conviction could be quashed upon appeal. So much had been said about it since the head constable's return was issued, that he had given very definite instructions now to certain discreet and intelligent officers with regard to these ninety-five houses. He had a list of these ninety-five houses, and also a copy of the instructions, which, of course, he would not divulge. They were all down-names and addresses; and he just wished to say, in justification of the police, they had done their best with regard to that particular class of houses; but for the future they would use every possible means to ascertain whether they could be brought under the law, and perhaps next year, when the head constable's next return came out, there would possibly be a diminution in the number of those houses. At the same time the police had exercised great discretion, and proceeded very cautiously in whatever they did. He hoped they would use still greater vigilance, and that he would have a better account to give in next year. Mr. Robertson Gladstone said he had a few words to say in reference to the propriety of the magistrates doing duty on Sunday for the release of those who were brought to the various gaols in different parts of the town in a state of intoxication. So much was said on the subject that he conceived they were ill-discharging their duty if they did not endeavour to devise some means for lessening those serious grievances. He had come to this determination, individually, to attend there on Sunday during some part of the day, for the purpose of releasing those who had come under the denomination of drunkards, but who, of course, had not been guilty of assault or any other breach of the law. But he thought that act would be of little importance if it were not followed by the publication of the names and addresses of those persons who were so apprehended. Therefore, he should endeavour, for himself, to make out, or have made out, a list of names of the various parties who offended the law, and who contributed to the heavy taxation to which the ratepayers were liable, with a view to ascertain ultimately whether they could not, by some bold determination, lessen the evil of which they complained. He knew very well there would be, at an important time, little underground spirits cropping up here and there to say, How would you do if it were the son of the mayor ?" He would deal with him the very same-the very first. Either they were dealing with a grievous evil or not; either they were sincere and anxious to put down drunkenness or they were not. He professed to be sincere in dealing with it, and would test his sincerity in doing what he proposed. He would do it at all risks, and meant to pursue the course, whether the magistrates might follow or not. He would test it, and find out how it worked. No doubt there were certain considerations. For instance, supposing a drunkard gave the name and address of a respectable person, representing himself to be known to such person; the onus would lie with him, he would have to account for having made use of the name and address of a respectable person on such an occa to do, but he proposed to make the attempt. If sion. With that he (Mr. Gladstone) had nothing it answered it would be promotive of great good; if it failed it could be the cause of no evil. He thought they had all a perfect right to individual what they would do. That was the course which action in this matter, and it rested with them his mind proposed to him after a great deal of of gentlemen who might now and then break the consideration, and with regard to any description law and make themselves liable to be punished, all he had to say was that they had no cause for complaint. If people had money, they could send for all the good things of the world for breakfast and so forth; if they were not possessed of means, they could not. If a man was brought up before the magistrates for using light weights his name and address were published to the whole civilised world, and why drunkards, who caused us so much expense, should be an exception to that rule, he could not conceive. Therefore he had decided in his mind to make the experiment next month, and he considered it his duty in deciding upon that course to inform the Bench what he was going to do. Mr. Stitt said with regard to Mr. Clint's observations upon the ninety-five disorderly houses, he only expressed the feeling of that Bench and a large portion of the community when he (Mr. Stitt) said he was gratified to find that certain steps were about to be taken to insure more vigilance over these houses. The difficulty of getting a conviction in these cases was known to any magistrate who sat on the bench; at the same time, where the facts that came under the observation of the police from night to night were such as to show that those people were acting in violation of the law, the duty of the police was to bring those cases to the Bench, and throw the responsibility of the conviction upon the magistrates. He feared that had not been done in the past to anything like the extent it might have been. It was somewhat disheartening to see the frequency with which cases of this description were quashed before the Superior Court. (Hear, hear, from Mr. Clint.) At the same time, when the evidence presented by the police to the inferior court was sufficiently conclusive he would convict, and throw the responsibility of quashing that conviction upon the superior court. He felt gratified that Major Greig had at last got ninety-five houses before him. These houses placed the Bench year after year in an invidious and anomalous position. |