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“wherever words occur which import the masculine gender, the same shall be held to include females for all purposes connected with and having reference to the right to vote in the election of councillors, auditors, and assessors. This was held to apply only to such persons as are single, and have the necessary qualifications, ex gr., widows and spinsters. Thus the common sense of the old doctrine is adopted by our highest court of common law judicature construing modern enactments extending the rights of
set-off be allowed, I am not prepared to deny. But I am unable to see what authority this court has to prevent it. By the terms of the Act all mutual debts and credits must be set-off against each other, and the balance only allowed or paid subject to two conditions: first, that the claim is in its nature provable against the estate ; and second, that it has not been transferred or pur. chased by the debtor claiming the benefit of it, after the filing of the petition. This latter proviso contains an obvious negative pregnant, and implies a declaration that the claim may be used as a set-off, if acquired even by purchase, at any time before the commencement of the proceedings.”
The syllabus of lectures on law for the ensuing term at Oxford is imposing. The Regius Professor of Civil Law, Dr. Bryce, will lecture on the Roman Law of Contracts, with illustrations from English Law. Students are recommended to read so much of the Institutes of Justinian as relates to Obligations ex contractu. Those who have already some knowledge of the subject are referred to the titles of the Digest De Pactis (ii
. 14) and De Obligationibus et Actionibus (xliv. 7). The Vinerian Reader of English law, Mr. K. E. Digby, will lecture on the principles of the law of real property, considered especially as illustrating certain portions of Austin's Jurisprudence. The Corpus Professor of Jurisprudence, Sir H. S. Maine, will lecture on Roman Law, chiefly considered as illustrating general jurisprudence. The Chichele Professor of International Law and Diplomacy, the Right Hon. Montague Bernard, will lecture on International Law in connection with History. The Reader in Indian Law and History, Mr. S. J. Owen, will (lecture on the Mogul Power, from Timour to Acher. We are glad to notice the general bearing of the lectures upon history and general jurisprudence, as successful teaching in this aspect must materially assist the student in practical law.
In a paper on appellate jurisdiction, read by Mr. H. N. MOZELEY before the Social Science Association on the 18th instant, a scheme is put forward for constituting one Supreme Court of Appeal for the whole British Empire, that is to say, that the Judicial Committee of the Privy Council, the House of Lords, and the Exchequer Chamber should be rolled into one. We are not quite clear that it would be desirable to abolish altogether the Judicial Committee of the Privy Council, but it should be retained exclusively for the purpose of hearing appeals from our dependencies. Mr. MOZELEY refers to the appellate tribunals spoken of as likely soon to be created in Australia and Canada, as forming subordinate tribunals. But we believe it is intended that their judgment should be final, and that no appeal should be allowed to any court in this country. Now that the Judicial Committee is qualified for work, any such project will receive less encouragement in the colonies, because no local appellate court could ever give the satisfaction derived from a decision of a Supreme Court at home. But beyond colonial and Indian appeals, we conceive that the Committee ought not to exercise jurisdiction, and that all other appellate matters whatsoever should be heard by the great metropolitan Court of Appeal. An important point discussed in the paper referred to is the appointment of the judges. This power, it is suggested, should be taken out of the hands of ministers, and it is proposed that the existing members of the Supreme Court should elect their colleagues, or at least exercise a vetɔ on the appointments made by the Government, and as to qualification Mr. MOZELEY thinks that a member should either “ have served a given time (perhaps five years would be sufficient for this purpose) as member of a Supreme Court in England, Scotland, or Ireland, or India, or some given colony or dependency of the British Empire; or the positive sanction of the Supreme Court of the Empire itself should be obtained to the appointment.
a difference of opinion among the speakers in the discussion as to the constitution of the Supreme Court, the chairman, Mr. F. Hill, considering that there was no necessity for its division, either partial or complete, and he was supported by Mr. Droop. This divergence of opinion shows how difficult it will be to consummate our legal reforms.
We trust landlords generally, and especially those who let out houses in tenements to the poorer classes, will read and digest a decision of Mr. Serjt. WHEELER's, in the Liverpool County Court, which we report in another column. The effect of it is simply this, that if any person knowingly lets any house, room, or part of a house in which any person suffering from any dangerous infectious disorder has been, to any other person, without having such place and all articles therein liable to retain infection disinfected as required by the Public Health Act 1866, the person so letting is liable to an action for damages at the suit of the person who contracts the disease in consequence of such omission. We hope to see this decision extensively acted upon, as nothing would more effectively check the propagation of disease in towns. It is much to be regretted that the law is still undecided as to the converse of this case. tion of the liability of the persons who are just recovering from an infectious disorder coming into lodgings, and by so doing communicating the disease, was under discussion in the Queen's Bench last week, in the case of Best v. Stap, but the court came to no decision, and the parties were advised to go to trial, and ascertain the actual facts. No doubt it may have been desirable in this case that a definite set of facts should be before the court, as if, for instance, it turned out that the taking of smallpox by the plaintiff's children, which was the injury alleged, was partly to be accounted for by their not having been
vaccinated as the law requires, it would tend to complicate the question still further. We trust, however, that the matter will not be allowed to drop without a distinct statement of the law.
A COMMITTEE of Liverpool magistrates have made a report, in which they have urged the adoption of cumulative punishment. They are of opinion, from the statistics before them, that the cumulative principle of punishment should, with greater or less severity, be consistently applied to all offences; that is to say, that the punishments should gradually be increased if offences are very often repeated by the same individual. They point out that there are many persons on whom a succession of sentences cf short or intermediate length has absolutely no effect; whilst experience appears to show that longer sentences would have the desired result. Not only are they deterrent, but they aid persons who have found a criminal or disorderly life wretched to abandon it. The long detention away from customary temptations, gives them time to eradicate bad associations, while it also generally gires time for the bands of bad companions to which they may have belonged, to break up and disperse, and often thus saves them from being led back into bad ways by old associates. The committee, however, have not lost sight of the fact, that, in the present state of the law, it is impossible to deal with crime consistently upon the cumulative principle. Certain offences can be dealt with upon a cumulative principle, under the Prevention of Crime Act, and certain other less heinous offences can be so dealt with under the Vagrant Act; but there are many offences quite as grave as any dealt with by the Vagrant Act, which cannot be punished on the cumulative principle at all. Among them may be instanced assaults and other breaches of the peace, and wilful damage to property. These and soveral other kinds of equally serious offences may be sent by the petty sessions to quarter sessions if the particular offence be an aggravated one; but convictions for these offences cannot be legally recorded, and repeated offences proved in court as a ground for sending an offender to quarter sessions, or punishing him severely. There are thus several kinds of offences which seem to have slipped between the cumulative penalties which can be inflicted under either the Prevention of Crime or Vagrant Acts. Again, the longest sentence which can be inflicted under the Vagrant Act is twelve months, no matter how often the same individual may offend against it. The com. mittee are therefore of opinion that it would be desirable that the
The important question when a debt may be assigned to a debtor of an insolvent debtor, and by him set-off, which has more than once been discussed in this country, came recently before the United States District Court of California. The American statute seems too precise to have admitted of much doubt. By it mutual debts and credits are required to be set-off against each other whenever the claim sought to be used as a set-off is in its nature a debt provable against the estate, and has not been purchased or transferred after the filing of the petition. By sect. 37 of our Act, no person is entitled to claim
the benefit of any set-off against the property of a bankrupt in any case where he had at the time of giving credit to the bankrupt, notice of an Act of bankruptcy committed by such bankrupt, and available against him for adjudication. And the English rule is, that after a bankruptcy an assignment cannot be taken of a debt of the bankrupt, in order to set it off against a debt due to the bankrupt; but if such an assignment is taken in consequence of any arrangement for that purpose made before the bankruptcy, or by reason of any equity to have such assignment, arising from matters which have occurred before the bankruptcy, then a set-off will be allowed in respect of a debt so assigned. In the Californian case an objection was raised that the debt assigned was not payable until after the filing of the petition. A second objection was that the assignment was a fraud on the bankrupt law, the object and effect being to hinder or defeat its operation, and to evade its provisions by preventing assets from coming into the hands of the assignee, and by indirectly enabling a creditor to obtain full satisfaction of his demand by selling it to a debtor of the bankrupt, to be used by him as a set-off
. HOFFMAN, J., said, “That such may be the effect of this transaction, if this
magistrates should seek to obtain such amendments in the law as would permit of a more consistent application of the cumulative principle than is now possible to all classes of crimes and offences.
Is his work on Evidence, the American Judge APPLETON has deroted a chapter to the subject of privileged communications of clients, and argues in favour of abolishing the rule. He says, "The attorney, who is sworn to do no falsehood, and to disclose to the court any such that he may know to be intended, is the only citizen into whose not reluctant ears all fraud and crime may be poured with impunity.” If the confidential communication of a client be true, he contends, no client need fear a disclosure; if not true, such disclosure is demanded by justice. The privilege is condemned as “fostering a spirit of unscrupulous and reckless litigation, encouraging the commission, and facilitating the escape of crime, making the Bar the recipient of dishonest secrets, and shielding attorneys, who are accomplices, from public reprobation.” Commenting on this the Albany Law Journal says, “We have not, to be sure, detected any present likelihood that the privilege will be abolished, and yet the proposition is not without its vigilant and untiring advocates. Should future legislators see fit to divorce from these communications rights so long considered sacred and inviolable, may not the result be traced in cases coming before the court ill arranged, and but partly understood, in sudden surprises sprung upon parties which they could not have obviated; in the multiplication of delays and obstructions; and in the engendering of mistrust and ill feeling between clients and their professional advisers, most detrimental to public peace and concord, and a most alarming hindrance to the impartial administration of justice ?”. We unhesitatingly condemn propositions for removing any of the existing privileges. It is rather a question whether privilege should not be extended to all communications to professional persons holding positions of confidence; and, as a matter of fact, our judges would hardly force the disclosure of communications to the clergy or to medical men. Our contemporary, we perceive, is in favour of placing the three professions upon the same footing.
DISTRIBUTION UNDER THE STATUTE-DESCENDANTS OF AN INTESTATE ALWAYS TAKE PER STIRPES.
Re Ross's Trusts. THE Statute of Distributions has now been in force for two centuries, but until the 21st Dec. last, no decision has been pronounced on the question whether grandchildren and more remote descendants claiming the personal estate of an intestate whose children had all predeceased him were entitled per stirpes or per capita. This is not a little remarkable, since the state of facts calling for a determination of the question must have not unfrequently occurred. In these cases the parties interested, or their advisers, bave probably without hesitation adopted the statement of the law as applicable to this case contained in the treatise of Toller on Executors, and which has been adopted into Mr. Justice Williams's work on Executors and Administrators, the generally recog. nised text book on the subject. At page 1385 of the 6th edit. of that work, the law is laid down thus: “If a father have three children, John, Mary, and Henry, and they all die before the father, John leaving, for instance, two children Mary three, and Henry four, and afterwards the father die intestate, in that case all his grandchildren shall have an equal share for as his children are all dead, their children shall take as next of kin. Such, also, would be the case with respect to the great grandchildren of the intestate, if both his children and grandchildren had all died before him.” The decision to which we have alluded was made by Sir John Wickens in Re Ross's Trust, after taking time for consideration, and the learned Vice-Chancellor there distinctly held that the passage cited is not law, and speaks of it as a dictum transferred into Mr. Justice Williams's treatise from Toller, and remarks that "it appears to stand there on the authority of Toller, since the only cases cited are those cited by Toller, and irrelevant,” and that in the case supposed by Toller issue of the intestate of erery degree take in right of representation per stirpes and not per capita. The Vice-Chancellor's deci. sion appears to us thoroughly sound, and at the same time puts a construction on the statute more in accordance with the presumable wishes of intestates, than that which involves a distribution per capita.
It is also, as he points out, in accordance with the views entertained by such consummate lawyers as Francis Hargrare, the anno. tator of Coke upon Littleton, and Burton, the author of The Compendium. The arguments of these writers seem really to exhaust the subject, and as we think they will prove interesting to onr readers, venture to extract the same. The view taken by Mr. Hargrave occurs in an argument addressed by him to the House of Lords in June 1782, in an appeal in the case of Wicker v. Mitforıl, in which he was junior counsel, and will be found at pp. 268, 272 of vol. 1 of his Jurisconsult Exercitations. He says: As to the cases on this statute (of distribution) they certainly prove it to be a settled construction of it tha the next of kin of the intestate are collaterals, a distinction is to be made, and that where some
are next of kin in their own persons, and some only jure representationis, the distribution is to be per stirpes, but that when all are next of kin in their own persons, though they may make out their pedigree through different stocks, the distribution must be per capita.” Mr. Hargrave then refers to the authorities by which the distinction is established, culminating in Lloyd v. Tench (2 Ves. Sen. 213), in which the point is treated by Sir John Strange as and proceeds as follows: "With so many respectable authorities for the division per capita in the case proposed, it would be vain to deny the doctrine as far as it goes. At the same time it may not be improper to observe that it admits of a doubt whether such a construction of the Statute of Distribution was not originally a violence to the intention of those who framed it. Why I make this conjecture will presently appear.”
“It is well known how much connected the Statute of Dis. tribution is both with the civilians and their law. The ecclesiastical judges attempted, by suits in their courts, and by taking lands from administrators, to enforce a distribution of the personal estates of intestates among their next of kin; and the distribution they followed was borrowed from the Roman law as regulated by the Constitutions of the Emperor Justinian. But they were interupted by prohibitions from the temporal judges. This drove the civilians into Parliament for redress; and thence originated the Statute of Distribution." .... The reasons in favour of the Statute were framed by that eminent civilian and statesman, Sir Leoline Jenkins, and are to be seen in his works. It is an anecdote from Lord Chief Justice Holt that the statute was drawn by Sir Walter Walker, another civilian. The great outline of the statute is apparently borrowed from the 118th novel of Justinian. Such therefore being the origin of the statute, and it being also considered that our civilians had adopted that side of the controversy, about the 118th novel of Justinian, which rejected a division per stirpes among collaterals where all claimed jure suo, it is not surprising that they should encourage a like interpretation of the Statute of Distribution; or that our courts should follow them on a subject which, before that statute, the civilians had the sole conusance of, and to a judgment of which, as being founded on their own law concerning successions, they might well be deemed most competent. But notwithstanding the peculiar respect and deference so fit to be shown to the learned gentlemen of the civil law on such a point, it seems questionable whether the influence of their authority has not been a cause of a misconstruction of the Statute of Distribution. From the account before given of the controversy on the novel of Justinian, it appears that there is room for doubting whether it was ever intended by that novel to disallow of a distribution per stirpes where nephews and nieces, deriving through different stocks, were the only heirs. But there were still more cogent reasons for not giving such a construction to our Statute of Distribution. The novel, though ambiguously expressed, as to collaterals deriving through different stocks, was so explicit as to descendants that even our civilians admit that amongst the latter the distribution per stirpes was universal and without any exception. But our Statute of Distribution contains the same words of provision for distributing amongst descendants and amongst collaterals, with this difference only, that in case of collaterals the right of representation is limited to brothers and sisters' children, and that in the first place where collaterals are named every is added to the description. From this observation a curious dilemma arises, for unless the word every shall be considered as a ground of distinction which hitherto has not been attempted, either the statute has been misconstrued, or there is no such thing as a distribution per stirpes any more as to descendants than as to collaterals, except where some of the claimants come in jure suo and others jure representationis. A very distinguished civilian of the present time . seems to have been almost aware of this difficulty; and, as if he thought consistency required it, he openly contends, on our statute of distributions, for excluding the distribution per stirpes even amongst grandchildren when they are the only claimants; though he candidly confesses that by Justinian's law it was clearly otherwise, and that he did not meet with any judicial determination to prove the doctrine in respect of our own law. But it may be doubted whether our courts of equity would be easily induced thus to extend this restrictive construction of the distribution per stirpes to descendants. It was once, indeed, attempted before Lord Chancellor Hardwicke. But, after hearing the point discussed, he discouraged the idea of a distribution per capita, and gave an opinion against it, though not a final one.' The case last referred to by Mr. Hargrave was that of Lockyer v. Vale (Barnadist. Ch. Rep. 44-4). As to Burton, placit. 1403 of his Compendium runs as follows :-“ It has been thought
that where the claimants are all in the same degree of lineal descent from the intestate (as grandchildren after the death of all his children), the distribution is not to be made on the principle of representation, but by the more simple rule of personal equality, or, as it is commonly expressed, per capita, and not per stirpes : (see Toller, Ex. 375.) But it may be doubted whether this was the intention of the statute; and the authorities (as Danvers v. Dewes, 3 P. Wmg. 40; Lloyd v. Tench, 2 Ves. 213; &c.) which establish that mode of distribution in the case of collaterals under sect. 6, are grounded upon a reason which does not apply to the issue of the intestate
(viz., that when all take as equally next of kin, the words of the statute afford no room for the introduction of representative claims). For there is no mention of the next of kin in any part of the statute which precedes the supposition of a failure of the intestate's issue."
out of moneys received as damages for breach of contract. The amount being paid without collusion, the court held there was no ground for ordering it to be refunded. Trustees must, therefore, look carefully after their bankrupt's choses in actim, otherwise, upon a view of the law which is plainly just and fair, the estates of debtors may suffer serious loss.
Ex parte MEYER. The point involved in this case is of great moment. When does a debtor absent himself with intent to delay his creditors? There are several modes of action named in the Act which, if adopted by a debtor with intent to defeat or delay his creditors will amount to an act of bankruptcy :-departed out of England; or, being out of England remained out of England ; or, being a trader, departed from his dwelling-houso; or otherwise absented himself; or began to keep house; or suffered himself to be out. lawed. Where the act of bankruptcy relied on is that the party absented himself with intent to defcat and delay creditors, the law only judges of the intention by overt acts. If the act of absenting is such as to delay creditors, the burden of proof lies upon the party who has absented himself to show that such was not his intention : (Ex parte Kilner,, :3 Mo. and A. 722.) Consequently, in these cases there are two iacts to be proved. The petitioning creditor must first show affirmatively some overt act
, of the kind mentioned in the statute, and then make out a primi ! facie case of intent to defeat or delay creditors, whereupon the onus of rebutting the legal inference from the overt act will be cast upon the debtor. Now, here the debtor promised to call upon creclitors and pay them sums of money, but in the two instances he omitted to do so. The debtor stated that he had not been absent from his place of business for more than an hour at a time on the days on which his creditors called upon him, and that his absence was caused by attempts to obtain the money to make the payments; that he never absented himself from his house to avoid his creditors, and that he had no reason to avoid them.
As to the overt act, Is breaking an appointment at the house of the creditor an act of bankruptcy? In Lecs v. Marton (1 M. & R. 211) Parke, J. distinctly said, no case has yet gone the length of deciding that where the appointment was to meet the creditor at his, the creditor's residence, and the debtor breaks that appointment, such conduct amounts to an act of bankruptcy."
Ard on the part of the debtor in Meyer's case it was contended that the breaking of the appointment could not have been with & view to defeat or delay creditors. Lord Justice James points ; out the absurdity of the opposite proposition, for the very faci of omitting to keep the appointment would rouse the creditors to action. Then the other act of the debtor, the promise to : pay, is clearly not an act of bankruptcy, though that, far nort than the breach of the cngagement to call on the creditor, would have operated to defeat or delay him. The cases on the point are very fully set out in the arguments of counsel, and it is perfectly plain that the conduct of Stephany, the debtor', fell far short of that aimed at by the Act of Parliament.
RECENT BANKRUPTCY DECISIONS. We last week reported three cases recently decided by the Lords Justices upon sections of the Bankruptcy Act 1869; (1) Ex parte Honey (p. 728), relating to distinct contracts, and joint and separate estates; (2) Ex parte Dewhirst (p. 731), on the right of a trustee to recover money acquired and paid away by a bankrupt during bankruptcy; and (3) Er parte Meyer, as to what amounts to absenting on the part of a debtor with intent to delay creditors.
Ex parte Hoxey. This case turned upon the construction of the 37th section of the Act of 1869, which provides that “If any bankrupt is, at the date of the order of adjudication, liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contract against the properties respectively liable upon such contracts."
This section Lord Justice James describes as one of the few clauses in the Act which seem to be reasonably clear and capable of interpretation. The facts were these : A., a member of a firm, borrowed a large sum of money. The lender, requiring more security than the promissory note of A., induced A.'s partners and certain other persons to join in the note. The firm became bankrupt, and the lender thereupon claimed to prove against the joint estate of the firm and the separate estates of A. and another partner. This was allowed by the registrar, from whose decision there was an appeal. It was unhesitatingly held that each member of the firm, by signing the note, became individually liable on a distinct contract. “ The firm," said the Lord Justice, " has joined in the security in the character of a firm in such a way that not all the members of the firm are liable only, but the firm is liable jointly." Nor, he held, did it affect the question that the distinct contracts were embodied in one instrument under one stamp. The point being important, we will cite some of the observations of Lord Justice Mellish, who looked into the history of the bankrupt law. He considered that the word “ firm” would apply to every case where there is a joint estate. “If,” adds his Lordship, "persons who did not carry on business in partnership at all, either generally, or in respect of a particular business, made a joint and sereral note, although they would be jointly and severally liable, there would be nothing but their separate estates tu administer, there would be no joint estate, and, therefore, the section speaks of it merely as a firm or as a sole contractor, and also as member of a firm. Those words are not, as it appears to me, to prevent the words 'sole contractor' and also joint contractor, according to the plain and ordinary meaning of the words, being applied to every joint and several promissory note.” “ Notwithstanding it is all on the same piece of paper it is quite plain that a joint and several promissory note is a distinct separate contract : . tlie only conclusion I can draw from the section is that it was the intention of the Legislature that wherever there were a joint and several contract and a joint and separate estate being administered in bankruptcy, the creditor should be entitled to prove against both estates.
Ex parte DEWIRST. This was an experimental case, and contains a proposition which, had it been adopted by the Lords Justices, must have had most singular consequences. The debtor was adjudicated bankrupt on the 14th Sept. 1870. After his bankruptcy, but before he obtained his order of discharge, namely, on the 13th Jan. 1871, he received 2001. as compensation for the loss of an appointment. On the 30th Jan. 1871 he paid to a person who had become tenant of his house 1301. for half a year's rent in advance, and again entered into possession of it. The money so paid the trustee sought to recover from the payee, and the County Court judge ordered it to be “refunded.” The Chief Judge reversed the decision of the judge of the County Court, and the Lords Justices were asked to affirm it. The two sections of the Act upon which the appellant based his appeal are the 15th and 17th. The former says that the property of the bankrupt divisible amongst his creditors shall comprise (inter alin) “all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him during its continuance; and by the 17th section “on the appointment of a trustee the property shall forthwith pass to and vest in the trustee appointed."
The tirst question to be asked is, was this trust money ? Until paid to the bankrupt it was capable of being made trust money if the trustee had given notice to the bankrupt's employer to pay it to him. This he omitted to do; the amount was paid to the bankrupt, and a third party received it bonâ fide. Lord Justice James said it would be as absurd to order it to be refunded as to order a butcher or a baker to refund who had been paid their bills
INTERNATIONAL LAW AND THE ANGLO-AMERICAN
ARBITRATION.-II. On the very threshold of any inquiry into the causes and results of the late contest in America, and the liabilities acerning to other nations from the position taken up by them with reference to the same, we are confronted by a difficult and embarrassing problem, viz., the exact nature of this contest. Was it, or was it not, civil war? Did the Southern States in abandoning the union commit an act of treason, or did they merely exercise the powers possessed by them as independent sovereignties of separating from those to whom they were joined by a tie purely voluntary! Few Englishmen have clear ideas as to the exact meaning of the word " constitution,” and lawyers and laymen alike assert that the strife between North and South was a civil war—that the secession was treason to the “ constitution” of the United States. But many distinguished American statesmen have denied this so-called constitution, and have laid down unequivocally that the several members of the union are absolutely free and sovereign. The thirteen colonies which carried on the War of Independence from 1775 to 1783 established a central government, to which they delegated certain powers, and declared the same perpetual. A few yeurs later, however, in 1787, representatires from the various states met at Philadelphia, and added provisions to, and in other respects considerably altered, the existing constitution, which, as thus amended, was subsequently adopted by the several states: not a whole, but by each separately, and at different dates. But manifestly this proceeding was nothing but a secession from the original government and the formation of a new confederacy by those who entered into the same. Hampshire in assenting to the new federal compact expressly declared that, “The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereig; and independent state; and do, and for ever hereafter shall exercise and enjoy every power, jurisdiction, and right which is not. or may not hereafter be, by them, expressly delegated to the United States."
Other states, c.9., Virginia, Massachusetts, North Carolina, Pennsylvania, guarded themselves by similar expressions and provisions from appearing by joining the Federation to relinquish their status as sovereign powers. The doctrine of state rights was held by PATRICK HENRY, TionS JEPTERSON, MADISON, MONROE, JOIN QUINTY ADAMS, Nortlı and South indifferently; and it was not till 1830 that Jr. WEBSTER promulgated the notion that the United States are one people-onc indivisible nation.
A con• siderable change hud by this date come over the political and pecuniary aims of the New Englanders. Hitherto the South had been the more powerful section of the community, but now the energy and coming of the men of New York and Boston were rapidly bringing them ahead of their less active compatriots. The former too were growers, the latter manufacturers, and they supported the new doctrine with the greatest warmth and zeal, as it enabled them, by their preponderance in Congress, to impose laws on the whole union. The result was a tariff which shut out foreign competition and compelled the South to sell them their raw produce at a great sacrifice. Added to this injustice were the ill-judged efforts of the Abolitionists, who threatened the planters with confiscation of the most valuable portion of their property. These two causes would be almost sufficient to excuse the secession of the South, even if it had been treason. That it was not so was however the conviction of their leaders, and we must admit that there are at least plausible ground for such a conviction.
President LINCOLN entered upon office March 4th, 1861, but before this the disruption of the great Republic had been practically accomplished. His election had been the crucial test of the relative importance and power of the two sections of the Union. The North almost to a man voted for him, the South against him ; and this decisive victory of the former was construed by the latter as a foreshadowing of the abolition of slavery, and of their own political degradation. South Carolina accordingly immediately seceded, Dec. 20, 1860, on the grounds as set forth in their declaration of independence, that • It has been announced that the South shall be excluded from the common territory; that the judicial tribunals will be made sectional; that war must be waged against slavery until it shall cease throughout the United States. The guarantees of the constitution will then no longer existequal rights of the state will be lost-the slave-holding States will no longer have the power of self-government or self-protection, and the Federal Government have become their enemy.' The Gulf States, Mississippi, Alabama, Florida, Georgia, and Lousiana-followed in Jan. 1861, and Texas on the 1st Feb., as did Virginia in April, and Arkansas, Tennessee, and North Carolina in Jay.
The total area included by these States is very nearly three quarters of a million of square miles, and their population in 1860 was close upon nine millions, of whom 3,990,000 were slaves. During the month a convention, attended by representatives from those States, which had then seceded, sat at Jontgoinery and formally inaugurated the confederacy, Mr. JEZPERSON Davis being elected President.
Hostilities commenced by the bombardment on the 12th April of Fort Suter, on the entrance of Charleston Harbour, which surrendered to the confederates on the following afternoon. Two days later, President LINCOLN issued his well-known proclamation calling forth the militia. It commenced thus: “Whereas the laws of the United States have been for some time past, and now are, opposed, and the execution thereof obstructed,' in the States of South C.trocina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the Ordinary course of judicial proceedings or by the powers vested in the marshals by law." It is impossible to construe the words in italics in any other way than as the admission that war already existed. 0:1 the 19th or 27th April other proclamations declared a blocka le of all the southern ports. The effect of these proclamations, and the exact nature of the conflict then going on, as determined by the highest legal tribunal in the United States, will be found in the decisions of the Supreme Court upon the lIiawathu and almiy barwich (2 Black Sup. Ct. 6:35). The former of these Tessels belonged to British subjects. She was at Richmond when the proclamation of the 27th April came out, which closed the ports of Virginia. On the 30th Commodore Prendergast announced the perfecs establislıment of the blockade, and fifteen days more were allowed to neutrals to clear out. Owing to various delays, it was the 17th day before the Hiawatha was towed down the river James, and on the 20th she was captured in Hampden Roads, being then on her voyage to Liverpool. The Amy Warwick belonged to persons resident at Richmond, and who declared themselves loyal. She was captured 10th July while on a voyage from Rio de Janeiro to New York, and her captain had not heard of the war.
Both ships were condemned by the prize courts, and on appeal-the two cases, with the Creusiu and the Brilliante, being heard together --these sentences were affirmed. Mr. Justice Grier, in delivering the judgment of the majority, said the two points raised were,
* First, had the PRESIDENT a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law as known and acknowleilge among civilised states?" This question he answered in the athirmative : “ The proclamation of the blockade is itself official and conclusive evidence to the courü tbat a state of war
existed which demanded and authorised a recourse to such & measure under the circumstances peculiar to the case.'
Secondly, was the property of persons domiciled and residing within those states a proper subject of capture on the sea as enemy's property ?" To this also he replied affirmatively, chiefly on the ground that prize courts look only to the predicament of the property itself, to the domicile of the owner, laying down that that domicile becomes enemy's territory if it be actually under the enemy's power. The decision also seems to have proceeded upon the consideration that though “under the very peculiar constitution of this Government the citizens owe supreme allegiance to the Federal Government, they owe also a qualified allegiance to the state in which they are domiciled. Their persons and property are subject to its laws."
We have here the assertion, explicit and unqualified, that war existed, that the “rebels" were “enemies” against whom belligerent rights could be enforced; that therefore the blockade was good, and the condemnation of neutral vessels breaking the same was valid and legal. This being so, what possible justification can there be for those who condemn Her MAJESTY's proclamation as premature? It was issued on the 13th May, and commenced : * Whereas hostilities hare unhappily commenced between the Government and the United States of America and certain States. styling themselves the Confederate States of America :
And whereas we, being at peace with the Government of the United States, have declared our Royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties :
“We therefore have thought fit, by and with the advice of our Privy Council, to issue this our Royal proclamation :
" And we do hereby strictly charge and command all our loving subjects to observe å strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf, or the law of nations in relation thereto, as they will answer to the contrary at their peril”.
In the face of the decision in the Hiawatha, &c., will any attempt be made to deny that North and South were “contending parties," between whom it was incumbent for third parties to preserve a strict neutrality ? Mr. Lincoln had, indeed, in his proclamation of the 19th April, declared that “ any person acting under pretended anthority of the States in rebellion, and molesting vessels of the United States, would be held amenable to the laws of the Union for the prevention and punishment of piracy;" but this was blowing hot and cold with the same breath. To institute a blockade and to capture neutral vessels trading with the foe, and yet to call that foe a rebel-to claim beiligerent rights against third parties, and yet to deny your opponent the same privileges -is the height of absurdity. Was the Queen's proclamation premature? It has often been said so, but we cannot admit it. This question is resolved by the answer to the question whether war existed. This, we think, we have clearly shown to have been the case; and if so the English Government was not simply justified, but absolutely bound to notify the same to its citizens, and to warn them at their own peril against in any manner assisting either combatant. A fortnight previously, according to the showing of the Federals themselves, a blockade had been instituted of the Confederate ports; yet it was an act of hostility on the part of the QUEEN to make known such a circumstance to her subjects. From more than 2000 miles of sea-coast British ships were excluded, a lucrative branch of British commerce destroyed, a most important British manufacture was paralysed; yet, under such circumstances, for the British Government to indicate the course it intended to pursue, was a violation of its duty, and contrary to law and morality-law and morality, that is, as erpounded by the Americans.
The Indian Civil Code of Procedure. By ANGELO J. LEWIS, J.A.,
of Lincoln's-inn, barrister-at-law. London: W. H. Allen and
Co., 1871. This is the second of Mr. Lewis's series of Indian Law Manuals. He has had the advantage of the assistance of two gentlemen familiar with Indian practice, and evident care has been bestowed upon the compilation of the work, but it would be of little utility to our readers to go into a detailed examination of it. To law students reading Indian law it will prove of great assistance.
A Manual of the Law relating to Divorce and Matrimonial Causes.
By ROBERT CULLEN DEwy, Solicitor. London: Longmans, 1872. The object of the author in publishing this manual, is to inform non-professional persons of the law and practice of the Divorce Courts; but Mr. Dewy has in fact written rather more for the professional than a non-professional class, and based as the law and practice are upon statute and cases, we consider that it would be rain for the layman to attempt to get on with the aid of the manual only. The rules, which are apparently plain, frequently present unexpected difficulties, which would utterly confound the
Selection of Cases on the Law of Contracts. By C. C. LANGDELL,
Dane Professor of Law in the Harvard University. London:
Whether this be so or not, it is sufficient for present purposes that it is the opinion of Professor Langdell, whose volume in its sphere is of great importance. It begins the subject of Contracts, and embraces Mutual Consent, Consideration, and Conditional Contracts, and the author anticipates that it will be followed by other volumes upon the same plan. The notes are very scanty, placed at the foot of the pages, and are generally bare references to cases, whilst the index is framed in a most inconvenient manner,containing as it does general headings with principles stated under them, thus really necessitating a further index to the principles. We would earnestly recommend the Professor in the similar works which he foreshadows to be more careful in this respect. If this be done his work will be much enhanced in value. But as the present volume stands it will prove very convenient, collecting as it does all the cases on the particular branch of law from the multitudinous books of reports.
the 900 pages we came to the conclusion that many of the notes, dealing as they do with general subjects not peculiar to bankruptcy, as, for example, the right of stoppage in transitu, the operation of illegality in contracts, and the various liens of secured creditors, might have been very much abridged, if not in some respects, altogether dispensed with. But, on further consideration, we are inclined to agree that the notes cannot fail to furnish a mass of information which at any rate may prove useful in cases of emergency, and for County Court practice, therefore, Mr. Lee's book ought to be recognised as about the best on the subject. To take as an example the subject of stoppage in transitu. The general doctrine is that a vendor may stop goods in transitu, so as to defeat the right of the vendee's assignee. We, as we have said, hesitated in expressing an opinion that it was advisable to give under the head. ing " property of the bankrupt," a full reading of the law relating to stoppage in transitu ; and we must still think that a statement of the principle with a note of the cases would have been sufficient. But Mr. Lee doubtless considered that he was exercising a wise discretion in doing as he has done, having regard to the wide jurisdiction conferred upon all courts of bankruptcy by the Act of 1869. That a reading of the law in this form may, however, mislead and be mischievous rather than advantageous, is shown by the case which we have recently discussed, of a trustee's personal liability for costs. We came to a conclusion different to that arrived at by Mr. Lee. His views were adopted by a learned County Court Judge, whose judgment we adversely criticised. And our author would appear to have supplied the reading of the cases upon which we conceived that the learned Judge had gone wrong---cases which we cannot agree support the proposition of a bankruptcy trustee's liability for costs in exactly the same degree as an ordinary plain. tiff or defendant. The point, however, is not one upon which it can be said that one view is wrong and the other beyond doubt right, but we should recommend anyone intending to raise it to go somewhat deeper than he can do by consulting Mr. Yate Lee's book. And this remark must be made as to almost
branch of the law noticed by him. He gives only a cursory notice of the cases, and rarely forms a conclusion by argument upon the prin. ciples which would at any rate be attempted in an independent treatise.
We are bound to notice the fact which necessarily exists, that as regards very many points the work, as it stands, is of little authority, and must be carefully noted up. There is a peculiar baldness about the statement of the law relating to the rights of execution creditors, which seems all the more so owing to the absence of the cases decided after the publication of the work.. But Mr. Lee has supplied one great want-a thoroughly good index. We have had in use in our own library the work of Messrs. Bulley and Bund, the index to which we have found to be remarkably defective. Mr. Lee's, on the other hand, is singularly comprehensive, and must be very valuable. Further, the sections of the Act are plainly indicated at the top of the pages in which they are treated, and the style of printing must satisfy the most fastidious. Carefully noted up Mr. Lee's book would certainly prove of the greatest usefulness in the office of the country practitioner, and we suspect that it is al to be found upon the shelves of many practitioners of both branches of the profession in London and in the country.
The Law and Practice of Bankruptcy and Imprisonment for Debt.
By Law FORD YATE LEE, Barrister-at-Law. London : William
Maxwell and Son. This work was published last year, but although the biggest of the many works on the same subject we contrived to overlook it. We do not regret it, however, as we are now in a much better position to judge of its merits than we were when it was published.
It should be noticed that Mr. Lee has incorporated so much of the late Mr. Shelford's treatise on bankruptcy as he considered applicable to the present law, but Mr. Lee is solely responsible, and in this light we shall deal with him. On first looking through
NOTES OF THE WEEK. possession of the lands. In the course of aand works extended. He held that the agree.
correspondence between the landowners and the ment was not waived by the company, and directed COURT OF APPEAL IN CHANCERY. company, the former received a letter purporting an inquiry as to what lands of the plaintiffs, Jan. 18, 19, and 22.
to have been written on behalf of the company, which the company were now in possession of, (Before the LORD CHANCELLOR.)
agreeing to a proposal that the value of the land were taken within the time when the said agree.
should be submitted to arbitration under the ment was in full force, and that the price of such KEMP v. THE SOUTH-EASTERN RAILWAY Com Lands Clauses Act. This letter, which with many lands from the time of taking possession thereof
others was written by a clerk to a former respectively, should be ascertained with reference Railway company and landowner-Agreement to solicitor to the company, signing himself in this to the agreement. There would be a further de.
sell land at a fixed price-Construction of instance " for law clerk," was repudiated by the claration that with regard to the lands taken agreement-Subsequent notice to treat under company as unauthorised. The landowners claiming possession of after the expiration of the powers,
Lands Clauses Act-Waiver of agreement. to have the value of the land ascertained by the company must apply to the Board of Trade This was an appeal from a decision of Bacon, arbitration, and the company refusing to pay and obtain a certificate that they were required V.C. By an agreement entered into in September, more for it than at the rate of 1001. per acre, the for the purposes of the railway.
A jury would 1863, between the owners of certain lands at court below held that the notice to treat had then be summoned as to those lands, and the com. Hildenborough, near Tonbridge, and the South. superseded the agreement, and that the value of pany would pay the sum awarded together with Eastern Railway Company, under which the com. the lands must be ascertained according to the interest at the rate of 51. per cent. No custs on pany purchased a certain portion of the lands, it provisions of the Lands Clauses Consolidation either side. was agreed that if the company should require Act. The defendants appealed.
Solicitors : J. H. Johnson; E. P. Cearns. any additional ground for any purpose they should
Little, Q.C. and C. H. Turner for the appellants. pay for the same at the rate of 1001. per acre.
Kay, Q.C. and Lawson for the plaintiffs.
Friday, Jan. 19. not in substitution of, the Lands Clauses Con of the court below, and made a declaration that
(Before Lord Justice JAZIES.) solidation Act of 1845, and any differences by virtue of the agreement of Sept. 1863, the com. touching the premises were to be referred to pany were entitled to purchase any of the lands
RE THE EUROPEAN BANK (LIMITED). arbitration. In May 1865, the company served of the landowners parties to that agreement, for Company--Winding-up-Contributory - Notice of the owners of the lands in question with a notice the purposes of their railway, at the rate of 1001.
appeal-Companies' Act 1862, s. 124–Extension to treat under the Lands Clauses Consolidation per acre, by virtue of such agreement which was
of time. Act for the purchase of more land from them. limited in point of time to the period during this was an application nnder the 124th section Two years afterwards the company entered into which the company's power for making the railway of the Companies’ Act 1862, on behalf of a person