Baron

BARON FITZGERALD sitting in the Irish Consolidated Chamber has refused to follow our Court of Queen's Bench in its decision in Raeburn v. Andrew (30 L. T. Rep. N. S. 15), as to the alteration of the rule of practice which entitled a defendant to security for costs from a plaintiff resident out of the jurisdiction. There Mr. Justice BLACKBURN considered that the Judgments Extension Act, 1868, removed the reason of the rule, inasmuch as a judgment obtained in England can now be entered up in the Courts of Scotland and Ireland, and execution issued upon it. FITZGERALD gave no reason for adhering to the old rule, and in another case Chief Baron PALLES declined to decide in chambers whether the court would depart from it. The great absurdity is that Scotland and Ireland should be out of the jurisdiction, and it would be a step in advance if there could be but one jurisdiction throughout the British Isles. That a different practice as to security should exist in the three countries is decidedly objectionable.

Ir is satisfactory to state that immediately upon his attention being called to the wonderful provision in the Middlesex Sessions Bill, that the Chairman of the Second Court and Deputy Judge should be paid only when the Court had sat for full six hours, Mr. CROSS consented to strike the obnoxious words from the Bill. We are still more pleased to learn that they were not inserted with the consent or even with the knowledge of Mr. CROSS. The Bill had been prepared by his predecessor, and he simply took it as he found it, and in this discreditable shape it would have passed had not keen eyes out of doors detected the mischief that had been cleverly condensed in those seven words. If the HOME SECRETARY had not thus voluntarily conceded the amendVOL. LVI.-No. 1618.

ment, Serjeant SIMON, M.P., had resolved to move its rejection, and if necessary to divide the House upon it. No action was taken in opposition to the payment of the Judge by the day instead of by salary, the urgency of the Bill being pleaded. But the whole question of the administration of the Criminal Law will soon be inquired into by the Judicature Commission, and then this anomaly will doubtless be reviewed and removed.

On the question of the possible postponement of the Judicature Act 1873, a correspondent writes:-"It may, perhaps, be interesting to your readers to know that, in reply to an inquiry whether there is any foundation for the rumour current in legal circles that the General Rules will not be ready by next November-the date when the Judicature Act comes into operation-I have received a letter from the LORD CHANCELLOR informing me that his Lordship is not at present aware of any reason which may render the postponement of the operation of the Act necessary."

AN application for an attachment against a solicitor for nonpayment of moneys due to a client was made to the Irish MASTER of the ROLLS on the 4th ult. The solicitor acted under a power of attorney to draw an annuity, to which a lady client was entitled, and received a portion of the annuity, which, however, he did not pay over. A petition was then filed against him. The amount he retained was 601., and he claimed credits which, on examination, The court, in the first proved to amount only to 11. 13s. 4d. instance, ordered him to pay 581. 68. 8d. within one month. He failed to do so, and the application was made for an attachment. The MASTER of the ROLLS, on this application, gave the solicitor a month to pay half the amount and two months for payment of the residue. "There is," he said, "no excuse for a solicitor who applies to another purpose money which belongs to his client. It should be a golden rule to all solicitors, that the money of a client should be regarded as sacred." And, further, "If he has received money of his client he is guilty of a breach of duty, unless he has it ready when it is called for, and if he makes default the court always considers him liable to punishment."

It was contemplated at one time that the commitment of Mr. WHALLEY by the Court of Queen's Bench for contempt might give rise to some difficulty with the House of Commons. The freedom of members of the House from arrest when the House is sitting is a provision of the Constitution which cannot be too strictly observed; but the uninterrupted and free administration of justice is of even greater importance. What the position of matters would have been had Parliament been assembled when Mr. WHALLEY was committed, may be a question of some interest to the student of Constitutional Law, but does not invite discussion. The Select Committee appointed to inquire into the matters referred to in the letter of the LORD CHIEF JUSTICE to the SPEAKER has reported, informing the House of all that Mr. WHALLEY had to say; but they consider that the circumstances referred to by him do not require the further attention of the House, and express the opinion that the LORD CHIEF JUSTICE did right in communicating to the House the fact of the commitment. The learned Judge has thus most probably anticipated any hostile motion which Mr. WHALLEY might have seen fit to make, and which, by no possibility could have done any good.

THE case Re Ellis's trusts which came before the MASTER of the ROLLS on March 21st, is one more added to the long list of cases which establish the law as to a married woman's separate estate. ELIZABETH ELLIS by her will made in 1860, gave a legacy of 5001. Consols to HENRIETTA RUSSELL, a married woman, absolutely; and by a codicil made in 1871, she declared that all provisions, whether absolute or limited, thereby, or by her will made for any female, should be for her separate use, and while she should be under coverture, without any power of anticipation. Mrs. RUSSELL presented a petition for the transfer of the consols on the ground that the restraint on anticipation was ineffectual, the bequest being of a gross sum. The MASTER of the ROLLS, however, decided that the restraint upon anticipation was operative as to the consols, on the ground that they were a perpetual annuity, and that they restrained alienation. And in support of his judgment his Honour quoted Bagget v. Meux (1 Coll., and upon appeal, 1 Phil.). He declined, however, to decide what would have been the effect of a gift of a gross sum of money in similar circumstances. It is to be regretted that the decision covers such extremely narrow ground, and there are two or three questions involved, upon which it is most desirable that judicial opinion should be expressed. The legatee in this case was prevented from appointing the sum of consols, as it was in the nature of annual income. Would she, on the same principle, have been prevented from selling out and reinvesting the money? The terms of the judgment seem to imply that she would be obliged to enjoy the property in specie, which would certainly be a hard case, as she would be debarred from more profitable investments. If she is not so forbidden to change

the investment, the argument that the legacy was a perpetual annuity redeemable by the State falls to the ground. Involving so minute an issue, the present case will only be an authority when the circumstances are precisely similar. But, according to the authority of Bagget v. Meux, upon which mainly the judge based his decision, there seems to be no reason why the rule laid down in this case should not be equally applicable to a gift of a gross sum of money. KNIGHT BRUCE, V. C., in that case, after stating the validity of general clauses however expressed, in restraint of alienation or anticipation, said: "I am at a loss to discover any sufficient reason why that which holds good as to a life interest should not equally hold good as to an absolute estate. Why should there be any difference ?" And upon the appeal in the same case, COTTENHAM, L. C., said: "The reasoning evidently applies to a fee as much as to a life estate, to real property as much as to personal." The two statements taken together certainly go the whole length of the position that a gross sum of money bequeathed to a married woman, is subject to a general clause in restraint of alienation or anticipation. That case was one of real property, and the Vice-Chancellor seems to refer to real property only, but the Lord Chancellor, whilst confirming the judgment below, expressly extends the principle to personal property, whether held for life or absolutely.

THE speech of Sir CHARLES DILKE, on the subject of vote by ballot, exhausts, we believe, all the shortcomings and defects of the system. His motion for a Select Committee is postponed until the pending election petitions have been disposed of. It seems to be expected that the Election Judges will throw some light upon the practical operation of the ballot, but only in those cases in which there is a scrutiny will any report be made calculated to teach the House of Commons more than it has learnt from Sir CHARLES DILKE. We do not know in how many of the nineteen petitions the validity of the voting will be inquired into, but we believe that in the majority of the cases the petitions simply allege the usual corrupt practices. A scrutiny would of course bring to light many of the defects of the Act and its operation, and as no great harm can be done by delay in appointing a Select Committee it is expedient to wait. There are one or two matters put forward by Sir CHARLES DILKE, of which we have not heard before. He attended and watched the proceedings at five elections, and he said that voters were allowed to take their ballot papers out of the booths. This he argues opens the door to bribery and fraud, as the stamp on the paper might be imitated; and he adds that during the busy period, the presiding officers must find it difficult to stop this proceeding, and in the instances which came under his notice they were anything but vigilant. Further he is not satisfied with the process of counting; it is said to be impossible to supervise thoroughly. We certainly do not see how this is to be secured. Lastly we may refer to the subject of the remuncration of return. ing officers. Somebody whether candidates or ratepayers should pay these gentlemen well, and they ought not to be left to make charges which vary in amount all over the country, or to make none at all, as we regret to find has been the case in some instances. A select committee will be able to suggest remedies for these grievances and must eventually be appointed.

WE shall not have an opportunity this week of considering as closely as they deserve the measures of Lord CAIRNS, dealing with the Transfer of Land, which his lordship introduced into the House of Lords on Thursday night in last week. We will notice, therefore, their general outline. The object which they seek to attain is a simplification of the transfer of land, and the use which is to be made of registration shows the difference between previous legislation and that which is now contemplated, and which will certainly, though possibly to some extent modified, be accomplished. Hitherto, as his lordship pointed out, registers have been historical records of deeds containing the whole of the deeds registered. To simply extend this system would not be of any advantage in the transfer of land, and conveyances would be as cumbersome and expensive as they are at present. The register is to be a register of titles, and not of deeds, and the titles which are to be registered are thus described :-(1), A title absolute or indefeasible; (2), a title limited, that is to say, certified to be good from a particular date, but not beyond it; and (3), a simple title of the proprietor in possession, and asserting himself to be owner. The next question is, What are to be considered indefeasible titles ? First, the registrar is to be empowered to register titles having their root forty years back. And if a registrar has before him a marketable title, about which, however, there is some theoretical imperfection, he may apply to the court, which, if satisfied that such imperfection may be waived and disregarded, will direct that it be registered as indefeasible. The registrar is also to be empowered to accept as facts recitals in deeds twenty years old. Foreseeing that if questions of boundaries are to be raised before the registrars many questions which now slumber by mutual consent of adjoining landowners would be raised and form the subject of much litigation, the LORD CHANCELLOR has determined that such questions shall be left to take care of themselves. Of what estates then is it proposed to register the title? The answer is-fee

simple estates, leaseholds of a certain length, and charges where mortgages are on the estate. Registration is to be voluntary for three years after the passing of the Act; but subsequently to that time, whenever a sale of land is made, there will be an obligation to register the title. The registrar at the head of the Land Office will be the registrar under the new Act, and he will act under the Supreme Court of Judicature, or under whatever judge to whom the duty may be assigned of dealing with any questions which may be referred to the court. It is not proposed to begin with local registries, but the registry in London will have divisions, and if at any future time it is found that the amount of work done in any particular division would jus tify the establishment of a local registry, it will be done. The two other measures introduced by Lord CAIRNS, propose, the one to reduce the periods of limitation fixed by the Prescription Act of Will. 4, from twenty years to twelve, and from ten to six respectively, and as to succession claims to make thirty years the utmost limit; and the other, to make a forty years' title sufficient as between vendors and purchasers. This Bill also provides that the purchaser shall not be entitled to attested copies of the deeds except at his own expense. We have briefly sketched the scope of the proposed legislation, and we shall in subsequent issues deal carefully with the details of the several measures.

THE LIABILITIES OF INSURANCE AGENTS. THE liability of agents for not carrying out the express instructions of their principals is one which requires to be carefully watched, and in no cases more so than in those having reference to insurance. This question is forcibly illustrated by the decision in Great Western Insurance Company v. Cunliffe (30 L. T. Rep. N. S. 113), but, before considering the facts of that case, we may notice the principles upon which the courts have hitherto proceeded. In a useful alphabetical classification of the principles of marine insurance law, which has been from time to time published in these columns, we find the following propositions laid down, and supported by references to authorities English and American:

"An agent, who undertakes, so as to bind himself, to insure, is liable to his principal if he fail to do so, or does not exercise ordinary skill and care."

"Clear, precise, and intelligible directions must be followed as far as they are lawful."

"An agent who has faithfully followed express written instructions is not liable for omitting a provision which, from the verbal communications of his principal, he might fairly have inferred to be necessary."

"Total failure to fulfil the obligation to insure (without notice) subjects the agent to an action for all the loss which his corre spondent may have sustained from the non-insurance.' "Notice of refusal to act as agent, inability to procure insurance on terms named, or of difficulties delaying the insurance, should be given to the principal within a reasonable time."

Total failure to fulfil an implied obligation to insure-i.e., an obligation imposed upon an agent by his relation to his principal and the circumstances by which he is surrounded-it will be seen renders the agent liable for all the consequences; and therefore in all cases where the principal has a right to expect that the agent will insure, he is entitled to damages if that expectation is not realised. The only question remaining when the obligation is admitted or proved, is whether notice of inability to perform the obligation is given to the principal in time, or the insurance was not made owing to impossibility of procuring it or to circumstances amounting thereto. Of this nature was the question arising for decision in Cunliffe's case, and which we may observe is nearly analogous to that which was decided in Smith v. Cologan (2 T. R. 188, in notis). There Buller, J., said "The foundation of this action is negligence in the defendants, by which the plaintiff's have been injured. The defendants were the correspondents of the plaintiffs. As to the orders for insurance having been received and accepted there is no doubt. The only question is whether the defendants have been guilty of negligence at any period of time which will make them liable." It there appeared that the defendants were unable to effect an insurance in London at the premium they offered, not, however, on the ground that the premium was too low, but because the underwriters would not undertake the risk, the vessel not being registered at Lloyd's. The learned Judge already quoted said: "If the defendants who live in London had gone no further, and done nothing else, it might have been a considerable doubt whether they would have been liable; for, if a person to whom such orders are sent does what is usual to get the insurance made, that is sufficient, because he is no insurer, and is not obliged to get insurance at all events." This it was not necessary to decide, for-the insurance sought to be effected being upon cargo-the defendants applied to the shipowners at Newcastle who effected the insurance but kept the policy, and would not give it up when the loss occurred. The foreign principal adopted the acts of his agents until he found he would sustain loss by so doing, and then sought to make them personally liable for the manner in which they caused the insurance to be made. The direction of the Judge

and the verdict, however, went in favour of the defendants, the former observing that they had acted meritoriously, and that, if the principal had intended to hold them liable, he should never have looked to others at all.

The case which we have just stated is useful in considering the Great Western Insurance Company v. Cunliffe, because in the latter a question was raised whether the agents ought not to have made greater efforts than they did to effect an insurance instead of writing to their principals to cover their risks at New York. The excuse made by the defendants was that there was a panic at Lloyd's, and that excessive rates would have to be paid even if the risk were taken at all. They consequently communicated these facts to their principals in New York, but before the insurance could be made the loss occurred. The view taken by the Vice-Chancellor of the excuse of the defendants was this: "The agents in this country had nothing to do with exorbitant rates of premium; they were ordered to reinsure, and from the evidence, showing the manner in which the defendants had previously conducted reinsurance business, it is clear that they considered themselves bound to reinsure. . . . The agency being constituted, the instructions being complete, the duty is cast upon the defendants to show why they did not comply with them. . . They have failed to do so, by writing a letter which could be of no use for the purpose of the business in which the principals and agents were concerned until after the loss had taken place." The Vice-Chancellor accordingly decided that upon the commonest principles of justice and honesty the plaintiffs were entitled to recover. He exercised jurisdiction although it was strongly urged that the case was one for damages which should be sued for in a court of law, and moreover, he decided that the broker was not entitled to deduct from the claim of the plaintiffs the allowance which is always made to brokers by the underwriters.

No possible objection can be taken to the manner in which this case was decided, and it teaches agents a lesson which few we should apprehend require to learn, aud which those who do should not forget. There were express instructions to effect reinsurance; and an elementary principle, which we stated at the outset, requires literal performance. There is no discretion to decline to pay excessive rates when the alternative is to leave the risk uncovered, and we must confess that it is surprising that agents should have incurred the danger which, in the result, overtook them. Three years elapsed between the discovery of the negligence of the agents and the filing of the bill. The ViceChancellor, however, did not consider that any bar to relief, and held that the plaintiffs were entitled to have the accounts gone into, and the loss by failure to reinsure made good.

THE FUNCTIONS OF THE RAILWAY COMMISSIONERS. THE supervision of railways by a special railway commission is no new thing. Such a commission was first established in England in 1846, by 9 & 10 Vict. c. 105, its duties being to report upon railway Bills, especially with reference to competition and amalgamation, and also to perform all the functions theretofore performed by the Board of Trade, as to certifying to the security of railways before opening, and the like.

In 1851, however, the commission was abolished by 14 & 15 Vict. c. 64, and the powers transferred to it from the Board of Trade were revested in that board, which is still charged with very numerous and onerous railway duties, such as by 7 & 8 Vict. c. 85, s. 17, the prosecution of railway companies for any contravention of the law, and by the Traffic Acts of 1854 and 1873, neglecting to provide reasonable facilities for the forwarding of both their own and other companies' traffic.

But it is in America that "Railway Commissioners" have the widest powers. The States of Ohio, Michigan, Massachusetts, and Illinois have all general railway Acts of considerable stringency, and in the two latter States commissioners have been appointed to see them carried into effect. We have before us the second and third annual reports of the Illinois Railway Commission (for the years 1871 and 1872), and it is interesting to see how a people similar to our own are proposing to deal with their railway difficulties. "The railroad interest," say the commissioners," is by far the greatest now in the State, involving nearly every other one." "The board or its members have travelled pretty extensively over the state, and have noted manifest violations of the police laws heretofore existing." And we are glad to find that the board has not been without its reward, inasmuch as "information has been received from various parts of the State that the very existence of a supervising board has had beneficial effects, and that more care and vigilence are being employed in the management of this all-important interest." This sanguine estimate of the result of the labours is however somewhat modified by the subsequent statement that "the Board have found their course beset with difficulties, arising from the fact that the laws under which they were to act lacked system and symmetry, and presented many obscurities of language and meaning." Whether the State even possesses an Act similar to our own Railways Clauses Consolidation Act we are not aware; but we should imagine our own Railway Commissioners would be led to sympa.

thise with them from their experience of the numerous London and South-Western Railway Acts which the counsel for that company, in Goddard's case, produced in proof of the power of the company to charge what they pleased for the carriage of goods. The Illinois Commissioners, however, have drafted a Consolidation Bill, which appears in the Appendix to their second report, which we would recommend to the consideration of our new President of the Board of Trade. It is not likely that English railway legislation will stand still, and it is likely enough that abolition of the passenger duty may be accompanied by a contemporaneous statute having the effect of giving the public something in return for the loss of revenue. However that may be, it is important to bear in mind the remarkable clause which has been inserted in every special railway Act since 1845, to the effect that "nothing herein contained shall be deemed or construed to exempt the railways by this Act authorized to be made" from any future general Act respecting railways. A clause like this would at any rate render impossible any such answers denying the jurisdiction of the Illinois Commissioners, of which the following is a sample: "The company denies the right of your commission to call for the following report, for the reason that it believes the law creating your commission and authorising it to interfere with the regulation of our rates of freight and fare, to be unconstitutional and void." The report was made notwithstanding, and the protests do not appear to have been renewed. We extract a few of the leading clauses of the Illinois Bill: The railway commissioners have the right of passing in the performance of their duties concerning railroads on all railroads in the State.

Every railway company is to furnish the commissioners with a full annual statement of its financial affairs, of the rate of fare for passengers for each month, what running arrangements it has with other companies, a separate list of passengers killed and wounded, and of employés killed and wounded.

[In addition to this, no less than forty-three interrogatories are to be administered by the commissioners, and the commissioners may "make and propound" any further ones they please.]

Said commissioners shall examine into the condition and management of railroads.... and whether such railroad companies comply with the laws And whenever it shall come to their knowledge, either upon complaint or otherwise, or they shall have reason to believe that any such laws have or are being violated, they shall prosecute all corporations guilty of such violation.

All railroads shall be classified according to the gross amount of their respective earnings.

[Four classes are then prescribed, the maximum charge for carriage of passengers rising from 2 cents. per mile in the case of railways earning 10,000 dollars a mile or more, to 5 cents in the case of railways earning 4000 dollars a mile or less.]

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A far more stringent supervision, then, is actually at work in America than in England, and it is proposed by the Railway Commissioners themselves to increase its stringency. The question at once arises, whether it would be desirable to introduce similar provisions here; and it is a question of some practical importance, as it has, by a writer in the Law Magazine for March, been contended-wrongly, we think, but not without some show of reason - that inspectorial functions," of a character hitherto unthought of, are conferred by the recent Regulation of Railways Act 1873 upon our own Railway Commissioners. It has been contended that the Act, besides giving power to prosecute inquiries by inspection after the commissioners have been once set in motion by litigation, gives them also power to prosecute such inquiries of their own motion, and before any litigation is commenced. The words relied on for this contention are those of sect, 25, which provide that "they" (the commissioners) "may by themselves, or by any person appointed by them to prosecute an inquiry, enter and inspect any place or building. the entry or inspection of which appears to them requisite." But we think that the words "for the purposes of this Act," which occur at the beginning of the section, limit the powers of inspection to cases where a party interested has done something to set the commissioners in motion. This may be seen perhaps better from sect. 14 than from any sections of the Act. That section gives the commissioners power to make orders requiring a company to distinguish "terminals" from tolls "on the application of any person interested." But however this may be, the commissioners themselves at present have taken the more restricted view of their "inspectorial functions," as may be seen from Gen. Ord. No. 16, providing for the conduct of in inquiries at any stage of the proceedings, obviously excluding inquiries ante litem motam.

But is it expedient that if the Commissioners have this power they should exercise it, or if they have it not, that it should be given to them? We imagine not. Inspectorial functions exercised of the Commissioners' own motion, would tend to make them highly unpopular with the railway companies, a result which is to be avoided, if the object in view can be gained any other way, and would tend to destroy their judicial character. It' is not desirable that the same persons should be both prosecutors and judges. But we think that there is much force in the argument that "the public, who cannot determine what are undue preferences, unjust prejudices, or unreasonable facilities, is in the same position that an infant is with regard to business trans

actions." The true remedy, in our opinion, lies in the appointment of special railway public prosecutors, independent of the Government of the day. The Board of Trade has been our public prosecutor in this matter for thirty years, but whether from fear, caution, or absence of necessary information, it has contented itself with taking measures (with what success we are not now inquiring) for the public safety, and has, so far as may be gathered from law reports, utterly neglected the duties, thrown upon it by the Railway and Canal Traffic Acts, of enforcing arrangements for the public convenience. Only in one solitary case under the Act of 1854-Barret V. Great Northern and Midland Railway Company (1 C. B., N. S., 423; 28 L. T. Rep. 254)—does it appear that the Board of 'Trade took any part, and even then the point raised by the Board -whether railway companies are compellable to book through traffic-appears to have been allowed to drop. And the part taken by the Board in the Dover case under the Act of 1873 was merely a ministerial one, taken under sect. 13 of the Act. Whether municipalities should be allowed to appoint public prosecutors by an extension of the principle adopted in the Municipal Corporation Amendment Act 1871 (35 & 36 Vict. c. 91), whereby any governing body, such as a corporation or local board, may apply their public funds to the costs of legal proceedings deemed necessary for the promotion or protection of the interests of the inhabitants of their district; or whether such a thing could be best done out of imperial funds, is a somewhat difficult question. But signs are not wanting that the railway companies are now becoming so powerful, that short of State control or purchase, nothing can hold them properly in check but the creation of a body of public prosecutors, charged with the duty of prosecuting railway companies and nothing else, and, above all, absolutely independent of the Government of the day.

FELONY BY CARRIERS' SERVANTS.

It is obviously important that bailors whose goods are lost whilst in the custody and care of carriers should know what their remedies are, and how the loss is to be brought home to the carrier. Carriers have been very properly protected by Act of Parliament against liability for the loss of goods above 101. in value, unless such value is declared at the time of the consignment, but by the 8th section of the Carriers' Act, it is provided that nothing in the Act shall be deemed to protect any mail contractor, stage coach proprietor, or other common carrier for hire from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, bookkeeper, porter, or other servant in his or their employ. On this section a case which is instructive was recently decided and reported by us last week: (Vaughton and another v. The London and North Western Railway Company, 30 L. T. Rep., N.S. 119.) There the question was one of evidence-was it necessary, in order that the plaintiff might recover, that he should prove affirmatively a felony by some particular servant or servants of the company? The plaintiffs had obtained a verdict at the trial, and the argument took place upon the rule to set aside that verdict.

It may be useful shortly to notice the facts and arguments. The property lost was a box of jewellery, and portions of the jewellery were found by different persons laying about a siding platform. One servant of the company was taken into custody, but said that he had found the property in his possession, and was thereupon discharged. Two other servants named respectively Hindley and Wilson were suspected, Hindley being driver of a parcel van on the morning of the robbery in which the box for delivery was duly entered. Wilson was a clerk in the parcel office, who had possession of some of the property. It was proved that there was no part of the defendant's station open or accessible to the public nearer the spot where the parcel van was, while the parcels were being placed in it, than from six to ten yards. The defendants called no witnesses, and the learned Judge in summing up to the jury, told them that they must, before they could find a verdict for the plaintiffs, be satisfied that the goods were stolen by the felony, not of one of the public, but of one or more of the company's servants, although the plaintiffs might not be able to fix the felony on any one particular servant, nor was it necessary that the jury should be satisfied as to which of two or more implicated servants was the actual thief.

The argument for the company was, that they could not have placed the suspected men in the box, for that to do so would have been to subject men with a criminal charge hanging over their heads to cross-examination, and, further, that it would have been to try them on such charge upon an entirely collateral issue. It is impossible not to see the inconvenience and possible injustice attendant upon calling the suspected men to deny the felony, but it is difficult to see how the company could successfully avoid it. And the result shows that it was not possible. It was out of the question that these men should be called by the plaintiff, and, in the absence of a positive confession of the men, what could the plaintiff do? Only that which they did, namely, make out a prima facie case. "It is quite sufficient," was the argument on their behalf, "in a case like the present, if it be shown beyond reasonable

doubt that the loss of the goods in question must have resulted from a felonious act on the part of some one or other of the servants of the railway company, and it is not incumbent on the plaintiffs to fix by their evidence any one servant in particular with the felonious act, nor even to adduce such distinct and precise proof of the act as would be held needful to establish a case for the jury if one of the servants were on his trial on an indictment for the felony."

The

This argument was fully appreciated by the court. Lord Chief Baron referring to the section of the Carriers' Act (sect 8) said: "The intention of that section is manifestly to protect the public from loss or injury to their goods arising from the felonious act of any servant of the carriers or company, and to make the latter liable whenever the articles in question are stolen by persons under their control. Is it possible to say that such a case as the present does not come within that section?" His Lordship then draws a distinction between cases of felony and civil cases, and the evidence which should be given under different circumstances. He said: "We must deal with cases arising under it [i.e., the section of the Act] on very different principles from those which are applicable to a case of a person indicted for a felony. In the latter case where the prisoner cannot give evidence or be examined, if evidence were given that the particular article had come into the prisoner's possession, and had been in his possession for a time, and had then disappeared, the bare fact of possession which might, consistently with the rest of the evidence given, lead to no other inference than that the party charged had been guilty of negligence, could not justify a Judge in leaving the case to the jury at all. But is not the case very different here, where the company could have called all the servants in their employ who were at all suspected of being implicated in the matter to have explained the disappearance of the box, and anything in the cir cumstances that might really be deceptive? Here there is much circumstantial evidence against Hindley, from his having possession of the book, the parcels mentioned in which had been checked and looked over, and his being also in the exclusive possession of the van in which they were placed. The question then arises, whether there is any difference between a civil action, in which we have to consider whether the words of this Act of Parliament have been complied with or not, and the case of the same individual (Hindley), if he had been indicted for a felony. It might be no justification for a Judge leaving such a case to a jury, had Hindley been indicted for the felony, that there was circumstantial evidence that he had had possession of the parcel, and that it had disappeared at the time when it was his duty to deliver it; but in a civil action like the present, it is surely no answer to say, in argument, merely that there was no case to go to the jury, because the man might never have had actual possession of the parcel, or if he had, that it might have been stolen from his van on the way to the hotel."

We have quoted extensively from this judgment because the subject is one of great importance, and the admission of circumstantial evidence in a civil case to prove a prima facie case of felony-which to all intents and purposes is equivalent to a conviction of the suspected servants-is apparently an infraction of the strict laws of evidence. It is undoubtedly a forcible observation to say that the procedure in civil and criminal trials is different, and evidence may be admitted in one case which would be rejected in another; but that this would not be generally contemplated, and that for the purposes of a civil suit men would not be assumed guilty of a felony who were not proved by direct affirmative evidence to be so, is clear. And we think that Vaughton and another v. The London and North Western Railway Company, must be considered as introducing a somewhat novel principle, but one nevertheless which we confess appears to us to have been necessarily applicable to the case in order to give the plaintiffs their proper remedy.

LAW LIBRARY.

A Digest of the Laws relating to Public Health and Local Govern ment for Sanitary Authorities. Sixth Edition. By GEO. F. CHAMBERS, F.R.A.S., Inner Temple, Barrister-at-Law. London: Stevens and Sons; Knight and Co., 1874.

THIS digest does not very well keep in view the difference between a digest and an index. The laudable object of the author to convey (page 2) information in the fewest possible words has led to the attenuation of this work almost to the skeleton dimensions of an index. Of this a sort of consciousness is visible in the remark (page 2), that not a single paragraph of the work should be consulted independently of the statutes on which it is based. It is very difficult to see how this work can abbreviate the labour of studying statutes when the abbreviation it is competent to produce consists in reading the work as well as the statutes. We cannot consider this work anything else than an index which deviates from the intelligible manner in which indices are usually framed. We can however safely recommend the work to those who desire a handy index for collections of special Health Statutes which may have none affixed to them.