A Disquisition on Names..

244 246

CANADA REPORTS:

249

251

264

265

266

Before this reaches the hands of our readers, Trinity Term, which expired under the 18th sec. of 29 Vict., will have been electrified into life by the magic words of 36 Vict. cap. 8, sec. 53. We cannot say we rejoice at its reappearance from the tomb. It is a nuisance to the Bench and the Bar, and of no practical utility. Besides this it was so happily buried by a member of the Bar some years ago that we had hoped never to see its hoary head again. Many members of the profession will remember an exceedingly clever "Obituary Notice" of Trinity Term, written by the late Wm. Geo. Draper, Esq., County Judge at Kingston. It is quite too good to be lost, and the present time seems an appropriate one to reproduce it. It will be found on page

265

Chancery Chambers..

MUNICIPAL ELECTION CASE:

Campbell v. O'Malley..

250

IRISH REPORTS:

COURT OF QUEEN'S BENCH:

Reede and Goodman v. Pipon.....

UNITED STATES REPORTS:

SUPREME COURT:

Hooker v. Miller...

254

FLOTSAM AND JETSAM.....

Trinity Term-Obituary Notice...

REVIEWS:

Cases Determined by the Supreme Court of

New Brunswick...

American Law Review..

267

* DIGESTS OF ONTARIO REPORTS.

The New Digest, so long hoped for, is being issued in parts, and we have now. the first part before us, containing the titles "Abandonment" to "Arrest," comprised in 104 full pages. It is supposed that the whole work will be complete in about fifteen parts, or about 1800 double column pages.

Nine years

The first Digest of Upper Canada Reports was undertaken by the present leader of the Bar in Ontario and Treasurer of the Law Society, Hon. John Hillyard Cameron. He published a digest of cases from Mich. Term, 1828, to the end of the year 1843. afterwards Mr. R. A. Harrison, then a Student-at-law, published, under the supervision of James Lukin Robinson, the then Reporter to the Court of Queen's Bench, the volume known as Robinson & Harrison's Digest, containing all the cases from 1823 to the end of Vol. VII of the Upper Canada Reports-in a book of 530 pages, and including thirteen volumes of reports.

From about this period, and after the Courts of Common Pleas and Chancery were established, judicial decisions began to multiply, and after a few years there was again a demand for a new digest, or a continuation of the last one. Mr. R. A. Harrison, with his accustomed energy, determined to supply the want, but the pressure of other work induced him to hand over the arduous undertaking to Mr. Henry O'Brien, who in 1863 pubIlished the volume known as Harrison & O'Brien's Digest, which brought the cases down to the year 1861. This was a book

*A Digest of the Reported Cases determined in the Courts of Common Law and Equity in Ontario from the commencement of the Reports in Trinity Term, 1823, to the present time, by Christopher Robinson, Esq., Q. C, and F. J. Joseph, Esq., Barrister-at-Law. Toronto: Rowsell & Hutchison, 1874.

of 870 pages, and included no less than thirty-five volumes of reports.

This digest was a great relief to the profession, though it was thought by some that it would have been better to have combined with it the contents of the previous digest. It was intended by the Editor to follow it up by a similar publication every few years. This, however, was not done, as Mr. Christopher Robinson announced his intention of preparing a consolidated digest, which should include all the cases in the previous ones, as well as all which should appear up to the time of publication.

As we have said Mr. Harrison's digest contained the cases reported in thirteen volumes of reports, Mr. O'Brien's those in thirty-five volumes, and the present one will contain the cases reported in over one hundred volumes. These figures alone will give some idea of the amount of labour involved, and the extent of the work. It is somewhat curious to remark, en passant, that each succeeding digest has contained about three times as much matter as the preceding one.

It will be noticed as a very important feature in the new digest that the head notes of many of the cases have been condensed, and many of them re-written. It cannot be denied that to make a really good digest this was absolutely necessary, as in many volumes of the reports the head notes were not all that could have been desired.

This condensation of head notes and the grouping of cases, which decide practically the same point, strikes one at once as a great improvement on the former digests, as does also the fewness of the cross references, the necessity for which is obviated by repeating the head note where the matter of it is equally applicable to different subjects.

The whole plan and style follows closely that of Mr. Fisher's last digest, as

well in the arrangement of the cases as in Mr. Fisher's typographical execution. digest, as is well known, was founded on that prepared by the late County Judge of the County of York, Hon. S. B. Harison, whose arrangement was doubtless the best that has as yet been published. Mr. Brunker also followed the same plan in Ireland.

In conclusion it may well be said that, so far as the first part of the book is concerned, the work which has been done has been done in a manner worthy of the high reputation of the Senior Editor, and which shows on the part of his co-worker, Mr. F. J. Joseph, great capacity for the scientific arrangement of cases, as well as the greatest accuracy, industry, and application.

We shall again have occasion to refer to this work, when it appears in the shape of a complete volume.

TENURES AND CUSTOMS. A new edition of Blount's "Tenures of Land and Customs of Manors," rearranged, corrected and considerably enlarged by W. Carew Hazlitt, has lately appeared. In it the legal lover of antiquarian lore may find much to amuse and interest, as well as to instruct and edify; and from the quaint and apparently fri volous tenures of medieval days, much that will explain and illustrate various points of social and economic history may be extracted. The rents paid, or rendered in those good old days of yore, show that neither the King nor the great lords had much to give their faithful followers save land; that land was of comparatively small value, that it was given away with lavish bounty in payment of every kind of service-military, menial or ceremonial, and that usually the rents. bore no relation to the fertility of the soil, or its nearness to market.

Some of the rents and services for

which lands were held, mentioned by Blount are taking charge of the King's table-cloths on coronation day; finding a spit of maple to roast the King's meat on that day; providing straw for his Majesty's bed, and grass and rushes for his chamber, whenever he chanced to come to Aylesbury; training a hare dog for the King, keeping a white bitch with red ears for the Kin;; carrying the royal horn when his Majesty hunted within the hundred of Lambourne; scalding the King's hogs; keeping the King's lame dog; and, 0 pudor! O tempora! O mores! O "keeping for the King six damsels, towit, w—o—s, at the cost of the King;" carving for the Earl of Lancaster at dinner on Christmas Day; paying to the Lord of the Manor a snowball at Midsummer, and a red rose on Christmas Day; driving a goose three times round the fire on New Year's-day, while the lord blows the fire. A supply of herring-pies were paid to the King for the Manor of Carlton, in Norfolk. The Manor of Downhall was held by a service of holding the King's stirrup when he mounted his horse at Cambridge Castle. The Lords Grey of Wilton held the Manor of Acton by the serjeanty of keeping one ger-falcon for the King. In the time of Henry III., one Robert Aquillan held a carucate of land by the service of making one mess in an earthen pot in the King's kitchen on the day of his coronation. Henry de Greene held lands of the King, in capite, by the service of lifting up his right hand yearly on Christmas Day towards the King whenever he should be in England; and William Hunt held lands of the Earl of Lincoln, free from all services and demands except one rose in the time of

roses.

Among the customs which have prevailed in the various Manors, many are most curious, fanciful and grotesque. In Rochford, in the County of Essex, at

the cock's crowing on the Wednesday after Michaelmas Day, a court was held by the Lord of the Manor of Staleigh, called the Lawless Court. At it the steward and suitors speak not above a whisper, no candles are used, pen and ink are forbidden, but a record of proceedings is kept with a coal; and the unfortunate who owes suit or service thereto and appears not, forfeits to the Lord double the rent for every hour he is absent. If the young men of Coleshill, in the County of Warwick, can catch a hare and bring it to the of the parish before ten parson o'clock on Easter Monday, his reverence is bound to give them a calf's head, and one hundred eggs for their breakfast, and a groat in money. Robert Fitzwalter, a well-beloved subject of King Henry, the third of that name, as death drew nigh, betook himself to prayer and deeds of charity, gave great and bountiful alms to the poor, kept great hospitality, and rebuilt the priory of Dunmow. Here arose the custom, that any man or woman who repented not of his or her marriage, either sleeping or waking, in a year and a day, might lawfully claim a gammon of bacon, which was presented with all the solemnity and triumphs that they of the priory and town of Dunmow could desire. party claiming the bacon had to take his oath before prior and convent, and the whole town, humbly kneeling in the church-yard upon two hard, pointed stones; his oath was administered with such long process and such solemn singing over him as doubtless made his pilgrimage rather painful; afterwards he was hoisted aloft on the shoulders of the men, and carried first about the priory churchyard and then through the town, with all the friars and brethren and all the townsfolk following with shouts and acclamations, and with the hard-won bacon borne aloft in triumph. The Lord of the Manor held his lands by the tenure of giving the bacon to all applicants, but only six claim

The

ants are recorded between 1444 and 1751, which fact does not argue well for domestic felicity in those early days.

THE CASE OF THE CAROLINE REVIEWED.

We have often had occasion to quote from the pages of the Central Law Journal, which, under the editorship of Judge Dillon, is one the very best of our United States exchanges. In a number of that paper published last month, there is a very learned critique upon a pamphlet, written by George Ticknor Curtis, touching the case of the Virginius. The learned reviewer adverts, in common with his author, to the destruction of the Caroline, and proceeds to make some important comments upon the law, propounded in the case which grew out of that affair-The People v. McLeod, 1 Hill, N. Y. 337. The Central Law Journal proceeds as follows, first giving a history of the transaction, and then going on to demolish the law as laid down by Mr. Justice Cowen, who delivered the opinion of the Court:

This case was determined in the Supreme Court of New York in 1841, before Chief Jus. tice Nelson and Justices Bronson and Cowen, all able and distinguished Judges. It is note-worthy in this connection from the fact that Mr. Jus

tice Cowen, who delivered the opinion of the court, attempted to answer the assertion of the British Government that the destruction of the Caroline was a necessary act of self-defence.

The facts of the Caroline case were substantially as follows: In the winter of 1837-8, during Mackenzie's rebellion in Canada, and while the United States and Great Britain were at peace with each other, a body of armed men, mostly Americans, took possession of Navy Island, in the Niagara river, an island belonging to Great Britain, and, having fortified their position, kept up for several weeks a frequent bombardment against the position occupied by British forces on the Canadian shore. An American steamer, the Caroline, plied regularly between Navy Island and Schlosser, on the American side of the river, furnishing the armed forces on the Island with supplies and stores, and keeping up a communication between them

and the American shore About midnight of the night of December 29-30, a party of British troops, under command of Colonel Allan McNabb, proceeded in small boats in search of the Caroline, found her fastened to the dock at Schlosser, in the State of New York, made a hostile attack upon her, expelled her crew, set fire to her, and she floated in full blaze over the great falls. In the skirmish, one Amos Durfee, a person employed on the Caroline, was killed, and for his murder, nearly two years afterward, one Alexander McLeod, a British subject, was indicted by a grand jury in Niagara county, New York. McLeod having been arrested and confined in jail, the British minister, Mr. Fox, in a note to Mr. Webster, the American Secretary of State, (March 12, 1841), demanded his immediate release on the ground that the act in which he was engaged was one of a public character, " planned and executed by persons duly empowered by Her Majesty's colonial authorities to take any steps or to do any acts which might be deemed necessary for the defence of Her Majesty's territories and for the protection of Her Majesty's subjects, and that consequently those subjects of Her Majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally and individually answerable to the tribunals of any foreign country."

In the meantime McLeod was brought before the Supreme Court of New York, under a writ of habeas corpus. Here the prisoner brought to the notice of the court, by affidavits and exhibits, the character of the Caroline, and of the expedition which destroyed her, as well as the demand of the British Government for his release.

The case was argued with great ability by counsel, and many precedents and authorities were cited. The judgment of the court was finally pronounced by Mr. Justice Cowen, who argued the question involved at great length, displaying throughout his opinion the clearness of intellect for which he was distinguished, and the exhaustive research which was his habit. Referring to the demand of the British Government for the surrender of the prisoner, he said: "She puts herself, as we have seen, on the law of defence and necessity, and nothing is better defined, nor more familiar in any system of jurisprudence, than the juncture of circumstances which alone can tolerate the action of that law. A force which the defendant has a right to resist, must itself be within striking distance. It must be menacing and apparently able to inflict physical injury, unless prevented by the resistance which he opposes. The right

of self-defence and the defence of others, standing in certain relations to the defender, depend upon the same ground; at least they are limited by the same principle. It will be sufficient, therefore, to enquire of the right so far as it is strictly personal. All writers concur in the language of Blackstone, (3 Black. Com. 4), that to warrant its exertion at all, the defendant must be forcibly assaulted. He may then repel force by force, because he cannot say to what length of rapine or cruelty the outrage may be carried, unless it were admissible to oppose one violence with another. "But," he adds, "care must be taken that the resistance does not exceed the bounds of mere defence and prevention ; for then the defender would himself become the aggressor." The condition upon which this right is thus placed, and the limits to which its exercise is confined by this eminent writer, are enough of themselves, when compared with McLeod's affidavit, to destroy all color for saying the case is within that condition or those limits. The Caroline was not in the act of making an assult upon the Canadian shore; she was not in a condition to make one; she had returned from her visit to Navy Island, and was moored in our own waters for the night. Instead of meeting her at the line and repelling force by force, the prisoner and his associates came out under orders to seek her wherever he could find her, and were, in fact obliged to sail half the width of the Niagara river, after they had entered our territory, in order to reach the boat They were the assailants and their attack might have been legally repelled by Durfee, even to the destruction of their lives."

Further on Mr. Justice Cowen quotes from Puffendorf the rule applicable to cases of private or mixed war, as follows? "If the adversary be a foreigner, we may resist him and repel him any way, at the instant he comes violently upon us; but we cannot, without the sovereign's command, either assult him while his mischief is only in machination, or revenge ourselves upon him after he hath performed the injury against us." Puff. b. 2, chap. 5, § 7. "The sovereign's command must," adds the learned Justice, "in order to warrant such conduct, be a denunciation of war."

McLeod was accordingly remanded to take his trial in the ordinary course of law, and was tried and acquitted, having proved an alibi.

Notwithstanding the deference which is to be paid to the opinion of so eminent a judge, it is believed that the grounds taken by him in the language above quoted, are to a great extent fallacious.