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of the restriction, in favour of whom it will be implied that he had authority to do all that is usual in the management of a ship. But “is it usual,” asks Jervis, C. J., in delivering judgment, “ in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board ? The very nature of a bill of lading shows that it ought not to be issued until goods are on board, for it begins by describing them as shipped. Thus is the question disposed of according to the general principles of the law of principal and agent. A parallel is drawn in the judgment between the case of a bill of exchange accepted or indorsed by procuration, in which case the person taking the bill has notice of a limited authority, and should see that the agent has as much as he professes to have, for the existence of such authority must be proved to enable him to recover. So, in the case of a bill of lading, general usage affects an indorsee with notice of an authority to sign, limited to goods on board; and if a more ample authority exist in a particular case, it must be shown in evidence. If the effect of this decision be to relieve shipowners from being bound by all bills of lading which their captains might fraudulently sign, on the other hand it throws much difficulty in the way of those who take bills of lading relying on the transfer of the property of the goods specified in them, and who, as they must know less of masters than the owners, who engage them, will be cautious of accepting bills of lading as valuable securities, without assurance of a special authority.


Mead v. Bashford, 20 Law J. (N. S.) Exch. 190. The Common Law Commissioners in their Report, which has just been published, observe (p. 20), “that the excessive precision required” (to escape a special demurrer] “is scarcely practicable, except in pleadings of well-known character and daily occurrence, in which, former generations of suitors having paid costs for the settlement of the law, the pleadings have become easy and intelligible. The general plea of set-off in the actions of assumpsit and debt falls so well within this description, that one would think that in a case, which is exceedingly common, of a set-off being made up of items to which the plaintiff has various answers, he would, by this time, have been easily, and without any risk, able to avail himself in pleading of his various answers. Yet several very late cases (of which the present is one) are to be found in the Reports, in which plaintiffs, in proceeding

along this not yet sufficiently beaten path (?), have been tripped up by a special demurrer. In truth, simple as it may appear, there really is some little difficulty. In the first place it was necessary to take an accurate view of the meaning of a plea of set-off. It asserts in effect, that the plaintiff was, when the writ issued, in the defendant's debt to an amount at least equal to the balance left unanswered by the other defences (see Tuck v. Tuck, 5 M. & W. 109; Spradbery v. Gillam, 20 Law J. Exch. 237); should the defendant, therefore, prove but a shilling short of that amount, the plaintiff has a verdict upon that issue, but so much as the defendant can prove is allowed him in reduction of damages. It thus becomes important to plaintiffs not merely to answer any part of the set-off, whereby alone, indeed, they would succeed, but to negative, if they can, every part of the set-off; and if they can do so by one replication, as “nil debet” to the whole plea, no difficulty occurs. But if part of the set-off is barred by the Statute of Limitations, and part has been paid, or otherwise satisfied, it becomes no longer so easy. “At present,” says the learned counsel for the plaintiff in this case, “it is impossible to say what the right form of replication is where there are different answers to different parts of the set-off.” The plaintiff can plead but one replication; neither must it be double : the consequence is, that if he reply separately various matters to different parts of the plea, no one of his answers alone must meet the whole plea. This was the fault committed in the present replication, which was - to so much of the plea as related to one parcel of the demand, the Statute of Limitations; and to so much of the plea as related to the residue of the demand," nil debet.It was, perhaps, an attempt to escape from another replication, viz., to parcel of the plea, the statute; to the residue, nil debet,” which at first seems obviously the way to reply, but which has been declared bad, because “nil debet,or nunquam indebitatus,to the residue, being a traverse of the debt modo et formâ, involves a denial by the plaintiff of what was not affirmed by the defendant, that the residue equalled (or exceeded) the plaintiff's demand. According to this case, and Fairthorne v. Donald (13 M. & W. 424), the proper replication would have been that part of the set-off was barred by the statute, and that the plaintiff was not indebted to the defendant in any sum which, with the part so barred, equalled the amount of his demand. Altogether, it is impossible not to feel that there is much subtlety - more, perhaps, than justice requires—in all this. Tricky pleas are pleaded on purpose to demur, as in Nutt v. Rust (19 Law J., Exch. 54). In the present case, too, the court was not unanimous. Alderson, B., in delivering judgment, observed, “ This case was argued a very long while ago. It has been delayed in consequence of a difference of opinion among the judges, which has not altogether been removed, even at the present moment.” It was argued on May 27, 1850, and judgment was given 26th February, 1851. Surely a system in which a short plea, of daily occurrence, cannot be dealt with without so much doubt and delay, is not about to be modified too soon. Plaintiff had leave to amend on usual terms.


Regina v. Hill, 15 Jurist, 470; 2 Denison's C. C. 254. An incompetent witness is defined, by Mr. Best, in his excellent Manual of the Law of Evidence, p. 148, to be one whose testimony the judge is bound, as matter of law, to reject. Of those whom the jealousy of the common law discarded as such, there were, not many years ago, numerous and comprehensive classes; of late, however, a more enlightened policy has begun to prevail; objections of several kinds to the reception of evidence have been removed by various statutes, and, perhaps, the chief remaining disqualification is about to be removed, to some extent at least, if not entirely. In the present case, a class of witnesses was, for the first time, judicially decided to be competent, which the progress of medical science has succeeded in distinguishing from similar classes which were and remain clearly incompetent. As the office of a witness is solely to relate facts, he must be clearly unfit if he cannot both observe, retain and communicate in some way or other. Thus we find it laid down in text books that idiots, persons of non-sane memory, and those who are deaf, dumb and blind are incompetent; and the same is said of lunatics, except in their lucid intervals. But insanity is now found to be sometimes partial, not only in time, by intermitting, but also in extent, as touching only one or more matters. Men are to be found constantly mad and irrational on one or two points, yet constantly lucid and sensible on all others. These are all, in some sense of the word, lunatics (although some only there are whose delusion is of a nature to render restraint advisable); and as they do not generally enjoy intervals of total lucidity, i. e. on all points, they would fall within the class of incompetent persons above mentioned, but never within the exception to it. The distinction, however, between monomania, or partial lunacy, and total, though intermitting insanity, is now recognized by the Court of Criminal Appeal. The prisoner was

convicted of the manslaughter of a lunatic under his charge; and the question reserved was, whether the evidence of one, Donelly, also a lunatic, ought to have been admitted. Donelly was proved to have a delusion about numerous concomitant spirits, but to be always perfectly rational on all subjects disconnected with his delusion. His knowledge of the nature and obligation of an oath was sufficient. Lord Campbell, C. J., in delivering the judgment of the court, said—“I am glad that this case has been reserved ; it is one of great importance, and ought to be solemnly decided.” And adopting a dictum of Parke, B.--" Supposing a man called as a witness has a delusion, it is for the judge to examine him as to the nature of an oath and his sense of religion, and then to say whether he is competent as a witness; and then the judge, having determined as to the admissibility of his testimony, it is for the jury to decide what credit is to be given to his evidence. . . . He may be cross-examined as to the state of his mind; and witnesses may be called to prove that his mind is so diseased that no reliance can be placed upon his statements; but in the absence of evidence to discredit his testimony, it would be competent for the jury to hear what he said and to act upon it.” It would almost seem, from the tone of these observations, that lunacy generally will, like other grounds of exclusion, go rather against the credibility than the competency of a witness who is not obviously and entirely insane; and that judges will leave the degree of insanity and its connection with the subject of the testimony entirely to the appreciation of the jury.


COURTS—Costs UNDER 13 & 14 VICT. c. 61, s. 13, DISCRETIONARY. Jones v, Harrison, 20 Law J. Esch. 166; S. C. 15 Jur. 337; Latham v.

Spedding, 15 Jur. 576. ALTHOUGH, strictly speaking, the superior courts still have a concurrent jurisdiction in every case, yet the term is specially applied to those cases only in which a plaintiff suing in one of them may recover his costs, and in this sense alone must it in general be taken. Previous to the Extension Act, plaintiffs in a superior court always got their costs, unless the defendant entered a suggestion, and by it showed that the case was none of those in which concurrent or exclusive jurisdiction was retained by the superior courts; and by this means the end was attained, but not unfrequently at such expense, to say nothing VOL. XV. NO. XXVIII.


of the risk of failure (for to frame a suggestion accurately was a matter of much nicety), as to make the permission to enter a suggestion, in many cases, no great boon to a defendant. By the 1lth and 13th sections of the Extension Act this evil is remedied, for plaintiffs are never to have costs if they recover less than 201., or in cases of tort 51., until, upon their showing that the superior court had exclusive, or at least concurrent jurisdiction, a judge at chambers or the full court make an order to that effect. But the difference is not limited to shifting the burden and making the plaintiff establish his right to costs, instead of obliging the defendant to negative it; it extends further, for the plaintiff may now lose his costs, if the court or judge do not think fit to grant a rule or make an order, in cases in which formerly no sufficient suggestion to deprive him of them could have been entered. Such, at least, is the interpretation put upon the 13 & 14 Vict. c. 61, s. 13, by the present case, which arose on the following facts the defendant, living more than twenty miles from the plaintiff, paid 121. 7s., after being served with a writ for 121. 138., and subsequently paid 6s. into court, which the plaintiff accepted and procured an order from a judge at chambers enabling him to get his costs taxed by the Master. The Court of Exchequer made a rule to rescind the order absolute, the judge (Martin, B.) who had made it fully concurring, as he had only made the order in deference to the course which Mr. J. Williams had adopted in a similar case. It was powerfully urged in argument, that as “may” could not be taken to give a discretion to the judge in those cases in the 13th section, in which the jurisdiction of the superior courts was exclusive, the same word could not cease to be imperative when applied to the other cases mentioned in that section. The court, however, held that the natural meaning of “maywas permissive, and was not to be construed “shall,” except when regarding a public duty. Martin, B., expressly states his opinion to be, that “may” is permissive as to every branch of sect. 13. It is not quite clear from the report whether Pollock, C. B., concurs in this view or no; but the point is of no practical importance, as no judge would exercise his discretion by refusing costs in a case of exclusive jurisdiction. The second case is a practical illustration of the beneficial working of the substituted system. The plaintiff got 40s. damages in trespass for a wrongful distress; one of the pleas was “not possessed.” Now, in a very recent case, Timothy v. Farmer (7 C. B. 814), it was held, that no suggestion could be entered under similar circumstances, on the ground that title was in question (which it was not really in either case). But there, observes Lord Campbell, C. J., the

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