470

REVIEW OF THE MONTH.

[Sept.

deceased, mistakes in the periods fixed for payment of the second and subsequent dividends, omission of schedules to which the Act referred, and similar inaccuracies, which ought to have been avoided, and which require to be corrected by the supplementary statute now passed.

An "Act to regulate procedure in the Bill Chamber," has also been passed. The practitioner who has long desired a better arrangement of the anomalous proceedings in this outer court of the temple of justice, must not expect that this statute, notwithstanding its title, regulates any of the procedure with which he is more immediately connected. It is more to settle definitely the number of clerks to be hereafter appointed, and their respective positions and salaries, and still leaves the practitioner to all the petty annoyances of the present system, although, perhaps, these are inseparable from the summary nature of Bill Chamber work.

For

The Crown Suits Act is another enactment which has more interest for public functionaries than the general legal public. a considerable time past, one of the best preliminary defences to a crown suit has been to deny the title to sue of the public officers, in whose name the action was raised; and from the confusion of statutes, and the transference of public interests from one department to another, the plea has frequently been successful. There is at present an action in Court, to which the defence indicated was successfully pled when the process was first raised, and a new action had to be brought under the sign manual of the Sovereign. The Act provides, that in future all such actions may be brought at the instance of the Lord Advocate, with consent of the public department under the management of which the interest affected falls.

of

The Regulation of Leases Bill is undoubtedly the most important any of the recent Acts, and we do not know that the country is sufficiently aware of the revolution it is calculated to produce. But the greatest changes are frequently accomplished with least observation. We have already expressed our opinion of this measure, so cleverly carried by Mr Dunlop, and will, in an early Number, analyse and explain its provisions.

Correspondence.

THE LATE TRIAL FOR POISONING.

(To the Editor of the Journal of Jurisprudence.)

SIR,-In your last Number, you take exception to the following passage in the Dean of Faculty's defence of Miss Smith:-"I have heard it said that juries have nothing to do with the consequences of their verdicts, and that all questions of evidence must be weighed in the same scale, whether the crime be capital, or merely penal in a lower degree. I cannot agree to that proposition," etc., etc. Upon that passage you remark,-"We are not frightened by these strong words from expressing our unshaken adherence to that proposition, which is here represented as peculiarly adapted to the minds of legal pedants, or the leaden rules of a heartless philosophy," etc., etc. It is not my intention to discuss this question with you. I would merely observe that juries are composed of men; and I doubt if many men exist who, when placed in a jury-box, would act otherwise than in the manner urged upon them by the Dean; and I confess I should not think them far wrong if they were so to act. My object, however, in writing now, is to remind you of the very high authority which the Dean had for urging upon the jury the view of their duty which he took. If you turn to page 366 of Mr Swinton's Report of the Cotton-Spinners' trial, you will find the late Lord President, then Lord Justice-Clerk, Boyle, thus instructing the jury," Undoubtedly, it is clear in law, as stated by Mr Robertson, that the greater and heavier the charge, the more clear and satisfactory must be the evidence. This is consistent with reason; for it would be a most dangerous thing, if a conclusion should be arrived at, finding men guilty of so great an offence, without strong, satisfactory, and convincing evidence. The magnitude of the charge ought to have no other effect, than rendering it the more necessary that you should be fully satisfied that the evidence is clear on the subject." Such a statement of the duty of a jury, coming from such a man as the late Lord President, would of itself have sufficed to remove all doubt upon the matter, had I ever entertained any.-—I am, Sir, your obedient servant,

August 24, 1857.

J. M.

[Does our correspondent think it right to convict a man even of petty theft on anything less than "strong, satisfactory, and convincing evidence?" Or does he think that evidence, though "strong, satisfactory, and convincing," may yet be insufficient to support a charge of murder? Let him choose his horn. Our proposition is, that evidence possessing all these characteristics is required in any criminal charge, capital or not capital. This doctrine has at least the recommendation of being quite simple and safe-qualities which scarcely belong to the opinion, that a different scale is to be used in weighing evidence according to the degree of punishment legally following upon conviction.

By all means let a jury who are trying a capital charge be more forcibly reminded than on any other occasion that, to justify a conviction, the evidence must be strong, satisfactory, and convincing. We say as much as this in the paragraph which our correspondent impugns. And the venerable Judge whose opinion he quotes does not say more than this, if the general import of his charge be fairly taken, without undue emphasis on particular expressions in it. If it is to be read as meaning that evidence less than conclusive will suffice for a conviction not capital, we must be content humbly to differ.]

THE LORDS OF JUSTICIARY AND THE MEDICAL FACULTY.

(To the Editor of the Journal of Jurisprudence.)

SIR,-A contention has arisen between the Lords of Justiciary and the members of the Medical Faculty, to which it is necessary to direct public attention. That contention touches more nearly the interests of the public than of the Faculty.

By law, jurymen, when summoned, are bound to attend to the discharge of their duties, unless they can produce the certificate of a duly licensed medical practitioner, that they are labouring under such severe indisposition as for the time renders them unable to act, and that to do so might be followed with serious danger to health, if not to life. The certificate must be given on soul and conscience; and hitherto it has never been the practice to require the medical officer to specify the particular disease under which the patient suffered. Its strength and severity, if they disabled him, were considered sufficient, without unnecessarily wounding his feelings, and, it may be, fomenting the disease, by the painful disclosure of maladies, which would add nothing to the value of the certificate, however they might irritate the sufferer. Our past practice held, that if the certificate, as formerly expressed, was true, it was sufficient for the purpose; but if, on the contrary, a fraud or imposition was contemplated, while it might be punished on conviction, it was seen that it would be as easy to assign a false cause as a false result. And even were the certificate false on both grounds, with what facility could such a licentiate shelter himself under the plea of a difference of opinion!

But the Lords of Justiciary have recently required, that the certificates of medical men in favour of absent jurymen should specify the particular complaint which renders absence compulsory. To the honour of the great body of the profession, it has to be said, they have refused to comply with the requirement.

Meantime, the contention is not adding to the dignity of the bench nor the harmony of official practice. The Judges impose a penalty on a juryman whose absence is accounted for by a general certificate from one of our first medical men. The same certificate is produced to the Officer in Exchequer, who remits the penalty imposed by the Judges. Can anything be more unseemly than such contradictory procedure between parties holding positions so widely dissimilar, or can it be doubted that the subordinate official exercised the soundest discretion?

But what is to be the result of establishing such a rule as is now proposed, supposing it possible? These certificates have hitherto been read in open court. Is this system to be continued, or a Robing-Room inquiry to be substituted? If the open procedure, of which we are so proud, is to be adhered to, is it conceivable that specific certificates should be tolerated? Publicity would, in a multitude of cases, not only aggravate the disease, but, in particular temperaments, induce others besides. Many a sensitive patient would hazard his life by undertaking a protracted jury trial, which he could not sit through, rather than his peace and comfort, by the disclosure of a serious but secret and painful affection, an exposure which might embitter his existence, and dwell on his grave, and fasten on his family after his death. Suppose the not uncommon case of melancholia or delirium tremens, which is not suspected. The malady is too substantial a cause of absence; but how ruinous might not the disclosure of it be to the prospects or happiness of the man! This meddling and pettifogging inquisitiveness, with every probability of much loss to the country or particular litigants, by the breaking down of Jury Trials, through the illness of jurymen,-would expose jurymen to ridicule or distrust, or malice, or, it may be, to the loss of their dearest hopes, by openly publishing the errors of youth, which they might be painfully struggling to bury in silence. But if the open system under which we have grown up is to be superseded,

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473

and a secret tribunal introduced, I beg to inquire by what law and on what principle it is constituted, and whether the sufficiency of the tribunal to decide the endless variety of the pleas of absence, consisting of all the ills that flesh is heir to, has been adequately tested? It sometimes occurs that any other position than that which has been chosen best suits the man. speculative and untried qualifications we can give no approval. Better a But of these system which has worked well on the whole,-better the character of the man who grants the certificate on oath,-better even that an occasional unwilling and unscrupulous juryman, or a willing and no less unscrupulous surgeon, should escape on the wave of falsehood, than that an inquisitorial and offensive investigation should be required, in all cases, as to the nature and severity of the complaints which render attendance impossible. Penalties imposed in cases where a sufficient general certificate is given, are practically an extension of the criminal law at the will of the Judges; and as this attempt, like the serpent's egg, might in time grow dangerous, it must be crushed in the shell.

I earnestly trust that not a man of the Faculty will yield to such dictation, and that there will be a sufficient expression of public opinion on the question, as will frustrate the attempt to introduce so odious and uncalled for an inquiry. -I am, etc.

M.

American Cases.

[THE following cases, which are taken from a monthly journal published at Philadelphia, the American Law Register, may prove interesting, if not instructive to our readers.]

CAVEAT EMPTOR.-Warranty of Provisions-Contract.-Where, on a purchase of provisions, as merchandise, to be sold again by the buyer, they are in a situation to be, and are, examined as fully as the buyer deems necessary, and there is no fraud nor express warranty, nor representations amounting to warranty, the maxim caveat emptor applies; and although, on a subsequent further examination, a portion proves to be unsound and worthless, the buyer is liable for the contract price.-(Hyland v. Sherman, p. 311.) party agrees to purchase an article specified to be of a certain quality, Where a he is not bound to accept and pay for a different article; and after delivery he has a reasonable time to examine and ascertain whether his contract is in fact fulfilled. But if he examines the article when tendered, retains it, and pays the price, the sale is consummated, and the purchaser cannot then, without having offered after a further examination to return it, or given notice to the seller to resume possession, maintain an action to recover damages for the inferiority of the article delivered, to that called for by the contract.-(Ely v. O'Leary, p. 310.) Where goods are delivered under an executory contract of sale, the purchaser is bound to accept them as a performance of the contract, or, upon discovering their inferiority, reject them, and give notice of such rejection, or his acquiescence in the quality will be presumed. Otherwise, it seems, where the action is not on the contract, but is in the nature of an action on the case for fraud or deceit. Hence, where a party bound by an executory contract resorts to artifice, false packing, or other means, to disguise the quality, and deceive the other party to the contract, he is liable for all the damages occasioned by his deceit or fraud.-(16.) But it seems, that where there is an express warranty or representation amounting to a warranty, different rules apply.—(16.)

COMMON CARRIERS.-Liability-Notice. The liability of a common carrier, who receives and ships goods at New York, directed to a firm at a certain number and street in Philadelphia, continues after the arrival of the vessel at the

wharf in that city, until notice is given to the consignee, and reasonable time allowed him for their removal.-(Barclay v. Clyde, p. 312.) But where the direction is to another and more distant point than that at which his own route terminates, the carrier's responsibility is at an end when he delivers all the goods, in the usual course of business, to the other carriers, to be forwarded by them.-(Ib.)

DAMAGES FOR SERVANT'S NEGLIGENCE.—Where a person, without fault on his part, suffered damages from a horse running away; held, that the owner thereof was liable, it appearing that his servant was negligent in not properly securing and restraining the horse, although the consequences of the accident were also chargeable upon a third person, who caused him to run by carelessly frightening him.-(M'Cahill v. Kipp, p. 313.)

EVIDENCE.-Waiver of Proof-Insurance. In an action upon a policy of insurance upon the life of B., whereby the defendants agreed to pay to A. (the plaintiff) 100 dollars within sixty days after notice and proof of the death of B.; held, that the defendants having, upon receiving the preliminary proofs, placed their refusal to pay on the ground that there was no sufficient proof of the particulars of the plaintiff's interest, and having suffered the sixty days to elapse without any objection to the sufficiency of proof of death, had waived further proof of death, or admitted the sufficiency of that already furnished, and that after the sixty days it was too late to raise that objection.-(Miller v. the Eagle Life Insurance Company, p. 313.)

NEGLIGENCE.-Meaning of "ordinary care" and " gross negligence.”—In a question as to an injury to property in custody of an officer under attachment, caused by his apparent negligence or want of care, REDFIELD, Ch. J. (Chittenden, Vt.), said-Questions of negligence are said in the books to be mixed questions of law and fact, but where there is no testimony tending to show negligence, or where a given course of conduct is admitted, which results in detriment, and no excuse is given, the liability follows, as matter of law, and there is nothing but a question of damages for the jury. We do not think a judge is ever bound to submit to a jury questions of fact, resulting uniformly and inevitably from the course of nature, as that such carriages will be injured more or less by exposure to the weather during the whole winter, or that a judge is bound to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature or the conduct of business, becomes a rule of law. But while there is any uncertainty, it remains matter of fact, for the consideration of a jury. It could not be claimed, that it should be submitted to a jury whether cattle should be fed or allowed to drink, or cows be milked.

But what is the proper mode of defining the duty of the officer in keeping goods, attached on mesne process? It is usually defined in practice, in this State, certainly so far as we know, much as it was in this case, by the use of the terms, "ordinary and common care, diligence, and prudence. We have been at some pains to look into the English books upon this point, and although there may be some exceptions, the general rule certainly is, among the English judges, to express common care and ordinary care by terms less liable to misconstruction, and, as we think, likely to be more justly appreciated by juries. In Duff v. Budd, 3 Brod. & Bing. 177, the rule is laid down by Dallas, Ch. J., to the jury, in these words: "Gross negligence is where the defendant or his servants had not taken the same care of the property as a prudent man would have taken of his own," and the judgment is affirmed by the full bench. In Riley v. Horne, 5 Bing. 217, Best, Ch. J., says of a carrier, "the notice will protect him, unless the jury think that no prudent person, having the care of an important concern of his own, would have conducted himself with so much inattention or want of prudence." In Batson v. Donovan, 4 Barn. & Ald. 32, the same learned judge lays down the rule thus: "They must take the same care of it that a prudent man does of his own property. This is the law with respect to all bailees for