THE

In 1 thick vol. royal 12mo., price 17. 10s. cloth boards, HE LAW and PRACTICE in EJECTMENT under the COMMON-LAW PROCEDURE ACTS of 1852 and 1854, (15 & 16 Vict. c. 76, and 17 & 18 Vict. c. 125); also in Actions of Trespass for Mesne Profits, Actions for Double Value and Double Rent; Actions for Possession in the County Courts; Summary Proceedings before Justices to recover Possession of Small Tenements, Deserted Premises, or Parish Property; and under the Statutes against Forcible Entries and Detainers. With Forms, (above 400). By W. R. COLE, Esq., of the Middle Temple, Barrister at Law.

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THE LAW of CONTRACTS. By the late JOHN
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Since the publication of the first edition, the progress of legislation on the subjects treated of has rendered necessary considerable alterations and additions in this and in the preceding edition, and while much new matter has been introduced, all that has become obsolete has been omitted. In many other matters the law has been materially altered, and doubtful points have been settled by recently-decided cases, all which are now to be found in the present edition.

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Law," &c.

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A BOON TO NERVOUS SUFFERERS. Ти WENTY THOUSAND COPIES of a MEDICAL BOOK for GRATUITOUS CIRCULATION.-HENRY SMITH, Doctor of Medicine of the Royal University of Jena, &c., who has devoted fifteen years to the study and treatment of Nervous Debility, Loss of Memory, Dimness of Sight, Lassitude, and Indigestion, will send free, for the benefit of nervous sufferers, a copy of the NEW MEDICAL GUIDE, containing his highly successful mode of treatment, with neces sary instructions, by which sufferers may obtain a cure. Every young happiness, and peace of mind. Post-free to any address on receipt of a stamped directed envelope. Sent direct from the Author's residence, 8, Burton-crescent, Tavistock-square, London, W. C.

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COURT OF CHANCERY.

By J. T. HOPWOOD, Barrister at Law.

785

Brown v. Jarvis.-(Will-Construction-" Every"). 789
COURT OF APPEAL IN CHANCERY.
By P. M. LEONARD, Barrister at Law.
In re The Plumstead, Woolwich, and Charlton Con-
sumers Pure Water Company, and The Plumstead,
Woolwich, and Charlton Consumers Pure Water
Company, Limited-Same v. Davis-Ellis v. The
Plumstead, &c. Pure Water Company.-(19 § 20
Vict. c. 47, ss. 5, 59, 60, 107, 108, 109-20 & 21
Vict. c. 14, s. 23- Companies-Winding up-
Chancery-Bankruptcy-Jurisdiction)

ROLLS COUrt.

.....

By C. W. CROUCH, Barrister at Law.

Hobday v. Peters.-(Undue influence-Confidential relation-Purchase of debt at undervalue-Married woman-Liability of her property to her contracts)

THE JURIST.

LONDON, AUGUST 18, 1860.

791

794

By T. F. MORSE, Barrister at Law.

-

Leyland v. Illingworth.-(Vendor and purchaser—
Sale by auction -Condition-Misdescription—
Claim for compensation)

COURT OF QUEEN'S BENCH.
By G. J. P. SMITH, Barrister at Law.
Reg. v. The Inhabitants of Thornton.-(Settlement
by estate-Weekly tenancy-Estate acquired by
marriage)...
Tatton v. The Great Western Railway Company.-
(Costs-Action against carriers-Assumpsit or
case-Judgment by default-13 & 14 Vict. c. 61,
8. 11-19 § 20 Vict. c. 108, s. 30)..

798

799

800

801

805

In the Goods of White.-(Will-Interlineation).... 808

that the judge ought to have compelled the Secretary at War to produce those documents. This rule was argued, and, after time taken to consider, an elaborate judgment was delivered by the Lord Chief Baron in the name of the Court.

objected, saying it was essential to the public service that those documents should not be produced; to which the judge replied, "You represent her Majesty, and are the best judge of that. I shall not compel you to proTHE case of Beatson v. Skene (6 Jur., N. S., part 1, duce them." The jury having found a verdict for the p. 780) is an important addition to our law of evidence. defendant, a rule for a new trial was obtained, on the Before stating the points decided in it, it will be neces-ground (among others, to which it is needless to refer) sary to give an outline of the case itself. It was an action for slander. At the trial, before Bramwell, B., the slander was proved, and the defence was, that the words were spoken under circumstances which rendered them privileged. It appeared that during the Crimean war the plaintiff was appointed to the command of an irregular corps of cavalry called the " Bashi Bazouks," which command he retained until September, 1855; and that the defendant was a civil commissioner attached to the corps. General Vivian, who commanded in the place where that corps was, had directed Colonel Shirley to inquire into and report on its condition, referring him for information to the defendant, who was, by another letter from the General, directed to give it. In a written communication respecting the state of the corps made by Colonel Shirley to the General were some defamatory observations on the conduct of the plaintiff, and the defendant having adopted the responsibility of the contents of that letter, this action was brought. Mr. Sidney Herbert, the Secretary at War, was subpoenaed on the part of the plaintiff; and on his appearing was asked to produce certain letters written to him by the plaintiff, and also the minutes of a court of inquiry, which had sat to inquire into the conduct of Colonel Shirley in writing as he did to General Vivian. To this Mr. Sidney Herbert

That State papers are privileged from production, when their production would be injurious to the public, may be taken as an elementary principle of law, and, we might add, of common sense also. It is a wellknown maxim, that the law will allow injury to an individual sooner than a general inconvenience, and it is obvious that mischiefs to a private individual are as nothing when weighed against those that might result to the community from the disclosure of the contents of many kinds of State papers. But the great point in Beatson v. Skene was, by whom is the question, whether the production of a given State paper would or would not be injurious to the public, to be determined— should it be decided by the judge, or is he bound to take the word of the officer who has the custody of the document? And this point became of the more importance since the recent case of Dickson v. The Earl of Wilton, (1 Fost. & F. 419), where a clerk from the War Office, who was called on to produce a letter, having submitted, on behalf of the Secretary at War, whether it ought to be produced, Lord Campbell, C. J., said,

18

(without, however, argument, or even objection taken), expose him either to a criminal prosecution, or to pro"You must produce the letter."

Such being the question, the following principles are laid down in the judgment of the Exchequer in Beatson v. Skene:

"We are of opinion that if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice; and the question then arises, how is this to be determined? It is manifest it must be determined either by the presiding judge, or by the responsible servant of the Crown in whose custody the paper is. The judge would be unable to determine it without ascertaining what the document was, and why the publication of it would be injurious to the public service an inquiry which cannot take place in private, and which, taking place in public, may do all the mischief which it is purposed to guard against.

"It appears to us, therefore, that the question, whether the production of the document would be injurious to the public service, must be determined, not by the judge, but by the head of the department having the custody of the paper; and if he is in attendance, and states that in his opinion the production of the document would be injurious to the public service, we think the judge ought not to compel the production of it. The administration of justice is only a part of the general conduct of the affairs of any state or nation, and, we think, is (with respect to the production or non-production of a State paper in a court of justice) subordinate to the general welfare of the community. If, indeed, the head of the department does not attend personally to say that the production will be injurious, but sends the document, to be produced or not, as the judge may think proper; or, as was the case in Dickson v. The Earl of Wilton, before Lord Campbell, (reported 1 Fost. & F. 419), where a subordinate was sent with the document, with instructions to object, but nothing more, the case may be different."

This judgment is not, however, quite an unanimous one, Martin, B., being of opinion that "whenever the judge is satisfied that the document may be made public without prejudice to the public service, he ought to compel its production, notwithstanding the reluctance of the head of the department to produce it." On this the Lord Chief Baron remarks, in the general judgment of the Court-" Perhaps cases might arise where the matter would be so clear that the judge might well ask for the document, in spite of some official scruples as to producing it; but this must be considered rather as an extreme case; and extreme cases throw very little light on the practical rules of life."

In consequence of this discrepancy of opinion on the Bench, Beatson v. Skene, although throwing much light on the law on this important subject, can scarcely be said to have settled it; and, indeed, it is one not very easy to settle. Some assistance may, perhaps, be derived from the authorities on a somewhat similar and equally unsettled point; which was not, however, attended to in that case. It is a well-known principle of law, that no person shall be compelled to answer any question the answering which has a tendency to

ceedings for a penalty, or a forfeiture; but when a particular question is put to a party to a suit, or a witness, who is to determine whether the question has that tendency? Some eminent judges have said, that if the witness will pledge his oath to that effect, the Court is bound by it, and must disallow the question. Others deny this; and, indeed, it is obvious, that to adopt such a rule in its integrity would supply an unprincipled witness with the means of evading the giving any evidence whatever. In one case on this subject, (Adams v. Lloyd, 3 H. & Norm. 361; 4 Jur., N. S., part 1, p. 590), Pollock, C. B., suggested an intermediate course, holding that the statement on oath of the witness ought to be accepted, "unless the judge is perfectly certain that the witness is trifling with the authority of the Court, and availing himself of the rule of law to keep back the truth, having, in reality, no ground whatever for claiming the privilege." This seems much the view taken of the other question in Beatson v. Skene, and it seems near the truth. We should, however, suggest this addition" or if the judge is certain that the scruples of the witness are unfounded in fact, as being the offspring either of ignorance of law, or the result of idle terror and misapprehension."

The Court also decided, in Beatson v. Skene, that "when once a confidential relation is established between two persons with regard to an inquiry of a private nature, whatever takes place between them relevant to the same subject, though at a time and place different from those at which the confidential relation began, may be entitled to protection as well as what passed at the original interview; and it is a question for the jury whether any further conversation on the same subject, though apparently casual and voluntary, does not take place under the influence of the confidential relation tled to the same protection." already established between them, and is therefore enti

REPORT OF THE COMMISSIONERS
APPOINTED TO INQUIRE INTO THE EXPEDIENCY OF BRING-

ING THE COURTS TOGETHER INTO ONE place oR NEIGH
BOURHOOD.

(Continued from p. 307).

58. From the evidence of Mr. Rogers and Mr. Johnson, and from the annual returns made by the Accountant-General, and laid before Parliament, for the years abstract will be found in Appendix D.), the following ending the 1st October, 1858 and 1859, (of which an appears to be the state of these respective funds:FUNDS A. AND B.—1858. ' Total income, including balance of cash brought from preceding year Total payments, viz. salaries,

..

pensions to retired officers,
and miscellaneous charges £30,216 0 11
Compensations in respect of
abolished offices, including
terminable salaries

Surplus

31,370 11 3

Of which was carried over to Fund C.
Leaving balance of cash to credit of account
on the 1st October, 1858 ..

· £137,783 9 10

61,586 12 2

76,196 17 8 55,789 18 0

£20,406 19 8