LAW OF COSTS.

OF PETITION UNDER LANDS' CLAUSES ACT OF PURCHASE OF LEASEHOLD INTEREST ON OTHER LANDS.

PART of the real estate belonging to a corporation had been taken by a railway company, and another part by a waterworks company, for the purposes of their respective undertakings, and the purchase moneys had been paid into court. It was now proposed with the moneys in court to buy up two long leases for ninety-nine years, granted in 1798, of other lands belonging to the corporation, and a petition was presented for the purpose.

The Master of the Rolls said: "The act specifies certain costs which are to be allowed, and the ViceChancellor of England, in exparte the Earl of Hardwicke, 17 Law J. Ch. 422, thought himself bound to follow the act. I cannot distinguish these two cases, and I am also bound to follow it. It is not necessary to send the matter to the conveyancing counsel, because the title is that of the corporation itself. The costs merely of obtaining the fund out of court must be paid by the two companies, and they must be apportioned between them in proportion to their purchase moneys."

In re Manchester, Sheffield, &c., Railway Company, exparte Corporation of Sheffield, 21 Beav. 162.

POINTS IN EQUITY PRACTICE.

ATTACHMENT TO ENFORCE ORDER OF IRISH ENCUMBERED ESTATES COMMISSIONERS FOR PAYMENT OF MONEY.

HELD by the Lords Justices, that an attachment might issue in this country directing that a party against whom and his wife two orders had been made by the commissioners under the Incumbered Estates (Ireland) Act, 12 & 13 Vic. c. 77, s. 14, for the payment of £400, might pay that sum within a fortnight, or in default thereof stand committed, but not against the wife. In re Keogh, 5 De G. M'N. and G. 73.

CERTIFICATE OF FILING OF ANSWER AND OF TRAVERSING NOTE AGAINST ANOTHER DEFENDANT IN ORDER TO MOTION FOR DECREE.

The two defendants in a suit had been served with interrogatories, and one put in an answer, but the other went abroad without having answered. The plaintiff filed a traversing note against the latter, and applied to the clerk of records and writs for a certificate of the filing of the answer and of the traversing note for the purpose of having the cause heard upon a motion for a decree. Reference was made on the argument to orders 53 and 57 of May 8, 1845, and to the 15 & 16 Vict. c. 86, s. 15.

The Lords Justices held that the certificate ought to issue.

Maniere v. Leicester, 5 De G. M'N. and G. 75.

CONSTRUCTION OF RECENT

STATUTES.

COMMON LAW PROCEDURE ACT, 1854.

SERVICE OF RULE UNDER S. 60 AS TO DEBTS DUE UPON DEBTOR'S WIFE IN ORDER TO ATTACHMENT.

THE affidavit in support of a motion for an attach

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ment against the defendant, a judgment debtor, for not appearing before the master pursuant to a judge's order (made a rule of court), to be examined as to debts due to him under the 17 & 18 Vic. c. 125, s. 60, alleged a service of the rule upon the defendant's wife, but there was no allegation that it had ever come to his knowledge.

The Court held the service to be insufficient, and refused the motion.

Mason v. Muggeridge, 18 Com. B. 642.

ANSWERING INTERROGATORIES UNDER S. 51 IN ACTION FOR INFRINGEMENT OF PATENT.

HELD, that it is no ground for refusing to answer interrogatories under the 17 & 18 Vic. 125, s. 51, in an action for the infringement of a patent, that the answers may expose the defendant's customers to actions.

Tetley v. Easton, 18 Com. B. 643.

MEDICAL JURISPRUDENCE.

CASE OF PALMER.-POISONING BY STRYCHNINE.

We have been accustomed to record briefly in these pages "remarkable trials," especially where they involved peculiar examples of circumstantial evidence.

And we are the more induced to advert to the extraordinary case of William Palmer, for the murder by poison of John Parsons Cook, in consequence of the discussion contained in the "Psychological Journal," edited by Dr. Forbes Winslow, in which the medical evidence on the trial is ably reviewed, and of a pamphlet on the subject which we have just received. We shall first, however, extract the masterly summary of the case by the editor of the Times:

"The terrible details of this case and of the two others in which suspicion was raised against the prisoner have been discussed in every household of the three kingdoms. Popular feeling was so excited in the neighbourhood of the deed that the prisoner's advisers asked, and the Crown acquiesced in, a change in the place of trial. A new act of Parliament was passed to enable the Queen's Bench to send the matter before a metropolitan court. The postponement of the trial gave the prisoner every facility in preparing a plausible defence, even to the selection of scientific men to detail the events of their practice and to prosecute special experiments. The Crown, of its own free will, furnished the defence with all the evidence which it was intended to bring forward. Finally, six months after the commission of the crime, the Chief Justice of England and two other judges celebrated for their experience and acuteness took their seats on the bench. A jury, not taken from among the farmers of a small country district, but selected by chance from the trading class of a population numbering 3,000,000 of souls, removed as far as possible every suspicion of unfairness. Then came a trial of extraordinary length and labour. The opening speech of the Attorney-General lasted more than four hours; his reply was nearly as long. The prisoner's counsel defended him in a speech of eight hours. The case for the prosecution lasted six days; that for the defence more than three. The summing-up of the Chief Justice commenced at the sitting of the court on Monday, and was not concluded until yesterday

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afternoon. The men of highest standing in the medical profession gave their evidence for the crown or for the prisoner. Finally, the jury, after listening with unwearied patience to the arguments and testimony for nearly twelve days, retired to consider their verdict. On their return into court the foreman pronounced the terrible word which consigns William Palmer to a murderer's doom.

"In the justice of the verdict every one who has followed these memorable proceedings must fully

concur.

-

Never was a crime more cruel, treacherous, and cold-blooded; never was it brought home by proof more cogent and irresistible. True, the evidence was circumstantial, but in some respects circumstantial evidence is the best. Where the proof of crime is assumed from the testimony of two or three who declare to its actual commission, there is room to doubt whether animosity, or a wish in the witnesses to screen themselves, may not have led to perjury for the destruction of an innocent man. But where a long series of facts, deposed to by numbers of persons unacquainted or unconnected with each other, all points to one conclusion, then there can be little doubt as to the decision. Never did testimony more various and more unshaken unite to bring home guilt than in the case of Palmer. Cook is well and in high spirits, and suddenly is affected by sickness for which no one can account. A few days afterwards he arrives in Rugely with the prisoner, and there the symptoms are repeated. He is not bilious, nor suffering from any complaint which should produce vomiting, and yet he is sick after everything that the prisoner administers. A servant in the place tastes the broth prepared at the prisoner's house, and suffers in the same manner for hours afterwards. When the unhappy man dies, antimony is found in the blood, a fact which science pronounces conclusive of its having been administered within forty-eight hours before death. Yet no medicine containing antimony had been openly prescribed, nor is it pretended that the deceased was in the habit of taking any such drug. In fact, the defence totally evaded the question of the antimony altogether. The counsel brought witness on witness to give their speculations on tetanus, epilepsy, and convulsions, but no answer was made to the evidence which proved that Cook had vomited for days without a cause, and that after his death a poison which kills by producing vomiting had been found in his body in a state which showed it had been recently swallowed. Can we, therefore, come to any conclusion but that the prisoner, a medical man, having this drug in his possession, and knowing its effects, had used it for the purpose of producing in Cook symptoms which might be confounded with those of ordinary disease? For it is worthy of notice that it was not the interest of Palmer that his friend should die until the stakes and bets he had won were due, but that he should be ill and unable to receive them personally. Hence we find antimony used until Palmer has gained possession of large sums on Cook's account, and then, within a few hours, as soon as it became his interest that Cook should die, the first dose of strychnine is administered. Palmer's affairs, in fact, grew more desperate every day. The usurer who had him in his power was incessant in his demands for money. Palmer had forged his mother's name, the bills were due, and writs were out against both mother and son. Twenty-four hours might discover all; for, unless, £450 were paid immediately to Pratt, proceedings would be taken against

Mrs. Palmer. Cook had won money at Shrewsbury races, and had it about him; bets were due to him in London. That money disappears, no one knows how, and as for the bets, Palmer receives them through an agent, and applies them to his own use, the day before Cook dies. Here, then, is a motive for haste. If Cook discovers that he has been robbed, if the creditors discover that Mrs. Palmer's name has been forged, Palmer may within a week stand in a felon's dock. He knows the use of strychnine. He knows that it kills by tetanic fixing of the respiratory muscles.' Perhaps he does not know that it causes horrible convulsions of the whole body, but thinks that the sufferer dies with merely internal spasms. If we believe the witness Newton, he buys strychnine on the Monday night, and on that night he administers pills to Cook, which are followed by tetanus. There are doubts thrown on the evidence of Newton, because he concealed, or at least did not volunteer it, until the eve of the trial. But, even supposing this young man to be capable, for no earthly reason, of swearing away the life of one who had never done him wrong, the case does not end here. Another witness, whose testimony is not disputed, swears positively to the purchase of six grains of strychnine at another shop, that of Mr. Hawkins, on the succeeding day, but a few hours before Cook's death. If ever anything was proved in a court of justice, it is the purchase of this deadly drug by William Palmer. The defence, loosely enough, shifted its ground as regards this question. First, it was that no poison had been purchased, and that Newton was perjured; then it was that the strychnine might have been wanted to kill dogs which annoyed Palmer's horses in a paddock. Neither of these assertions

is supported by a jot of evidence. The testimony of Newton was not shaken; that of Roberts was not even questioned. As for the supposed purpose of the strychnine, no evidence followed the suggestion of the prisoner's counsel. The death of the deceased occurred on the evening which succeeded the last purchase. He died just as strychnine is proved to kill. The evidence of the medical witnesses for the crown is decisive as to the improbability of his dying by any known form of disease. Mr. Curling, Dr. Todd, Sir Benjamin Brodie-all speak positively as to this point. Thus three main points of the case are made out fully.—the death of the decease by strychnine, the purchase of the poison by the prisoner within a few honrs of the death, and the prisoner's pressing motive for the destruction of his companion.

A

"Only on one point can there be the slightest doubt. The body is unskilfully dissected, and the stomach, with some of the other parts, is sent to Drs. Taylor and Rees. They find no strychnine. Of course, on this the whole defence rests. number of medical men are brought to declare that if strychnine had been taken it must, in their opinion, be found. But one fact is worth any number of opinions. Drs. Taylor and Rees perform experiments with rabbits, giving them not large doses, like the defence doctors, but just enough to kill. In two cases strychnine is found; in two it is Therefore these two gentlemen are justified in declaring that, according to the tests made use of by them in the case of Cook and in the case of the animals, the poison is sometimes found and sometimes not. We cannot but think that the witnesses for the defence endeavoured to prove too much. Scientific dogmatism could go no further than when

not.

two gentlemen alleged that Cook could not have taken strychnine because he allowed himself to be touched,- -an act which always threw a rabbit into a spasm. Equally unavailing for the prisoner were the suggestions as to the cause of death; it was apoplexy, epilepsy, idiopathic tetanus, traumatic tetanus, epilepsy with tetanic complications, and so on. There were as many opinions as men; and though certainly a prisoner is not bound to account for the cause of death, yet a jury, observing the differences between these witnesses, who made such a display of science, might naturally be led to think that their opinions were not sufficiently authoritative, to destroy the testimony of facts and the deductions of common sense. If we add to this that in one case a medical witness confessed to having expressed a belief in Palmer's guilt, and an opinion of the incompetency of Dr. Taylor to detect it, we can have little wonder that the jury should have made so little of the large array of testimony for the defence.

"All these points were fully noticed by the Chief Justice in his long and conscientious summing up, as well as those minor incidents which strengthen into certainty the belief of the prisoner's guilt. The anxiety about the jar, the presents to the coroner, the attempted bribing of the postmaster and the postboy, the curiosity about Dr. Taylor's analysis, leading the prisoner to procure the tampering with his letter, and inconsistent with the knowledge that no strychnine had been administered, all forced home the conclusion of the prisoner's guilt."

The reviewer in the "Psychological Journal" observes :

"That strychnine was either in the contents of the stomach or in some of the tissues of Cook's body, able chemists entertain no shadow of a doubt. Had Taylor been happily successful in his analysis, and had detected even the 50,000th part of a grain of the poison, that discovery, conjoined with the overwhelming and crushing circumstantial evidence of Palmer's guilt, would have settled his conviction and condemnation in a few hours.

"As to what was the real cause of Cook's death, Brodie, Todd, and others have no doubt. They affirm that it was strychnine. The questions raised by the defence of the possiblity of Cook's death being the result of some tetanic disease, instead of poison, is alleged to have broken down, and disappear in the course of the cross-examination by the Attorney-General. It has subsequently been conjectured that death might possibly have arisen from some new form of disease, of a tetanic character, not yet recognised. Cook was said to have died with indentically the same symptoms, even to the very last expression of turn me over,' as Mrs. Sargeantson Smyth and Mrs. Dove, in both of whose cases strychnine was known to have been the cause of death beyond dispute. Five theories were set up by the defence in opposition to the fact of the indentity of death from strychnine in Cook's, Dove's, and Smyth's cases. The five theories were-idiopathic and traumatic tetanus, tetanic complications, epilepsy, and angina pectoris.

"As to idiopathic tetanus, it was asked, where were the signs of it? If it was traumatic, where was the wound or injury of a nerve to account for it? No one could point it out. As for tetanic complications, the witnesses for the Crown scouted the idea. Epilepsy-Was it epilepsy? Not one of the medical witnesses either for the prosecution or

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the defence could say it was. Hydrophobia would have been a much more plausible theory to account for Cook's symptoms-though it does not appear that Cook had ever been bitten by a mad dog-than the suggested one of angina pectoris; for hydrophobia is a tetanic disease, whereas angina pectoris is not.

The article concludes with some remarks on the expressions and behaviour of the convict just prior to his execution; but we think too much importance is attached to the language of a man so criminal, artful, and self-possessed. The writer remarks, that when pressed to confess, all that Palmer would admit was, that "Cook did not die from strychnine." And adds:

"It was obvious, by his refusing to answer the question repeatedly and earnestly addressed to him a few minutes before his execution, whether he was instrumental in Cook's death, that he was exercising some mental reservation on the point. When Major Fullford begged him to admit the justice of his sentence and unburthen his conscience before entering into the presence of his Maker, Palmer's remark was, 'Cook did not die from strychnine;' and when implored to say 'yes' or 'no' to the question-was he not the murderer of Cook, he replied, I have nothing more to add; Lord Campbell summed up for strychnine.' If Palmer had positively repudiated all participation in Cook's death, his denial of the fact, even at the awful moment immediately preceeding his execution, would not have been entitled to one moment's consideration, or to the slightest credence; but, as Palmer would not deny his guilt, but persevered to the last in emphatically asserting that Cook did not die from the effects of strychnine poison, we think we are justified, according to the recognised rules of evidence, in concluding that strychnine was not the specific poison that caused Cook's death. The reader must view Palmer's statement not only in conjunction with the fact that Drs. Taylor and Rees could not discover strychnine in the contents of Cook's stomach, but in relation with the conflicting medical testimony adduced at the trial, as to the true character of the symptoms exhibited by Cook during his fatal illness. We cannot conceive how any person, accustomed to consider and weigh nice points of evidence, can arrive at any other conclusion. That Palmer murdered Cook is, to our mind, an indisputable fact; but, according to our apprehension, strychnine was not the poison used for the purpose! Well then, it may be asked, if Palmer was conscious of his having accomplished his murderous designs by the administration of some other poison, and not by strychnine, how can this solemn declaration-" I am an innocent man -be made consistent with such an hypothesis? It must be borne in mind that William Palmer was indicted for murdering John Parsons Cook by means of strychnine. He was accused, tried, convicted, sentenced, and hanged for committing the murder in the manner set forth in the indictment. If strychnine had nothing to do with Cook's death, -if the poison had never been exhibited by Palmer to Cook, or by any other person with his knowledge, then Palmer was falsely convicted, for he was innocent of the particular offence imputed to him. If a man is accused, tried, convicted, and hanged for drowning a person found, under questionable and suspicious circumstances, dead in the water, and he had no more hand in so

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destroying him than the Emperor of China or the King of the Sandwich Islands, the accused party is wrongly convicted and unjustly punished. He may, some days prior to the death of the party found drowned, have administered to him some deadly drug, or have given him a blow on the head, thus causing temporary mental derangement, impelling the party to the act of suicide, but of the particular and specific offence for which he is tried, convicted, and executed-viz., murder by drowning-he is clearly and undoubtedly innocent. The fact of the man being a murderer and justly deserving death upon the scaffold does not affect our position. The offence or crime for which a party is arraigned must be clearly established against him before he can legally be found guilty and punished. There would be no safety or security for society unless this principle were strictly, stringently, and jealously adhered to in the administration of the criminal jurisprudence of the country. We feel anxious to place this question fairly, dispassionately, and legitimately before our readers, not having the faintest shadow of a doubt as to the guilt of the miserable man who has gone to his last account, or as to the moral justice of his conviction, sentence, and death."

On this subject we may add, that a pamphlet has just been published, called "Palmer Exhumed," by L. B., a Master of Arts of Cambridge,* who states that "he believes that a murder of the blackest hue hastened Cook to the grave," but he demurs to the grounds on which "the judge and jury elevated a belief to the rank of a demonstrated proposition." The writer, though acknowledging the blackness of the murder, proceeds to attack the sufficiency of evidence for the prosecution, both medical and circumstantial; advocates the superiority of the medical witnesses for the defence; criticises and condemns as inconclusive the reply of the Attorney-General; and contends that the charge of the Chief Justice was not fair and impartial. We, on the contrary, think that the judge, in summing up the evidence, directed the attention of the jury to every material point in the prisoner's defence, and properly left all the questions of fact to their decision.

acuteness, as well as legal learning. What more could be required?

The summing-up of the evidence abounds with expressions addressed to the jury, such as the following:-"It is for you to draw your own inference from this evidence;" "You must consider all the evidence with regard to this part of the case;" "It is for you to draw whatever inference may suggest itself to you from this circumstance." On one part of the evidence it is said, "taken by itself, it amounts to very little; you must infer," &c.; "It is for you to say whether the testimony is worthy of being believed." On an objection made on the part of the defence, "that certainly requires consideration at your hands." On another point, it is observed, "No inference unfavourable to the prisoner can be drawn, as it might be the result of accident." Again, "That is not a decisive proof of guilt, but it is for you to say," &c.; "It is for you to consider how far the symptoms," &c.; "Great reliance is placed by the prisoner's counsel that no trace of strychnine was detected." One of the witnesses, 66 a very distinguished chemist, says that where there has been death by strychnine, it ought to be discovered;" "You are to say whether you can infer that the case of Cook was one of idiopathic tetanus;" "On you devolves the duty of inquiring and deciding;" "After a fair review of all the circumstances, decide for yourselves," &c. After recapitulating the testimony for the defence, it is said, "You will determine what weight you will attach to this evidence as compared with the medical testimony adduced by the Crown." Adverting to the conflicting evidence, it is remarked, "You are to judge between them;" "You are to say whether the witness is to be believed." In conclusion, the Chief Justice said, "The case is now in your hands. Unless, by the evidence for the prosecution, a clear conviction has been brought to your minds of the guilt of the prisoner, it is your duty to acquit him. You are not to convict him on suspicion, even on strong suspicion. There must be a strong conviction in your minds that he has been guilty of this offence; and if you have any reasonable doubt, you will give him the benefit of that doubt. But if you come to the clear conclusion that he is guilty, you will not be deterred from doing your duty. You will remember the oath you have taken, and you will act upon it."

If there had been any omission whatever, in the Chief Justice's charge to the jury, which would have told in the prisoner's favour, the other two eminent judges would have suggested it; and it may be observed that each of the common law courts represented by a judge of long experience and great

was

* Printed for the author by Palmer and Son, 18, Paternoster-row.

It is a well-known rule of the profession, in both of its branches, that its members must not canvass for employment. The clients select and retain their legal advisers. This rule is, we believe, generally adhered to; but in the police courts, and frequently at the sessions and assizes it is too often disregarded. There are several able and respectable solicitors in London who give their attention to criminal law and practice, and whose valuable services may be

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relied upon either to prosecute or defend the accused. But we regret to say that there is an inferior class of these practitioners who bring discredit on the profession, and inflict serious injury on their clients.

SELECTIONS FROM SPONDENCE.

CORRE

The nature and extent of this practice is well described and justly censured in the Globe of the 2nd instant. The editor observes that:

"There exists in some of our police courts a class of "touts "-persons who canvass to obtain clients for attorneys practising in the courts. This canvassing is conducted in various ways, but one instance will suffice to illustrate the modus operandi. The tout who is qualified to act for an attorney goes to see a prisoner in the cell of the police station, probably a man who has just been captured by the police. The kind visitor hears a statement of the prisoner's case, and finds out whether he has the means to pay a lawyer. If this last point is ascertained to his satisfaction, the tout recommends the man to have legal advice immediately. He then draws out, if not all the fee, something "on account;" and in most cases the attorney working in concert with the tout then pays his visit. The money has to be divided: part goes to the tout, or to the attorney's clerk, sometimes to both; another portion may stray into other hands, if that would facilitate such interviews in the prison; and for the attorney, perhaps, about a third is left.

"The lawyers of this class pay their clerks a small salary, if any; but make up a larger amount by a per-centage out of the money that can be drained from the prisoner under the joint effect of forebodings and hopes. Very often this nefarious tax is levied upon the unhappy "friends and relations," and the better hearted those innocent folks are, the less they have become acquainted with crime and its atmosphere, the stronger is the screw to press from them all that they can "raise" for the occasion. We know of instances in which the attorneys, unable to get cash, have taken goods, or even duplicates for goods! The rascality of such practices is not the strongest reason for stopping them: a moment's thought will suggest the suffering and misery inflicted upon unfortunate and innocent people by the torture of this pettifogging thumb

screw.

"Yet even that is not the worst. It sometimes happens, we might say often, that the interest of the attorney is to get the prisoner committed for trial, even where the case might be ended by summary adjudication. The committal may be managed, if important evidence be kept back; and that may be done if the prisoner be told :-'You are sure to be committed; reserve that point then for your trial; it would be certain to tell with a jury.' This trick not only defeats the ends of justice, but defrauds the county.

"We know that respectable attorneys practise in the police courts, and that they have exerted themselves to put down the whole base system. Their task is difficult, perhaps impracticable, unless they receive support. One support can be given by publicity. Perhaps the highest authorities of the police courts might do something; for, although we should respect the utmost jealousy that could be felt at any interference with the freest between prisoners and their legal advisers, it would be pedantry to treat practices like these as 'legal assistance,' or to wink at them because some ingenuity may be used in veiling them."

access

SERVICE OF ARTICLES TO A COUNTY PALATINE ATTORNEY.

A. HAS served his articles with B., an attorney of the superior courts. A. has been admitted an attorney of the courts of the Duchy of Lancaster only. Can he take a clerk under articles without an admission in some of the Courts at Westminster, and will such clerk be entitled to admission in the superior courts, although his master was not admitted therein?

M. A.

[We think the articles to A., an attorney admitted only in the County Palatine Court, will not entitle the clerk to admission in the superior courts, although A. was articled to an attorney of the superior courts. A. should be examined and admitted in the superior courts.-ED.]

SURRENDER OF LIFE POLICIES.

With reference to the letter of "Clio" in a recent number, I beg to say that the office in which I am insured, the Minerva, have long adopted his suggestion, but they state in their advertisements that they are the only assurance office that afford this advantage.

One of the indorsements on my policy is the following undertaking signed by the actuary.

"It is hereby understood that a return of forty per cent.-or two-fifths of the ordinary premiums received on this policy will, at any time, during the continuance of the assurance hereby granted be made for the surrender thereof." T. E. R.