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without appointing a receiver of the property. No appearance was entered by the defendant. Held, that the court had jurisdiction to restrain a person from acting as executor ; injunction granted in the terms of the notice of motion until trial or further order.
[Bowen v. Phillips. Ch. Div.: Kekewich, J. Jan. 12.-Counsel : J. W. Greig. Solicitors: Schultz and Son, for Lewis C. Thomas, Neath.]
OUR LITERARY COLUMN.
guard in what you say, for if not you may forfeit your gown.' They may take the gown, my Lord, but they must leave the stuff behind,' was the rejoinder.”
Since, the talented historian who relates this tale of '98 ds, explanatorily, “ Carleton's bark was worse than his bite;" we may, with due submission, have grounds for supposing that the modern Titanic combats between the ermine and the silk (or stuff) gown are only, after all, “ Molto fumo e poco arrosto.”
One more instance of a passage of arms between Lord Clonmel and Mr. Curran ought to be mentioned, as it was the occasion when Curran's eloquence was put forth to the height of its marvellous powers.
“It was in the defence of Hamilton Rowan the tremendous fire of Curran's artillery was brought to play upon Chief Justice Clonmel. The powers of invective found in that speech have been seldom sarpassed, seldom rivalled. At its delivery, even the bravest held his breath:” (Memoirs of the Legal and Political Life of J. P. Curran. By Wm. O'Regan, p. 57. London, 1817).
Curran's memorable peroration on the irresistible genius of universal emancipation--alluded to as Curran's negro" by Lord Beaconsfield in one of his novels--occurred in this speech.
FORENSIC AMENITIES. SINCE the days of Lord Mansfield and Erskine it seems that logomachies occasionally occur between judge and counsel ; however learned the first may be, and however brilliant the counsel. Few counsel assuredly were ever more brilliant than Erskine, and his defence of the Dean of St. Asaph (St. Tr. xxi.) in 1779, only in his second term at the Bar, was called by Charles James Fox “the finest argument in the English language.” Yec Lord Mansfield, Chief Justice of England, characterised his bursts of eloquence as puerile rant and declamation." It has been not infelicitously suggested in one of the many articles which have recently appeared on this subject à propos of some incidents that transpired in the cause célèbre presided over by Mr. Justice Hawkins at the Old Bailey, that the lay mind is apt to attribute too much importance to such incidents. On the one hand, there is the infallibility of judges ; on the other, the liberty of counsel. Dr. Johnson once maintained that the publication of a book (probably the Letters of Junius), in which an eminent judge was arraigned before the bar of the public as having pronounced an unjust decision in a great cause, would not give any uneasiness to him. “For,” said he, “ either the judge acted honestly or he meant to do injustice. If he acted honestly, his own consciousness will protect him ; if he meant to do injustice, he will be glad to see the man who attacks him so much vexed.” And, on the other hand, the learned doctor argued that, as every cause has a bad side, a lawyer is not overcome, though the cause which he has endeavoured to support be determined against him. But some contests between judge and counsel are nearly as classical as that between Achilles and Hector. And who can doubt that brilliant counsel are as solicitous to engage in this imposing strife as Achilles was to prevent any other of the Grecian army from killing Hector ? John Philpot Curran, of whom was said that not only was there no one next him at the Irish Bar, but no one near him, had several pitched battles with the gigantic Chief Justice of Ireland at that day, the Earl of Clonmel. Mr. O'Regan, in his memoirs of Curran, tells us that, on one of Lord Clonmel's morose days, he “was so pressed, both by the argument, the eloquence, and the wit of Mr. Curran, that he lost his temper, and called on the sheriffs to be ready to take anyone into arrest who would be found so contemptaously presuming to fly in the face of the court. Mr. Curran, perceiving the twittering of a swallow actively in pursuit of a fly (for, like as in Nero's court, so, in the presence of this emperor, scarcely a fly was to be found), in his turn called on the sheriff to take that swallow into arrest, for it was guilty of contempt, as it had contemptuously presumed to fly in the face of the court. The ridicule of this, and the peals of laughter which ensued, closed the scene." Another story from the same source : “ Mr. Curran, however, withstood all the violence of these attempts, and, in a conflict somewhat resembling that of Roderic Dhu and FitzJames, the encounter was upheld with all that passion could supply, or courage hope to extinguish. Mr. Curran looked, and lighted up all the fire of his mighty eye, surveyed his adversary with the most intense and indignant scowl, such as would have pierced through all impediments, while the red and inflamed countenance of the judge, with the menace and attitude of an overwhelming passion, kindled into a burning blaze. With a firm, calm, and measured tone, Mr. Curran addressed him, and whilst he did so he seemed armed with the bolt of heaven, ready to hurl destruction on his victim. After some prelude, he concluded his address in these words : “Does your Lordship think I am that silly dog to bay that moon which I am not able to extinguish ?” (Memoirs of the Legal and Political Life of the Right Hon. J. P. Curran, by Wm. O'Regan, p. 58). In Barrington's personal sketches, there are related (vol. i., p. 379) stories of rencontres Curran had with Lord Chief Justice Carleton, who succeeded Lord Clonmel. “Lord Carleton never ceased complaining of his bad state of health, and frequently introduced Lady Carleton into his book of lamentations ; thence it was remarked by Curran to be very extraordinary that the Chief Justice should appear as plaintiff (plaintive) in every cause that happened to come before him!"
“One Nisi Prius day Lord Carleton came into court looking unusually gloomy. He apologised to the Bar for being necessitated to adjourn the court and dismiss the jury for that day, 'though,' proceeded his Lordship, 'I am aware that an important issue stands for trial; but the fact is, I have met with a domestic misfortune which has altogether deranged my nerves ! Poor Lady Carleton (in a low tone to the Bar) has most unfortunately had a fausse couche, and
“Oh, then, my Lord !’exclaimed Curran, “there was no necessity for your Lordship to make any apology; it now appears that your Lordship has no issue to try.'”
“The Chief Justice faintly smiled, and thanked the Bar for their consideration."
More serious is the following, taken from an unexceptionable source (Ireland before the Union, chap. 10, pp. 164-5, by W. J. Fitzpatrick, F.S.A.): “ While Curran was defending the Sheareses he warmed into an indignant eloquence, when Lord Carleton called him to account saying: 'Mr. Curran, it were well for you to be on your better
THE Law Quarterly Review is positively emulating Punch. What can be achieved under these conditions must excite the curiosity of the Profession,
Here is the first effort of Leviathan humour :
“An Ibsenite correspondent favours us with the following communication:
“It is proposed in the course of the ensuing sittings, if the use of one of the halls of the Inns of Court can be obtained, to produce a moral and symbolic play entitled 'Little I'm-off.' An outline of the action is subjoined, but for convenience some of the explanations which in the text are reserved for the second act are here given with the dramatis persone. The persons are :
"Mr. and Mrs. Allshares. (She is an advertising broker's daughter with a settlement of deferred debentures. He sits for a trading constituency, and is writing an Encyclopædia of Commercial Morality).
“ Little I'm-off (sc. the list of contributories. Their hopeful son. He has learnt everything but common arithmetic. He was once left alone with Buckley on the Companies Acts while Mrs. Allshares made Mr. Allshares explain to her the rule in Ex Parte Waring, which, however, she did not understand. Since that date Little I'm-off, who was intended for the Church, has collected prospectuses and refused to work for his certificate examination).
“Miss As'twere (sc. I cannot tell how : she symbolises the sound but bewildered professional conscience of the ordinary lawyer).
* Liquidator Boardham (explains himself).
“ The L-d Ch-r disguised as the guinea-pig-wife. (It may be necessary to inform posterity that he is not his predecessor Lord Campbell, and Lord Campbell's Christian name was not Patrick. Nevertheless a two-deep inner meaning, of symbolism of the second Potenz, may be deduced from the reflection that Lord Campbell invented the judicial infallibilty of the House of Lords).
“Act I. Return of Mr. Allshares. Questionings. 'Have you found the gold in the green forests ?' 'No, I was thinking of paper. I have been among the high-soaring memoranda and the great waste-paper baskets full of allotments. He announces his resolve to start Little I'moff in a safe business as a wig-maker. Liquidator Boardham : 'That's right. Sound line, wigs. They can't keep much hair on if we play up to this form, you know. Such a jolly world for me, too! I've nobody left that I can examine. Going north for a boom in motor-cars.
Won't you come, Miss As'twere ?' Enter the guinea-pig-wife, dressed in tattered scrip, with a noble director in a bag : when his head protrudes he is seen to be wall-eyed and to have a very blunt nose. 'Yes, my Lords, it was hard work when we had to start with seven live ones, that was. can do the trick with one live and six stuffed
three-farthing shares, halfpenny stamp on application and balance on allotment and they all come after me, bless 'em, and I take 'em down into liquidation
into restful depths far below where there are any assets.' Little I'm-off (staring at the noble director): 'Never such an impecunious countenance. But its oofish-nice and oofish all the same.' The gainea-pig-wife : 'Isn't he? Yes. That's so. One life infant. See?'
Little I'm-off slips out after the guinea-pig-wife while the others are discussing the shock to their commercial morality. Shouts without. What? no ! yes ! can't mean it! yes! it is—The company is floating
“Act II. The survivors recriminate for about nineteen weeks, and ultimately agree that they are all jointly and severally liable for the bad drafting of the Acts. Here come in shocking revelations from the old blotting-books of the L-d Ch-r's S-y and the P-y C-l's office.
“Act III. Miss As'twere nearly despairs of the law and thinks of migrating to the Parliamentary Bar, but concludes that motors will bring business and goes off with the Liquidator. Mr. and Mrs. Allshares regret too late that there are not enough characters left on the stage to form another company, but console themselves by deciding to found a Home for Decayed Promoters (limited and reduced).”
WARNING TO INTENDING HOUSE PURCHASERS AND LESSEES.-Before purchasing or renting a house have the sanitary arrangements thoroughly examined, tested, and reported upon by an expert from Messrs. Carter Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of full particulare. (Established 21 years.)—[ADVT.]
OUR AMERICAN LETTER.
New York, Dec. 30, 1896. The United States Supreme Court sometimes takes an extremely technical view of a criminal case, while at other times slight errors are overlooked. The most recent instance of a technical judgment requiring a new trial of a criminal case is that of Brown v. United States, decided on the 16th Nov. Brown
a young man who was charged with the commission of two murders in the Indian territory in 1891. He has been tried and convicted of murder three times, and in each instance the United States Supreme Court has granted a new trial, because of erroneous rulings of the trial judge. At the last trial, the reputation for veracity of one of the Government's witnesses was attacked, and the trial judge in his charge referred to that fact, and said, among other things, that the opinion of a witness as to the reputation for veracity of another witness “must be founded upon a state that is dispassionate ; must grow out of the dispassionate judgment of men who are honest men and good men, and able and competent to make up a judgment of that kind, and not the judgment of bad people, the criminal element, the man of crime.” The only objection taken was a general one to all that part of the charge of the judge relating to the testimony of the witness whom it was sought to impeach. The majority of the justices of the Supreme Court, however, decided that the instruction given by the trial judge was too narrow and restrictive, and on that ground reversed the judgment and ordered a new trial. Justice Brewer, in a strong dissenting opinion, assigned among his reasons for refusing to agree with his associates that, “after three juries (thirty-six jurors) have agree in findir a defendant guilty of the crime arged, and such finding has each time been approved by the trial judge, the judgment based upon the last verdict ought not to be disturbed, unless it is manifest that the verdict is against the truth of the case, or that the court grossly and prejudicially erred on the trial," and that " the testimony in this case discloses an outrageous crime, showing that this defendant, in connection with another party (that other party already convicted of one murder and a fugitive from justice), in the nighttime, called from their slumbers two officers of the law, and shot them down without provocation. Justice and the protection of society unite in saying that it is high time that such a crime was punished.” Justice Brewer and two of the other justices also believed that the charge of the judge was, as a whole, unobjectionable, and that in any event a sufficient exception to it was not taken. In the case of White v. United States, in which the opinion was also rendered in November, the Supreme Court took a less technical view of the refusal of the court to charge a correct statement of law, as the proposition was afterwards set forth in other words, though with unnecessary additions, by the trial judge.
Two peculiar attempts were recently made to endeavour to secure appeals to the United States Supreme Court from the Court of Appeals of the District of Columbia, although the law provides for an appeal only when the matter in dispute exceeds the sum of 5000 dols., except in cases where the validity of a patent or copyright, or a treaty or statate of the United States, or of authority exercised under such a treaty or statute, is drawn in question. There must always be some sum of money in dispute. In one of the recent cases (Chapman v. United States) the defendant was tried and convicted of a refusal to answer questions propounded to him by a special committee of the Senate of the United States, appointed to investigate a matter connected with proposed legislation. The argument advanced by his counsel on appeal was, that because the punishment provided by the statute for the offence, of which a conviction was bad, included a fine, there was therefore a sum of money in dispute. The Court refused to grant the appeal, repeating the language of Chief Justice Marshall in United States v. More, decided in 1805: “In criminal cases the question is of the guilt or innocence of the accused. And, although he may be fined upwards of 100 dollars, yet that is, in the eye of the law, a panishment for the offence committed, and not the particular object of the suit." The other recent case, Perrine v. Slack, involved a controversy as to the custody of two children of tender years. The aunt and the mother each sought their custody, and an appeal was taken from an order directing that the children be placed in the care of their mother. The Supreme Court held that the matter in dispute was of such a nature as to be incapable of being reduced to any pecuniary standard of value, and there. fore dismissed the appeal.
The Supreme Judicial Court of Maine, in State v. Parker (35 Atl. Rep. 1021), has sustained the conviction of the defendant Parker, who was accused of killing a deer in close time, although he had purchased the deer, and kept it in a park of which he was part owner. The deer had been cangbt alive when a fawn in 1888, and two years later was bought by the defendant, who placed it in the park. The deer was found in his possession in June 1894, having been recently killed. The defendant's counsel contended that the deer was so far within his dominion and control in open time as to have become his absolute property, with which he could, at any time, do as he pleased. The Supreme Judicial Court was of the opinion that in some cases animals feræ naturæ may be so far reclaimed and domesticated, or so closely subjected to confinement, by a person as to be regarded as under his dominion and control and to become his property. If obtained at a proper season of the year, and in a lawful manner, such an animal might be dealt with at all seasons as any other property might, subject to any restraint as to its use imposed by the game laws. In this case, however, the Court decided that the possession was not actual and complete enough-was more fictitious than real. “The deer,” the opinion says, was roaming wildly over a park covered mostly by woods, containing between 700 and 800 acres of territory, and surrounded on all sides by sea, excepting a narrow strip or neck connecting this, an almost natural park, with the mainland; and artificial structures
were placed across this neck to prevent the escape of animals from there. Animals kept within these wide boundaries cannot be said to be thereby either reclaimed or held in close confinement. Should they escape from the park, either by sea or land, into other woods, it would be preposterous for the proprietors of the park to set up an ownership in such animals against other persons, who might kill or capture them off their premises.” The Court quoted with approval the opinion in Commonwealth v. Chase (9 Pick. 15) as to how far doves might be the subject of larceny. There was no evidence in that case as to whether the doves were killed in flight or when mingled with the doves of other persons enjoying their natural liberty; and it was held that, without such evidence, the act of killing them, even for use as food, was not felonious.
The Supreme Court of Pennsylvania has recently joined the majority of the higher State courts in holding that, if a telegraph company delivers a message which is unintelligible except to the sender or the person to whom it is addressed, and the company has no information as to its character and meaning, nor as to its importance and urgency, the person injured by a failure to deliver it can recover, at most, only the price paid for the transmission of the message. The case of Hadley v. Baxendale (9 Exch. 341) is referred to. There are now only three States of the Union, Virginia, Georgia, and Alabama, in which a different rule prevails. The question had not been previously before the Supreme Court of Pennsylvania, but the judges referred to the opinions of the highest courts of several other States as well as to decisions of the English courts, to sustain their position on this question.
An action by the executors of the estate of Samuel J. Tilden, for a construction of his will has resulted in setting aside almost the last remaining gifts to charities, which had been made in that instrument. Mr. Tilden, though a lawyer of the greatest ability, and at one time candidate for the Presidency of the United States, did not succeed in complying with the New York statutes in disposing of his estate. The main charitable bequest, that of a free library to New York city, was long ago declared by the courts to be invalid. The Supreme Court has now decided that the bequests for free libraries and reading rooms at Yonkers and New Lebanon, in this State, were also improperly made. No time was mentioned in which the trusts were to take effect, and the provisions violated the laws against perpetuities. The Supreme Court was also puzzled to properly construe other sections of the will. Most of the doubtful points were brought to the attention of the court in the latest proceeding, and unless appeals are taken, the litigation over the dead statesman's will may at last be finished.
The New York Court of Appeals has just reversed the judgment of the lower courts in the case of Mitchell v. Rochester Railway Company, which has been discussed with interest among lawyers. A woman was standing at a street-crossing, and a team of horses, negligently driven, jumped toward one side, and approached her so closely that she fainted from fright. A miscarriage resulted, and the woman brought an action against the railway company for the injuries which she had suffered. The lower courts decided that there was a cause of action, because of the physical suffering, though there would have been none if the fright and mental suffering had been the orly injuries inflicted.
The Court of Appeals now holds that the plaintiff cannot recover for injuries occasioned by fright. The Court de that, if there can be no recovery for the fright, then there can be none for its results. Texas is almost the only State of the Union in which damages may be recovered against a telegraph company for mental suffering from delay in transmitting a message.
"The Texas Doctrine” has little to support it in the authorities of other states and countries. Several of the State courts have, however, held that where there is not only mental suffering but also a physical suffering, even if it is the result of an injury to the mind or feelings, there may be a recovery. The recent English case of Pugh v. London, Brighton, and South Coast Railway Company is quoted in support of that principle. The New York Court of Appeals in the Mitchell case, has, however, adopted a stricter and harsher rule.
JAMES PIERPONT DAVENPORT,
The Yearly County Court Practice. By G. Pirt-LEWIS, Q.C. and
ARCHER WHITE, Barristers-at-Law. Butterworths, and Shaw
and Son. A Treatise on the Admiralty Jurisdiction of the County Courts.
By Dr. RAIKES, Q.C. and G. B. KILBURN, Barristers-at-Law.
William Clowes and Sons Limited. THESE compilations are a tribute to the growing importance of the tribunals long known as the Inferior Courts. Mr. PittLewis is an author of experience. His County Court Practice was a completely successful effort to furnish the Profession with an exhaustive exposition of all the statutes, rules, and cases relating to County Courts. This treatise we believe he has abandoned in order to embark in what is now recognised as the only useful work of practice, that is, one appearing annually. By this means everyone desiring information is kept informed year by year what changes have taken place in all the complicated and never-settled rules of practice and procedure. Mr. PittLewis is assisted by Mr. Archer White, who has also won his
its full accounts of the Revenue and Licensing Laws, and the income tax and death duties. The editors, too, have noticed shortly the judicial decisions in revenue appeals.
spurs in legal literature. The result of their labours is a couple of volumes, the first dealing with gener al jurisdiction and Admiralty, and the second with the special jurisdiction conferred by particular statutes. We cannot criticise a work of practice in detail. Knowing the authors, we believe we can accept their work in the belief that it will stand the only true test of actual practice.
The treatise of Dr. Raikes and Mr. Kilburn, treating Admiralty only, is certainly the most satisfactory work yet produced dealing with this limited branch of County Court procedure. Apparently as much care has been expended upon it as if it were designed for much larger matters. It is full, accurate, and we believe absolutely exhaustive. Dr. Raikes brings to the task not only skill but long experience in Admiralty; whilst the mode in which he has carried it out leaves nothing to be desired.
BOOKS RECEIVED. Cragg's Heavy Trial Balances made Easy. Scientific Press Limited, 28 and 29, Southampton-street, Strand, W.C. Price 28. 60.
Blackwell's Law relating to Factors. Effingham Wilson, Royal Exchange. Price 5s. net.
Brouardel's Death and Sudden Death; translated by F. Lucas Benham. Brillière, Tindall, and Cox, 20 and 21, King William-street, Strand.
Hubbell's United States Laws on Aliens. Hubbell Publishing Company, New York. Price 10s, net.
CRIMINAL LAW AND THE JURIS
DICTION OF MAGISTRATES.
or as a
NEW EDITIONS. A fifth edition of The Law of Stamp Duties, by E. N. Alpe, Jordan and Sons, has been rendered necessary, both by the changes in the Death Duties made by the Finance Act of 1894, also by the alterations effected in the Stamp Laws by the Act of 1895, and in the extension of sects. 113 and 116 of the Stamp Act to certain companies and policies of insurance against sickness and injury, by the Finance Act of 1896. The author tells us that in no sense must his work be considered an official publication, but the Profession will no doubt still continue to treat the book, if not as an official statement concerning the Stamp Laws, as one of the best authorities on the subject.
A new edition, the fifth, of key and Elphinstone's Precedents in Conveyancing has just appeared, under the editorship of Sir Howard Warburton Elphinstone, one of the conveyancing counsel of the court, assisted by William Hew Coltman, of Lincoln's-inn, barrister-at-law. The new edition contains some useful additional precedents, including a concise form of conditions of sale of freeholds, a conveyance to trustees of a site of a church, and other assurances connected with charities, and a reconveyance on behalf of a lunatic mortgagee; and the forms of equitable mortgage have been adapted to the change in the stamp laws. The forms of covenants for payment in mortgages have been shortened by the omission of the words "heirs, executors, and administrators,” and otherwise. Although the work only professes to be a compendium of precedents, it contains many valuable notes on the law and practice of conveyancing, which appear to be brought up to date. In a book the size and class of the one before us a table of addenda and corrigenda is doubtless a necessity ; but the shorter it is the better. “Key and Elphinstone has sometime since deservedly taken its place as a leading conveyancing precedent book, and no conveyancer can afford to do without it.
DYING DECLARATIONS AND DEPOSITIONS.
By G. PITT-LEWIS, Q.C. THE Scott-Russell case having now ended, it is permissible to discuss freely a question which, indeed, no one ventured to formally raise at the trial, but concerning which strangely vague and confused ideas were given currency to in portions of the press, while even some lawyers were, we believe, at first sight, not altogether free from doubt with regard to them.
It was notorious in this Scott-Russell case (technically called Reg. v. Lady Scott and others) that the defendant Kast was about to be called as a witness by the defence, in support of the plea of justification which had been put in. Kast having died during the pendency of the trial, people asked whether any statement, which might be made by him when on his death-bed, would be evidence in the case. Such a statement could obviously only be evidence either as a dying declaration
deposition,” taken in the manner prescribed by statute. As, in the opinion of many, the rules of evidence ought to be identical in civil and criminal cases-at any rate as regards matters which can, at will, be made the subjects of either an action or an indictment--it will be well to consider whether the dying statements of Kast could have been given in evidence, on one or the other of the two grounds above suggested, either on the trial of the indictment, or in the event of the proceedings baving taken the form of a civil action. And it may be at once said that Kast's statement would not have been admissible in either event.
In the criminal proceedings which were in fact taken, any notion that the statement of the dying man Kast might have been admissible in evidence as a dying declaration” will not stand in vestigation for a single moment. It nowhere, indeed, very clearly appears when the doctrine that dying declarations were receivable in evidence first became a distinct principle of English law. No mention of any such rule is to be found in the works of the earlier English writers on English law, such as Coke, Hale, and Hawkins. The doctrine probably crept into both English and Scotch law during the eighteenth century. Probably it was first accepted as a principle in Scotland, for we find in Hume's Commentaries respecting trials for crimes (vol. 2, p. 227 et seq.), which is a well-known Scotch text-book, that such doctrine is laid down on the authority of, and supported by, several Scotch cases which are stated to have taken place between the years 1719 and 1770. The first case in England in which the dying declarations of a deceased were admitted appears to be Lutterell's case, otherwise Reg. v. Reason and Tranter, which took place on the 3rd Feb. 1772, and is reported 1 Str. 499 ; 6 Hargrave's State Trials 195; 16 Howell's State Trials 2. That case, it has been observed,
a very peculiar
case, which seemed to justify some relaxation of the strict law of evidence." There can be no question that, at any rate in Scotland, dying declarations were received on the trial of criminal charges other than of homicide. Indeed, Hume expressly says: “Although from their nature cases of murder are the most frequent, they are not the only cases in which this sort of evidence may be employed,” and he goes on to cite, in support of his proposition, a case of the trial of James Macgregor, on the 3rd Aug. 1752, for the "abduction and forcible marrying of Jean Keig," on wbich evidence of the woman's dying declarations had been received ; and also a further case of R. v. Robert Macgregor, tried a little later in respect of the same matter as the case previously mentioned, where similar evidence had also been given. The doctrine that dying declarations may be received in evidence, on a trial of a person for causing the death of the person making such declarations, has been explained partly on the ground of the situation of the dying man, which must be taken to have as much power over his conscience as the sanction of any oath could have, and partly on the manifest absence of any interest when he is on the point of passing into another world : (see 2 B. & C. 606-7). It has also been explained on the ground of the necessities of public justice, since it often happens, in cases of homicide, that no third person was present as an eye-witness to what happened, and, as the injured person is dead and cannot be called, his murderer might often escape justice if his dying declarations could not be received: (see East's Crown Law, vol. 1, p. 253). Although, however, high academic reasons, founded on abstract principles of theology and of public policy, are thus given by text-writers, as furnishing a theory as to why dying declarations are properly admissible on the trial of charges of homicide, a more commonplace explanation may possibly exist. All that
ANNUALS. The Magistrate's Annual Practice 1897, by Mr. Stipendiary C. M. Atkinson, of Leeds (Stevens and Sons Limited and Sweet and Maxwell Limited), and The Annual County Courts Practice 1897, by his Honour Judge Smyly, Q.C. (the same publishers), are both we believe in their second year, and it is obvious, from the additions and changes rendered necessary by the passing of Acts of Parliament, and by new decisions, that an annual revision of books of practice is almost a necessity. Sixty new decisions affecting the jurisdiction of magistrates and the practice of their courts is a formidable array for one year. The editors of these works evidently believe that their judicial positions rather add to their responsibilities, for nothing could exceed the care with which the editorial duties in both cases have been performed.
The Scottish Law Directory 1897 (Glasgow: William Hodge and Co., 26, Bothwell-st. Edinburgh: William Green and Sons) is a marvel of concise information. In some 300 pages, besides containing a diary and full law list, it has banking and insurance lists, and a table of fees in the Court of Session, in the Sheriff's Courts, and also for conveyancing and general business. The work concludes with a table of stamp duties.
Ham’s Inland Rerenue Year-Book for 1897 (London : Effingham Wilson, Royal Exchange) appears once again, with
happened at the moment when the material act which is under investigation took place may be proved in evidence-in other words, is part of the res gestæ. If, therefore, A. stabbed or shot B., and the latter simul. taneously exclaimed, “ A. has stabbed me," or "A. has shot me," evidence certainly might be given of the exclamation having been attered. It needed but little extension of this principle to hold that, if B. were found lying on the ground recently stabbed or shot by an assailant who had fled, evidence might be received to show that B., on being thus found, then said to the first person who came to him, “ A. has done this." Indeed, the analogy furnished by the fact that a complaint to the first proper person who met her, by a woman who had been recently ravished, was legal evidence would go far to favour such admission. The further extension of the doctrine in modern cases (these are collected in Taylor on Evidence, 9th edit., note to par. 718, or vol. 1, p. 468, note 7), which have extended the interval which may intervene between the act which caused the death, and the making of the declaration, to be as much as about three weeks (see the ruling of Justices Brett and Lush in 1869 in the case of Reg. v. Knott Bernadotti, 11 Cox C. C.) would, if this theory be correct, hardly be consistent with principle.
The Scotch doctrine, that the evidence afforded by a dying declaration is admissible on the trial of any criminal charge other than one of homicide, was rejected at a very early period of our English law; for East, the first writer on criminal law of authority who states that such evidence is admissible, considers its admission to be peculiar to the case of homicide, and, in the passage which has been already cited, assigns as a reason for its being admissible in such cases the necessities of public justice, lest the murderer should otherwise escape punishment: (see East's “ Crown Law," vol. 1, p. 253). Some later text-writers, indeed, stated the law a little more loosely, or, at least, without placing sufficient emphasis on the limitation as to the admissibility of dying declarations laid down by East. But the view of Mr. East was long ago finally declared to be law, and it was decided that dying declarations are only admissible upon a trial at which the death of the person making them form the subject of the indictment which is being tried, and the circumstances of his death form the subject of the charge, and the declaration is as to the circumstances of such death-in other words, in cases of indict. ments for murder or manslaughter. This conclusion was come to in a civil case by the Supreme Court of New York so early as the year 1818, in the case of Wilson v. Boerem (15 Johnson's Reports, 286). The same conclusion was arrived at by our English Court of King's Bench, some six years later, viz., in 1824, in the case of R. v. William Mead (2 B. & C. 605), which was a prosecution for perjury. The decision thus come to in 1824 was six years afterwards (in 1830) distinctly adopted by Baron Bolland at Nisi Prius, in the case of R. v. Lloyd, cited below, when that learned judge said that he did not think that declarations in articulo mortis were admissible in any case “ except those in which the death of the deceased person by whom the declaration was made is the subject of the inquiry." The principle thus laid down has been followed by dying declarations having been rejected on the trials of numerous offences, other than murder pleas. In R. v. Mead itself dying declarations were, it may have been noted, held not to be admissible on the trial of an indictment for perjury; they also have been held to be inadmissible as evidence on trials for robbery (see R. v. Lloyd and others, 1830 (reported 4 C. & P. 233), or for administering drugs to a woman with intent to procure abortion (see R. v. Hinde, 1860; 8 Cox C. C. 300; 29 L. J. 147, M. C., following, however, a previous ruling in 1822, of Mr. Justice Bayley, in a case of (R. v. Hutchinson, reported 2 B. & C. 608, n.). In harmony with the principle laid down in R. v. Mead, it was held, in 1837, that the dying depositions of A., whom he had also inadvertently poisoned, were inadmissible against a prisoner who was on his trial for the murder of B. (R. v. Baker, 2 M. & Rob. 53), while, in 1841, on a trial for murder, even the statement on his death-bed by a third person, that it was he who committed the offence, was rejected in Ireland: (R. V. Gray, Ir. Cir. R. 73).
With regard to civil cases, it is pointed out in Taylor on Evidence (9th edit., par. 714, p. 464) that, “At one time an opinion prevailed that general principle warranted the admission of dying declarations in all cases civil and criminal.” An examination of the authorities on which the author founds this statement will be useful. In the case of Wright, d.; Clymer v. Littler, decided by the Court of King's Bench in the time of Lord Mansfield, in the year 1761, it was held that a confession of forgery by a dead witness when dying might, in a civil action, be admissible evidence. On a close examination of this case it will, however, be found that Lord Mansfield, according to the report of the case by Burrow, pointed out (see 3 Burr, p. 1255), that the evidence as to the dying depositions was not given by a witness for the defendant, but that it came ont upon the cross-examination by him of the sister of the deceased man, who had been called by the plaintiff; and that he also, according to the report of the case by Sir W. Blackstone-who is better known as having afterwards been the famous Mr. Justice Blackstone- expressly stated (see W. Bla. 349) that no general rule was to be drawn from the admission of the evidence in that particular case; while the care with which that great jodge Lord Mansfield searches for and finds a number of special reasons why, in that particular case, the admission of the evidence contained in the dying declarations ought not to furnish ground for a new trial is, in itself, enough to show that the general principle that the dying declarations of a deceased person were in civil cases admissible in evidence, was not then established. It caonot, however, be denied that the decision in Wright v. Littler was, for some years afterwards, greatly misunderstood, and erroneously supposed to have laid down the general principle that the dying declarations of deceased persons were usually admissible in civil cases. The principle thus supposed to have been laid down was accordingly followed in a number of cases which, as they are all overruled, it is not now necessary to discuss. But in the year 1836 the
law on the subject was exhaustively reviewed in the case of Stobart v. Dryden (reported 1 M. & W., p. 615) by a very strong Court of Exchequer, consisting of Lord Abinger, C.B., Parke, B. (afterwards Lord Wensleydale), Bolland, B., and Gurney, B. The action was one brought upon a covenant in a deed, and the question was, whether declarations made by one of the alleged attesting witnesses to it, who was dead, could be given in evidence to show such deed to be a forgery. The Court, as above constituted, took time to consider, and, in the result, gave a unanimous judgment that this evidence could not be admitted, and by this judgment, although they did not expressly so state, substantially affirmed the conclusions arrived at previously by the Court of King's Bench in England in 1824 in the criminal case of R. v. William Mead (ubi sup.), and by the Supreme Court of New York in 1818 in the above-cited case of Wilson v. Boeram, which had laid it down that dying declarations are not admissible in evidence, save in the one case where a prisoner is on his trial for the homicide of the person who made such statements, and the statement itself is as to the manner in which the person making them came by his death. The decision in this case of Stobart v. Dryden appears to have been generally regarded as finally settling the law on the point, and no further question as to it has been raised during the sixty years which have elapsed since such decision was given.
It remains to consider, in the second place, whether any statement which Kast might have made when dying could be admitted in evidence as being a “ deposition” within the meaning of the statute which makes depositions, taken in parsuance of it, admissible evidence both in criminal and in civil cases in case of the death of the witness.
Now, as regards criminal cases, depositions taken in pursuance of the useful Act to remove Defects in the Administration of the Criminal Law, passed in 1867 (30 & 31 Vict. c. 35), which has, by the Short Titles Act passed last year, now received the title of “The Criminal Law Amend. ment Act 1867," are, by sect. 6 thereof, made secondary evidence if the witness be (1) dead or (2) so ill as to be unable to travel. The section referred to provides for such witnesses' depositions being taken by a magistrate whenever it shall be made to appear to the satisfaction of any justice of the peace that any person dangerously ill, and in the opinion of some registered medical practitioner not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence"; but the enactment also requires it to be proved at the trial, to the satisfaction of the court, that reasonable notice of the intention to take such statement has been served upon " the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person, or his counsel or attorney, bad, or might have had if he had chosen to be present, full opportunity of cross-examining the deceased person.” It will be noticed that a deposition taken under the provisions of this statute cannot be read in evidence unless the party opposite to the one which called him had “full opportunity of cross-examining the deponent. Some four years ago it was held by Cave, J., at Nottingham Assizes, however, in a case of Reg. v. Mitchell (reported 17 Cox C. C. 503), apparently overruling a previous decision to the contrary of Denman, J. in a case of Reg. v. Mann (49 J. P. 743), but without that learned judge's attention being called to the Irish case mentioned below, that even a cross-examination stopped in consequence of the illness of the deponent will not suffice. In view of this decision the determination not to commence taking Kast's deposition at all, in the face of an expression of opinion by an experienced medical man that the witness would be unable to afford “full opportunity” for the cross-examination which the other side deemed would be necessary, was a very proper one on the part of all concerned. A very doubtful point would have arisen if in a criminal case. the cross-examination of the deponent Kast had been put an end to by his sudden death while under cross-examination. For, while the decision of Cave, J. in R. v. Mitchell is certainly a direct authority upon the point, we have the authority of Denman, J., in R. v. Mann, expressly the other way; and there is also other authority for saying that, even in a criminal
the deposition, so far as it had gone, would under such circumstances have been admissible. The ground of the decision of Denman, J. was that “full opportunity” in the Criminal Law Amendment Act of 1867 must mean “full opportunity such as the circumstances of the case allow," and this is a possible construction of the statute ; and the majority of the Irish judges (seven to five) decided in 1832, in the case of R. v. Doolin (reported 1 Jeb. C. C. 123), that under such circumstances a deposition was admissible. The Irish case was, however, obviously a decision under some other Act than of 1867, and it does not appear in the report what that statute was, though the case certainly appears to lay down the general proposition that the right to cross-examine (which is expressly made by the Act of 1867 a condition of the evidence being receivable) being taken away by the act of God, just as much as it is in the case of dying depositions being received, the evidence, so far as it has gone, is admissible. The case under consideration, however, was not one as to the construction of the words "full opportunity for cross-examination” in the Criminal Law Amendment Act 1867. Having regard to this, and to the case of R. v. Mitchell, cited above, it is extremely problematical, however, whether the Irish decision in R. v. Doolin, and the alleged decision of Denman, J. in England, would be followed in England-indeed, it is almost certain that they would not. The course above indicated having, however, been pursued, and no formal deposition taken, it is abundantly clear that no evidence of what the deceased man said when dying could possibly be received in evidence under the provisions of the statute above referred to.
Had the pending proceedings been by way of civil action, the question whether the depositions of the deceased witness Kast were admissible in evidence would have been equally clear one way or the other, if the taking of his deposition had either proceeded in the usual way, or if the deponent had declined to submit to proper cross-examination. An order for the
examination of the witness would, under the circumstances, have unquestionably been made under Order XXXVII. But it is directed by rule 11 of the Order just cited, that “ The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination ;" while rule 22 of the same Order directs that “The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage." It is every-day practice that the evidence of a witness who refuses to submit himself to cross-examination by the other side will not be received, and should the refusal be made after the witness's evidence has been in part given, such evidence will be struck out from the judge's note, and the jury (if there be one) told to disregard it. Authority in support of this proposition is hardly needed, but that the question whether the other side had a full opportunity for cross-examination is the test whether a deposition is admissible in evidence or not, will be found to have been discussed fully in Steinkeller v. Newton in 1840 (reported 1 Scott N. R. 148), and is laid down in Taylor on Evidence, 9th edit., pars. 464-9, pp. 324-7. In a civil case, the death or serious illness of a witness while under crossexamination upon his depositions has been held, both by Lord Romilly, the late Master of the Rolls, in the case of Davies v. Otty in 1865 (reported 12 L. T. Rep. 789), and by the late Vice-Chancellor Hall in 1877, in the case of Elias v. Griffith (38 L. T. Rep. 871), not to render so much of his deposition as had been previously taken inadmissible in evidence. But that great lawyer, the late Sir George Jessel, M.R., in 1874, in the case of Dunn v. English (31 L. T. Rep. 75 ; L. Rep. 45 Eq. 524), took a course (see 18 L. Rep., at p. 529) which at least suggests a doubt upon the matter.
In a word, Kast's death, while under cross-examination, would have raised an extremely doubtful point had occurred in either a criminal or civil case.
hand, there was a large number of cases under the old system where they could not be called on to give evidence. Say a man was charged with a common assault; be stood mute in the box, and he could not be permitted to tender himself as a witness or explain any of the circumstances of his case; but, on the other hand, if the same man was indicted for an indecent assault he became a competent witness, and he could be put into the witness-box to give a full account of himself and everything connected with the case. To his mind that represented almost a scandal, an anomaly, and an anachronism. It appeared as if the competency of an accused party as a witness depended upon what particular part of the body was assaulted. The question was, were they to go backwards or forwards ; were they to go back, on the old system, or forward, as the measure in question sought to do, and make him competent to give evidence in all criminal cases ? He had no hesitation in saying that in his humble opinion they ought to go forward. In 1885 it fell to his lot to try the first case under the Criminal Law Amendment Act; it was a remarkable case of abduction of a girl. He then found the principles of the new measure work admirably, and he was strongly in favour of this alteration of the law. He did not think for one moment that it would imperil the innocent, but rather thought it would be a safeguard to them, and he was positively certain it would go a long way to secure the conviction of the guilty. He had strong hopes of the measure, if passed, and he had every reason to believe that it would be.
QUARTER SESSIONS. Carmarthen, Thursday, Jan. 21, at 10 Penzance, Monday, Jan. 25 Chichester, Tuesday, Jan. 26
Salford. Thursday, Feb. 18 Deal, Monday, Jan. 18
Tewkesbury, Monday, Jan. 18 Folkestone, Saturday, Jan. 16
Thetford, Wednesday, Feb. 3 Hythe, Saturday, Jan. 16
West Ham, Friday, Feb. 12.
PROCEEDINGS AFFECTING THE
LORD JUSTICE LOPES ON CRIMINAL LAW
AMENDMENT. In charging the grand jury at the Wilts Quarter Sessions, on Tuesday the 5th inst., Lord Justice Lopes, who had been elected chairman of the court in succession to the late Lord Bath, said there were defects in our criminal system which he had every reason to think would be shortly remedied; they had been long admitted. At the Marlborough Quarter Sessions he drew their attention to the Burglary Act of 1896, which had the effect for the first time of giving discretion to quarter sessions to try burglaries. Before that time every case of burglary, whether it was small or great, had to be committed to the assizes. That had turned out to be a very useful measure, and he could not see why the same course should not be adopted with regard to many other cases of a trivial kind which are now triable only at the assizes. Take a case of forgery. They knew forgery now could not be tried at quarter sessions ; a magistrate was bound to commit every case to the assizes. Now there were forgeries and forgeries ; some were complicated and difficult, others were light and trivial. For instance, forging a cheque, forging a receipt, forging an order for the delivery of goods, were all small cases, and why should not the same course be adopted with regard to the forgeries of that class as had been adopted with regard to burglaries ? By that he meant giving the magistrates power, according to the gravity of the case, to commit either to the assizes or to the sessions. There was another matter which, to his mind, was extraordinarily difficult under the law. It related to the summary jurisdiction of magistrates at petty sessions. At present a magistrate, if it was a case of obtaining goods by false pretences, was bound to commit either to the assizes or sessions. He would illustrate to them what he meant. Supposing a person was charged with stealing a piece of meat, say of the value of five shillings, a magistrate had power to sam. marily deal with it. But supposing the same person was charged with obtaining that piece of meat by false pretences, a magistrate was powerless ; he could not deal summarily with it, although in no way was it more grave than the case of stealing to which he had alluded. Now, to his mind, that would be a very important alteration to make in the law, and he believed it was one that was very much required. The effect of those several matters to which he had called attention would be thisthat it would very much relieve the calendars at the assizes, and very much relieve the judges who went to assizes and there tried a number of trivial cases which would be equally well disposed of at the sessions. There was another matter on which he desired to say a few words, and that was an Act of Parliament which was called " The Amendment of Evidence in Criminal Cases." It was a subject which had been much thought of and much talked about, having on five occasions been sent down from the House of Lords to the House of Commons ; it was thus sent down last session, but being opposed it could not be passed. It was a measure which had the sanction of the Prime Minister, the Lord Chaneellor, and all the most eminent lawyers in the country, and its object was this-to enable the accused party, the wife or husband of the accused party, and the wife or husband of any person conjointly charged with the accused party, to give evidence, and to make them competent witnesses in their own cases. He dare say they knew that up to a comparatively recent period it was a fundamental principle of criminal law in England that the accused, or his wife or husband, as the case might be, could not be tendered as a witness. That had been greatly infringed upon by a number of Acts of Parliament creating offences and then making the accused party a competent witness; but it was most substantially interfered with in 1885, when the Criminal Law Amendment Act was passed. At present they had two distinct systems. There was a large number of cases where the accused party, the wife or husband, might be called as witnesses, and on the other
In the Queen's Bench Division, on the 13th inst., before Charles, J., the case of Coburn v. Colledge was heard. It was an action upon a solicitor's bill of costs, and the short point of law raised was whether the Statute of Limitation begins to run from the completion of the work by the solicitor or from one month after delivery of a signed bill of costs by him to the client. In May 1889 the solicitor completed certain work for the defendant. On the 7th June 1889 the defendant left England. On the 12th June 1889 the plaintiff delivered his bill costs in respect of the work. The defendant returned to England in 1896, and shortly afterwards, on the 12th June 1896, the writ was issued.
Atherley-Jones, Q.C. and Sturges, for the plaintiff, submitted that the cause of action did not accrue till the 12th June 1889, when the bill was delivered, and that, as the defendant was beyond the seas at that date, the statute did not commence to run till his return to England in 1996. Under 6 & 7 Vict. c. 73, s. 37, it was a condition precedent to the solicitor bringing an action that a month should have elapsed after delivery of a signed bill of costs. They cited Cooke v. Gill (L. Rep. 8 C. P. 107).
F. M. Abrahams, for the defendant, contended that the cause of action arose in May 1889, when the work was completed, and that the statute commenced to run from that date. The claim was, therefore, barred. He cited Harris v. Quine (L. Rep. 4 Q. B. 653) and Harris v. Osborne (2 Cr. & M. 629).
CHARLES, J. held, that the statute began to run on the completion of the work in May 1889. The words of the statute 21 James 1, c. 16, sect. 3, showed that there was a distinction between “ action” and “ cause of action,” and that distinction was rather supported by sect. 37 of the Solicitors Act. There was the cause of action and the power to bring an action. There was no authority in sapport of the proposition that a solicitor could preserve his cause of action by not delivering his account. Cooke v. Gill must be read secundum subjectam materiam. There must be judgment for the defendant, with costs.
On Tuesday, the 5th inst., a meeting of the creditors of Mr. G. J. L. Morgan, solicitor, of Swansea, was held at the official receiver's office, the official receiver presiding. The debtor's gross liabilities were put down at £1625 10s., and his assets at £20. The debtor gave as the cause of his failure : Loss on investment of over £1000 in the Cwmrhydycarw Colliery ; loss of £350 in the Blaentwrch mine ; and losses by becoming surety for others.
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