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practice of the law, to call attention to the effect of the law reports upon fiction. The great accuracy with which the court scenes are portrayed in some modern novels, and by authors not themselves members of the profession, has furnished a theme of admiring comment. The trials in 'Pickwick,' in Orley Farm,' in Hard Cash,' are familiar instances of this, and how well they contrast with the laughable mistakes of the case of Shylock v. Antonio, and Portia's bad law,-whether the Merchant of Venice' was written by the lawyer, SHAKESPEARE, or by the Chancellor, Lord BACON. In the last of CHARLES READE's novels, A Terrible Temptation,' is a description of Mr. ROLFE (supposed to be Mr. READE himself), his study, and his method of preparing his novels, founded upon facts,' stranger than fiction. Here are indices rerum et hominum, in which are pasted for ready use facts-facts from papers, facts from wood-cuts, accounts of trials, 'living dialogue' reflections and situations. From this we see how the modern book-maker does his work, and how the law columns of the Times, itself a daily romance, may contribute to the use of the novelist his most thrilling plots and startling situations."
MR. ROBERTSON GLADSTONE, the Liverpool magistrate, whose proceedings with reference to the drunkards of that borough we have more than once had occasion to notice, has been unfairly treated, if we are to give credence to a Liverpool paper, which has written an article for the express purpose of contradicting us. We are said to have "blundered." The simple fact is, Mr. GLADSTONE changed his intention; but, whilst his original design of visiting the gaol on Sunday and liberating drunkards, and sending their names to the newspapers, was stated by him publicly, he failed to inform the world that he had taken our advice, and was determined not to do anything illegal. Under such circumstances, it is scarcely fair to say that we have been guilty of a blunder. Further, it would appear that the publication of the names of drunkards' employers is not the proposition of Mr. GLADSTONE. We can only say that we learned from a Liverpool print that this was the magistrate's proposition. However, as our chivalrous contemporary is willing to take the responsibility of so questionable a proceeding, we are prepared to exonerate Mr. GLADSTONE. An illustration of the mischief which may be occasioned by the proceedings alluded to, is furnished by a letter which appears in a local paper, written by a warehouseman in the service of a firm said to be the employers of a particular drunkard. He writes: "A great number of persons do business with the firm who do not know my name, and I may possibly be considered the delinquent." He very properly adds: "I think the originator of this movement should take every care that persons arrested should give their proper names and addresses." But no amount of care would suffice, and we only hope that the person damnified by these highly objectionable proceedings will bring an action of libel against the journal publishing the announcement. A Liverpool solicitor writes to us expressing his readiness to contribute his mite to the costs.
WE are indebted for a good deal of interesting material this week to reports of American cases, and not the least interesting to us at the moment is that of State v. Jones, decided in New Hampshire, in June of last year, with reference to the defence of insanity in capital cases. The prisoner was indicted for the murder of his wife, and at the trial the court charged the jury that "if the defendant killed his wife in a manner that would be criminal and unlawful if the defendant were sane, the verdict should be 'not guilty, by reason of insanity,' if the killing was the offspring or product of mental disease in the defendant. Neither delusion nor knowledge of right and wrong, nor design or cunning in planning and executing the killing, and escaping or avoiding detection, nor ability to recognise acquaintances, or to labour or transact business or manage affairs, is, as matter of law, a test of mental disease; but all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury. Whether the defendant had a mental disease, and whether the killing of his wife was the product of such disease, are questions of fact for the jury. Insanity is mental disease-disease of the mind. An act produced by mental disease is not crime, if the defendant had a mental disease which irresistibly impelled him to kill his wife; if the killing was the product of mental disease in him, he is not guilty. Insanity is not innocence unless it produced the killing of his wife. If the defendant had an insane impulse to kill his wife, and could have successfully resisted it, he was responsible. Whether every insane impulse is always irresistible is a question of fact. Whether in this case the defendant had an insane impulse to kill his wife, and whether he could resist it, are questions of fact. Whether an act may be produced by partial insanity, where no connection can be discovered between the act and the disease, is a question of fact. The defendant is to be acquitted on the ground of insanity, unless the jury are satisfied beyond a reasonable doubt that the killing was not produced by mental disease." On appeal it was held, that these instructions were correct. It will be seen that American jurisprudence goes somewhat further than our own against the prisoner.
In our issue of the 20th ult., we noticed some proceedings at the Brighton County Court, in which it was suggested that Mr. LAMB, a solicitor, had lent his name to a debt-collector for the purpose of taking proceedings in that court. We have received a letter from that gentleman, which we publish elsewhere, and our readers will be able to form their own opinion upon the points raised. We have now only to notice a memorial presented by several solicitors of Brighton to the Judge of the County Court concerning the practices of debt-collectors and agents. The memorialists pray his Honour that he will instruct the officers of the court that no particulars of a plaintiff's demand be henceforth sealed by the court unless signed by the plaintiff in person or by some duly qualified attorney on his behalf, and that no one but a plaintiff in person, or some one in his service, or an attorney, be allowed to issue summonses, and conduct the same in the progress of the suit or at the hearing. the first part of the prayer, his Honour properly replied that he had no power to issue the desired instructions. Any person," he said, " was at liberty to issue a summons in a County Court, and the plaintiff himself, his attorney, or agent, might sign the particulars; he could not prevent that." But he added, with regard to the latter part of the memorial"That no one but a plaintiff in person, or some one in his service, or an attorney, be allowed to conduct the summonses at the hearing"that he could prevent. "When the court was first established, some twenty-five years ago, he laid it down as a fundamental principle, that he should not allow any person acting as agent in any way, to appear in a case otherwise than as a witness. This was in accordance with the usual practice in the courts of law. The case must either be conducted by the plaintiff in person, or by a duly qualified attorney; he never had, nor should he ever, allow any other person to appear for the plaintiff in any other respect. He could not prevent any person from taking
out a summons or signing the particulars, but he could and should prevent agents from appearing in the court for plaintiffs." This is no great gain, and Mr. CHRISTIAN, the debt collector, who was the object of the memorial, is perfectly satisfied. And if he employs an attorney in the regular way no one can object, but we trust that by no inadvertence even will an attorney's name be used when the attorney is not actively employed in the suit.
WE reported a case from the Liverpool County Court on the 20th ult., a case with respect to proceedings in liqui dation which involves a point of practice. The Larrow issue raised was, whether at a first meeting of creditors under a liquidation petition, where the creditors neglect to pass any resolution, it is competent for the debtor to file a second petition. Mr. Serjeant WHEELER says that where a debtor declares himself unable to meet his engagements, and petitions the court to call together his creditors, and they disregard the invitation, the functions of the court in the interest of the debtor cease unless it is shown there has been some miscarriage in the proceedings, or that the feelings of the creditors have not been fully elicited. That view appears to us open to exception. No doubt it was intended by the present Act to abolish the system by which insolvent debtors could place their creditors at defiance by filing their own petitions in bankruptcy, but as a matter of fact it has proved altogether a failure in that respect. The popular mode of arrangement now is, when a debtor is in pecuniary difficulty to file a petition for liquidation or composition, a course in effect analo gous to a petition in bankruptcy. He then has a fortnight during which to arrange his affairs, and at the meeting which takes place he has simply to present a statement of his affairs made out by himself, which the creditors adopt if they accept his proposal of composition, or refuse by voting the estate into liquidation. They have the further alternative of abstaining from passing any resolution. Where there is no resolution it is a doubtful question what is to be done. The debtor who has executions against bim and is desirous of protecting his property, surely ought to be able to resort to the court again for the purpose of protecting his property. He has already placed his affairs in the hands of the court in the interest of his creditors, and if they don't choose to exercise their rights is he to remain in the cold, and the property to pass to the diligent creditors? The interests of creditors no doubt ought to be paramount to other considerations, but regard should be had to those of a debtor. Where he submits himself to the jurisdiction of the court he ought to have relief from obstinate and stupid creditors. How is he to obtain it except by filing a second petition? He cannot make himself bankrupt, but is desirous of his assets being equally divided. The course suggested by Mr. Serjeant WHEELER is to revive the proceedings under the old liqui dation petition. He can only do so, however, where there has been a miscarriage in the proceedings under the liquidation petition, or where he has an improved offer to make to his creditors. But assuming neither of these circumstances exist, what is to become of his estate? The diligent creditors, of course, obtain the advantage; but, seeing the tinkering the present law has undergone to secure an equal division of an insolvent's estate, and how ineffectual it is for the purpose, we think that the commercial code would be better without any Bankruptcy Act at
all, and that the doctrine of Vigilantibus non dormientibus jura subveniunt should be allowed its full swing.
THE DOCTRINE OF REMOTENESS AND THE
A STRONG feeling exists in this country concerning the extent of the claims put forward in the American "Case" for arbitration, embracing as they do losses indirectly caused, or supposed to have been caused, by the negligence of our Government in permitting ships destined to operate as Confederate cruisers, to escape from ports in Great Britain. No doubt the arbitrators will be governed by the somewhat loose rules of international law, and what those rules are we discuss in another column; but assuredly the common law doctrine, recognised alike in the United States and in this country ought to prevail, that damages not proximately caused by the Act complained of, are not recoverable. Damage not within the rule as to remoteness, must be the natural consequence of the act committed by the defendant.
The instance in which this rule most frequently arises is in actions of slander, the leading case being that of Vicars v. Wilcocks (2 Sm. L. Cas. 461), the head note running thus: Where special damage is necessary to sustain an action for slander, it is not sufficient to prove a mere wrongful act of a third person induced by the slander, such as that he dismissed the plaintiff from his employ before the end of the term for which they had contracted; but the special damage must be a legal and natural consequence of the slander. To this is added the elementary doctrine :-Damage, to be actionable, must not be too remote a doctrine which dates from early times, being noted in Comyns's Digest.
The damage alleged in the American case includes loss by the prolongation of the war, and the transfer of the American marine to the British flag. Would any court of law or equity, would any jury, ever be convinced on the evidence adducible by the Americans, that these damages were the natural and proximate result of the negligence of the British Government? We are responsible for the actual damage done by the cruisers which we allowed to escape, that is, for vessels captured and property destroyed by them. An analogous case may be found in Fletcher v. Rylands (L. Rep. 3 E. & I. App. 330), where the doctrine we have stated was fully recognised. There a landowner, by negligently constructing a reservoir, flooded the plaintiff's mine. In the Exchequer Chamber, Mr. Justice BLACKBURN laid down the law as to the liability of persons who have dangerous elements on their land, which seems to us to be on all fours with the facts in the Alabama case. "We think," said his Lordship, "that the true rule of law is that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. . . . The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy. is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just thht he should, at his peril, keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences.'
The natural and anticipated consequences of the escape of the water in that case were the flooding of the mine and the stopping of the works-that is to say, the result which immediately and necessarily happened. Applying this view to the case of the cruisers, the proximate damage was, as we have said, the destruction of a certain amount of property-that was the natural consequence of the escape. Beyond that the damage becomes too remote and irrecoverable. Supposing in the illustrations put forward by Mr. Justice BLACKBURN in Fletcher v. Rylands, a plaintiff whose grass had been trodden down or whose corn had been eaten, claimed, among his damages, the loss of cattle which had died for want of such grass and corn, he certainly could not recover-the damage would be too remote. It is not because an event does happen as a consequence of a particular act that such event will ground a claim for compensation, as Ashley v. Harrison (1 Esp. 48) shows. There the defendant published a libel on Madame MARA, in consequence of which she refused to sing (as she had engaged to do) at the plaintiff's oratorio, from an apprehension of being hissed and ill-treated, whereby the plaintiff lost the benefit of her services. Lord KENYON held that the action was not maintainable.
From a purely legal point of view, therefore, the claim put forward in the case to damages for prolongation of the war and incidental expenses, is wholly unjustifiable. It ought to be utterly untenable before a council of international arbitration.
EVIDENCE IN CRIMINAL CASES. REG. v. PAYNE.
By the decision of the Court of Criminal Appeal in Reg. v. Payne, it may be now considered settled law that co-defendants, when on their actual trial, are incompetent to testify for or against each other. On this question there has been a great conflict of professional opinion. On the one hand it has been argued with great plausibility (see for example, Taylor on Evidence 1178-80, 5th edit.) that the 2nd and 3rd sections of Lord Campbell's Act (14 & 15 Vict. c. 99) read together, forcibly, if not necessarily, implied that, in a criminal proceeding, persons who were accused on a joint indictment were rendered competent and compellable witnesses, each in favour of or against the others. In the case of Reg v. Deeley and others (11 Cox C. C. 607) where three persons who had been jointly indicted were being tried together for felony, Mr. Justice Mellor taking this view of the law, allowed two of the prisoners to be called as witnesses on behalf of the third. On the other hand, it was said that the Act was not intended to effect any alteration whatever in the law of evidence as applicable to criminal cases. The question was considered to be and really is of such importance, that when in the case of Reg. v. Payne the precise point which had been reserved by Mr. Justice Keating, viz., "Whether a prisoner jointly indicted with another, can, after they have been given in charge to the jury, be called as a witness for the other without having been either acquitted or convicted or a nolle prosequi entered," came on last week for decision, no less than sixteen judges sat to assist in determining it. The unanimous judgment of the court, delivered by the Lord Chief Justice shows that the evidence is not admissible that the old law remains unaltered, that the reference to criminal proceedings in the 3rd section of the Act is a proviso added only ex majore cautelâ, and that a party on his trial can neither be examined nor cross-examined.
To the argument that a prosecutor eager to obtain a conviction might intentionally include several alleged offenders in a joint indictment, in order to exclude each of them from testifying in favour of the others, the Lord Chief Justice replied that in such a case the Judge could obviate this by ordering them to be tried separately, when there was reasonable ground to think that a joint trial would operate as an abuse of justice.
To our minds this discretionary power vested in the Judge, and which, we presume, in minor cases must also be vested in magistrates, is scarcely a sufficient safeguard. As a matter of right, each of several persons before being put on his trial on a joint indictment, ought to be at liberty to demand a trial distinct from that of those accused with him, in order that he may, if he think fit, avail himself of their evidence. In the great majority of cases, there can be little doubt that a joint trial, by excluding the evidence of accomplices or participators in a crime, operates in favour of the accused. We, however, can see no reason why a person charged jointly with others should not be asked before being put on his trial whether he wishes to be tried separately, being informed at the same time, that if he so elect, the others will be competent and compellable witnesses in his favour or against him, and that he in his turn will be a competent and compellable witness against or in favour of the others.
MR. JUSTICE LAWSON'S REFORMS. CODIFICATION has received a new advocate in Mr. Justice LAWSON, but in the paper which he has read before the Statistical and Social Inquiry Society of Ireland, that learned judge has not confined himself to this one subject. He shows himself in the van of law reformers on more than one important point. He would admit hearsay evidence; he would disqualify no person whatever as a witness "by reason of his being a party or having any interest in the suit, or for any other reason.' The provision which he would introduce into his code on the law of evidence is this:Any person who in any criminal proceedings is charged with the commission of an indictable offence, or any offence punishable by summary conviction, shall be competent, but not compellable, to give evidence for himself, and if examined shall be subject to crossexamination as any other witness."
This, it is anticipated, will provoke considerable opposition. We consider that there is a fatal objection to it. The prisoner who holds his tongue would be self condemned. It is no doubt deplorable that counsel should consequently have the opportunity of appealing to juries on the score of the prisoner's mouth being shut; but to place him in the invidious position suggested, would be as cruel to him as the other course is unfair to the law. We have a difficulty in seeing any possible middle way between closing the mouths of prisoners and rendering them liable to examination, and we decidedly consider that the latter plan is the more advisable. A point on which we heartily agree with Mr. Justice LAWSON is, the expediency of the previous conviction of prisoners being made known to a jury. We have recently fully expressed our views on this head, and the fact that Mr. Justice WILLES considers that such information should not be withheld from a jury ought to secure a change in the law.
We do not propose at present to accept Mr. Justice LAWSON'S
invitation to enter upon a full discussion of his specimen code on the law of evidence. We have very clear notions of our own as to what a code ought to be; and, looking cursorily at the one before us, we are not inclined to approve of the form which it takes. comprises forty principles, stated without classification or index. The German and French codes to a great extent adopt this plan, but we do not consider that it will do as applied to the great bulk of English law. A specimen of any particular branch of law should be upon the same method as that upon which codification generally must proceed; and we venture to think that, taking an example referred to by the learned Judge, that, namely, of contracts, it would never do to classify them simply as verbal and written. We should find ourselves in a wilderness of principles and exceptions, and if we are to have a general index at the end of the work, we might as well content ourselves with our text books.
But as to the matter-what should a code be? "The true office of a code," says Mr. Justice LAWSON, "is to put in writing such parts of the unwritten law as are deserving of being preserved in our jurisprudence, omitting those which are trivial or ephemeral, and abolishing those which are faulty." There is a preliminary difficulty here. Who is to be the judge? Who is to say what is deserving and what not ?-what is faulty and what not? Our view is that the law should be codified with all its faults and in all its most trivial details, and then let Parliament consider what shall be retained and what amended. Certainly, to begin with, we must leave nothing out, for a defective code would be worse than a comprehensive chaos. The view of the Digest Commissioners doubtless was that a digest would necessarily precede a code. The writer has had some practical experience in codifying, and it is our opinion that no one can successfully compile a code who has not first made a digest. Mr. Justice LAWSON acknowledges the value of our case law; it is beyond dispute a mine of wealth from which clearly cut principles are to be extracted. No case ought to be relegated to the limbo of forgotten things until it has been carefully examined by a competent person. Whether that person should be a text-book writer is doubtful, and here we consider that the Digest Commissioners fell into a very natural error. The highest skill in the practical application of cases should be employed in digesting and codifying our English law. A dozen men of the calibre and experience of Mr. Justice LAWSON Would do the work well, but until Government and the country recognise the necessity for disregarding expense and employing the highest available talent a code will not be satisfactorily accomplished.
THE RIGHTS AND LIABILITIES OF SURETIES. A CASE was heard before the Lord Chancellor in December, which we report to-day, bearing out our view of the rights of sureties where time is given to the principal. In some cases it has been contended that although there be an express contract by the creditor to give time to the principal debtor, the surety ought not to be released until he can prove that by being held to his engagement he suffers some actual damage. We have had our say to the contrary, and the highest Judge in the kingdom agreeing with us, we transcribe his judgement, which in our opinion expresses the true ground upon which the liability of a surety must rest.
Lord Hatherley recognised the original principle to be this: "That if you contract with the principal to give him time, it is contrary to that contract that you should sue the surety, because if you do you immediately turn the surety upon the principal, who is at liberty to sue him, and therefore your act breaks the engagement into which you have entered with the principal." Then his Lordship proceeds, "It is not simply neglecting to sue the principal which would have any effect upon the surety, but there must be a positive contract with the principal that you will postpone the suing of him to a subsequent period. To show that this is the principle we have only to refer to another class of authorities which until recently clearly and distinctly establish that it is competent to the creditor, if he thinks fit, to reserve all his rights against the surety, in which case the surety is not discharged, and for this reason the contract then made with the principal is preserved, because they have engaged with the principal that they will not sue him for a given time, but subject to the proviso that they shall be at liberty to sue the surety and turn the surety upon him, and that that shall be no breach of the engagement. That, I may say, has been recognised up to a late period, because, although Lord Truro threw some doubts upon it in the case of Owen v. Homan; when the case came before the House of Lords the Lord Chancellor I think Lord Cranworth—in giving judgment, said, there could be no doubt about the case before the House, and he did not think he should have entered into any discussion of the case himself had it not been for the doubts thrown by Lord Truro upon that principle, namely, that you might release the surety if that formed part of the original contract as to not suing the principal, and he said a doubt having been thrown out he thought it right to protest against the doubt, because he thought it was a doctrine perfectly clear and established."
This judgment was given reversing a decision of Vice-Chancellor Malins in the court below, who held that the surety was not discharged (see Oriental Financial Corporation v. Overend,
Gurney and Co., 24 L. T. Rep. N. S. 774), but a leading authority, being a decision of the House of Lords, was not cited before the Vice-Chancellor; namely, Oakley v. Pasheller (1 Cl. & Fin. 207). In that case, as described by the Lord Chancellor, an ordinary case of principal and surety, a banker owed 10,000l. to the credi tors of Sir Charles Oakley. They borrowed it for the purposes of the bank. One of the partners who so borrowed the money died, and a bond was given by his executors for the payment of the money. At the time the bond was given, Sir Charles Oakley did not know that those giving the bond were not principals, but, in fact, at the time of giving the bond they were principals, and nothing else, and were liable with their co-partners. These co-partners of the deceased partner found there that the testator's estate was bur dened as principal with this debt, or at all events as between himself and the surety. But subsequently to that an arrangement
was entered into betwen the bank and the executors of the deceased partner, by which the bank, for a sum paid to the executors, bought all his share and interest in the concern, and undertook to pay all his debts and liabilities on behalf of the concern. From that moment, of course, and only from that moment, the executors who gave the bond originally as principal debtors to the creditor became as between themselves and the remaining partners of the bank simply suretics for the debt. They being such sureties, Sir Charles Oakley was held by the House to have had distinct notice of that change in the position, and he was held by Sir John Leach in the court below, and by the House of Lords in the court above, to have discharged the executors of the deceased partner who originally gave the bond to his creditors, and who had originally been the principal debtor.
These cases can leave no doubt as to what is the present law on a subject most important to a commercial community basing nearly all its transactions upon credit.
INTERNATIONAL LAW AND THE ANGLO-AMERICAN ARBITRATION.-III.
Ir must not be forgotten that the QUEEN'S Proclamation was not issued till after news had been received in Great Britain of the blockade. Mr. LINCOLN's proclamation of the 15th April, calling out the militia, reached this country on the 29th, and that of the 19th, establishing a blockade of all the ports save those in Virginia and North Carolina, on 15th May, more than a week before the date of the QUEEN'S Proclamation.
We will now proceed to consider the liabilities, if any, incurred by Great Britain during the war, taking first those, if any, arising from the sale, building, or equipment by English subjects to or for the Confederates of ships of war or trade; and, secondly, those, if any, caused by undue hospitality shown subsequently by the Government or its officials to Confederate vessels when visiting our ports at home or abroad.
The first vessel built in England for warlike purposes which passed into the hands of the Southerners was the Florida. She was laid down in the Mersey professedly for the Italian Government. and left Liverpool as the Oreto, in March 1862, for Palermo. Before her departure, on account of Mr. ADAMS's belief that her real destination was the Confederate service, an inquiry was instituted, but the examiners were satisfied that Mr. ADAMS was mistaken. Having put in at Nassau, she was there seized, but was released, the Judge of the Admiralty Court ruling that evidence of acts done outside his jurisdiction was inadmissiblea decision which is now considered to be erroneous. From Nassau she ran the blockade into Mobile, remained there four months and was completely equipped, and then a second time passed through the blockading squadron. If these two escapes were not wilfully assisted by the Northern commanders, there must have been on their part such a degree of inattention to their duty as to differ but little from collusion, and such as would, on a plea of contributory negligence, go far towards relieving this country from responsibility.
Very shortly afterwards, on the 28th June, Mr. ADAMS gave information of another war ship, nearly completed in the Mersey, and apparently intended for the same purpose as the Oreto. On the 4th July, an answer was returned from the Customs asking for further information, which was sent in on the 10th, and supplemented by depositions on oath on the 21st. From the 22nd to the 26th, these documents were in the hands of the QUEEN'S ADVOCATE, warnings that the vessel was about to sail being meantime addressed to the Customs authorities and to Lord RUSSELL. A delay of three more days occurred from the ill-health of the QUEEN'S ADVOCATE, and on the 29th the Government were advised that the vessel ought to be detained. She had, however, from timely information received by her owners, that morning put to sea, She went to Terceira, received her stores and crew, assumed the name of the Alabama, and commenced her destructive career. The Georgia sailed from Greenock on the 2nd April 1863, without armanent or crew, which were brought to her when at sea from Liverpool. The first notification that reached the Foreign office in respect of her was from Mr. ADAMS on the 8th April. The Sea King was a common merchant vessel which had been employed in the China trade; she left London in Oct. 1863 as on an ordinary voyage; put in at Funchal for her war stores, &c.,
when her original crew refused to continue in her, and she was re-manned, and changed her name to the Shenandoah. As to the other vessels named in the American case-the Sumter, Nashville, Tallahassee, &c.-none of them were built or fitted out in this country, while several were American vessels, which issued from American ports-e.g., the Nashville from Charleston.
On the other hand the Pampero was stopped in the Clyde, so were the Alexandra and the rams at Liverpool in April and September 1863 respectively. The seizure of the Alexandra led to a long series of legal proceedings before the Court of Exchequer (2 H. & C. 431), then the Exchequer Chamber (2 H. & C. 581), and finally the House of Lords (10 H. L. Cas. 704), which terminated in favour of the defendants, on a purely technical point, and the vessel was released. She proceeded to Nassau, and was again seized and detained in custody till the close of the war. The rams, after their detention, were bought by the Government in order to avoid the possibility of another defeat at law, since it was manifest from the Alexandra case that the Foreign Enlistment Acts were not so perfect and comprehensive as to provide against every possible violation by persons domiciled in England of the strict neutrality incumbent upon the whole nation.
Now what are the doctrines of international law with respect to the trading of neutrals with belligerents? Without reconciling the opinions of the jurists and text writers who agree in the chief points, though they differ widely on minute details, and without investigating the history of treaties and conventions, we may lay down two general principles as admitted on all hands:First, neutrals may not permit the arming or equipping of vessels, or the enlistment of men within their own territories; secondly, with this limitation, neutrals may trade in any manner they please with either belligerent, but the carriage of contraband subjects the carrying vessel and its cargo to condemnation, as does also an attempt to break blockade, although neither of these acts compromises the neutrality of the State itself. The former of these principles was infringed, according to the Government of the United States, by us in the Alabama, Shenandoah, &c, cases. Were, however, those vessels "armed' 66 or equipped" within our territory? The answer is not easy to give. As a matter of fact we are inclined to think they were not; as a matter of principle we should be equally inclined to decide that they were. These vessels left our ports all in a more or less incomplete state for warfare, they received the finishing touches, their armaments and crews, elsewhere-at sea or in the ports of other nations; but constructively at least the Alabama, Georgia, and Shenandoah were fitted out in Great Britain. But was this done with the knowledge and connivance of our Government ? It will be for the Americans to prove this if they can. Failing to do so, they will fall back upon our "negligence," in either at all allowing the construction of the Alabama, &c., or in permitting their escape after suspicions of their true character had been aroused. Negligence is a charge casy to bring, not always easy to rebut; and this is especially so in the present case. The private shipbuilding firms of Great Britain are many, and are seldom without contracts for foreign governments. To have inquired into the pedigree and the future of every war vessel laid down during the war in the Mersey, Clyde, Tyne, and Thames, would have been simply impracticable. Mr. ADAMS's charges and representations received the fullest consideration, and very generally they were entirely baseless. Upon the second principle, which regulates the trade of a neutral, we prefer to quote the remarks of Mr. DANA, page 563 of the eighth edition of Wheaton's International Law:"An American merchant may build and fully arm a vessel, and supply her with stores, and offer her for sale in our own market. If he does any acts, as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market in a belligerent port. In such case, the extent and character of the equipment is as immaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise immediately, or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent. The former the belligerent must prevent." In the Santissima Trinidad (Wheaton, VII. 283), Mr. Justice STORY used similar language. This vessel had been employed as a privateer in the war between Eugland and the United States, and at the close of the war she was sent to Buenos Ayres, and sold to the government, civil war then raging between the Argentine Republic and Spain, and the independence of the former not having been acknowledged by the United States. The question of the legality of a capture made by her having afterwards come before the Supreme Court, Judge STORY laid down that the sending of the Santissima Trinidad, fully armed and ready for use
in war, under American colours, papers, and command to Buenos Ayres, for a bona fide purpose of offering her there for sale in the market as a commercial enterprise, though it subjected her to capture as contraband, would not be a violation of the national neutrality. Admitting this-admitting that a ship may be made "ready for use in war" in the port of a neutral, and sent to the capital city of a belligerent as a bona fide commercial speculationbut how could the bona fides, if set up, be disproved?-on what ground can the United States Government pretend to hold this country liable for the action of Messrs. Laird in building the Alabama? According to American dicta, had Messrs. Laird sent a whole fleet of Alabamas and steam rams, " ready for use in war, as a commercial enterprise," to New Orleans, there to be sold, such a proceeding would have been no violation of our national neutrality.
Our next question is whether the "undue hospitalities" shown to Confederate vessels have involved England in any liability. This charge is totally unfounded. As we had recognised the Confederacy, so we were bound to recognise its ships of war, but we went no further. We. allowed both sides to come into our ports, but only to obtain such repairs as were absolutely necessary, and such a quantity of coals as would suffice to take them to some other near port, not such a store as would enable them to make a long craise. After the watching of the Nashville by the Tuscarora, at Southampton, we enforced the rule that where a ship of each belligerent was within our waters the one should not be allowed to pursue till the other first leaving should have had twenty-four hours' start. After the dismantling of the Georgia at Liverpool,. in May 1864, we determined that no ships of war of either side should in future be dismantled or sold in our harbours.
The Northerners also complain of the extent of the trade done with the Confederates by means of blockade-runners, and of the Confederate agency that was established at Liverpool by Commander BULLOCK. But blockade-running was a commericial speculation, undertaken by private citizens at their own risk, involving the condemnation of the vessels and cargo so employed, and, as admitted by all authorities on international law, in no degree compromising the neutrality of this country-the sole duty of the Government was to passively discountenance, not actively repress, such a trade. The Confederate agency is a different matter. It is unquestionably a breach of neutrality for a nation to permit its territory to be made by one belligerent the basis of operations against the other; but knowledge, actual or constructive, of such a state of affairs, must be brought home to the Government of the nation so offending. Can our Government be convicted of such knowledge? We may at least as fairly ask can the United States authorities be convicted of complicity in the Fenian raids? Bodies of men have been massed in open day at various points along the Canadian frontier-have been marched or conveyed on the public roads many miles, their movements reported all over the Republic and even in Europe, a treasury opened and the semblance of a constitution set up at New York-and yet the President and his advisers have pleaded ignorance and inability to interfere until the raid was over and the hindmost of the filibusterers were in Canadian custody. We do not say that for all these proceedings the Government of the United States is to be held answerable, but we do maintain that, if they are to be excused for not summarily repressing the Fenians, our own ministers must at least be discharged from complicity in Confederate transactions in Great Britain.
The Practice of the High Court of Chancery. By the late EDMUND ROBERT DANIELL, Barrister-at-Law. Fifth Edition by LEONARD FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law, with the assistance of JOHN BIDDLE, of the Master of the Rolls' Chambers. In two volumes. London: Stevens and Sons, 119, Chancerylane.
A CURSORY look into this work suggests that the contemplated 'fusion" of equity with the other branches of law will be rather more difficult than is generally supposed. Here we have two massive volumes, with an index, extending over upwards of 800 pages, as the guide to the practice only of the Court of Chancery, and the fact that the machinery is so elaborate is sufficient proof of the necessity for a reliable authority on the subject. That such an authority is to be found in Daniell's Chancery Practice, is now beyond doubt or dispute. It has no rival, and the names of the present editors sufficiently guarantee that all care has been exercised in bringing the fifth edition close up to the time of publication. Further, we are told in the preface that the proof sheets have been read by Mr. Braithwaite, of the Record and Writ Clerks' Office, and by Mr. Upjohn, of the Master of the Rolls Chambers, whose assistance is acknowledged to have been of great value. It is impossible, of course, to give any notion of the completeness of the work as a whole, but, to take one small part of the prac tice, that, namely, relating to the jurisdiction over suits within the County Court limit, we find the subject well and concisely treated, and nowhere, probably, could the practitioner learn more precisely when causes may be transferred, and what is the nature of the
jurisdiction before and after transfer. The material sections of the County Court Equitable Jurisdiction Act are set out, and the effect of the County Court orders is given. This is a fair specimen of the work done by the modern editors.
The bulky nature of the volumes, and the multitudinous cases to be referred to, entailed, of necessity, some errors, but elaborate errata and addenda have been compiled. Making every allowance, they seem to us to be exceptionally elaborate, and with so many editors, much of both, it would appear, might have been got into the body of the book. It will be a troublesome task to transfer this matter to the proper places indicated, but it must be done if the practitioner wishes to be safe. But with this drawback, which was almost inevitable, the work must maintain the position which it has secured and held so long, and without this fifth edition no equity lawyer's library can be complete.
The Law of Evidence as Administered in England and Applied to India. By JOSEPH GOODEVE, Esq. New Edition by L. A. GOODEVE, Esq. Calcutta: Thacker, Spink, and Co., 1871. WHAT Taylor is to England, and Greenleaf to America, Goodeve is to India. The object of the author of the original edition was to give to India the principles of the English law of evidence without encumbering them with the elaborate statement of cases which characterises English text books. The footnotes of cases
in the English books are also dispensed with as being practically valueless in India. Consequently we have here a convenient collection of the principles of the law of evidence, skilfully applied to the exigencies of Indian practice. The merits of the work are thoroughly established, and it is only necessary for us to say Mr. L. A. Goodeve has creditably sustained the reputation of his predecessor, in bringing it down as an authority to the present date.
THE City of London Directory 1872 (W. H. and L. Collingridge, City Press Office, Aldersgate-street, London), is a valuable work of reference for all concerned in knowing where to find places and people in this labyrinthine metropolis. The directory contains an excellent map of the City. Every branch of life in the city which requires an index to it appears to be represented in the directory, which gives us a most convenient alphabetical list of those engaged in business and professional pursuits within the City limits. Consequently it must prove useful to everyone.
DE LA RUE'S Desk Diary for 1872 is perhaps the most convenient work of its kind published. It contains all the usual information found in almanacs, and ample blank space for memoranda for this year and next.
NOTES OF THE WEEK.
(Before the LORD CHANCELLOR.) NEWILL V. NEWILL. Construction of will-Gift to wife and childrenWhether as a class, or to the wife first for life. HENRY NEWILL, by his will dated the 19th Oct. 1863, devised and bequeathed unto his wife Anna Elizabeth Newill, for the use and benefit of her. self and all his children, whether born of his former wife, or such as might be born of her the said Anna Elizabeth Newill, all his property, of every description, real and personal, whether in possession, remainder, or expectancy, at the time of his decease, and the testator appointed executors of his will. The testator had no real estate, but he died possessed of personal estate of the value of 60001. He left six children by his first marriage and two by the second; one had died since the institution of the suit, which was for administration of the estate. The question raised in the court below was whether, under the will, the testator's widow took an estate for life with remainder to the children, or whether she and the children took as joint tenants. Malins, V.C. having held that the wife took an estate for life with remainder over to the children as joint tenants, the parties appealed.
Pearson, Q.C. and Holmes for the children of the testator.
Marcy for the guardian of the infant children. Glasse, Q.C. and Rogers for the widow. The LORD CHANCELLOR reversed the decision of the Vice-Chancellor. There was no absolute rule of construction with regard to modifying a gift of this kind into a gift to the widow for her life with remainder to the children; and there was nothing in the case to render the ordinary construction of a joint tenancy in the widow and children unreasonable. The authorities which had been referred to upheld that construction. There would therefore be a declaration that the property passed to the widow and children as joint tenants. Solicitors: Sharpe and Ullithorne; Clayton and Sons.
Dec. 20, 21, 1871, and Jan. 29. BRIGGS v. UPTON. Settlement-Recital-Provision for wife and issue of marriage-Legal representatives in due course of administration-Husband's right-Demurrer. By indenture dated in 1825, and made on the marriage of Jane Briggs with John Upton, after 10citing that "in order to make some provision for Jane Upton and for the issue of the marriage," it was agreed that her fourth part of certain reversionary real estate, and also a sum of 19001. Bank annuities, of which she was possessed, should be vested in trustees, "their heirs, executors, administrators, and assigns," upon certain trusts; and that in order to make a further provision for Jane Upton, in case she should survive John Upton, he had by bond become bound to the trustees in the sum of 2000l., with a condition for making the same void
on payment by his heirs, executors, or administra- | tors to Jane Upton of an annuity of 1001. for life; the trustees were empowered to sell the real estate, and to invest all the trust funds, and to pay the annual produce unto Jane and John Upton during their joint lives, and to the survivor during his or her life. After the decease of the survivor, there were trusts for the benefit of the issue of the marriage as Jane Upton should by deed appoint; and there was a proviso, that in case of there being no child by John Upton or any future husband, the trustees and the survivor, his executors or administrators, should hold the trust moneys in trust "for such person and persons," as Jane Upton by deed or will should appoint, and in default of appointment upon trust, to pay the same "unto the legal representatives" of Jane Upton, "in a due course of administration." Jane Upton died in 1829, without having executed her power of appointment. There never was any issue of the marriage. John Upton obtained a grant of letters of administration of the personal estate of his late wife. He died in Feb. 1871, having devised all his real and personal estates to three trustees, upon trusts for the benefit of his son and daughter by a former marriage and her issue. The plaintiff by his bill charged that under the trusts of the settlement, upon the death of Jane Upton, he and others named became, as her next of kin according to the statutes for the distribution of intestates' effects, entitled, subject to John Upton's life interest, to the property comprised in the settlement, and prayed for a declaration to that effect, and for consequential relief. On domurrer for want of equity, Wickens, V.C. overruled the demurror, fund was vested in the trustees of the settlement being of opinion that the administration of the and not in the executors or administrators of the wife; that "legal representatives," as used, were not to be construed "executors or administrators;" and that the secondary meaning of "legal reprebeneficially entitled to the personal estate of Mrs. sentatives," as used, was "persons who would be Upton if she had died intestate and unmarried." The defendants appealed.
Sir R. Palmer, Q.C., Greene, Q.C., Chitty, and Bagshawe appeared.
The LORD CHANCELLOR said the case singularly circumstanced, and there were great difficulties on either side, but on the whole he should not feel justified in disturbing the decision
of the Vice-Chancellor. Solicitors: Iliffe, Russell, and Iliffe; Few and Co.
Nov 14 and 15, 1871, and Jan 29. (Before The LORD CHANCELLOR and The LORDS JUSTICES.)
PILCHER v. RAWLINS; JOYCE v. RAWLINS. Purchaser for value without notice-Conveyance of
legal estate by suppressed deed containing notice -Fraud-Priority. THIS was an appeal from a decision of the Master of the Rolls, which is reported in 23 L. T. Rep. N. S. 756, where the facts of the case will be found fully stated. In 1851, the trustees of the marriage settlement of one Jeremiah Pilcher, advanced part of the trust funds to Rawlins on
security of certain real estate, the mortgage deed disclosing the fact that the sum advanced wa trust money. Rawlins afterwards mortgaged the real estate to Stockwell and Lambe, to secure the repayment of a loan, on which occasion he suppressed all mention of the prior mortgage, and represented himself as owner in fee simple in possession free from incumbrances. Previously to the mortgage to Stockwell and Lambe, Rawlins had induced the sole surviving trustee of Pilcher's marriage settlement to reconvey the legal estate to him. The deed of reconveyance, which recited that the mortgage debt had been paid off, was kept back by Rawlins, and Stockwell and Lambe made the loan in ignorance of its existence. The suits were instituted by the persons entitled to the trust funds secured by the mortgage of 1851, to recover the trust fund and to establish their priority over the mortgage to Stockwell and Lambe. The Master of the Rolls, following Carter v. Carter (3 K. & J. 617), held that Stockwell and Lambe must be postponed to the plaintiffs, notwithstanding the fact that they had the legal estate, inasmuch as the conveyance through which their mortgagor obtained the legal estate would, if it had been shown to Stockwell and Lambe, have given them notice of the prior mortgage. From this decision Stockwell and Lambe appealed.
The Solicitor-General (Jessel, Q.C.), Sir R. Baggallay, Hamilton Humphreys, and Ferrers, for the appellants.
Southgate, Q.C., Bristowe, Q.C., and Kingdon, for the plaintiffs.
Shapter, Q.C., Roxburgh, Q.C., Herbert Smith, parties. Drewry, H. C. Ward, and W. Pearson, for other
The LORD CHANCELLOR distinguished the present case from his own decision in Carter v. Carter (sup.), where the legal estate conveyed to the purchaser was held by the vendor on express trusts, appearing on the face of the only instra.
ment under which the vendor could make a com
plete title. The present was not such a case and had acquired an indefeasible title as against the his Lordship was of opinion that the appellants plaintiffs, and that the decision of the Master of the Rolls must be reversed.
The LORDS JUSTICES Concurred. Weatheralls, for Lamb, Brook, and Challis, BasingSolicitors for the appellants, Johnson and