10 10 11 11 11 ...page 271 MAGISTRATE AND PARISH LAWYER: Notes of New Decisions. 11 Portsmouth Borough Police Court-The Petroleum Acts 11 12 Notes of New Decisions 280 Notes of New Decisions Abandonment of railway-Competition-Through routes... 276 ALTON . HARRISON; POYSER r. HARRISON Fraudulent deed-Security to creditors-Possession by Re THE LONDON AND COUNTY GENERAL AGENCY ASSOCIA 282 Practice-Order settled-Appointment for passing............ 283 Re BARNED'S BANKING COMPANY (LIMITED); COUPLAND'S Company-Winding-up-Creditor holding collateral secu PEARCE . MORRIS REAL PROPERTY LAWYER: JOINT-STOCK COMPANIES' LAW JOURNAL: COUNTY COURTS: County Court Imprisonment.. Huntingdon County Court-Distress damage feasant NOTES AND QUERIES ON POINTS OF PRACTICE LAW SOCIETIES: which we desire to notice here, and they are legal education and the amalgamation of the two branches of the Profession. Some time since, opinion was very strongly expressed in favour of 11 amalgamation, and the authority of a Judge was cited in favour of it. Now we observe that amongst solicitors there is a growing inclination to doubt the expediency of such a proceeding. One thing we would remark. It is vain to cite New York as an example for us to follow. We have had it from the lips of a New York advocate that the English system is the best. The 13 relation existing between counsel and solicitor 13 gives independence to both, and we think the ultimate conclusion will be this-give a good 14 legal education to both branches, and make a 15 call to the Bar a matter of no difficulty to solicitors. 12 13 13 rity 286 Metropolitan and Provincial Law Association 16 17 Mortgage Acceptance by mortgagee of amount tendered 287 Re THE AGRICULTURIST CATTLE INSURANCE COMPANY; Land taken by railway company--Unpaid vendor-Decree for specific performance 19 CAN nothing be done to facilitate the business in the Court of Chancery? A case has come within our personal knowledge where a friendly 19 administration suit, commenced three years ago, is not yet concluded. There was only one 20 doubtful point of law, which was determined by the VICE-CHANCELLOR in six months. The estate was in securities readily convertible into money, and there were no debts to be collected. An accountant would have settled the whole parties entitled under the will have been kept matter in two months. But for three years the out of interest as well as principal, and if they had been poor must have starved while the estate was being slowly wound-up. Delay means costs, and so, besides the being kept out of their money, they find a large share of it Advertisements specially ordered for the first page are swallowed up in costs. Why should not the All anonymous communications are invariably rejected. CHARGES FOR ADVERTISEMENTS. 38. 6d Os. 6d. charged one-fourth more than the above scale. SUBSCRIPTION TO THE LAW TIMES. One year Half-a-year On credit or for separate numbers:- Double numbers (stamped) 301 BANBURY . DUCKWORTH Slander-Privileged communication.. SHERIFF COURT OF LANARKSHIRE. GIBSON AND ANOTHER . HILLSTROM AND OTHERS (unstamped) (unstamped) THE £ s. d. 011 0 17 Law and the Lawyers. In the Queen's Bench on Thursday the LORD A MARRIED lady has passed an "eminently satis- 9 9 10 THE Metropolitan and Provincial Law Associa- Court of Chancery appoint official trustees to wind-up estates of testators and intestates, precisely as official liquidators wind-up joint-stock companies. We know of no greater improvement in the practice of the law than this would be. the ON Thursday the Telegraph published an article better cause THE County Courts Chronicle draws attention to a decision of the Judge of the Reading Count Court, that a governess dismissed without proper notice is entitled to salary in lieu of notice, and in addition the payment of her board and lodging during the period of the required notice. "We think," it remarks, "that this is a very just decision, but some persons may not quite comprehend upon what principle of law it rests. A governess is not a menial servant, with regard to the rule as to dismissal: (Todd v. Kerrich, 8 Ex. 151; 22 L. J. 1, Ex.) The menial servant may be dismissed according to the rule which prevails. Those in the position of governesses are outside this rule, and whilst they should do all they can to enter into another service (Hochester v. De la Tour, 2 E. & B. 690; 22 L. J. 458, Q.B.) there would appear to be no doubt that damages would be recoverable in respect of the cost of subsistence during the time in which she ought to have been retained in the service. We are not aware that the point has been expressly decided before. If it has we should be glad to be referred to the case." THE LATE MR. DALY. adapted to almost any course which it might therefore, that it would not content the people anywhere. It is upon this as the basis that, according to the Times, the Government plan is to start, with modifications which must be deferred for consideration next week. In the meanwhile, Mr. CAIRD, whose authority The Times commences, as is usual in minis-on such a subject is very high, has published a terial speeches, when submitting a measure to plan which appears to be eminently sober, senParliament and the country, with a statement of sible, just, and practicable, and we propose to various ways in which it is proposed to deal with examine it side by side with the plan forethe question, and these it classifies under four shadowed by the Times, and see which is to be heads. Three of these, it says, "embrace the preferred, or if a good measure might not be various plans for regulating the conditions of framed out of both. tenancy, while the fourth embraces those for abolishing tenancy, more or less gradually, and substituting proprietorship." The Times admits that "the most businesslike solution," might it not have said the most "honest solution," would be "a revision of the existing law, with a view to encourage written agreements and all other arrangements conducive to good cultivation, on the basis of voluntary contract," guaranteeing compensation to tenants for improvements made with the landA CASE has now come before us which illus- lord's consent. But the Times objects to this trates some remarks which we recently made on honest and business like method of dealing with the want of cohesion amongst the members of bargains made between two private persons, that the Bar. Mr. DAVID BINGHAM DALY died it would not give security of tenure. But is during the long vacation, and has left his wife that a substantial objection? Does an agreeand children dependent upon the result of an ment between B. and C. for the use of an article, appeal-an appeal which ought not to be neces- land, money, or chattel, for a stated term, give to sary, and would not be necessary if an institution the borrower any claim whatever, moral or similar to the Solicitors' Benevolent existed otherwise, to the use of it for a longer period? amongst the members of the Bar. This appeal, The security against wanton eviction is the however, we feel in duty bound to bring pro-interest the landlord has in keeping a good minently before the Profession. The circum- tenant, and the loss that always more or less stances attending Mr. DALY's last days were attends a removal, especially if he has to pay particularly melancholy. His wife became for improvements effected by the tenant. It is mentally affected before his death, and his certain that a landlord would not evict a good children are now practically orphans. tenant, and would it not be intolerable tyranny to prevent him by law from removing a bad tenant? "It is earnestly hoped," it is said, "that this appeal to the legal profession and to the friends of Mr. DALY may be the means of raising such a sum as, properly invested, will suffice to relieve his family from their present distress, and to provide for the children's being properly educated and placed out in life. Of Mr. DALY's capabilities as an advocate we do not presume to speak. but to his genial manner, his kindliness of heart, his many excellent qualities, whether as husband, father, friend, or member of society, we trust we may refer as constituting strong claims upon the sympathy and assistance of those with whom he was professionally or personally brought in contact. The Right Hon. RUSSELL GURNEY, Recorder of London, Mr. MONTAGUE CHAMBERS, M.P., Q.C., and Mr. THOMAS CHAMBERS, M.P., Q.C., the Common Serjeant, have kindly consented to allow their names to be used as references, and to act, with other subscribers, as a committee. Subscriptions, in the mean time, may be paid to the credit of the "Daly Fund," at the Chancery-lane Branch of the Union Bank of London." We are glad to see that already a handsome response has been made to this appeal, but much more is required for the attainment of the desired end. THE LAND LAW QUESTION. THE Times, in an article manifestly inspired, under the transparent pretext of a prophecy as to what the Government will probably do, manifestly publishes to the world what is intended to be done. Neither the combined Cabinet, nor any member of it, would so far depart from what is perhaps a necessary etiquette, as to write a letter or make a speech indicating the scheme of a measure that is not yet in definite shape, or anticipate the communication which the Parliament expects to be first made to itself. But it is not uncommon for such hints to be conveyed to the journals as will enable them to try the ground before the Ministers commit themselves. Thus they are enabled to ascertain the current of public opinion in time to defer to it; they learn how far they can venture, and what they dare not attempt: debate is provoked, and arguments and suggestions are offered on either side of which the Government may avail itself, and the equal danger of falling short of the general opinion, or going beyond it, is avoided. From the manner in which the Times handles the subject, and the suddenness with which it has arrived at a judgment upon it, after beating about the bush for several weeks with articles The next mode, says the Times, is that which would extinguish tenancies at will, and convert the farmers into leaseholders. The objections to this are patent. It invades the rights of property. If landlord and tenant prefer to reserve the privilege of parting at any time desired by themselves, upon what principle of justice are they to be prevented from doing so? That the Irish tenants prefer a holding from year to year to leases, is proved by the fact that there are few leases, the objection always coming from the tenant, and not from the landlord, and the reason is, that tenants do not like to be bound by the covenants of a lease, which would be enforced, and they prefer to rely upon the generosity of the landlords. valuation. But the agitators tack to their demand for long leases that the rent should be fixed by exempted from the ordinary rule which prevails Why should property in land be with all property-the liberty of contract? None can so well judge what land is worth as the parties who want it. If B. is willing to give 57 more than C., why should C. be preferred and B. denied? That question is always argued as if it was between the landlord and tenant only; when it is, in fact, still more a question between rival tenants. Five men want a farm; which shall have it? The one entitled to it is he who is willing to give the most for it. Say that a law should compel a farm to be let at a rent fixed by a valuer, which of the five is to be preferred? And are not the four who have more enterprise and capital wronged by their rejection, they being able, as well as willing, to pay more rent, because, being better farmers, they can make more profit? The third suggested manner of dealing with the question is the adoption throughout Ireland of what is called the Ulster tenant right, a holding of which no definite description has been given by anybody, but which appears to be a vague kind of understanding between landlord and tenant that the tenant shall not be removed so long as he pays his rent, and that he shall be privileged to sell what may be called the good will of his tenancy to an incoming tenant. But this is merely a custom, not always observed, and looks indeed to us very much like the privilege almost permitted by reasonable landlords to the outgoing tenant to make the incoming tenant pay for half dressings, ploughed land, and sown crops. But just now there is springing up in Ulster itself a similar agitation to that which exists elsewhere against the Ulster tenant right as insufficient, and it may be presumed, THE BALLOT IN PRACTICE. THE ballot box is put forward as a panacea for the acknowledged evils that attend a popular election. Certainly it would cure some; but would it not beget others and greater ones? That is the question. If the vote by ballot was an untried novelty, it would be permissible to argue it upon assumptions, probabilities, and conjectures. But inasmuch as it is no novelty, but is in actual operation in many countries, why should it not be argued by reference to the positive experience of its actual working where it has been adopted and had a fair trial? What should we say of a press or a people who debated the question of Parliaments without reference to their operation in the countries that already possess them. Yet is this the course taken by almost all who write and speak on the subject of the ballot. They argue as to what it will do, and what it will not do, in German fashion, from their own inner consciousness, in apparent ignorance that there is an abundance of facts to determine their judgments and illustrate their arguments, and that in this, as in other cases, a grain of fact is worth a bushel of conjecture and hypothesis. Wherever the ballot is used, we hear the same complaints of fraud. There is never an election in Australia but the local newspapers teem with indignant assertions that the returns have been procured by some indirect practices. Bribery is an invariable theme of the newspaper critics, and if the unanimous verdict of the countries who have tried the ballot may be accepted as evidence, it does not in the least degree prevent bribery, but rather encourages it, by the facilities it offers, and the impunity it secures. In France there is universal suffrage and vote by ballot; yet what do we see daily thundered by the journals that oppose the Government; is it not one long and loud denunciation of the influence of the local officials exercised on behalf of the Government candidate? But if the ballot really gives the protection that is asserted by its advocates, will they explain how it comes to pass that French officials? and why the real opinion of France is electors, voting by ballot, are controlled by the not elicited at the ballot-protected elections? Pre Turn to America, and what do we see? cisely the same complaint as in France. The ballot secures neither freedom of voting nor honest returns. only the bribe is not hard cash, but the offices Bribery is rife at all elections; that are in the gift of the Government and facilities for jobbing with private Bills, familiarly known there by the expressive name of Lobbying. But this is not the sum of the vices which flourish under the vote by ballot; there is a worse wrong still than either we have named. The ballot box itself is abused. Detailed narratives of the tricks played with it, are continually coming to us across the Atlantic, reported not by prejudiced strangers but by their own newspapers. In proof of this we take the following from the American correspondent of the Times, published only last week; and we ask if this lesson of actual experience is not of more worth and weight than any number of arguments by those who have not seen it in operation ? The autumn elections in Pennsylvania, Ohio, and Iowa, were held on the 12th of October, and resulted in a Republican victory by a reduced majority in each state. The total vote cast was light, being about one-fifth less than that cast last November at the Presidential election, showing that there was considerable apathy among the the Republicans now get about 30,000; in Ohio, people. In Iowa, where Grant had 46,359 majority, where Grant had 41,428, the Republican majority now is from 5000 to 8000; and in Pennsylvania, where Grant had 28,898, the Republicans now have barely 4000. The Republicans explain these reduced majorities by stating that they are a natural consequence of a reduced aggregate vote; but there is evidently more to cause the falling off than this. In Pennsylvania the Democrats allege that the Republican majority is produced by fraud, the Republicans having the entire control and manipulation of the returns. In Ohio the battle was for and against the repudiation question, and the near approach Pendleton and the Repudiationists made to a victory has had a gloomy effect in the bond market, and drooping prices are the result. These elections show, what is really the case in America, that there is wide-spread dissatisfaction with the dominant party, and President Grant's Administration being one of the weakest we have had for years, its control of the General and State Governments are the only things that enabled it to gain a victory at all in Pennsylvania and Ohio. The real test of the Administration will come next year, when a new Congress is chosen, and when the Republicans, if they do not do much better than they are doing, will certainly lose the elections. On the 2nd Nov. 1869, New York, Massachusetts, Illinois, Minnesota, and several other States, hold elections, which will probably tell a further story of popular discontent, and certainly of popular apathy, for the registry of voters in New York and Brooklyn is scarcely one-half what it was last year. I have spoken above of Democratic allegations of fraud against the Republicans. The Republican majority for Governor in Pennsylvania is claimed by the Republicans to be about 4000, and was entirely procured in Philadelphia. Yesterday what is known as the "Board of Return Judges" in this city, who count the returns, and who are an organisation controlled by the Republicans, met and declared the Republican majority in Philadelphia to be 4400. There was much excitement, and writs were got out of the courts to stop their proceedings on account of alleged frauds. They barricaded the doors and resisted service, so that the sheriff had to break the doors open. Evidence was given in court of forged returns, and other manipulations, in one case an entire ward of the city having been omitted; but the "Return Judges" carried out their object in spite of the court, and gave the award to their Republican friends. To secure political ends in America the most disreputable means are resorted to. JUDICIAL NONFEASANCE AND THERE is a very broad distinction between the consequences attaching to nonfeasance and misfeasance in judicial proceedings, and it is a distinction which should be kept well in mind. And this is the more important because the decided cases make it abundantly clear that torts are joint and several, and that the individual members of a court or a corporate body are liable for injuries sustained by reason of the nonfeasance of the court or corporation of which they form a part. It is a prominent principle that when a person has an important public duty to perform he is bound to perform that duty; and if he neglects or refuses so to do, and an individual in consequence sustains injury that lays the foundation of an action to recover damages by way of compensation for the injury that he has so sustained. A famous instance of the application of this principle occurred in the case of Ferguson v. Kinnoul, 9 Cl. & Fin. 251. That was an action against the members of a Scotch presbytery for refusing to admit to trial a presentee of a living, and the presentee claimed damages. It was held that the action would lie against the individual members of the presbytery. And here we see the difference between acts merely ministerial and acts which are judicial. It is remarked at p. 281, "If they had admitted that gentleman to his trial, and after taking him upon trial had come to the conclusion that he was not properly qualified, in that case it would have been a judicial decision, and might not have afforded a ground for supporting an action, although the party should have sustained damage in consequence of it." So in the case of justices of the peace. If they do something in the exeercise of their office which causes injury, they are protected. That is a judicial act, and may be an error of judg ment. But in a case of non-feasance where for example they do not take an examination, an 3 B. & Ad. 77.) A case illustrating the disaction lies: (Henley v. Mayor of Lyme Regis, tinction between mere errors of judgment and wilful tort is that of Harman v. Tappenden, 1 East, 555, which decided that an action does not lie against individuals for acts erroneously done by them in a corporate capacity from which detriment happens to the plaintiff-at least not without proof of malice. Therefore we have Now about the first class there can be no As to the second class, we will see when actions are barred on the ground that the wrong committed is a mere error of judgment. We have already referred to Harman v. Tuppenden, which was an action on the case to recover damages against the freemen who were jurors at a certain water court for causing the disfranchisement of the plaintiff. The plaintiff, it appeared, had broken a bye-law for which he had incurred certain penalties, and, happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which, not making any answer, but refusing to pay them, the court proceeded, taking the offence pro confesso, without any proof, to call on him to show cause why he should not be disfranchised, and they accordingly made the order. "This," said Chief Justice Lord Kenyon, "was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motive to the person making the order." In a note to this case (p. 563), Drewe v. Coulton, Launceston Spring Assizes 1780, is mentioned, and there Mr. Justice Wilson said, "If a justice of peace commit any error within his jurisdiction, I know of no case where such an action will lie against him; as if he convict upon evidence which turns out not to be true, and an action of false imprisonment be brought against him, the conviction is conclusive evidence in his favour. As to the case of a revenue officer he is a mere volunteer, and therefore he is liable for any mistakes he may make." This is an important point-to what extent is a volunteer liable for an error of judgment or mistake in the execution of a duty which he assumes to discharge? This question is one which we shall not now discuss, but simply note the law as to errors of judgment committed by authorised persons not acting within their authority. In Doswell v. Impey, 1 B. & C. 168, Chief Justice Abbott said, speaking of commissioners of bankrupts, "The general rule of law as to actions of trespass is plain and clear. If they do any act beyond the limit of their authority they thereby subject themselves to an action of trespass; but if the act done be within the limit of their authority, although it may be done through au erroneous or mistaken judgment, they are not thereby liable to such action." There it was held that commissioners of bankrupts were not liable for imprisoning bankrupts who in their judgment failed to answer satisfactorily the questions put to them. Underlying these questions is one of some moment, namely, what constitutes a Judge. Appointments by statute are of course plain. In other cases, the question must be one of fact. In the case we have cited above, Doswell v. Impey, the commissioners of bankrupts were by statute given a judicial discretion, and so long as they did not exercise that discretion maliciously they were protected. What amounts to a judicial discretion in other cases must be for the court. The subject which we have thus cursorily discussed is becoming daily more imbodies, and some day it will have to be decided, portant by reason of the increase of corporate more definitely than it has hitherto been, to what extent their fair exercise of their judicial discretion extends, and at what limit it becomes necessary to prove malice in an action on the case against the individual members for a misfeasance. A NEW TRIALS AND APPEALS. THE Social Science Congress, amongst its other multifarious proceedings, turned its attention to "certain defects in County Courts." paper on this subject was read by Mr. SHERWOOD SMITH, who took as his text a case which occurred last year, and which we noticed at the time. In that case judgment was given for the plaintiff, on the ground that he was considered more worthy of credit than the defendant. Immediately after the trial, evidence was tendered to the defendant proving the plaintiff to have sworn falsely, upon which the defendant gave notice of application for a new trial, but found that through taking that course, instead of appealing in the first instance, he had lost the right of appeal, and that although the grievance had increased, all remedy was at an end. This state of things, Mr. SMITH considered, called for reform, and that a suitor if aggrieved with the judgment of any court, ought to have a right of appeal to a higher one, under any circumstances that might arise. If a This is a point of some importance. suitor resorts to his remedy of a new trial, he waives his appeal as a matter of course, showing a preference for two trials in the inferior court to an appeal to the Superior Court. To allow a party two trials, and an appeal on the first, would be an abuse of legal process. As matters at present stand, a notice of appeal is good if given within ten days of the day of trial; and where a new trial was moved for, it was held in Foster v. Green (30 L. J. 263, Ex ; CL. T. Rep. N. S. 390; 6 H. & N. 793), that the ten days ran from the day of the motion, and not from the day of the trial. The substantial question is whether the time for appealing should be extended. But in the case noticed by Mr. SMITH, an appeal would not have lain in any case. The new trial was the only remedy, the question being one of fact. Unless, indeed, there had evidence were again improperly rejected on the been improper rejection of evidence, but if new trial, an appeal would lie from the new trial. As we said before it would be absurd to allow a new trial and an appeal from the first trial, and it would seem inexpedient to extend the time for appealing from the first trial to a period beyond the new trial. This might cause much confussion. We conceive, therefore, that what Mr. SMITH complains of is not so palpably a defect as he appears to imagine. The following is the paper of Mr. SMITH, to which we refer above : One of the objects of this association being the improvement of the law and its administration, the writer avails himself of the opportunity it affords of making known a very serious defect in the law of County Courts. In Oct. 1868 an action was brought in the County Court to recover 401. damages alleged to have been sustained by the plaintiff through the defendant falsely representing the report of a referee as to a tenant's responsibility. On the trial the plaintiff denied that the language the defendant alleged he had quoted as that of the referee, was the language employed, but words totally different. He also denied that he had levied a distress on his tenant's goods for rent not due, or had authorised a distress. The referee, who, up to the time of the trial, had denied ever seeing the defendant in his life, in his evihad called upon him and that he had used with redence for the plaintiff admitted that the defendant ference to the tenant, the identical words the plaintiff had denied that the defendant had repeated to him. The defendant's version was in part corroborated by his clerk, who had heard some of the words the plaintiff had denied, and on this point the case hinged. The judge gave a verdict for the plaintiff, on the ground that he believed him in the trial evidence was tendered to the defendant, preference to the defendant. Immediately after proving the plaintiff to have sworn falsely with reference to the distraint, a matter about which he could have had no doubt; and the defendant, considering that this should give the balance of testimony in his favour, acting on the advice of his solicitor, at once gave notice of an application for a new trial. At the hearing thereof the plaintiff's counsel, not denying that the plaintiff had sworn falsely, maintained that it was a point not then determined to appeal, but found that, through material to the issue, and the judge, agreeing therewith, refused a new trial. The defendant moving for a new trial instead of appealing in the first instance, he had now lost the right of appeal, and, although the grievance had increased, all remedy was at an end. The questions raised by this case are very important. It shows an absoIlute power to be vested in a single judge which is fraught with serious danger to the community. considers that it constantly happens that the in- v. Parnaby, 11 A. & E. 230, cited by Sir Fitzroy Had the defendant in the case cited been a comer, in order to pay his predecessor's claim, has Kelly, in argument. Whether knowledge of pilot poorer man, ruin and probably a prison would to impoverish himself, enters on the farm as to state of dock is to be considered knowledge have awaited him. Public opinion condemns stripped of the means of doing justice to it, which affects the shipowners, quære: (Thompson the judgment, but public opinion cannot reverse "soon becomes embarrassed, has to sell his cattle and others v. North-Eastern Railway Company, it; it may, however, demand an amendment of the law. A judge, as a man, is liable to all the frailing crops, falls into arrear, has to give up to meet his bills, scourges the land by exhaust-B. Nov. 26, 1860; 1 Mar. Law Cas. 17; E. Č. Feb. 1, 1862; 1 Mar. Law Cas. 207.) ties, the passions, prejudices, and sufferings of 2. Collision-Remedy for loss of cargo-Both humanity; he may become incompetent, phy- the farm after years of irritating struggle ships in fault-Equal division of damages.sically, mentally, or morally, for so responsible a Remedy of owners of cargo for loss, where both position, but the public who had no voice in his ships are in fault for collision. The 298th section appointment, has none in his recall. For any of Merchant Shipping Act does not preclude the individual to attempt his removal would be a task cargo from recovering where its provisions have few would like to undertake. If such an absolute not been obeyed. Proprietors of cargo, not being power must be vested in a judge, the people, who owners of the ship, held, in accordance with numemust submit to his decrees, ought to be consulted rous decisions cited by the court, to be entitled in his appointment. But the writer regards such recourse for the other half against the shipowner: Law Cas. 185.) a power as at variance with the spirit of the con and hands it back to the landlord in a worse only to recover one-half of the loss, having their stitution of this country, as well as opposed to the letters patent of JAMES I., on the settlement of (The Milan, A. C. Dec. 3 and 17, 1861; 1 Mar. public weal. The poorest subject, if aggrieved with the judgment of any court, ought to have a right of appeal to a higher one under any circumstances which may arise. THE TENANT RIGHT OF ULSTER. AN article in the Pall-Mall Gazette for Tuesday last, professing to give an answer to the question "What is Ulster Tenant Right?" appears to require some comment. The writer considers that such an answer is necessary, because the subject is one on which much misconception prevails, because the Times and Daily News, after considerable hesitation, have given in their adhesion to this system as the remedy for the land difficulties of Ireland, and because it is believed that the ministerial plan in the coming session will be based upon the extension of that system, under certain modifications, to the three remaining provinces. that province that a certain number of free 3. Retrospective operation of Admiralty Court Act-Damage to goods by fire before transshipment. -A foreign ship is not liable to arrest for damage to goods by fire through negligence before transshipment into another vessel by which the goods arrived in this country from New Orleans: (The Law Cas. 200.) Ironsides, A. C. Feb. 26 and March 4 1862; 1 Mar. 4. Improper stowage of goods-Master agent of shipowner- Charter-party. The shipowner is prima facie responsible for damage to goods The next objection is, that the system affords through bad stowage. A shipper of goods is justi to the tenant no security for fixity of his tenure.fied in supposing the master agent of shipowner Nor does it in itself. But a correlative custom, alone, where the charter-party does not amount to sanctioned by public opinion, has also grown up demise of ship. A nude assignee has no right of in Ulster, that no landlord shall eject a tenant, action, under Admiralty Court Act 1861, for except on the terms of paying to him, or obtain- damage to goods which he has not at common law. Practice of court to refer amount of damage to ing for him from his successor, the sum which registrar and merchants. Case of Schuster v. the outgoing tenant paid to his predecessor, McKellar, 7 E. & B 704, distinguished. Construcwith an additional sum for the improvements, tion of Bills of Lading Act (24 Vict. c. 10, s. 1), if any, effected during his tenancy. This affords extending jurisdiction of Admiralty Court: (The a security for fixity of tenure, the result of St. Cloud, A. C. July 26, Nov. 28, 1862, and Jan. which is seen in the fact that though, in Ulster, 13, 1863; 1 Mar. Law Cas. 309) more than half the land is held under tenancies from year to year, changes of tenants, except on We by no means think that the tenant-right of Ulster should be imposed, without modifications, on the other provinces. Many modifications suggest themselves, which we have not present space to mention. But such a tenantright giving as it does to the tenant, directly compensation for improvements, and indirectly security for permanence of tenure, would at least do much to improve the relation of landlord and tenant in those parts of Ireland where no such right at present exists. Ulster tenant-right is defined by the writer of the above article to be "simply a custom, which grew up so long ago, and has prevailed for so many generations as almost to have acquired the force of law, in virtue of which an outgoing tenant leaving his farm, either because his landlord resolves to remove him, or because he The objection that the system of Ulster tenantdesires to emigrate, or because he is irredeem-right could not be introduced into other proably in debt, or because he cannot pay his rent, vinces, is only true on the assumption that the or because he has utterly exhausted the soil, and payment by the incoming tenant is one that has can no longer live out of it (usually from these no reference to improvements made by the outlast causes), is allowed to sell his privilege of going tenant. This assumption we have shown occupancy (or sort of virtual lease) or goodwill to be incorrect. of the farm. as it is commonly called, to some person who desires to succeed him, a person generally chosen by the tenant, but always subject to the veto of the proprietor or his agent." This is followed by the statement that "the tenant-right money, whatever it may have been in the origin, is not now in any sense compensation for outlay or improvements, and is never calculated upon them," but "simply and solely given for the privilege of succession." Now this definition or description of the right seems to us defective and inaccurate. The writer contemplates only cases in which the tenant, under some pretence, leaves his farm, and not the cases, far commoner in Ulster especially, where the tenant dies and is succeeded, with the consent of the landlord or his agent, by some member of his family. And, with regard to the nature of the payment made by the incoming tenant, it is inaccurate to say that this bears no relation whatever to the improvements made by the outgoing tenant. The contrary is true. And the practice in Ulster, where a tenant at his death is succeeded by one of his own family, is that a sum for improvements, according to a valuation made, shall be paid by the new tenant to the executors or representatives of the late tenant. Where, on the other hand, a tenant leaves his farm, voluntarily or under compulsion of his landlord, it is true that leave is usual given to him by the landlord to sell his "privilege of occupancy." But in this case, if the tenant has made improvements, he gets the benefit of them, since the privilege of occupancy is thereby more valuable, and the rent for the new tenant is fixed, after a valuation, at such a rate as may not prejudice the rights of the outgoing tenant. The tenant-right of Ulster in fact differs only from the English usages of tenant-right, in the sort of improvements for which compensation is claimed. As the tenants in Ireland put up the farm buildings, and make fences and drains, their claim is, of course, more extensive and of longer duration than that of English tenants, but it does not differ at all in principle. The writer of the above article then proceeds to the objections to the system. He DIGEST OF SHIPPING LAW CASES Edited by F. O. CRUMP, Esq., Barrister-at-Law. (See Collision-Leakage.) Admiralty Court, 2. Bills of Lading Act, 4. Merchant Shipping Act Damage by fire-Liability of foreign ship to arrest Re-delivery of cargo-Duty of master, 5. Dock company :-Damage to ship-Pilot, 1. Gibbs v. Trustees of Liverpool Docks, 1. Merchant Shipping Act, 2. Pilot, 1. Re-delivery of damaged cargo, 5. Schuster v. McKellar, 4. Ship, 1. Shipowner's liability, 4. Stowage (improper)-Liability of shipowner, 4. 1. Dock company-Obstruction in dock-Damage to ship-Pilot's knowledge of state of dock.-It is the duty of a dock company to take reasonable which may be attended with danger to vessels care that the docks are kept free from obstruction using the docks. Case held to be identical with Gibbs v. The Trustees of the Liverpool Docks, 3 H. & N. 164, and The Lancaster Canal Company 5. Damage to goods-Re-delivery to charterer, when goods not in a fit state to be forwarded.The charterers, the proprietors of a cargo shipped to a foreign port, have a right to have the goods re-delivered to them without payment of any freight, when they are so damaged that a substantial part thereof cannot reasonably be for warded to their destination, or the voyage be reasonably prosecuted: (Blasco v. Fletcher, C. B., Jan. 17 and 20, and July 6, 1863; 1 Mar. Law Cas. 380.) DELIVERY OF GOODS. 1. Acceptance and delivery of goods under sect. 17 of Statute of Frauds-Evidence as to weight.-The purchaser of goods having sent his servant with & horse and cart, and received part of the goods from a warehouseman, held that this was an reject them as not being such as he had agreed to acceptance of the goods, and he could not then purchase: (Baylis v. Lundy, Q. B., April 15, 1861; 1 Mar. Law Cas. 85.) 2 Bags of meal two sizes-Same mark-Bill of lading.-Bags of meal, 1670 in number, all marked S.S.C.M., some weighing 12 stones, some 8 stones, were shipped on board the defendant's ship, and stowed indiscriminately. The defendant, the master, signed two bills of lading in respect of two different portions of this cargo, one of which described the property intended to pass under it thus:-"466 bags meal, gross 35 tons 9 cwt., under the subjoined marks S.S.C.M." It also added, "contents unknown, and not responsible for weight." Under the bill of lading it was held that the defendant was bound to deliver 467 of the 12 stone bags, as the description of the weight given in the bill of lading could only be satisfied by all the bags delivered being of the larger size : (Bradley v. Dunipace, 7 H. & N. 209; 32 L. J. 22, Ex.; 1 H. & C. 521.) Tides:-Delay caused by state of-Lay days-Con- derelict for services "the most gallant and meristruction-Charter-party, 5. Usage, 7. Usual dispatch, 4. Wegener v. Smith, 2. Working days-Stipulation as to, 2. 1. Refusal of master to take cargo.-A clain for demurrage was not allowed where delay was caused by a refusal of the master to take a cargo, consisting of acids and gunpowder, which bona fide he did not think was a proper one: Seegur v. Duthie and others (Error from the Common Bench), E. C. Nov. 30, 1860; 1 Mar. Law Cas. 3; 29 L. J. 253, C. P.; 2 L. T. Rep. N. S. 433; 8 C. B. N. S. 45, 72; 30 L. J. 65, C. P.; 3 L. T. Rep. N. S. 478.) 2. Liability of assignee of bill of lading.-In the absence of express stipulation assignees of bills of lading are not liable to day demurrage, although on the margin of the bill of lading it was stated "there were eight working days for the vessel to unload." Stindt v. Roberts, 17 L. J. 166, Q. B.; Weggener v. Smith, 15 C. B. 285; and Jesson v. Solley, 4 Taunt. 52; referred to by the court: (Capel v. Comfort and others, C. B. May 29, 1861; 1 Mar. Law Cas. 78.) 3. Stipulation "Regular turn."-Stipulation in bill of lading that ship was "to take her regular turn of unloading" at port of discharge, held to amount to a contract to that effect between the master and the shipper, and the master who was part owner entitled to sue the latter for demurrage because of detention through the ship not taking her regular turn of unloading, in consequence of a dispute between the consignee and the shipper. Authorities cited in argument, Brouncker v. Scott, 4 Taunt. 1; Evans v. Foster, 1 B. & Ad. 118; Shields v. Daris, 6 Taunt. 65; Story on Agency, sects. 36 and 393; Domett v. Beckford, 5 B. & Ad. 521: (Cawthron v. Trickett, C. B. Jan. 11, 1864; 1 Mar. Law Cas. 414; 9 L. T. Rep. N. S. 609; 33 L. J. 182.) 4. Construction-" Usual despatch"-Failure of charterer to provide cargo according to contract, in consequence of frost.-Plaintiff, by charter-party engaged with defendants to receive and load on board his ship a full and complete cargo of coals, "to be loaded with usual despatch." In consequence of a sudden frost, the loading was delayed for thirty-four days. The judge directed the jury that "usual despatch" meant "usual despatch of torious that ever came before the court." Ship having been appraised at 24501., which the owners thought too high, motion at their instance to have the ship's value ascertained by a sale, rejected, the appraisement being held binding on both parties: (The R. M. Mills, A. C. July 28, 1860; 1 Mar. Law Cas. 5.) 2. Practice of Admiralty Court in awarding remuneration for salvage of derelict. The rule of giving a moiety of the value is now abandoned, and reward for the salvage service. the court gives what it considers to be a reasonable First set of salvors who had lost sight of the ship owing to the state of the weather, and subsequent salvors both entitled to remuneration. Wilful misconduct of salvors works a forfeiture of salvage. Error not wilful operates only in diminution of it. Competent skill and knowledge expected to be possessed by salvors: (The Magdalen, A. C., Nov. 30, 1861; 1 Mar. Law Cas. 189.) DEVIATION. Steamer deviating from course under clause giving liberty to tow-Contract-Loss of market, Action.-This case was a decided on a special clause in a contract, and the jury found that the vessel was justified in doing as she did: (Drain v. Henderson, Nov. 17, 19, and 26, 1860; 11 Ir. Com. Law R. 497.) DISCOUNT ON FREIGHT. Usage.-A custom exists at Liverpool of allowing discout upon freights payable on bills of lading of ships from ports in North America. Held that such custom applied to freights from ports in California since its annexation to the United States: (Faulkner v. Erle, Q. B., Jan. 20, 1863; 1 Mar. Law Cas. 279.) DOCK COMPANY. (See Dock Trustees.) Damage to ship, 1. Dock rates (Lien for), 2. Gibbs v. Trustees of Liverpool Docks, 1. 1. Liability of dock company for damage to vessel.-It is the duty of a dock company to take to the doctrine put forth in some quarters, and which that distinguished jurist, Mr. Justice SPRAGUE, characterised as a "grave and dangerous error," that the suppression of the rebellion conferred upon the United States the rights of conquest, the right to treat the States included in the rebellion as foreign territory acquired by arms, and permanently divest them and their inhabitants of all political privileges: (2 Sprague's Decisions, 147.) That notion has nothing to do with the point now under consideration. The United States, in suppressing the rebellion, destroyed the political organisation known as the Confederate States, and not the individual States as political communities. But though the States remained after the contest ended, the belligerent power known as the Confederate States, which had represented them in the war, disappeared at its close. Neither of the States which remained had the power, or attempted, to negotiate a treaty of peace with the United States. In determining, therefore, when the rights, suspended by the war, revived, we must look to the action of the only power in existence which could effectually deal with that subject. This power was the government of the United States." Having considered the effect as to time of the various proclamations, &c., he proceeded:— "We must now inquire into the legal character of the proclamations of the President, restoring commercial intercourse to and with the States which had been engaged in the rebellion, and the rest of the United States. And first, as to his authority to issue such proclamations. I think there can be no doubt on that point. The Supreme Court of the United States recognised the power of the President to, in effect, declare the inhabitants of the disaffected States in a state of insurrection as early as April 19, 1861, when he set on foot the blockade of certain ports, including those in Mississipi: (The Prize cases, 2 Black's Rep. 670). In the opinion in these cases, Mr. Justice GRIER, speaking for a majority of the court, says, 'Whether the President in fulfilling his duties as commander-inchief, in suppressing an insurrection, has met persons who have a cargo in readiness for the pur reasonable care that the docks are kept free from with such armed hostile resistance, and a civil pose of loading," and that the circumstance of a canal having been stopped by the frost, and the defendants having been thereby prevented from completing the cargo at the agreed rate, was no answer to the action. This direction was upheld: (Kearson v. Pearson, Nov. 2, 1861; 31 L. J. 1, Ex.) 5. Commencement of lay-days-Delay caused by state of tides-Construction of charter-party.-By charter-party it was agreed between plaintiff and defendant that the ship B. should take on board for the defendant a cargo of culm at L., and "proceed with all convenient speed to C.'s wharf, at B., or so near thereto as she might safely get.' ship arrived at R. on the 24th Oct., and was The moored at a place called the B., which was distant about three hundred yards from C.'s wharf. The master then gave the defendant's agent notice that the ship was ready to discharge the cargo. The defendant's agent ordered the master to proceed with the ship to C.'s wharf. In consequence of the state of the tides and the want of water, the ship was then unable to get to C.'s wharf, and the defendant's agent refused to send lighters to lighten the ship to enable her to do so. The ship did not reach C.'s wharf until the 4th Nov. Held, in an action for demurrage, that the defendant was obstruction which may be attended with danger to vessels using the docks. Case held to be identical with Gibbs v. The Trustees of the Liverpool Docks, 3 H. & N. 164, and The Lancaster Canal Company pilot as to state of dock is to be considered knowv. Parnaby, 11 A. & E. 230. Whether knowledge of son and others v. The North-Eastern Railway Comledge which affects the shipowners quære: (Thomppany, B., Nov. 26, 1860, 1 Mar. Law Cas. 17; Rep. N. S. 127; 2 B. & S. 106, and, in error, 119.) E. C., Feb. 1, 1862, 1 Mar. Law Cas. 207; 6 L. T. charges.-Dock company held not to have a general 2. Lien on goods for dock rates and other wharfage and other charges; but in a question lien on goods belonging to different persons, for with the purchaser of a cargo of timber, landed at Southampton, and entered in the name of timber brokers, to have a lien on the timber only for the wharfage and charges due upon it. Construction of Dock Act (51 Geo. 3, c. 66), s. 25, and Harbour Dues Act 1847 (10 & 11 Vict. c. 27), s. 45: (Dresser 256; 7 L. T. Rep. N. S. 419: 32 L. J. 57.) v. Bosanquet, Q. B., Nov. 18,1862; 1 Mar. Law Cas. THE EFFECT OF CIVIL WAR UPON CONTRACTS. war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decisions government to which this power was entrusted. and acts of the political department of the crisis demands. The proclamation of blockade He must determine what degree of force the is itself official and conclusive evidence to the and authorised a recourse to such a measure, court that a state of war existed which demanded There had been no declaration of war. Congress under the peculiar circumstances of the case.' can alone declare war, but the court held in the same cases that that body could not declare war against a State, or any number of States, by virtue of any clause in the constitution. It also held that the President had no power to declare or initiate a war either against a foreign nation or a domestic State. It, however, distinctly decided that the President could, and did, recognise a state of war as actually existing, and that the courts were bound to accept such recognition of the fact as conclusive. Of course, they must recognise the legal consequences not bound to unload the ship until she got to C.'S IN a case before the United States Court of which flow from the state of war. It would wharf, and that the lay-days did not begin until the 4th Nov.: (Bastifell v. Lloyd, June 5, 1862; Connecticut, Mr. Justice SHIPMAN has given a 31 L. J. 413, Ex.: 1 H. & C. 388.) 6. Construction of clause in charter-party"Ship to be loaded (with a cargo of coke) in regular turn"-Custom.-The judge left it to the jury to say what was the meaning of "regular turn' according to a particular custom, and he was held right. "Customary manner means the mode of loading, and it would be unreasonable that where two parties enter into a charter-party by which a vessel is to load in regular turn, vessels which come in after it should load before it, because, by the practice of the colliery, vessels which are entered first in the book though not ready to load, are loaded before those which are ready: (Lawson v. Burness, May 28 and 29, 1862; 1 H. & C. 396.) DERELICT. INDEX TO CONTENTS. Appraisement of ship's value, 1. Moiety of value, 1, 2. Opinions of nautical men, 2. Value of ship, 1. Wilful misconduct of salvors, 2. Appraisement-Moiety awarded.-A moiety of the value of ship and cargo awarded in a case of judgment on this subject, from which we extract the following. The judgment appears in the Chicago Legal News. The question affected a policy of insurance, and Mr. Justice SHIPMAN said:"Now it must be remembered that, though this was a war between belligerents, attended while it continued by those legal consequences which public law always attaches to all legitimate warfare, yet it was a civil war in which the revolted party was defeated, and its organisation as a de facto government under the name of the Confederate States of America, politically annihilated. No treaty of peace in the ordinary sense of that term could be negotiated, as but one of the parties which had waged the war was in existence as a treaty making power at its close. Therefore no such treaty has drawn the line where the war ended, and suspended contracts revived. We must therefore look to the Acts of the only surviving party to ascertain when those disabilities, legally imposed by the state of war, ceased. It is hardly necessary for me to say that the principle here stated lends no support seem to follow that if the President has the power to recognise a state of war as an existing fact, and that his recognition is binding on the courts, he must equally have the power to recognise a state of peace as an existing fact, and that the courts are equally bound by such recognition. Especially would this seem to be the case in this civil war, where no formal treaty of peace could mark the line where war ended and peace commenced, and where there was no declaration of the Legislature inconsistent with proclamation of the executive. "But whether this is the true doctrine or not, . it must be remembered that the Act of Congress of July 13, 1861, authorised the President to declare certain States in insurrection, whereupon all commercial intercourse was to become unlawful. On the 16th Aug. following he issued such a proclamation. From that time forward the interdiction of commercial intercourse had the double sanction of public law and a special act of Congress operating from the date of the proclamation. Now, it may be said with some force, that inasmuch as commercial intercourse became unlawful under this Act of Congress, |