for the introduction of vivâ voce evidence into the Admiralty Court. The "little act" worked a total and most wholesome change in the whole procedure.

"Truth," as Charles Reade says in the "Cloister and the Hearth," and as Mr. Justice Matthew once said, "will leak out, even in an affidavit," but, as a rule, nothing could be better designated to disguise the truth than what Lord Davey one described as the "flowery affidavit that emanates from Lincoln's Inn." If the Judicature Acts had done nothing else they would have justified themselves by abolishing trial by affidavit in chancery in favour of vicâ voce evidence. Yet, among all these professional and political avocations, Phillimore found time to edit Burns' Ecclesiastical Law, and to write two monumental works of his own his International Law and his Ecclesiastical Law, to say nothing of his Life of Lord Lyttleton, and his translation of Lessing's Laocoon. Verily there were giants in those days. In 1855 Phillimore became judge of the Cinque Ports and queen's counsel, then advocate-general in admiralty and queen's advocate, an office which took precedence of that of attorneygeneral. The same year he was knighted, and we have Lord Westbury writing to him playfully:

must, as the attorney-general said on his retirement, have been disastrous to the country."

When Dr. Lushington retired, in 1867, everything pointed out Sir Robert Phillimore as his successor, and for twenty-six years he worthily filled the seat of Lushington and of Stowell, adding fresh honour to it by his learning, his dignity, his patience and his courtesy, which was no conventional or calculated courtesy, but the effluence of a genuine kindness of heart.

Sir Robert Phillimore married, in 1844, a daughter of Mr. Denison, of Ossington Hall. His town residence was at No. 5 Arlington street, on the east or non-ministerial side, the very house, curiously, which had been for so many years the abode of Horace Walpole. It was while sitting in the drawing-room of this very house, not much more than a century ago, one Sunday evening, that I heard, says Walpole, a loud cry of “stop thief." "A highway man had attacked a postchaise in Piccadilly within fifty yards of this house. The fellow was pursued, rode over the watchman, almost killed him and escaped." A highwayman in Piccadilly!

Many well-known ecclesiastical cases came before Sir Robert Phillimore - Elphinstone v. Purchase, Sheppard v. Bennet, Boyd v. Philpotts, the Colenso We need not dig up these happily dead and buried controversies

whether a Wesleyan minister is or is not entitled to have himself described Revd." on a tombstone (Keet v. Smith, 33 L. T. Rep. 794; 1 P. Div. 73); or a man is to be refused

as

the Sacrament as a "notorous evil liver" because he is not 99 'sound on the subject of the devil (Jenkins v. Cook, 34 L. T. Rep. 1; 1 P. Div. 80); or a clergyman is to be criminally proceeded against for remaining too long on his knees (Martin v. Mackonochie, 32 L. T. Rep. 568; L. Rep. 2 Ad. & Ecc. 41). We are entering happily now on an era of broader religious thought, whatever our present sins and shortcomings may be. The judgment in Martin v. Mackonochie must, however, be admitted to be a marvel of research and erudition. It occu

kind regards.

"Yours sincerely,

WESTBURY."

He goes on to add: "I hope you are by this time perfectly at home in your new office. Do not be too anxious or too zealous at first. Tally rand's 'point de zelè' is a most useful maxim. Eschew long opinions and much-reasoned opinions - the authorities in office desire little beyond a clear definite rule of action" It is a perilous thing to be the advisor of a government on points of international law at great crises, but Phillimore amply justified his selection, and it will not soon be forgotten how, by the wisdom of his counsels, he averted a struggle which, under any circumstances and in any result,

66

the difference be

66 cere

A

the way, what all do not know tween a "rite" and a ceremony." A "rite " consists in services expressed in words; a mony" in gestures or acts preceding, accompanying or following the utterance of those words. very important question of marriage law came before him in Sottomayer v. De Barros (L. Rep., 3 P. Div. 1), in which the Court of Appeal ultimately decided that the law of the domicil governs the capacity to enter into the contract of marriage as it does into any other contract. Baker v. Baker (42 L. T. Rep. 542; 5 P. Div. 142) is noticeable, too, deciding that the lunacy of a husband or wife is not a bar to a suit by the committee for the dis

solution of the lunatic's marriage. But it is in his admiralty decisions that Sir Robert Phillimore's most solid and lasting contributions to English law will be found, as in The Halley (17 L. T. Rep. 329; L. Rep. 2 Ad. & Ecc. 3), in which he discusses the obligation ex delicto of Roman law, in relation to collisions at sea between a British and a foreign ship, and the applicability of the lex fori or the ler loci, or The City of Mecca (44 L. T. Rep. 750; 5 P. Div. 28), that the admiralty had jurisdiction to entertain an action in rem to enforce a judgment obtained against a ship in a tribunal of commerce abroad; or the well-known Parliament Belge (42 L. T. Rep. 273; 5 P. Div, 197), on the immunity from arrest of a mail steamer belonging to another sovereign State; or The Macleod (5 P. Div. 254), that a shipmaster who has been habitually drunk during his employment cannot maintain an action for wages. This sinks him " below the common average of a seaman's morality!" Masters' and seamen's wages, salvage, pilotage, lights and collisions, bottomry and respondentia, are not, perhaps, particularly exhilarating subjects, but they are of vital importance to us. These laws, so dull in detail, are the safeguards of our maritime supremacy; they watch unceasingly over our ships in whatever part of the globe they may be found:

Aside the stormy Hebrides
Or sultry Hindustan;

Where'er in mart or on the main,
With peaceful wings unfurl'd;
They help to wind the golden chain
Of commerce round the world.

To have moulded those laws wisely, to have administered them firmly and well, as Sir Robert Phillimore did, is no mean praise. But he did more. As a jurist, as a builder of that international law which may be called the conscience of Christendom, he rendered services not only to his country but to humanity at large. He brought us one step nearer to the time when the nations shall be at peace, "lapped in universal law: "

When the war drum throbs no longer, and the battle flags are furled In the Parliament of man, the federation of the world.

-Law Times.

COMPULSORY PILOTAGE.

[A paper read before the Incorporated Law Society at its annual meeting at Bristol, England, by J. E. Gray Hill.] THERE are anomalies, complexities, even absurdi

employ pilots, enforcing this employment by penalties, or by making the pilotage dues payable as well if the service is refused as if it is accepted. And by sections 598 (2) and 603 (2) of the Merchant Shipping Act of 1894 (which comes into effect 1st of January, 1895), re-enacting provisions of the Merchant Shipping Act of 1854 (which is repealed from the same date), the master of an unexempted ship, being within a district where pilotage is compulsory, who, after a qualified pilot has offered to take charge of the ship, pilots her himself, or employs an unqualified person to do so, will incur a penalty unless, if piloting himself, he holds a pilotage certificate. Section 599, re-enacting provisions of the act of 1854, however, permits a pilotage authority to examine a master or mate of any ship, and if found competent, to grant him a pilotage certificate, which is to specify the ship or ships which he may pilot and the limits within which he is entitled to act. The certificate is only to be in force for a year, but may be renewed. While the master or mate holds it he is entitled to pilot his ship without incurring a penalty. This provision is, I believe, very rarely made use of in practice, except in respect of coasting steamers. Section 622 (2) also provides a penalty for employing an unqualified person in the London and Trinity House districts, and most local acts provide penalties for employing an unqualified person, or simply for refusing to employ a qualified person. By the re-enacting sections 578 and 501-583 of the act of 1894, the board of trade by provisional order and the pilotage authority by by-law confirmed by the same department respectively have power to exempt masters of ships, or any class of ships, from being compelled to employ pilots. So far as I have been able to ascertain, only one provisional order creating an exception has been issued by the board of trade under the corresponding power of the previous act. I am not aware whether any by-laws upon this subject have been made by pilotage authorities and duly confirmed. By section 604 of the same act (also re-enacting) the master of every ship carrying passengers between places in the British Islands shall, while navigating within any pilotage district, employ a pilot, unless he or his mate holds a pilotage certificate. But the same section gives a power to the board of trade in respect of masters and mates of ships of this description similar to that above

probably nowhere are they so abundant as in that small corner of it which relates to the compulsory employment of pilots. Chiefly with a view of providing for the safety of ships, but in a lesser degree of providing occupation for pilots, the Legislature has, by a series of enactments, relating to different ports and districts, required masters of vessels to

ties by section 599. It is compulsory for the master or mate of such vessels to hold a pilotage certificate. By section 605, when a ship merely passes through a pilotage district on a voyage between places both situate out of the district, a pilot need.

*This order relates to Swansea, and was confirmed by the Pilotage Order Confirmation Act of 1892, 55 Vict., chap. 31.

through a pilotage district on the way from and to places out of such district, or is bound to or from a place within such district, and whether the master has obtained a certificate enabling him to navigate as a pilot. For the most part it will be observed that these are distinctions without a real difference in the nautical requirements of the case. The effect of the statute relating to the Mersey* is still more unreasonable, and gives rise to still greater anomalies. With regard to ships outward bound from Liverpool, pilotage is in general compulsory. Coasters in ballast or under 100 tons are exempted. Other vessels are under compulsion if proceeding to sea. If the vessel is coming out of dock intending to anchor, and to complete at anchor her preparations for sea, pilotage is not compulsory, either while proceeding to the anchorage ground or while at anchor; but if her preparations are complete, and she only anchors to wait for better weather, it is compulsory in both cases, as she is considered to be proceeding to sea, even while she is at anchor, and her owners can claim exemption from the negligence of the pilot. In one case a ship left dock, being ready for sea, and intending to anchor as a step in proceeding to sea. But while at anchor an accident happened to her mainyard, and before it was repaired a collision occurred, for which her pilot was to blame. Held, that she was not at the time of the collision proceeding to sea, that the pilotage was, therefore not compulsory, and that her owners were responsible. The obligation to employ a pilot when the vessel sails through the Queen's channel (which is the channel used by all but small vessels) ends, according to the statute, at the "Fairway Buoy," which used to be situate about ten miles from the mouth of the river, but improvements in the buoying of the channel long ago caused this buoy to be removed, and it is customary for the pilot to conduct the ship for about a mile further on, to the "Bar Lightship." Apparently, however, the spot where the "Fairway Buoy " used to be is still the limit of compulsion, and as there is nothing left to mark the spot, in case of a collision occurring near this place, it must be first ascertained exactly where this old buoy stood, and then whether the collision occurred inside or outside of that spot-a question which may be very difficult to determine, especially if the accident happened at night or in a fog. With regard to ships inward bound to Liverpool, the obligation begins at the first pilot boat met off or after passing the "Middle Mouse," an islet off the island of Anglesea, and about fifty-three miles

*21 & 22 Vict., chap. 92 (the Mersey Dock Acts Consolidation Act of 1858.)

+ The "City of Cambridge," L. R., 4 A. & E. 161, and on app. 5 P. C. 451. See a like decision as to anchorage in the Mersey in wards; the "Princeton," 3 P. D. 90.

The "Catchapool," 7 P. D. 271.

from the mouth of the Mersey. Ships navigating within the port, e. g., changing docks, and not inward or outward bound, are not required to take pilots, but the latter are often employed on these occasions also. It will be seen from the foregoing statement that it must frequently happen, as in fact it does, that in case of collision between two ships, each of which is actually in charge of a pilot, the owner of one enjoys the advantage of non-liability for the consequences, while the other has no such privilege. And yet the same necessity or nonnecessity (from the point of view of prudence in navigation) for the services of a pilot exists in respect of both ships. Can any thing be more unreasonable? That this state of affairs is not found also to be intolerable, results from the fact that shipowners are nearly always protected by insurance from collision risks, while underwriters who are paid to incur the liability, have broader backs and are slower to complain.

The answer to the second question is often attended by much difficulty, and by a good deal of hard swearing, although the latter circumstance does not distinguish it from the other peculiarities of a collision case. The fact that the question will have to be answered also often tends to bring about an accident. The master frequently knows how to handle his ship better than the pilot, and if he dared to interfere, would by his acts avoid the apprehended accident, but he knows that he cannot be blamed, and that the owner will escape liability if he holds his hand, and he holds it accordingly; or, if he interferes, perhaps he does so in an undecided, half-hearted way, which produces the bad effect due to a divided command.

The anomalies of the law above referred to are inconvenient in many respects, but their principal inconvenience is connected with the question of liability or non-liability of the owner for the negligence of the pilot. Except in conjunction with that subject, and with the want of freedom of choice by the master amongst all the pilots available, the question of compulsion is not very material, because owners and masters are nearly always willing to employ pilots in those cases in which they are now reFour alternative remedies quired by law to do so. for this unsatisfactory state of the law have been suggested:- (1) To make compulsion universal; (2) To dispense with compulsion in all cases; (3) To dispense by direct enactment with the immunity of the owner, while retaining compulsion in cases where it now exists; (4) To provide that the pilot shall no longer be entitled to supercede the master in the command of the ship, but shall only be considered as his adviser, thus leading the way by necessary implication to dispensing with the immunity. There are great difficulties in applying

the first, second or third of these remedies. A proposal to apply any one of them would arouse much opposition. The authorities of those ports where compulsion does not exist do not in general seek to have it established; the authorities of those ports where it does exist do not in general wish to see it abolished, and the vested interests of the pilots would be set in motion against its abolition. The second would, however, undoubtedly be the best course to adopt. It would not be likely in any way to lead to risk in navigation. In practice pilots would be employed as freely where no compulsion exists as where the law requires their employment. And this great benefit would result from the change, viz., that an owner or master could select the best man available as pilot, instead of being liable to have some incompetent person thrust upon them. Freedom in the selection of a pilot would undoubtedly tend to greater safety in navigation. Again, the retention of compulsion with the addition of liability seems unjust, and would on that account be resisted by many shipowners. And so long as a pilot is forced upon the owner as commander for the time being of his ship, the owner may very reasonably object to being made responsible for his negligence. One special committee of the House of Commons reported in 1870 and another in 1888 in favor of a change of the law, but nothing has been done. There remains only the fourth of the remedies proposed, and this is what I advocate. question of the command is the crux of the matter. Why should the pilot be placed in charge of the ship? Why should he not be treated by the English law as he is by the French and Belgian law, merely as an adviser to the master; as one whose business it is to give the necessary local information as to tides, currents and shoals, to point out the navigable channels, and the peculiarities of the navigation, and the best course to be adopted in any difficulties due to local causes. The English courts assume that the pilot takes command; but if in point of fact the law of a foreign place applicable to the case makes the pilot an adviser merely, they will not give the owner immunity. This has been decided as to the Suez Canal,† France, and in the Danube, § and is applicable to any foreign place where the pilot is, under the local law only an adviser. But section 633 of the Merchant Shipping Act, 1894, stands in the way for the United King

The

dom. I would propose then, as the best mode of dealing with the difficulty, that that section should be repealed and that it should be expressly exacted that a pilot should not be entitled to supersede the master in command, but only to

*Oakley v. Speedy, 40 L. T. (N. S) 881.

The "Guy Mannering," 7 P. D. 52, and on app. 132. The "Augusta," 6 Asp. M. L. C. 58, and on app. 161. "The Agnes Otto," 12 P. D, 56.

advise him upon the navigation of the ship. It would probably not be safe to trust to the mere repeal of the section even if Parliament would accept that proposal, because it has been held that, apart from any statutory enactment, an owner is not responsible for damages done by his ship caused by the negligence of a pilot compulsorily employed.] One advantage of such an alteration in the law would be to bring English jurisprudence into harmony with that of most of the other maritime nations, for while compulsory pilotage is a defence in Germany, Portugal, Sweden, and probably Italy, it is not available for that purpose in the United States (at any rate in the State of New York), France, Belgium, Holland, Spain, Brazil, Argentina, Chili, Greece, Norway, Finland, Turkey, or Egypt. It might also very well be provided that the owner or master should be entitled to select any one of the pilots available, and should not be bound to accept the first offered to him.

Abstracts of Recent Decisions.

ADVERSE POSSESSION-RIGHTS OF EXECUTOR.Where land is devised to a widow for life, conditioned that it shall be under the control of the executor, the executor cannot, without first divesting himself of the trust, claim title thereto by adverse possession, as against the remainder men. (Jones v. Swearingmen [S. Car.], 19 S. E. Rep. 947.)

APPEALABLE ORDERS-PETITION FOR REMOVAL.

The dismissal of a petition for removal on the ground of local prejudice stands on the same ground as an order of remand, and is not a final judgment from which a writ of error will lie. (Patten v. Chilley, U. S. C. C., N. H., 62 Fed. Rep. 497.)

ASSIGNMENT FOR BENEFIT OF CREDITORS — CREDITORS. -- Where a firm assigns and a creditor has a judgment against the partnership, and also a separate judgment against the individual partners for the same debt, he is entitled to a dividend on each judgment out of its respective estate. (In re Jamison & Co.'s Estate [Penn.], 29 Atl. Rep. 1001.

CARRIERS-INJURY TO PASSENGER.-Where a passenger on a train, who has been carried beyond his place of destination by reason of his being asleep, unknown to the carrier, when notice of the place was given, and the train stopped, is injured by his

jumping from the train while it is in motion, being advised by a brakeman that it was not dangerous to do so, the carrier is not liable, as the giving of such advice is not a duty delegated to brakemen. (Missouri, K. & T. Ry. Co. v. Perry Tex.], 27 S. W. Rep. 496.)

The "Annapolis" and "Johanna Stoll," Lush. 295.