66

section 2 of the schedule.

NEW ORDERS, &c.

TRANSFER OF ACTION.

ORDER OF COURT.

Monday, the 10th day of October, 1898.

I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, do hereby order that the action mentioned in the Schedule hereto shall be transferred to the Honourable Mr. Justice Wright.

SCHEDULE.

Mr. Justice STIRLING (1895-H.-No. 3,153).

In re Hunwick & Company, Limited William Berry Kellock v Hunwick & Company, Limited, and another.

HALSBURY, C.

THE RIGHT OF MARITIME CAPTURE.
(Continued from p. 821.)

paid but not yet due and payable. Consequently, as the applicant had received no earnings in the respondents' employ, the only possible basis of assessment was a former rate of earnings, unless the case was a casus omissus, for which the Act gave no remedy-a construction not to be put upon the Act except in the last resort. For the respondent it was pointed out that only one scale of compensation was provided by the new Act, and it was accordingly small, the Legislature recognizing that a high scale applicable equally to accidents caused by an employer's negligence and to unavoidable accidents would be unjust. Consequently no well-advised workman who could make out a cause of action under the Employers' Liability Act or at common law would proceed under the new Act. Where, therefore, the only remedy was under the new Act, the workman not unnaturally would endeavour to "magnify his office" as much as possible. Accordingly in the present case the applicant claimed to be paid as a skilled mechanic, and not as a mere labourer. There was no reasonable doubt as to the meaning of the section, which throughout must be read with reference to "the same employer." If by the contract of service the rate of wages per week had been expressly agreed upon, it could not be said that because a week's wages had not been earned before the accident happened the applicant was entitled to pray in aid a rate of wages earned under a previous employer. If so, no employer would be safe in giving an odd job to, or in engaging as a handy man a skilled workman out of work and glad to To violate a blockade is an operation attended with all the risks of war. earn anything. Where, as in the present case, nothing is said at the Indeed a blockade runner is in even a worse position than a hostile bellitime of engagement as to rate of wages, the capacity in which the workman was employed must be regarded, and the current rate of wages ingerent, for not being a combatant he may not resist the efforts of the such employment be taken to have been impliedly agreed upon. but a single shot or blow in his own defence makes him a pirate, and a blockaders to destroy or capture him. He is entitled to escape if he can, Lastly, earnings" did not necessarily mean wages earned and paid, but included a rate of wages expressly or impliedly agreed to be paid for work belligerent capturing him may treat him as such. But it must always be to be done. This was supported by the expression "able to earn" in remembered that for a belligerent to exercise these high prerogatives he must first have established a real and effective blockade. A mere declaration that the port is closed is not enough. It must be so closely watched and invested with an adequate naval force that no neutral can leave or enter without incurring immediate danger of being sunk or captured. I have already stated what Powers have adopted the terms of the Declaration of Paris. In 1859 at the Treaty of Zurich the French Government the prize court. By a decree issued on the 26th of March, 1865, she also restored all captured Mexican vessels to their owners. In 1860, during the Chinese War, both England and France granted immunity to private property at sea. During the war between Italy, Prussia, and Austria, private property was respected by all these Powers. Italy has included a clause to the like effect in its maritime code. In 1860 a deputation of merchants from Bristol, Manchester, Leeds, and other influential towns ap(proached Lord Palmerston and requested him to support the suppression of maritime capture, but, notwithstanding this, and that in established dicta of his he stated, "There is no other European State which possesses a commerce so extensive as that of England: I conclude, therefore, that it is to the interests of the English to invite other States to accord to commerce the greatest possible freedom," subsequently, upon a motion being brought forward in the House, he opposed it. In 1866 the matter was again before Parliament upon a motion by Mr. Gregory, which, though supported by many members of varied opinions, was rejected. It would be wearisome to go into details regarding the many other attempts which have been made at home and abroad to secure the immunity from capture of private property at sea, or to quote from the mass of authorities who have advocated such immunity, though it is of interest to note in passing that Mably was the first to advocate the immunity of private property at sea ("Droit Public de l'Europe fondé sur les Traités," 2nd ed., 1754, vol. 2, pp. 310, 472), and that as early as 1785 the United States and Prussia, under the auspices of Franklin and Frederick the Second, bound themselves by treaty to respect private property at sea. Nor is it for me to here discuss the general or particular advisability from the standpoint of any individual nation or mankind at large of securing its total abolition and the absolute freedom from capture of all private property at sea, or of returning to the seizing of enemy's goods on even neutral bottoms, to contrast the conduct of war in this respect afloat and ashore, or to prove that the existence of this right is an anomaly, and contrary to the dictates of humanity. I will therefore close the present portion of this paper by the general statement that, apart from privateering, the only legal and moral conclusion is that any State which wishes to adhere to the capture of private property at sea has every right to do so. Upon occasions privateersmen have rendered yeoman service to the State. Of this Fortunatus Wright in the Mediterranean, and George Walker in home waters, are striking examples, and the engagements between the Tygress and a Dutch 50-gun ship, and the Drawblood and a Dutch privateer in 1781, to take only two instances in close succession out of very many, compare very favourably as to odds and courage and endurance displayed with the performances of any King's-ships. It is interesting for this meeting to consider what constitutes a prize of war and the English law bearing upon the subject. A prize or prize of war in the more modern acceptance of the term denotes the ship or goods of an enemy, or in transit to an enemy, captured at sea, or in the territorial waters of one of the belligerents. Goods captured on land are not prize, but booty of The property in the prize vests in the Crown in accordance with the maxim-Parta bello cedunt reipublicae. The right attaches both in cases of capture and recapture, subject in the latter case to the unsupplied maxim of Jus postlimini, or, as used in this relation, the right of the owner of property recaptured from the enemy, to have it returned formerly if the recapture had taken place before the property had been taken within the cuemy's territory (infra praesidia), and at present if less than twenty-four hours have elapsed between the capture and recapture. By English law the right of recapture to salvage on recapture is usually one-eighth of the

HIS HONOUR JUDGE WHITEHORNE, in delivering judgment, said: In this case, which has been very well argued on both sides, a somewhat important question under the new Workmen's Compensation Act is raised. I find on the facts that the applicant was engaged as a labourer, and not as a smith; and that he, whilst engaged as a labourer, with no special agree-restored all captured Austrian vessels which had not been condemned by ment as to terms, after two and a-half hours' work and before any wages or any to speak of had been earned or paid, met with an accident clearly incapacitating him from labour, not entirely, but to a great extent. The liability of the employers under the new Act is admitted, and there is no dispute as to the facts of the accident or the injuries sustained. The question, therefore, simply is whether the Act enables the court to give the injured workman any compensation-in other words, whether it furnishes the court with any rule, scale, or criterion for ascertaining the amount of compensation in circumstances which perhaps were not very definitely contemplated when the Act was framed. It is plain enough that what was mainly contemplated was the case of a man who had been earning and receiving weekly wages. Is the case of a man who has not excluded? Two questions of construction arise under the First Schedule, section 1 (b) and section 2. First, can you in such a case as this look back to some former employment under different masters in which he was earning other wages? Secondly, if you cannot, can you infer or imply a rate of wages from the terms of the engagement though no wages have been actually earned owing to the accident happening immediately after the engagement? On the first point I hold that you cannot look back to any former employment. That cannot be the right construction. If it were, the workman would always select a previous employment at perhaps very high wages, when he was younger and abler, to fix his present employer with compensation which at such a rate would be unjust, and, I think, not required or warranted by the words of the schedule. The rate of wages is the rate of wages in the employment in which the accident happened. But does that prevent the workman from getting any compensation where no rate of wages was specially agreed to, or even to any perceptible degree earned? I think not. I must bear in mind the purpose of the Act and endeavour to carry it out loyally. The object is to give workmen engaged in employments to which the Act applies, compensation in every case where they are injured in the course of the employment of their masters. Hence I think I ought to hold that the "weekly earnings"-to use the term employed in the First Schedule to the Actthough not received, nor even to any perceptible degree earned, are the earnings which would, according to the custom of the trade, flow from the engagement. As to that there is no dispute. It is admitted that the current rate of wages of a labourer is 24s. a week, and that, consequently, the weekly compensation-which the respondents have offered to pay, and now offer to pay-would under the provisions of the First Schedule, s. 1(b), be 12s. per week. On that footing I decide this case. It was stated that the Palatine Insurance Company (Limited), the real defendants, did not ask for costs. As, however, the great majority of these cases were the subject of insurance, it was desirable that it should be known that leniency in the present case must not be taken as a precedent, nor workmen be led thereby to suppose that they can indulge in litigation under the new Act without any risk of having to pay costs.-SOLICITORS, Parker; Dr. Showell Rogers.

The death is announced of Mr. Ralph Disraeli, brother of the Earl of Beaconsfield, in his ninetieth year. Lord Lyndhurst gave him, in 1841, the appointment of registrar in the Court of Chancery, which he held until he was appointed in 1875 deputy clerk of the Parliaments. From this he retired in 1890, having completed half a century of public service.

war.

value, but it may be increased to one-fourth under special circumstances of danger attaching to the enterprize. One-eighth is awarded in the case of recapture from pirates. Capture may be actual or constructive. Constructive, or joint captors, are those who have assisted the actual captors by conveying encouragement to them or intimidation to the enemy. All public ships within signalling distance are usually held entitled to participate in the proceeds of the capture. Prize captured in breach of the neutrality of Great Britain may be restored by the Admiralty Division of the High Court of Justice under powers conferred by the Foreign Eulistment Act, 1870. By the Naval Prize Act, 1864, what is now the Admiralty Division of the High Court of Justice has jurisdiction as a prize court throughout the British dominions, and by this Act the procedure of prize courts in the British dominions may be regulated by an Order in Council. Questions of booty may be referred to the present Admiralty Division of the High Court as a prize court under 3 & 4 Vict. c. 65, s. 22. Where the captor is a public ship of war, the officers and crew have only such an interest in the proceeds of a prize as the Crown may from time to time grant them. Besides a share in the prize, prize bounty is usually granted under the provisions of the Naval Prize Act, 1864, at the rate of £5 for each person on board an enemy's ship of war. As an incident to the right of maritime capture, there still exists the right of visit and search, or the privilege attaching to any belligerent of boarding any merchant vessel on the high seas to ascertain its nationality and the nature of its cargo, with all its possibilities for international complications, as witness the notorious Trent affair.

for his vacation on the 13th of August, and will not be back until the 22nd of October, when the Long Vacation ends. When he returns another week or two will probably be occupied in completing the order, which may be ready to be acted upon by the beginning of November. Several of the parties interested in the money have been obliged to mortgage their shares of it. This is only one of numerous cases where the Long Vacation works a serious injury to suitors and the delay to whom seems intolerable. Do you not think it time the vacation was shortened?

Undefended matrimonial causes will be taken in the Probate and Divorce

Probate and defended

Division after motions on each Monday during the sittings; and on Tuesday
and Wednesday, the 20th and 21st December. Special jury causes will be
taken on and after Tuesday, the 25th October.
matrimonial causes, for hearing before the court itself, will be taken after
the special juries are disposed of; and may also be taken in Court II.
between October the 25th and November the 11th, when Admiralty cases
are not appointed to be heard. Common jury causes will be taken on and
the 1st and December the 6th. Motions will be heard in court at 11 a.m.
after Tuesday, November the 29th. Divisional Court, Tuesdays, November
on each Monday during the sittings. Summonses before the judge will
before the Registrars will be heard at the Probate Registry, Somerset
be heard at 10.30 a.m. on each Saturday during the sittings. Summonses
House, at 11.30 a.m. on each Tuesday and Friday during the sittings.
All papers for motions must be left in the Contentious Department of the
Principal Probate Registry at Somerset House before 2 p.m. on the
preceding Wednesday.

Maître Labori, M. Zola's counsel, is, says the World, still a young man, being only in his thirty-eighth year; indeed, by many he would be scarcely considered to have reached his prime; yet by dint of ability and hard work, combined, it must be admitted, with good fortune, he stands to-day in the front rank of his profession in France, and his name is a synonym in every civilized country for fearless and skilful advocacy He was born at Rheims in 1860, and was educated at the Lycée there. Choosing the law as his profession, he enrolled himself as a student at the Ecole de Droit. In 1884 he proceeded to the degree of avocat, having previously served in the army for the statutory term, which inspired him, as it does most Frenchman, with a deep interest in the Republic's first line of defence. In France the profession of the law is as proverbially slow as in this country, and consequently young Labori had to wait. His first important case was in 1894, when he defended the miscreant Vaillant, who threw the bomb into the Chambre des Députés. In that case the prisoner's guilt was too clear to admit of being obscured by any art of advocacy, but Labori left nothing unsaid that could possibly benefit his client. From this point M. Labori's rise in his profession was rapid, and it was his conduct of the case for his client in the Zola trial which gave him his place in the front rank of advocates.

To finally summarize the existing law. Upon the outbreak of hostilities, so far as nations who have not signed the Declaration of Paris are concerned, any neutral vessels carrying cargo belonging to a belligerent can be seized and taken to port for condemnation, though under these circumstances the usage is for the captor to pay freight to the owner of the vessel. In any case, goods constituting contraband of war destined for delivery to a belligerent are liable to capture and confiscation, and the carrier cannot claim freight. There are dicta in some English cases that when the shipowner is privy to the carriage of contraband the ship is liable to condemnation, but there exists no actual decision to that effect. A vessel attempting to violate an effective blockade is, with its freight, liable to capture, and opposition constitutes piracy. Some authorities, however, consider that if the owner of the vessel was ignorant of the destiny of the cargo, the former will escape confiscation. A charter made by an English shipowner to run a blockade cannot be repudiated by him. Performance of a contract is excused where, before loading, the port of destination becomes blockaded, and the charter includes an exception of restraints of princes. Where, however, the blockade occurs subsequent to the actual sailing, the question is more involved, but the captor would in all probability release his prize. Insurance of a belligerent property is valid unless the policy includes a guarantee of neutrality. Of course, unless the character of the property be disclosed, a policy could be avoided on the ground of concealment of a material fact. That the possible acquisition of prize money is of material service as an incentive to effort to our seamen is considered by some authorities as very doubtful, for it is counterbalanced by many grave objections, and has proved on numerous occasions to have operated or resulted very disadvantageously. For instances of the truth of this contention, the feud between Rodney and Arbuthnot, on the coast of North America; the disruption of the friendly relations between Nelson and St. Vincent, terminating in a law suit; and the hostile criticism of Lord Howe's conduct on the 1st of June, on the ground that his anxiety to secure the prizes prevented him following up his advantage to the full, may be cited. In considering what the effect of the abolition of the maritime capture would be upon the legal profession, one's mind at once reverts to the somewhat grotesque experiences of the famous Lord Cochrane in connection with the Maltese prize courts in 1811, and the incident in relation thereto in the House of Commons on the 11th of June of the same year, when he produced his proctor's bill, stating that it measured six fathoms and a quarter, and contained (as it did) many curious charges. This, of course, is an exceptional case, and could not occur to-day, and the profession may be excused if they express the same opinion at his lordship, which he maintained to his death, in spite of his unfortunate experiences in the matter of condemned prizes-that if this right were abolished, certain II do not entertain that view; on the contrary, I believe the evidence of the am that the prestige of our Navy is gone till the old system is restored."

LEGAL NEWS.

INFORMATION REQUIRED.

JOHN MARSHALL, of Bombay, merchant, who died on the 24th of August, 1898. Any person having the custody of a will of the above is requested to communicate with Weightman, Pedder, & Weightman, solicitors, 18, Water-street, Liverpool.

In charging the grand jury at the Wiltshire Sessions at Marlborough, Lord Ludlow referred to the Criminal Evidence Act. He said: I cannot disguise from my mind that there are serious questions which will arise with regard to the procedure to be adopted in carrying into effect some of its provisions, questions as to which legal minds may reasonably differ. I am in hopes, therefore, that a council of judges will meet, who will lay down and promulgate some settled rules of procedure for the guidance of those who have to administer the Act. The old aud fundamental rule of our criminal law--that the complaining party must make out his case beyond reasonable doubt without any assistance from the person charged remains absolutely untouched by the Act. Unless a strong prima facie case was made out, I should not myself allow the person charged to give evidence, but should dismiss the case. Criminal cases must not be decided on the preponderance of probabilities, but on the proof of guilt. If the person charged is the only witness to the facts of the case called for the defence when is he to give his evidence? Section 2 of the Act says, "immediately after the close of the evidence for the prosecution." The object of this, I believe, is to give the prosecution in cases defended by counsel, in summing up the evidence, an opportunity of commenting on the evidence so given. doubts have been expressed when the person charged is the only witness called as to whether the right to sum up the evidence has not been lost.

Some

person charged was interposed at this particular point to enable the prosecution to deal with it. The person charged has the right of the general reply or last word. Section 1 (a) says the person charged is not to be called as a witness except on his own application. What is the duty of the judge? The person charged, if undefended by counsel or solicitor, probably does not know that he may ak to be called. Is he to be told? I answer in the affirmative, and I shall, at the close of the evidence for the prosecution, ask him if he would like to tell his story where he is, or to tell it on oath in the witnessbox. I have been fearful that the mere failure of the person charged or his wife or husband to give evidence might be regarded as corroboration of guilt, and I tried to introduce into the Bill, when in the House of Lords, the provision contained in section 1 (b), which is, "The failure of any

BOUVERIE DEEDES, deceased.-Any person holding a will made by, or any document belonging to the late Mr. Bouverie Deedes, of 10, Lancaster-person charged with an offence or of his wife or husband to give evidence place, W.C., and Downside, Epsom, is requested to communicate with Messrs. Mullens & Bosanquet, of 11, Queen Victoria-street, E.C.

GENERAL.

"City Solicitors" write to the Times as follows: On the 4th of August last an order was made by Mr. Justice Kekewich in a Chancery action dealing with the interests of parties, for one of whom we are concerned, in large funds in which they are interested, amounting to several thousand pounds. The officer having the drawing up of this order left it unfinished

shall not be made the subject of any comment by the prosecution." I was unable to do so there, but it was carried in the House of Commons, and to my mind will, to a considerable extent, protect the person charged, and to some extent help to preserve the fundamental rule, that the prosecution must make out their case without any assistance from the party charged, a rule which the court should forcibly impress on the minds of the jury. Section 1 says that the person charged should be a competent witness at every stage of the proceedings." Some doubts have been expressed as to whether this includes proceedings before the grand jury. I am quite clear that it does not. Such proceedings are ex parte, and the inquiry is one to

App motns ex pte-orgl apps from ords Monday .19 made on interlocutory mots and new trial paper if required New trial paper

Sht caus, pets (including 5 unopposed pets for Romer, (J.), fur cons, and adj sums Monday...... 7...Sitting in chambers Tuesday 81 General Wed. paper Mots for Romer, J, and Thursday...10 gen pa Friday...11.. Mots and adj sums Sht caus, pets (including Saturday ...12 unopposed pets for Romer, (J.), fur cons, and adj sans Monday... .14...Sitting in chambers Tuesday