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the court was the only adviser of the grand jury in the law, and that no one but the grand jury had a right to be present at their deliberations; and instances are known to us of grand juries exercising their acknowledged right to exclude the prosecuting officer.
Epizootic Aphtha. — Superior Court, Montreal. Lacroix v. Jackton. — The defendant relied on the omnipresent horse-disease as a defence to demurrage for detention of plaintiff's barge laden with coal. The court held that the prevalence of the disease was proved, but did not deem it a cas fortuit or force majeure. It may have been difficult, say the court, to get horses; but there is no doubt they could be got, if he would pay enough. And so he was held liable.
We take from the Law Times the following account of two recent adjudications of liability of railroad corporations for damages caused by their unpunctuality. Those of us who depend on railroads to carry us to and from our business may well wish that such wholesome stimulus were constantly applied to our lagging public servants; and perhaps the patient uncomplaining American public will one day find it necessary to call on their courts to enforce obedience to time-tables.
The question of whether railway companies are bound to keep the time set down in their time-tables was raised before Mr. Whigham, in the County Court at Aylesbury, on Wednesday. The plaintiff was Mr. William Adams, cattle-dealer, and the defendants were the London and North-Western Railway Company, as the proprietors of the branch line between Aylesbury and Cheddington. It was shown that qn the 20th October the plaintiff took a ticket at Aylesbury for Luton, where he ought to have arrived at 9.28 A.m., in time for Luton market, at which he was to dispose of some beasts. The train by which he was travelling from Aylesbury to the main line was delayed nearly an hour, owing to the engine being short of steam. The consequence was he missed the train at Cheddington, and did not arrive at Luton till 11.30 A.m., by which time the market was over. He now claimed 10s. damages per head of his beasts, — thirty in number,— which he did not get sold for nine days. The want of steam, it appeared, arose from the fire-box of the engine having been choked, the nremau having Welsh coal that day, — a variety to which he was not accustomed. It was pleaded for the defence that the company were exonerated from liability by the statement on their time-tables that they would not be responsible for delay. His Honor held, however, that the choking of the fire-box was not a circumstance over . which the company's servants had no control, and he therefore gave a decree for the plaintiff for 40a. in respect of the loss of his time, through having found no market for his cattle at Luton. The Tribunal de Premiere Instance of Brussels has recently pronounced a decision which will be interesting to railway travellers in England. The railways in Belgium are the property of the state, and it was against the state that a traveller sought damages for delay in the performance of a journey. On the 1st of February the complainant took a ticket at Brussels for Marchiennes. The train started at the time fixed, but was detained for three-quarters of an hour near
Charleroi in consequence of the line being blocked by goods trains. The tniTeller ■ought 300f. damages for the delay to which he had been exposed. The counsel for the state resisted the demand, contending that the delay to which the plaintiff had been subjected was the result of inevitable accident, and further, that, according to the terms of the contract upon which a railway ticket was granted, no compensation greater than the amount of the fare paid could be demanded. The court overruled that objection, and decided that the blocking up of the line by an accumulation of trains " constitutes a fault on the part of the administration, since it is not to be contested that it is bound to assure a free passage and the punctual arrival of the trains which are under its control." The court made an order against the state to pay to the plaintiff the sum of 150f. as damages.
An authority in the same direction may be found in Gordon v. The Manchester if Lawrence R.R. Company, lately decided in New Hampshire, and not yet reported.
Supreme Court Of Judicature Brix. — Many people in*this country, and, we believe, every one in England, have a firm belief in the accuracy, and, we had almost said, the infallibility, of the English Parliament. It is said in reproach of our legislatures and Congress that they produce carelessly drawn and inconsequential laws. But, even in so well-considered and notorious an act as the Supreme Court of Judicature Bill, Parliament has not proved itself infallible.
The 5th section of the act, which provides for the constitution of the High Court of Justice, clearly shows that the permauent number of judges is to be twenty-two, and with this agrees the 31st section. The judges, taking them according to the divisions, are (1) the Lord Chancellor, the Master of the Rolls, and three vice-chancellors; (2) the Lord Chief Justice of England and four puisne judges; (3) the Lord Chief Justice of the Common Pleas and four puisne judges; (4) the Lord Chief Baron and four junior barons; and (5) the judge of the Courts of Probate and Divorce, and the judge of the Court of Admiralty. These, according to our arithmetic, amount to twenty-two; but the 5th section expressly declares that it is " intended that the permanent number of judges of the .said High Court shall not exceed twenty-one." The origin of this absurdity is obvious. As the scheme originally stood, the Lord Chancellor was not to be a member of the High Court, and he was only introduced into it during one of the last stages of the bill in Parliament. But no one seems to have taken the trouble of reading the clause attentively after this addition was made, and hence the bill, with this ridiculous blunder in it, passed both houses of Parliament, and received the royal assent.
Another absurdity occurs in the same section, with respect to the president'ship of the High Court. The original words were, "the Lord ( hief Justice of England, for the time being, shall be the president of the said High Court of Justice;" but when the Lord Chancellor was brought in as a member of the High Court it was necessary to make him the president, and this was done by simply adding to the above the words, " in the absence of the Lord Chancellor." There is, therefore, no express provision that the Lord Chancellor is to be president of the High Court, and this must be left to implication. It is quite clear that the draftsman of the bill thought an express provision necessary, as he had adopted that mode with respect to the Lord Chief Justice of England as president of the High Court of Justice, and also in the next section, with respect to the Lord Chancellor as president of the Court of Appeal, where the provision still stands in absurd contrast to the corresponding yie in the preceding section.
Baron Amphlett. — The appointment, by Lord Selbome, of Mr. Amphlett to fill the vacancy in the Court of Exchequer, caused by the retirement of Baron Martin, is the first striking illustration of the change in the English system wrought by the adoption of the Judicature Act. And, notwithstanding that the infusion of equity learning and experience into the common-law courts is in perfect accord with the spirit of the new system of judicature, this appointment seems to have been received with some astonishment by the English bar. Baron Amphlett has been nearly forty years at the bar, and occupies a high position both in the law and in Parliament. When Sir Roundell Palmer became Lord Chancellor, he was chosen his successor in the presidency of the Legal Education Association.
The Lord High Chancellor. — The recent political revolution in England has brought new incumbents to three high offices, Baron Cairns being announced as Lord High Chancellor, Sir John B. Rarslake as AttorneyGeneral, and Sir Richard Baggally as Solicitor-General. We pride ourselves, and justly, on the long tenure of our judicial officers; and it would seem a strange thing to have the Chief Justiceship of the United States dependent for its stability on the political supremacy of a party. But in England the Lord High Chancellor, although the highest judicial officer in the kingdom, is speaker of the House of Lords; and hence Lord Selborne, after a very short judicial life, follows the Gladstone ministry into retirement, and Baron Cairns mounts the woolsack.
A Good Example. — By a recent return it would appear that the salary enjoyed by the Lord Chancellor is £10,000 a year, being £6000 for the chancellorship, and £4000 as " Speaker " of the House of Lords.
Illegitimate Children. — Court Of Chancery. Occleston v. Fullalove. — This case, which was decided in the Court of Chancery on the 26th January, will be read with pleasure by many who have regretted the continuance of a curious prejudice in England. Technically it was on an appeal from the decision of the Vice-Chancellor that a child born out of lawful wedlock could not take property under a devise " to all the children which the testator might have or be reputed to have by one M. L., then born or thereafter to be born." This indeed looks like a highly moral and proper decision'; but, in fact, this M. L. was a second wife, the sister of the testator's deceased first wife, and, as such, not legally a wife in England. In this country, of course, the marriage would be valid, and indeed in many other Christian countries such marriages are greatly favored.
In this case the Lord Chancellor (who, by the way, is said to be a rigid churchman), differing from his associates, upheld the decision of the lower court. He stated that this particular question had not been before adjudicated, viz., how far a devise to future reputed children, though illegitimate, was good. He dwelt with approval on Vice-Chancellor Stuart's opinion, "thq£ every gift to an illegitimate child, the begetting of which is contemplated, is against the policy of the law." He also cited Hill v. Crook (L. R. 2 Ho. Lds. 278), that "no gift, however express, to unborn illegitimate children is allowed by law, nor under a gift, good to illegitimate children as a class will after-bor n illegitimate children be permitted to take."
On the other hand, the majority of the court were more liberal. Lord Justice James said that in his opinion the meaning of the testator was plain. The testator went through the form of marriage with the woman, he recognized this child born after the date of the will, had it baptized and registered as his child, and thus clearly showed it to be " a child which he was reputed to have by said M. L." He adds that " it is said that some rule of law prevents my giving effect to what I have judicially ascertained to be beyond all question the meaning of the plain and clear words of the testator." But he adds, "to me it appears a shocking and perverse thing to say that religion, morality, or public policy compels the law to throw difficulties in the way of a man who is desirous of not committing posthumously a great crime, and who is desirous of making for his misconduct the best reparation he can, both to society and to the unfortunate beings of whose existence he is the author." He accordingly gave his decision, reversing that of the court below, "in accordance with what I feel to be the truth, the honesty, the morality, and the justice of the case."
Lord Justice Mellish concurred therein, believing that it did not infringe against any rule of public policy. He said that such a will was manifestly unlike a settlement made by a man at the beginning of his intercourse with a particular woman on his expected illegitimate children. It could be revoked by the testator at any time, and was clearly not an encouragement to the woman to continue to live immorally.
We may fairly state that this case is interesting in two respects. First, it shows that if decisions are sometimes influenced here by political prejudices, undoubtedly in England religious opinions may exercise much weight at times on the conclusions of the judges. Secondly, it is encouraging to find that some of the bench are ready to take a broad view of a religious question, and to perceive that what is immoral by virtue of a local statute is not necessarily so in the broader view of " truth, honesty, morality, and justice." The decision will undoubtedly lend a renewed interest to the great fight over the legality of such marriages.
American Courts. Ecclesiastical Vision. — The Reverend J. Wilkins, who was present at the late Evangelical Conference in America, took occasion on his return to enlighten his neighbors on " The Every-day Life in America;" and this is an example of the way he did it. We quote from the Brighton Daily News of Dec. 17, 1873: —
With regard to law courts and the unofficial dress, the lecturer said there was that about our own law courts which inspired one with a confidence that could not be felt in an American court. He went into a court during the great trial of Stokes, and it did not require half an eye to see that it was not a matter of justice, but of money, that was being tried out. Everybody knew that Stokes shot Fisk, and that he had been once, if not twice, condemned to death for that deed; but money had paved the way for a new trial, and now the plea was being urged that Fisk did not die from the shot, but because the doctor failed to heal the wound. The stupidity and unrighteousness of the plea gave him a kind of disgust for American law and law courts. There was not a vestment of officialism about the whole; the judge looked like an ordinary farmer, and the counsellors appeared like second-class cloth-jobbers, whilst all the rest of the bar and officials of the court were dressed in a similar style. The impression left on his mind was that he should be sorry to commit the smallest matter to the decision of the court; and a visit to other courts only impressed him with the idea that they were rather worse. If he had been too hard upon these representatives of the law, he hoped they would never hear of what he had said, but he didn't think he had thought more lightly of them than thousands of Americans think.
Mr. C. F. Dennett, who was sitting in the body of the chapel, here rose, and said that Mr. Wilkins had spoken too lightly of American law courts. He was an American, and had lived in America thirty-five years, and would not sit there and listen to the statements Mr. Wilkins had been making.
Perhaps to an American the conduct of the Tichborne case would have given food for reflections similar to those indulged in by the Rev. Mr. Wilkins.
Foreshore. —This very convenient word seems to be coming into use in England, and as it has found its way into the law reports, it may be cited with authority. The following instance of its use explains its meaning: "The land upon which the docks occupied by the appellants have been constructed was situate on the foreshore of the river Mersey, between the ordinary or medium high-water and low-water mark; but the land has been reclaimed, and the tides no longer flow over it." Trustees v. Boolle-cum-Linacre, L. R. 2 Q. B. 4.
Neck-Verse. — Every one knows that a felon pleading benefit of clergy was compelled to prove his learning by reading a verse of Scripture. The one selected was usually the first of the fifty-first Psalm, "Miserere mei," &c., which hence was known as the neck-verse or hanging verse. A case in Dyer's Reports, 205, gives the following as the opinion of all the justices of assize assembled at Sergeants Inn, — " that if a man who may have his clergy granted in case of felony prays his book, and in fact cannot read, and it is so recorded by the ordinary, and also by the court, and this clause, non legit ut clericus, is entered, and yet for some reason he is reprieved until the next sessions, and then he is again demanded whether he can read, and then he can read, he shall have his clergy notwithstanding the other record, in favorem vita; for he should have had it allowed under the gallows by 84 H. 6 [49 a. b. pi. 16] if the judge passed by there, and much more here . . . but the gaoler shall be punished for it."