Page images

that by Brazilian Law no action for damages would lie; or even assuming that it would, that the only damages recoverable would be special damages. The Court ordered the plea to be struck out, on the ground that the mere fact that a foreign tort is not actionable by the lex loci delicti commissi is immaterial, provided that it can be shewn that it was an act which was not innocent” by the foreign law. Lopes, L.)., said "the general principle is that in order " that an action may be maintained in this country in

respect of a tort committed outside the jurisdiction, the 'act complained of must be a wrongful act, both by the law " of this country and by the law of the country where it was “committed; but it is not necessary that it should be the "subject of civil proceedings in the foreign country.”

Rigby, L.)., applying the rule to the present case, laid down that “there is no doubt that an action for a libel "published abroad is maintainable here unless it is shewn " that the libel was justified or excused in the country where “ it is published.”

The Court followed the view apparently adopted by Wightman, J., Willes, J., and Blackburn, J., in the case of Scott v. Seymour, I H. & C. 219; of Willes, J., in Phillips v. Eyre, L.R. 6 Q.B. I; and of the Judges of the Court of Appeal in the case of The Moxham, L.R. 1 P.D. 107, all of whom appear, when referring to the foreign law, to have advisedly used the terms " unjustifiable" and "wrongful” instead of" actionable." On the other hand Williams, J., in Scott v. Seymour, and the present Master of the Rolls in the case of the Chartered Bank of India v. Netherlands, &c., Co., 10 Q.B.D. 521, seems to have taken a different view. In the latter case (p. 536) Lord Esher refers to the “ well“known rule that for any tort committed in a foreign "country

an action of tort cannot be maintained “ in this country unless the cause of action would be a cause " of action in that country, and also would be a cause of

[ocr errors]

action in this country.” Curiously enough this dictum does not appear to have been considered in the recent case, either in the arguments or judgments. It is to be observed that Professor Dicey (Conflict of Laws, p. 662) has construed the rule of law in the sense in which it has now been decided, though he says that “logically this conclusion is “ difficult to defend, and there is a good deal to be said in “favour of the view apparently maintained by Lord Esher “and Mr. Justice Williams."


Power of Appointment by Will. A curious question arose in the case of In re Bald ; Bald v. Bald, 66 L.J. Ch. 524; 76 L.T.R. 462. A testator, A., domiciled in Scotland, gave to B. an interest in the income of a settled fund, and also a general power of appointment over the corpus to the extent of £2,000. B. (presumably a domiciled Englishman, though this question was not actually decided), exercised this power by will and died insolvent. By Scotch law this appointment would not, as it would by English law, make the appointed property general assets for creditors. Byrne, J., held that "although the appointment was made by an Englishman and “by an English instrument, the law of Scotland” (i.e., of the domicile of the original donor of the power) "governed the "case, and the property would go according to Scotch law."

The case is so shortly reported that the exact grounds of the decision are not quite apparent, but the conclusion arrived at seems not altogether satisfactory. If the power was effectually exercised at all (as seems to have been the case), the fund would appear to have become part of the donee's assets, the administration of which would ordinarily be a matter exclusively of English law—the lex fori. A fuller report might clear up the difficulty.

John M. GOVER.




" But we


Foreshore Rights.
E ownership in the soil under navigable waters is

different to the ownership over land.” have the right of an ancient fishery in this part of the river.” “But fish do not go into the soil. I can never understand what difference ancient fishery rights make to questions of ownership.” "In the case of Gann v. Three Fishermen of Whitstable it was laid down that the right to anchor at pleasure in navigable water did not include the right to put down moorings. The case was decided by the House of Lords.” Surely you do not suppose we want the authority of the House of Lords or that of the House of all the grandmothers in England to tell us that anchoring a vessel in the ordinary course of things is an incident to the right of navigation ? All I can say, if such authority is necessary we shall next have an authority cited to enable us to hold that it is an incident to the enjoyment of life for a man to blow his nose.” This conversation took place between counsel in a case as to foreshore rights and the Master of the Rolls, the latter commencing the subject. The question was as to whether persons using navigable waters in a river have as against the owner of the soil, the right to put down permanent moorings. Certain yachtsmen, boat-owners and fishermen of the town of Leigh, in Essex, sought to restrain the defendant, a fish salesman and lessee of the Hadleigh Ray fishery off that town, from interfering with the moorings on the foreshore. It was contended by the plaintiffs that from time immemorial the fishermen and boat-owners at Leigh had moored their craft to moorings which they had put down on the foreshore. The defendant had taken a lease of the fishery, and subsequently

gave the plaintiffs notice that if they did not pay him a rent, he should prevent them from mooring at the spot in question, alleging it was within his fishery grounds. Compliance with defendant's claim was refused by plaintiff, and as defendant removed some of the moorings, this injunction was sought to restrain interference. The dispute went before the Divisional Court and there the plaintiffs obtained a verdict with an injunction, but, inasmuch, as the plaintiffs had failed to shew that the mooring ground was not within the defendant's fishery, the defendant was held to be entitled to costs on that part of the case. The defendant took the matter to the Court of Appeal, contending that the right claimed by the plaintiffs to anchor their boats was not incidental to that of ordinary navigation, and defendant, being a lessee from the lord of the manor, could cut away and remove permanent moorings. The Master of the Rolls pointed to the case of yachts at Cowes, where the owners were perfectly at liberty to put down moorings which they could come back to. The land there was vested in the Crown, and it could not be supposed that their right to do so came from any special grant. Counsel pointed out that at the time this case of Attorney-General v. Wright was being tried in the Divisional Court, a question of whether a right alleged to have been enjoyed by the public generally could exist at law, was being decided by Vice-Chancellor Chatterton in the Irish Court. The question there was whether the fact that the land about the Giants Causeway had been open for generations to tourists and others, who wandered about the locality in order to enjoy the scenery, gave by the prescription the public a right to continue to go there without let or hinderance, the property having been purchased by a company who desired to impose a toll. The Court held that no such right as was claimed on behalf of the public could exist at law. The respondents in the present case submitted that this right had been enjoyed by all those who used this part of the river, either for business or pleasure from time immemorial, and that they had acquired that right either by a direct grant from the Crown, or by arrangement with a predecessor of the present owner of the soil. The conduct of the defendant in cutting adrift their boats and removing their moorings was unjustifiable. The particular part of the river. was in ancient charters mentioned as belonging to the Port of London. From the earliest time the Crown had been very jealous of any interference with the right of the subject to anchor his vessel where he would. The locus in quo, said the Court in this matter, was a place in the navigable part in the lower Thames. The inhabitants of Leigh on behalf of themselves claimed the right not merely to drop anchor from time to time there, but to put down moorings to which they could return at will. The defendant was the owner under a license of the foreshore, which was covered with water at high tide, and he contended that the inhabitants had no right to fix anything to his soil to which they could moor their boats. He claimed the right to treat those who did so as trespassing, and that he was entitled to cut their boats adrift and seize as his property, to do with what he liked everything they had affixed to his land. It was, though, pointed out by the Court, that a right belonged to every Englishman to anchor his boat, anywhere that he wished in navigable waters. Why should this be cut down to that of merely dropping an anchor ? The Court considered that a fisherman was entitled to keep his boats moored a little way from the beach if he so wished, and to return at leisure to his moorings. This prescriptive right, enjoyed by every Englishman to anchor his boat anywhere round the coast of England, was sufficient to justify the acts of the plaintiff complained of by the defendant. There was ample evidence on which it could be assumed that

« PreviousContinue »