A

We have thus arrived at this position, that the Admiralty has jurisdiction whenever the capture was made (1) of things afloat, (2) or by naval force without the realm. Can we go further, and say that it ousts the Common-law Courts, in disposing as to the status of chattels deposited on terra firmd under the ægis of the Common law? The judge in The Roumanian, held that we can, though he set no certain or definite (or indeed any) limits to the doctrine. But it is permissible to entertain serious doubts. His Lordship did not try to distinguish the case of The Ooster Ems, except by remarking that it was distinguishable. Now, in The Ooster Ems ([1799], 1 C. R. 284) the Lords' Delegate definitely disclaimed Admiralty jurisdiction over things landed. ship was stranded on the Goodwins. The cargo was sent on shore, and there claimed as a perquisite within the jurisdiction of the Cinque Ports, in the Cinque Ports Court. A monition issued from the Admiralty to remove the cause into the High Court of Admiralty, and the goods were there condemned as prize. The decree was reversed on appeal, when it was resolved: "that the High Court of Admiralty had not a jurisdiction over the goods seized and proceeded against. There was no act of capture on the high seas, and therefore they were not to be considered as prize" (per Sir W. Scott in The Two Friends, [1799], 1 C. R. 282). Nor can they have been considered as droits of Admiralty, for they would have been equally cognizable by the Admiralty Court, if they had been. It is true that The Hornung and The Charlotte are not very much in point. In both the goods had been landed, but in neither were they available for seizure in specie. In The Hornung the goods had been sold to satisfy a claim of the ship, and the attempt was made to make the ship seizable in their place. In The Charlotte the goods had been landed, and others bought with the proceeds; the attempt was to put these latter in their place and seize them. Both attempts failed, but the cases are obviously very different

from the case of the seizure of specific enemy goods. But it is difficult to get over The Ooster Ems, as interpreted in The Two Friends, added to the cumulative force of Wheaton and Story's deliberate statement, and the negative results of Stowell's practice. Much irrelevent learning was expended in The Roumanian on the proper interpretation of the term "port"—apparently on the assumption that all enemy's property within the limits of a "port" are droits of Admiralty and cognizable by the Admiralty Court. It is true that the distinction between prize (which went to captors) and droits of Admiralty (which went to the Crown in Admiralty) is, broadly, that prize is taken at sea and droits in ports and harbours. But to come within the Admiralty jurisdiction at all, under either denomination, it is submitted that property must be found afloat (or else captured abroad by naval force). Droits of Admiralty in enemy goods are nothing but a particular description of prize.1 In the Japanese case of The Thalia (Takahashi, p. 605) the capture was effected by a naval officer. In Brown v. U.S. (8 Cranch, 144) the timber was afloat. The Judge in The Roumanian quoted some MS. cases vouched for by Mr. Rothery; one, The Marie Anne, was the case of a ship in dry dock and its temporarily landed cargo, as to which the Admiralty jurisdiction might be supposed (as it was in The Thalia) to have some inherent appropriateness: the other was a case as to which the learned President admitted that it was not stated whether the portion of the cargo which had been landed was condemned at all. These seem slender grounds for extending the jurisdiction of the Prize Court to dry English land and the chattels thereon, in the face of The Ooster Ems. The proper course when goods on land are alleged to be forfeited to the Crown is, it is submitted, to file a Latin information of devenerunt in the King's Bench. The prac

1 See Wheaton, Captures, 33; the Marie Française, 6 C. R. 282.

tical objection to this course is said to be that this is to admit that the goods are on land, and that their seizure is consequently contrary to modern practice in war. But, if they are in fact on land, condemning them in a Prize Court instead of the King's Bench will not alter the facts. It is equally obvious that very great inconvenience and confusion may ensue from the co-existence of rival Prize and Common-law jurisdictions over wharves and quays; therefore, The Roumanian is scarcely satisfactory, and may well be reconsidered in the Privy Council. No case appears to have occurred in the Crimean war of the seizure of goods which have been landed. It may often be the case, however, that the true seizure takes place afloat: i.e., when the ship comes under the orders of the Admiralty. If, for instance, cargo was put ashore by naval directions, it might be considered seized, unless delivered up to owners (The Edward and Mary, 3 C. R. 305). And The Roumanian may be upheld on this ground.

T. BATY.

VIII. NOTES ON RECENT CASES (ENGLISH).

EFORE the Judicature Act, the division of the juris

dictions of Equity into exclusive, concurrent and auxiliary, was regarded as of the first importance. Since that Act many lawyers seem to have altogether forgotten this division, while others seem to think that it has become obsolete and useless. It is true the Judicature Act has rendered the auxiliary jurisdiction obsolete and useless; but as we have over and over again insisted in these pages, it has left the division between the exclusive and concurrent jurisdictions untouched, and the failure to recollect this has often resulted in erroneous, and in the misunderstanding of correct, decisions.

The reason of this is, that the distinction between the auxiliary and the other jurisdictions of Equity was based on procedure, while the division between the exclusive and concurrent jurisdictions was based on principle; and the Judicature Act revolutionised procedure, but did not alter principle. The principle on which the division between the exclusive and the concurrent jurisdictions was based was and is this, that in matters coming within the exclusive jurisdiction both the cause of action and the remedy are equitable, while in matters coming within the concurrent jurisdiction the cause of action is legal, and it is only the remedy which is equitable. Accordingly, before a plaintiff can get an equitable remedy in a matter within the concurrent jurisdiction, he must show that a wrong has been done him for which a Common-law Court would grant him a legal remedy; while if the matter is one coming within the exclusive jurisdiction, all he has to show is that a right recognised in Equity, though not in Courts of Common law, has been invaded by the defendant. It was the failure to remember the former of these principles which led to the erroneous decision of the Courts below in Colls v. Home & Colonial Stores Ltd. (L. R. [1904], A. C. 179). It was the failure to remember the latter, which led to the misunderstanding by the same Courts of the correct decision in Derry v. Peek (L. R., 14 App. Cas. 337).

The decision in Derry v. Peek (supra) was unquestionably correct, assuming that the matter before the Court was, as Cotton, L.J., said it was (see L. R., 37 Ch. Div., p. 565), an action for deceit-"a mere common action "(which is a large assumption), and therefore within the concurrent jurisdiction of Equity. To succeed in a Common-law Court, previous to the Judicature Act, the plaintiff would have had to prove not merely that the defendant had made a false statement to the plaintiff,

but had made it, to put it shortly, with a wicked mind. Accordingly, where an action based on Common-law deceit was brought in the Court of Chancery, this had to be proved before any equitable remedy could be given; and all those cases in which the decision of the Court was based on "constructive fraud," that is, on negligence so gross as to induce the Court to treat the defendant as if he were guilty of fraud, although it is admitted that, in fact, he is not so guilty, are, when the sole ground of action is Common-law deceit, plainly erroneous. But in matters within its exclusive jurisdiction Equity took a very different view of the extent of a defendant's liability for false statements made by him from that taken by the Common law. Thus, where a contract was shown to have been brought about by a material misrepresentation, it granted rescission, however innocently the misrepresentation had been made. Moreover, outside contracts, Equity constantly imposed a duty on parties, where the law imposed none, to act or speak with reasonable care; and if they failed to do so, held them liable for the consequences precisely as if they had acted or spoken fraudulently. This is always the case where a fiduciary relationship exists between the parties, as in the case of trustee and cestui que trust, guardian and ward, parent and child, solicitor and client. But it also exists sometimes where there is no such relationship as between a purchaser of land and persons having equitable claims against it. Here, Equity imposes a duty on the purchaser to make reasonable inquiries before purchase to ascertain whether any such claims exist; and, if he fails to do so, holds him liable as if he had notice of them. In all cases—even in the last mentioned-where Equity imposed the duty of care, negligence was usually described as "fraud" or "equitable fraud." This name may be due, as the Lord Chancellor suggests in Nocton v. Lord Ashburton (L. R. [1914], A. C. 932, at p. 956), to the fact that what