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that she had put her father out of the way because he opposed her marriage with the man who proved her accomplice I
We have on the present, as on many former occasions, respectfully but earnestly recommended to our illustrious neighbours the adoption of some rules like our own, for confining -the charge to a concise statement of the offence according to the law, and excluding from the inquiry all hearsay evidence, and all matters, however proved, which do not touch the question. Very far indeed are we from holding up our system as free from defects-nay, as incapable of improvement by borrowing some part of theirs. Their examination of the prisoner by the judge, we hold to have the same effect of defeating the ends of justice which the barbarous and now happily exploded practice of torture had ; we regard it as a species of torture, which may obtain confession or half confession from a person of weak nerves or imperfect understanding, and which to a determined and resolute person can only be the cause of uneasiness, without the least tendency to elicit the truth. But we can see no reason whatever for refusing the extension of Lord Brougham's most salutary act to criminal cases, when we know what an important reform it has produced in our civil procedure; that is, allowing a defendant to be heard if he is willing to undergo cross-examination, though here we should be for confining that cross-examination to the counsel for the prosecution, and not run the risk of the French practice being introduced, which gives the judge this power. The protection of witnesses in all ctfses, civil as well as criminal, from all self-crimination, we conceive also to be against every principle, and that here we may well take a. leaf out of our neighbour’s book. Another thing in which the French and the Scotch criminal procedure is better than our own, and a matter of some importance, is the requiring a list of the witnesses for the prosecution to be served upon the prisoner, leaving it always in the court’s power to postpone the trial on account of evidence very recently obtained. The French procedure gives persons acquitted considerable facilities of obtaining damages from prosecutors, or from persons who have, by information to the autho
rities, given rise to the prosecution. N0 redress, however, is given where the authorities have acted upon their own information, acquired in their ofiicial capacity.— Code Crim., c. iv. sec. 2.
If it were required to show how little we regard our juries as perfect, any more than our procedure, we might ref'er to such cases as have very recently occurred ; as, for example, when eleven of the twelve jurymen had so entirely made up their
minds to convict before hearing the judge’s summing up, inna
case of conflicting testimony of scientific men, and consequently a case peculiarly requiring the assistance and direction of the judge. Here, however, the most reprehensible conduct of the prisoner, by his own admission, had so entirely impressed the jury with a belief of his guilt, that they readily convicted him of murder, because he did not deny having committed bigamy. It appeared from what followed, that the learned judge's summing up would only have confirmed their impression, though upon more solid grounds.
The Right to the Support of Land and Builolings—Times when Right of Action accrues.
THE case of Solomon v. The Vintners’ Company, is thelatest of a very large class of cases, in which questions have arisen respecting the rights which an owner of lands or buildings has to their lateral or vertical support, by adjoining or neighbouring lands or buildings, or by the underlying strata belonging to another owner. The cases comprised in the class to which we refer, treat of the nature of these rights, the mode of acquiring them, and the extent to which they may be qualified or relinquished by mutual agreement between the respective owners, or by other circumstances. To these cases we shall confine our attention in the present Number, reserving for our next Number the consideration of another class of cases, of which Bonomi v. Backhouse may be taken as the type ; and in which disputes have arisen respecting the time at which the right of action accrues for an infringement of the rights in question.
The right of an owner of land to the lateral support of its surface in its natural state by adjoining land, appears to have been recognised—though not very decidedly——in the early case of Wilde v. Mmsterley, in the report of which, in Rolle’s Abridgment (vol. ii. p. 564, Trespass-—Justification, pl. 1), the following passage occurs:—“Semble gue /lome que ad terre proclzein aq'jo_ynant al mon terre ne poet foder son terre tum prope mon terre 1/ue per ceo man terre alera en son pit; et pur ceo si Faction ust estre port pur ceo, ceo giseroit.” Lord Tenterdeu, in Wyatt v. Harrison (3 B. Ad., 871), was not more decisive on the point; but he observed that “it may be true that, if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall, he may he liable to an action.” These cases, however have always been treated as authorities on this point ; and ulti
rnately it was laid down by Lord Campbell, in delivering the judgment of the court in H umphries v. Brogden (12 Q. B, 739), that the right in question was a right of property passing with the soil.
In Gale on Easements (1st. ed., p. 216), it was suggested that “ as far as the mere support to the soil is concerned, such support must have been afforded as long as the land itself has been in existence, and it would seem in all those cases, at least in which the owner of land has not by buildings or otherwise increased the lateral pressure upon the adjoining soil, that he has acquired by such ancient enjoyment a. right to the support of it, rather as a. right of property, than as an easement, as being necessarily and naturally attached to the soil.” Lord Campbell, although using the term, “right of property” in the passage we have quoted from his judgment, yet throughout H umphries v. Brognle-n, and also in his jl1'lgfi‘lPnt. in Rowbotham v. Wtlson (6 E. & B., 593, 25 L. J. Q. B., 362), treated this right as an “easement;" but, in the last-mentioned case in error (8 E. & B., 123, 27 L. J. B. 61), the judges appear to have agreed that it was not an easement, or in the nature of an easement, but a natural right of the same character as the right to flowing water. In Solomon v. The Vintners’ Company, and in Bonomi v. Bac/chouse, this point was on the authority of Rowbotham v. Wilson in error taken to be well settled.
The right to the vertical support of the surface of land in its natural state, is, also, like that to lateral support, a natural right. In the case of T /ze Earl of Lonsdale v. Littledale (2 H. Bl. 267) in which a question arose as to such vertical support, the declaration contained no express allegation of the right, and it is supposed 1 that the omission could not have been important, but that the right must have been deemed one to be recognised as a matter of course by the Court, otherwise such omission would have been relied on, rather than the objection that a peer of parliament was not liable to be sued in the Court of King’s Bench by hill.
The point was fully discussed and finally settled in H umphries V. Brogden. In that case the plaintiff was possessed of certain closes, and a coal company, represented by the defendant, their secretary, were lessees under the Bishop of Durham of the coalmines under the closes; but there was no further evidence of the title or tenure of the closes or mines. Here, also, the declaration contained no allegation that the plaintiff was entitled to have his closes supported by the underlying minerals, and it was contended that the declaration was on that ground defective. But the court
held that such an allegation was unnecessary to raise the question,‘
whether the company were bound to leave props to support the surface? “If,” said Lord Campbell, “the easement which the plainti_fi' claims exists, it does not arise from any special grant or reservation, but is of common right—-created by the law-——s0 that we are bound to take notice of its existence. . . . We have, therefore, to consider whether, when the surface of land (by which is here meant the soil lying over the minerals) belongs to one man, and the minerals belong to another-—no evidence of title appearing to regulate or qualify their rights of enjoyment—the owner of the minerals may remove them without leaving support sufficient to maintain the surface in its natural state. This case is entirely relieved from the consideration, how far the rights and liabilities of the owners of adjoining tenements are affected by the erection of buildings; for the plaintiff claims no greater degree of support for his lands than they must have required and enjoyed since the globe subsisted in its present form. . . . . We are of opinion that the owner of the surface, while unincumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. Those strata may, of course, be removed by the owner of them, so that a suflicient support for the surface is left; but if the surface subsides, and is injured by the removal of those strata—a1though, on the supposition that the surface and the minerals belong to the same owner, the operation may not have been conducted negligently, nor contrary to the custom of the country——the owner of the surface may maintain an action against the owner of the minerals for the damage sustained by the subsidence. Unless the surface close be entitled to this support from the close underneath, corresponding to the lateral support to which it is entitled from the adjoining surface close, it cannot be securely enjoyed as property; and under certain circumstances, as where the mineral strata approach the surface, and are of great thickness, it might be entirely destroyed. We likewise think, that the rule giving the right of support to the surface upon the minerals, in the absence of any express grant, reservation, or covenant, must be laid down generally, without reference to the nature of the strata, or the difliculty of propping up the surface, or the comparative value of the surface and the minerals. We are not aware of any principle upon which qualifications could be added to the rule, and the attempt to introduce them would lead to uncertainty and litigation. . . Something has been said of a right to a reasonable support for the surface; but we cannot measure out degrees to which the right may extend, and the only reasonable support is that which will protect the surface from subsidence, and keep it securely at its ancient and natural level. The defendant’s counsel have argued, that the