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arranged signals and the Southerners under Beall's command mutinied. The adventure was given up, the adventurers returned to the Detroit River, where they abandoned the ship after stripping her of everything of value. Burley was arrested at Guelph in Canada and ordered to be extradited on a charge of robbing Ashley of a $20.00 treasury note; he escaped, became celebrated as a war correspondent and survived till June 17, 1914. That, however, is another story—the curious may read the proceedings in his case in the Upper Canadian Courts at Toronto in the Upper Canada Law Journal, Vol. 1, pp. 20, 34.

Beall also came to Upper Canada and remained for a time in Toronto, where he planned other privateering schemes. Then he took part in an enterprise which proved his undoing—we find him on December 15th on the railway track about four or five miles from Buffalo, on the way to Dunkirk, in company with Colonel Martin, C. S. A., Lieutenant Headley and Private Anderson, both formerly of Morgan's command. They tried to get a rail off the track, using a large sledge hammer and a cold chisel, but failed. Bcall then went to Port Colborne, Upper Canada, for two nights and a day, and, joined by another Confederate soldier who said he had escaped from Rock Island, they came back to Buffalo. The five made another abortive attempt to wreck the railway, and at the third attempt, succeeded in lifting a rail and laying it across the track. This was on the Lake Shore road, and was ostensibly for the purpose of effecting the rescue of three or more Con federate generals who it was believed were being removed from Johnson's Island to Fort Warren, Massachusetts. The engine struck the rail, but no great harm was done.

Beall and Anderson were arrested the next day, December 16th, at the New York Central railroad station at Niagara Falls, N. Y., the junction with the Great Western Railroad of Canada, taken to New York and lodged in Mulberry Street Police Station. While there incarcerated Beall made an unsuccessful attempt to effect his escape by bribery.

A Military Commission, or Court Martial, was convened by Major General Dix, the Major General in command of the department, under the provisions of the Act of Congress, July 2, 1864, chapter 215, and previous legislation. The Commission sat at Fort Lafayette, New York Harbor, and was composed of Gen. Warren and Gen. Norris, U. S. V., Col. Howe, Third U. S. Cav., Col. Day, U. S. Army, Lt. _ Col. O'Bierne, Fourteenth U. S. Inf., and Major Wallace, Sixth U. S. Inf. The Judge Advocate was Major Bolles, A. D. C, and the prisoner was defended by the celebrated James T. Brady, of the New York Bar. The proceedings were conducted with the utmost decorum and fairness, but the case of the accused was hopeless from the beginning. Anderson turned "State's Evidence."

The charges were two in number, 1st, "Violation of the laws of war," with six "specifications," and 2nd, "Acting as a spy,'' with three. In substance the charges were based on the Philo Parsons and Island Queen episode, and the attempt to destroy the train between Buffalo and Dunkirk.

There could be no doubt of the facts, and Mr. Brady relied upon the law. His contention that the court had no jurisdiction to try such offences was abandoned when the Judge Advocate showed him the Statute. Then he claimed that the acts complained of were cognizable by the courts of the states of Ohio and New York and that they were therefore not simply charges of "violating the rules of war;" he contended for etymological and other reasons that the accused was not a spy as the lines could not be considered to include New York and Ohio. Both Brady's address and Major Bolles' reply are admirable efforts, with all the advantage of law and fact in favor of the latter.

Beall was convicted on both counts and sentenced to bo hanged-at such time and place as the General in Command of the Department should direct. General Dix approved the verdict and appointed Governor's Island and February 18, 1865, as the place and time of execution. The order for execution was suspended to allow the Commission to be reconvened to amend a technical defect, but the unfortunate Beall was hanged by the neck until he was dead, at Governor's Island, on Friday, the 24th of February, 1865.

Osgoode Hall, William Renwick Riddell.

Toronto, Canada.


"A person commits a tort, and renders himself liable to an action for damages, who commits some act not authorized by law, or who omits to do something which he ought to do by law, and by such act or omission either infringes some absolute right, to the uninterrupted enjoyment of which another is entitled, or cause to such other some subtantial loss of money, health or material comfort, beyond that suffered by the rest of the public.1 The two essential elements, therefore, necessary to sustain the action are (1) A wrongful act or omission of duty by the defendant; and (2) Damage or loss to the plaintiff in consequence of such act, or omission." The above is taken from the opinion of Chief Judge Burke rendered in the case of Acker, Merral & Condit Co. v. McGaw.2

In our modern jurisprudence it can hardly be imagined that there can be an injury caused by a failure or omission to do an act imposed upon a party by law, and yet no cause of action can be maintained by the injured party to recover damages for his injury. Although this would be directly opposed to the above ruling of the Court of Appeals, unjust and certainly not expected of our system of jurisprudence, nevertheless such is the case.

For an example of this, suppose the following events occur in the State of Maryland:

There is a heavy snow-fall in the City of Baltimore on Monday, and the snow hy Tuesday morning has become hardened by pedestrians walking on it. Mr. Smith, who lives on Charles street, is notified Monday night to clean the snow from the pavement in front of his house, but fails to do so. Mr. Brown, while on his way to work Tuesday morning, slips on the snow in front of Mr. Smith's premises, and breaks his arm when he comes in contact with the ground.

Mr. Brown, feeling rather aggrieved over his injury, and also over the

> Moak's Underhill on Torts, 4. 2 106 Md. 536, 551.

shrinkage in his bank account due to doctor's bills and druggist's bills, pays a visit to an attorney and tells him the above recited facts.

With these facts placed before him, any attorney would say, on first blush, that a right of action certainly accrued in Mr. Brown for the injury sustained; the facts of the case certainly make a good cause of action according to the law as laid down in the Acker, Merral & Condit Co. v. McGaw.3 There was a duty imposed on Mr. Smith by law to clean the pavement abutting on his property, and he, having failed in that duty, ought to be made to respond in damages for the injury caused by his neglect.

But, if the attorney were to examine the Maryland authorities and the reports of the Maryland Court of Appeals on this proposition of law, he would learn, probably greatly to the loss and consequent sorrow of Mr. Brown {and possibly himself), that Mr. Brown has no right of action for the damages due to his injury against anyone who might possibly be responsible.

On looking up the statute law on the subject, the attorney would find the following: Article 25, section 76 of the Ordinances of the Mayor and City Council of Baltimore imposes a duty on the occupiers of houses abutting on public streets of removing all nuisances from the footpavements; if it be snow and ice, it must be removed within three hours after the snow has fallen; a penalty of two dollars is imposed, and one dollar extra for each and every day after notice has been received to remove. Section 744 of the Baltimore City Code (1906) of Laws makes the duty of the Board of Police Commissioners of Baltimore City to remove nuisances in the streets of the city and enforce the laws and ordinances of the municipality. That is all the statute law there is on the subject.

According to these statutes, there is a duty imposed on two: in the first instance, the occupier of the abutting property, and, secondly, on the Board of Police Commis

3 Supra.

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