The cases of Driefontein Co.'s Mines v. Jansen, and West Rand Central Gold Mines Co. v. Rougemont in the Commercial Court, where the owners of gold commandeered by the Transvaal Government in its export sought to recover under insurances upon it "against all risks or theft, or arrest by agents of the S.A.R.," are only of interest in this connection as being decided in the plaintiffs' favour on the ground that no state of war existed at the time of seizure, and an existing intention to wage war was not an act of war.

In Thierry v. Chalmers the Court of Chancery has recognised the right of the tuteur of a domiciled Frenchman, judicially declared lunatic in France, to have the lunatic's property in England transferred to him, in accordance with the general principles of private international law.

X.-NOTES ON RECENT CASES (ENGLISH).

In the case Reg. v. Baines (109 L.T. 130), Baines, a married woman, was found guilty and sentenced on an indictment charging her, together with her husband and others, with receiving property, knowing the same to have been stolen. Her counsel submitted, on the authority of Reg. v. Archer and others (1 Moody C.C. 143), that the conviction was bad, inasmuch as the charge, being a joint one, the question of a separate receiving by her had not been left to the jury, and it was submitted that it was too late after sentence to cure the verdict by asking the jury whether the prisoner was guilty of a separate receiving. The Deputy-Chairman of Liverpool County Quarter Sessions, however, over-ruled the objection, and asked the jury whether the prisoner was guilty of a separate receiving or not. The above question being reserved for the consideration of the Court for Crown Cases Reserved, the Court

(Lord Russell, C. J., Lawrence, J., Wright, J., Channell, J.’ and Bucknill, J.) held that the case as stated disclosed ample evidence of a separate receiving by her, and that she was not then acting under the influence of her husband. It is clear that the Deputy-Chairman should have told the jury that the mere fact of a marital relation did not raise any presumption of the husband's control. In deciding Brown v. Attorney General for New Zealand ([1898] A.C. 234) the Privy Council pointed out that the mere presence of the husband at the time of the commission of an offence, without more, does not furnish a presumption of marital control. But any difficulty as to whether the respective acts of the husband and of the wife may be regarded as separate crimes is removed by section 94 of 24 and 25 Vict., c. 96, which enacts that if upon the trial of two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have received any part or parts of such property. But the Court wisely refrained from arriving at a conclusion on the second point submitted to it, the Lord Chief Justice saying, "it is not necessary to consider it for the purposes of the present case; I should hesitate for a long time before I could arrive at the conclusion that the course taken was a proper one." We may add that the decision on the first point is quite consistent with Reg. v. Cohen (11 Cox 99), and with the collateral point in Reg. v. John (13 Cox 100).

The Court of Crown Cases Reserved has also dealt with an important question of evidence in Reg. v. Ollis (109 L.T. 225). The prisoner was charged at the Bath Quarter Sessions in respect of several transactions, one of which was the subject of the first indictment, and the other two were the subject of the second indictment. The prisoner was

acquitted on the first indictment. On the trial of the second indictment, the counsel for the prosecution called the prosecutor in the first case to prove the transactions of the prisoner with him, as being relevant to the charges then before the Court and as negativing any reasonable belief on the part of the prisoner that there was money at the Birkbeck Bank to meet these or other cheques, the prisoner having in all the cases obtained money from divers persons by cheques drawn on the above Bank, where he had had no active account for many years. He was, moreover, an undischarged bankrupt. The Recorder objected to the evidence of the prosecutor in the former case being adduced, but ultimately, on being pressed, consented to it being given. He, however, on the prisoner being convicted, reserved the point for the consideration of the Court for Crown Cases Reserved. This Court (Lord Russell, C. J., Mathew, J., Grantham, J., Wright, J., Darling, J., and Channell, J.) decided-Bruce, J., and Ridley, J., in part dissenting-that the evidence adduced by the prosecution was quite admissible, and that the prisoner was properly convicted. The Court relied on Reg. v. Francis L.R. 2 C.C. 128; Reg. v. Rhodes [1899] 12 B. 77; Reg. v. Westwood, 4 C. & P. 547; and Reg. v. Birchenough, 1 Moody C.C. 477; these two last being found through the industry of Grantham, J. It is clear that the real test is, was the first charge the same as that on which the prisoner was being charged again, or was the evidence necessary to support the second indictment sufficient to prove a legal conviction on the first? If not, the evidence on the first indictment could be used again, because it was being used in a different case and on a different charge.

The question of trespass on a highway was carried to the Court of Appeal in Hickman v. Maisey (108 L.T. 515).

It arose through the plaintiff possessing a piece of land through which a public highway ran. The plaintiff had let land on each side of the highway to a trainer of racehorses for the purpose of exercising and training them. The defendants, owners of a newspaper, made a practice of recording the doings of the horses, and often continued for an hour and a half walking up and down the highroad in front of them. On the plaintiff seeking an injunction restraining any repetition of such acts, the defendants justified their action as being a legitimate user of the highway. The plaintiff succeeded both in the Court of Appeal (Smith, L. J., Collins, L. J., and Romer, L. J.) and in the Court below. The contention of the defendants was that the entry on the highway being lawful in itself, it was not rendered unlawful because it was used for the purpose of business, instancing the case of a hawker or carrier. The true rule of law, we submit is laid down in Reg. v. Pratt (25 L.T.R. 65, and 4 E. & B. 860); the land in question in that case was a highway, and the prosecutor was the owner of the soil. The prisoner was charged with trespassing on land in pursuit of game. He did not go on the highway for the purpose of using it as a highway, but solely for the purpose of searching for game. Lord Chief Justice Campbell says, in that case, that Pratt "was beyond all controversy on the land, the soil and the freehold of which was in the owner of the adjoining land. It is true the public had a right of way there, but subject to that right the soil and every right incident to the ownership of the soil was in the prosecutor." Pratt, being on that land, was undoubtedly a trespasser if he went there not in exercise of the right of way, but for the purpose of seeking game. The legitimate use of a highway is generally described as a "right of passage," or a right of passing and repassing. In I Rolle's Abridgment, (392 B. pt. 1, 2) referred to and adopted by Lord Mansfield in Goodtitle v. Alker (1 Burr 133, at p.

143), it is stated "the King has nothing but the passage for himself and his people, but the freehold and all profits belong to the owner of the soil." It is clear that trespass will lie for any interference with the owner's rights in the soil of a highway, and he may maintain ejectment for an exclusion, as by a building upon the soil of the highway.

In Nickoll and Knight v. Ashton, Edridge and Co. (109 L.T. 6c), the plaintiffs claimed damages for breach of contract by the defendants. The defendants had sold the plaintiffs a cargo of Egyptian cotton-seed to be shipped on the steamship Orlando, during last January. In the pre

ceding November, but after the contract, the ship had been stranded, and could not be made ready in sufficient time to receive the cargo. The plaintiffs claimed damages for the difference between the contract price and the market price on January 31st. The defendants alleged that as the performance of the contract had become impossible, they had not committed a breach of it, and were therefore not liable. It was held by Mathew, J., sitting in the Commercial Court, that the contract, having become impossible of performance, was at an end, that a condition to that effect ought to be implied in the contract, and that the defendants must succeed in the action. This judgment seems to be consistent with what was laid down by Blackburn, J., in Taylor v. Caldwell (8 L.T.R. 358, and 2 B. & S. 839), viz. :— "The principle seems to us to be that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance." The same principle was applied in Appleby v. Myers (L.R. 2 C.P. 651). There the plaintiffs undertook to erect certain machinery upon the defendant's premises, and keep it in