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war was going on in the United States. The ship belonged to a citizen of a Northern State, the cargo was the property of neutrals. The master of the ship being out of his reckoning, and supposing he had passed Cape Hatteras, changed his course, and consequently went on shore about ten miles south of the Cape, without any possibility of getting off. The light on Cape Hatteras, when burning, was visible from twenty to thirty miles; but it had been extinguished by the Confederates, for the purpose of harassing the United States shipping
The Confederate officers came on board the vessel, took off the crew, and detained them as prisoners. The wreck took place on the 17th of July; on the 18th, the weather was so rough that nothing could be done. But on the 19th, certain “wreckers ” salvors," appointed by the United States Government, came down, and got 650 bags on shore; and might have got on shore 1000 bags more, but for the interference of the Confederate troops. On the 20th, the weather became boisterous, and the ship broke up. Held, that the insurers were liable as for a partial loss, in respect of the coffee which could not have been saved, — the proximate cause of the loss being a peril of the sea, and not the extinguishing of the light; but that, as to so much of the cargo as was saved, or might have been saved but for the interference of the Confederates, this was a loss within the warranty.
Gambart v. Ball, p. 306, decides that the piracy of an engraving by photography is within the English Copyright Acts.
The following document was held a mere memorandum, requiring neither a promissory note nor an agreement stamp: “I., J. D., have this day borrowed of J. C. 3001., at 41. per hundred, payable yearly." Cory v. Davies, p. 370.
A. brought 250 bales of cotton, part of a cargo of 500 (of one mark) landed and warehoused in the Mersey docks. On landing, the bales were sampled and numbered, and a warrant was handed by the warehousemen to A. for 250 bales “numbered from 1 to 250," as having been entered for him. The warehousemen having inadvertently delivered 200 of the 250 bales, offered A. a fresh warrant for other numbers; but he declined this, and sued them in trover. Held, that, assuming this to have been an appropriation of the specific bales to A., there having been no assent by him to such appropriation, express or implied, no property passed. Campbell v. Mersey Docks and Harbor Board, p. 412. There is an American note to this case.
The head-note to Dresser v. Norwood, p. 574, is punctuated so as to give a wrong sense. It should read thus : A principal is (at law) affected with notice of all circumstances which come to the knowledge of his agent in the course of his employment as such: but not with knowledge acquired by him aliunde.
A. placed goods in the hands of H., a factor, for sale on a del credere commission. B. bought them through the agency of C., a broker, who had prior knowledge of the fact that they were the property of A., which knowledge, however, was not communicated to B., who purchased bona fide, although he knew that H. was in the habit of selling goods as factor. Held, that B., not being affected by the knowledge of C., was entitled to set off against the price of the goods so bought for him a debt due to him from H.
An infant — a Cambridge undergraduate — hired a mare for a ride along the road, being expressly told that she was not fit for leaping. The infant allowed a friend to ride her, and to leap her over a fence, in doing which she fell on a stake and was so injured that she died. The owner of the mare brought an action against the defendant. The jury found that the hiring a mare for a ride was a necessary suitable to the defendant's station in life. The Court of Common Pleas, without deciding whether this finding could be supported, sustained the verdict for the plaintiff, on the ground that the defendant had been guilty of a tort. As Willes, J., says, “ The act of riding the mare into the place where she received her death-wound was as much a trespass, notwithstanding the hiring for another purpose, as if, without any hiring at all, the defendant had gone into a field and taken the mare out and hunted her and killed her. It was a bare trespass, not within the object and purpose of the hiring. It was not even an excess. It was doing an act towards the mare which was altogether forluidden by the owner.” Burnard v. Haggis, p. 45.
An infant, under seven years, cannot be guilty of a felony; therefore where A. gave a child into custody for stealing wood from his premises, and the magistrate discharged the child because less than seven years old, and the child afterwards, by his next friend, brought a suit for false imprisonment against A., the court held that the plea of felony was no defence to the action, and refused to disturb a verdict for the plaintiff for 201. Marsh v. Loader, p. 535.
Reports of Cases Argued and Determined in the Courts of Exchequer and Es
chequer Chamber. Vol. III. Easter Term, 27 Vict. to Trinity Vacation, 29 Vict., both inclusive. By E. T. Hurlstone and F. J. COLTMAN, Esquires. With additional cases decided during the same period, selected from the contemporaneous Reports. With References to Decisions in the American Courts. James Parsons, Esq., Editor. Philadelphia : T. & J. W. Johnson & Co. 1869.
One more volume, the Fourth of Hurlstone and Coltman's Reports, will bring the series of Exchequer Reports down to the beginning of the uniform series of Law Reports, which commenced with the year 1866. We trust the American publishers will no longer delay in giving to the profession this volume, as well as the volumes which remain to complete their series of Common Law Reports in the Courts of Queen's Bench and Common Pleas.
The Third of Hurlstone and Coltman, now before us, contains cases decided in the Court of Exchequer, and on writ of error or appeal from that court in the Court of Exchequer Chamber during the years 1864 and 1865.
Among the cases which have been carried to higher courts since the publication of the volume, are Roberts v. Rose, p. 162; affirmed, (Exch. Ch.) Law Rep. 1 Ex. 82, 1 Am. Law Rev. 176; Attorney General v. Lord Lilford, p. 239, affirmed, (H. L.) sub nom. Lord Lilford v. Attorney General, Law Rep. 2 H. L. 63 ; Carr v. Lambert, p. 499, affirmed, Law Rep. 1 Ex. 168, 1 Am. Law Rev. 111; Oakley v. Monck, p. 716, affirmed, Law Rep. 1 Ex. 159, Am. Law Rev. 168. The important case of Fletcher v. Rylands, p. 774, which was decided by Chief Baron Pollock and Baron Martin against the opinion of Baron Bramwell
, was reversed by the Court of Exchequer Chamber, Law Rep. 1 Ex. 265, 1 Am. Law Rev. 294, and the judgment of the latter court has recently been affirmed in the House of Lords sub nom. Rylands v. Fletcher, Law Rep. 3 H. L.
330. The decision in Strick v. De Mattos, p. 22, has been affirmed by the Court of Exchequer Chamber, in the similar case of Wood v. De Mattos, Law Rep. 1 Ex. 9, 1 Am. Law Rev. 104; and the Court of Common Pleas, and on appeal the Court of Exchequer Chamber in the case of Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 600, 1 Am. Law Rev. 287, and Law Rep. 3 C. P. 476, 3 Am. Law Rev. 281, have agreed with the decision made at the 283d page of the present volume in Lloyd v. General Iron Screw Collier Co. There are many cases of no interest to the profession in America, including a very large number on the construction and effect of composition deeds under the Bankruptcy Acts.
Among the more important decisions are the following:
Stockport Waterworks Co. v. Potter, p. 300. In this case, the head-note is, “ A riparian proprietor derives his rights in respect of the water from possession of land abutting on the stream; and if, by a deed which conveys only land not abutting on the stream, he affects to grant water rights, the grant, though valid as against the grantor, can create no rights for an interruption of which the grantee can sue a third party in his own name. (Per POLLOCK, C. B. and CHANNELL, B.; BRAMWELL, B., dissentiente.)
"The abstraction of water from a natural stream, openly, and under a claim of right, for a period of twenty years, to a tenement not abutting on the stream, will create no easement to have pure water flow down the stream to the point of abstraction."
A lease for twenty-one years, determinable at the end of seven or fourteen, if the parties so think fit, is not determinable without the joint assent of lessor and lessee. Fowell v. Tranter, p. 458.
La Touche v. La Touche, p. 575. A promissory note given by a married woman as a security for advances made to her husband, and which in equity binds her separate estate, is a good consideration for another promissory note given by her after her husband's death for a balance then due, although the former note is barred by the Statute of Limitations. There is an American note to this case.
The plaintiff instructed the defendants, cotton brokers, to purchase for him fifty bales of cotton. The defendants, being also employed by other principals, made a contract in their own names for the purchase of three hundred bales, and having informed the plaintiff that they had purchased fifty for him, he paid them part of the purchase-money. Held, that the plaintiff was entitled to recover back' the money, as upon a failure of consideration, since the defendants had never made the contract which he bad authorized them to make. — Bostock V. Jardine, p. 699.
Where the master of a ship signs a bill of lading in his own name, and is sued upon it, and judgment is obtained against him, an action will not lie against the owner of the ship upon the same bill of lading, although satisfaction has not been obtained on the judgment against the master. Priestly v. Fernie, p. 977. This is contrary to a remark of Judge Story in his Treatise on Agency, $ 295.
There are several cases on the liability of a master for the negligence of his servants. Murphey v. Caralli, p. 461; Hall v. Johnson, p. 589; Brown v. Accrington Cotton Co., p. 510, to which last there is an American note. But the most curious of these cases is Williams v. Jones, pp. 256, 602. The plaintiff lent his shed gratuitously to the defendant to make therein a sign-board, and one Davies, a carpenter employed by the defendant, lighted his pipe from a match with a shaving which he dropped, and thereby set fire to the shavings on the ground, by which the shed was burned. The court held that the defendant was not liable as bailee of the shed, and after great consideration and some doubt they further held, that a person who employed another for a sum of money to do certain work, was not responsible because the person employed lights his pipe, "a very common and natural act.” An appeal was taken from this decision to the Court of Exchequer Chamber, which is reported on page 602 of the present volume. The decision of the Court of Exchequer on this “ nice and puzzling" question was affirmed in the appellate tribunal by the judgment of Erle, C.J. and Keating and Montagu Smith, JJ.; against the opinion of Blackburn and Mellor, JJ.
Mr. Justice Keating, who delivered the opinion of the majority of the court, says, " That a master is liable for the negligence of his servant in the course of his employment, admits of no doubt; and if it could be said that the act of lighting a pipe of tobacco for the purpose of smoking it was in any way connected with the making of the sign-board, which alone Davies was employed by the defendant to do, there would be no difficulty in saying the master would be liable, but we can see no such connection. It was not necessary that he should smoke in order to make the sign-board, nor was the act of lighting the pipe in any way whatever for the benefit of his master, or in furtherance of the object of his employment. It is said he was negligent whilst using the shed, and that in a sense is true. It seems to us, however, that in order to make the master liable, the servant must not only have been negligent in using the shed, but in using it for the purposes of his master and in the course of his employment.”
Mr. Justice Blackburn, on the contrary, says, “ It is said that Davies, the servant, was not employed by his master to smoke or to light his pipe, and that is no doubt true; but the act of lighting a pipe was, in itself, a harmless act; it only became negligent and a breach of duty towards the plaintiff, because it was done when using his shed and working there amongst inflammable materials. Had the action been brought against Davies himself, it could not have been maintained for merely lighting his pipe, but that under the circumstances would have been evidence that he failed to take reasonable care when using the plaintiffos shed and working there, which would have been the true ground of action. The action would have lain against Davies personally for negligence in doing that very thing which he was employed by the defendant to do as his servant, and not otherwise. It seems to me, therefore, that it was negligence in the course of his employment, such as to be in law the negligence of his master, the defendant.” The feeling with which the learned judges regard the use of tobacco seems to be indicated by their language. Thus, Mr. Justice Blackburn, as we have seen, says, “ The act of lighting a pipe was in itself a harmless act," while Mr. Justice Keating speaks with greater reserve.
“ The act of lighting : pipe for the purpose of smoking tobacco may, under certain circumstances, be a harmless act,” and he likens it to “the setting fire to squibs.”
At the end of the volume, are printed three cases from the 11 House of Lords Cases. Parker v. Tootal; Attorney General v. Earl of Sefton; and Mersey Docks Trustees v. Gibbs. In this last, it was decided that a corporation authorized to perform particular work, and receiving tolls in respect of it, though obtaining no profit for itself from such tolls, but collecting them for the maintenance of the work, and the possible future benefit of the public, is responsible for injuries arising from the improper performance of such work, and the funds thus obtained must discharge that liability.
We have before spoken with disapproval of this method of patching a few cases from the House of Lords Reports on at the end of the American reprints of the cases in the Superior Courts. We heartily wish that some law publishers could be found enterprising enough to republish a complete series of the cases in the House of Lords; as the price of the English editions is so very high as practically to place them beyond the reach of most members of the profession.
The Tennessee Digest. A Digest of the Judicial Decisions of the State of Ten
nessee, from the Year 1796 to July, 1868, with Notes. By HENRY CLAY KING. In Four Volumes. Boston: Little, Brown, & Co. Memphis : Cleaves, Smithwick, & Hatcher. 1869.
THERE has been, we believe, no Digest of the Tennessee Reports since that of Meigs was published, more than twenty years ago. The present comprises the whole series of the Reports which have been published up to the present time. A point on which we have spoken again and again in noticing American Digests and Reports, and generally with blame rather than praise, is the method in which references are made from one head to another. It is hardly possible to dwell too strongly on the importance that this should be done thoroughly; and in this respect Mr. King's Digest deserves unqualified praise. The cross-references are very full and complete; indeed, all the methods adopted to secure ready reference are good, especially what may be called the tables of contents at the head of each long article.
It is rather hard to grumble at the large and handsome pages of this book, but if the compiler had used a smaller type, and perhaps condensed a little some of the statements of law, we should think he might have succeeded in getting the book into two volumes, instead of four, which would have been a convenience. As it is, the volumes are of such moderate dimensions, that we should recommend that they be bound as two volumes.
United States District Court Reports. Second Circuit. By ROBERT D. BENE
Vol. I., No. 3. New York: Baker, Voorhis, & Co. 1869. This number contains cases decided by Judges Benedict, Blatchford, and Shipman, in June and July, 1867. Among these cases are five relating to Bankruptcy, four to Collision, two to Revenue, one to Salvage, and several to Admiralty.
In The Steamer Merrimac, a regiment of soldiers were allowed to recover for salvage services rendered the vessel on which they were being transported, ' under a contract between the United States and the owners of the vessel.
In The Sailor Prince, p. 234, an interesting question arose respecting the right of an Admiralty Court to proceed against freight-money in an action by seamen for their wages, the freight-money having been previously attached in a State court in a suit against the owners of the vessel by other persons. The