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military law. And finally, he emphatically repudiated all concurrence in the opinion that the removal of Gordon to the proclaimed district was legally justifiable. “Assuredly," said he,“ had I known that the law would have been laid down as it is understood to have been stated, I should have felt it my duty to attend in my place in court on the occasion of the charge being delivered, and to declare my views of the law to the jury."
Mr. Justice Blackburn then gave some explanation of the way in which the misunderstanding arose. He said that he had read carefully the charge of the Lord Chief Justice in the case of Regina v. Nelson and Brand, and thought he agreed with the opinions there expressed, so far as was necessary for the purpose of his instructions to the grand jury; that the main point of the charge, on which all the judges were agreed, he had reduced to writing and read to them, and had then too briefly stated to them the other minor points of his charge. His own mind, he said, was so full of what he had been deliberating on, that he did not sufficiently explain his opinions to the other members of the court. With regard to the instructions on the evidence, however, he took the entire responsibility, and he so stated to the jury, while informing them of the agreement of his brethren on the matters of law.
The Chief Justice then reiterated bis former statement that he had heard nothing from the learned judge excepting the proposition as to the responsibility of the governor; and in this Mr. Justice Lush concurred.
SPIRITUALISM. - Lyon v. Home. It will be recollected that we were able to give only a brief abstract in our last number (2 Am. Law Rev. 792) of this interesting case. The evidence for the plaintiff, however, amounted to little more than was there stated. She claimed to have been deluded by the defendant's pretended communications from her deceased husband. Mr. Home, on his part, while he avers his belief in Spiritualism in the very curious passage which we transcribe below, brought in considerable evidence to show that the plaintiff was actuated by strong personal affection for him, and that what she did for his benefit was done mainly from this motive. The following narrative, however, is the most interesting part of his case. His answer commences as follows:
"I was born in Scotland, on the 20th March, 1833, and from my earliest childhood I have been subject to the occasional happening of singular physical phenomena in my presence, which are most certainly not produced by me, or by any other person in connection with me. I have no control over them whatever; they occur irregularly, and even when I am asleep. Sometimes I am many months, and once I have been a year, without them. They will not happen when I wish, and my will has nothing to do with them. I cannot account for them further than by supposing them to be effected by intelligent beings or spirits. Similar phenomena occur to many other persons. In the United States of America, I believe about eleven millions of rational people, as well as a great number in every country in Europe, believe, as I do, that spiritual beings of every grade, good and bad, can and do, at times, manifest their presence to us. I invariably caution people against being misled by any apparent communications from them. These phenomena occurring in my presence have been witnessed by thousands of intelligent and respectable persons, including men of business, science, and literature, under circumstances which would have rendered, even if I desired it, all trickery impossible. They have been witnessed repeatedly, and in their own private apartments, where any contrivance of mine must have been
detected, by their Majesties the Emperor and Empress of the French, their Majesties the Emperor, Empress, and late Empress Dowager of Russia, their Imperial Highnesses the Grand Duke and Duchess Constantine of Russia, and the members of their august family, their Majesties the King of Prussia, the late King of Bavaria, the present and late King of Würtemburg, the Queen of Holland, and the members of the royal family of Holland; and many of these august personages have honored, and I believe still honor, me with their esteem and good-will, as I have resided in some of their palaces as a gentleman and their guest, not as a paid or professional person. They have had ample opportunities, which they have used, of investigating these phenomena, and of inquiring into my character. I have resided in America, Eng. land, France, Italy, Germany, and Russia, and in every country I have been received as a guest and friend by persons in the highest position in society, who were quite competent to discover and expose, as they ought to have done, any thing like contriv. ance on my part to produce these phenomena. I do not seek, and never have sought, the acquaintance of any of these exalted personages. They have sought me, and I have thus had a certain notoriety thrust upon me. I do not take money, and never have taken it, although it has been repeatedly offered me for or in respect of these phenomena or the communications which appear to be made by them. I am not in the habit of receiving those who are strangers to me and I never force the subject of Spiritualism on any one's attention. I trust that I am a sincere Christian. I conscientiously believe, as all the early Christians did, that man is continually surrounded and protected or tempted by good and evil spirits. I have, in my circle of friends, many who were not only infidels, but atheists, until they became convinced, by the study of these phenomena, of the truth of immortality; and their lives have been greatly improved in consequence. Some of the phenomena in question are noble and elevated; others appear to be grotesqne and undignified. For this I am not responsible, any more than I am for the many grotesque and undignified things which are undoubtedly permitted to exist in the material world. I solemnly swear that I do not produce the phenomena aforesaid, or in any way whatever aid in producing them."
The opinion of V.C. Giffard deals mainly with the facts. He regards the true principle as laid down in Hatch v. Hatch, 9 Ves. 292, 296, where Lord Elden says, “This case proves the wisdom of the court in saying that it is almost impossible in the course of the connection of guardian and ward, attorney and client, trustee and cestui que trust, that a transaction shall stand purporting to be bounty. The court cannot permit it, except quite satisfied that it is an act of a rational consideration, an act of pure volition, uninfluenced ; and that inquiry is so easily baffled in a court of justice, that, instead of the spontaneous act of a friend uninfluenced, it may be the impulse of a mind misled by undue kindness or forced by oppression. Therefore, if the court does not watch these transactions with a jealousy almost invincible, in a great majority of cases it will lend its assistance to fraud.” The Vice Chancellor's opinion closes in the following words :
“I have now only a few words to say in conclusion. I know nothing of what is called Spiritualism,' otherwise than from the evidence before me, nor would it be right that I should advert to it, except as portrayed by that evidence. It is not for me to conjecture what may or may not be the effect of a peculiar nervous organization, or how far that effect may be communicated to others, or how far some things may appear to some minds as supernatural realities, which to ordinary minds and senses are not real. But as regards the manifestations and communications referred to in this cause I have to observe, in the first place, that they were brought about by some means or other after, and in consequence of, the defendant's presence,– how, there is no proof to show; in the next, that they tended to give the defendant influence over the plaintiff, as well as pecuniary benefit ; in the next, that the system, as presented by the evidence, is mischievous nonsense, well calculated, on the one hånd, to delude the vain, the weak, the foolish, and the superstitious; and, on the other, to assist the projects of the needy and of the adventurer; and lastly, that, beyond all doubt, there is plain law enough and plain sense enough to forbid and prevent the retention of acquisitions such as these by any 'medium,' whether with or without a strange gift,' and that this should be so is of public concern, and (to use the words of Lord Hardwicke) of the highest public utility.'”
Mr. Home, apparently not satisfied with conducting the defence of his equity suit, has brought an action in the Common Pleas against Mrs. Lyon, to recover the value or return of certain jewels, and articles of wearing apparel, in her possession, which she alleges were presents to her from him. The case is not yet determined.
TRADE MARKS. — A case which came recently before one of the appellate tribunals in France reminds one somewhat of Burgess v. Burgess, 3 D., M., & G., 896, in which the late Lord Justice Knight Bruce delivered one of his most celebrated judgments. In the English case, the plaintiff, Mr. Burgess, had succeeded to the business of his father, the original vendor of “ Burgess's Anchovy Sauce ; " and the proceeding which he sought to restrain by his bill was the act of his own son, who set up a shop in the city, and there sold a composition of his own manufacture under the name of “Burgess's Anchovy Sauce.” The Lords Justices decided for the defendant, Sir James Knight Bruce saying, in a very well known judgment, “ All the Queen's subjects have a right to sell pickles and sauces if they will, and not the less that their fathers have done so before them. All the Queen's subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers! nor is there any thing else that this defendant has done in question before us. . . . He carries on business in his own name, and sells his essence of anchovies as Burgess's Essence of Anchovies,' which in truth it is."
In the French case, a wine merchant, of some ingenuity, named Blondeau, discovered a widow lady whose husband, while alive, had borne the name of Clicquot; he took this lady into partnership, and advertised his wine as that of "Veuve Clicquot et Cie.;" a name which many people had heard before. The successors of the original Madame Clicquot thereupon instituted proceedings against M. Blondeau and her namesake before the Civil Tribunal of the Seine, and, the matter coming eventually before a higher tribunal, the court, having satisfied itself that the partnership had been got up to deceive the public, condemned M. Blondeau in 30,000 francs damages and costs, and ordered a change in the name of the partnership.
Here the wine sold was undoubtedly as much the wine of “ Veuve Clicquot et Cie." as the sauce sold by the defendant in Burgess v. Burgess was “ Burgess's Essence of Anchovies.” The decisions do not, however, necessarily show that the arm of justice is, in such cases, weaker in France than in England. The French court was satisfied that an imposition was intended: the English court would not presume that from the mere identity of names. As Lord Justice Turner put it, the question in such cases is one of evidence whether there is false representation or not. French courts have not the stringent rules of evidence which govern our own, and occasionally this may afford a remedy where an English tribunal could have awarded none; but in the majority of cases a strict and intelligible rule must be far more acceptable to suitors than an arbitrary discretion intrusted to the judge; and we should be sorry to exchange the former for the latter. This Clicquot case, so far as the main circumstances go, bears a marked resemblance to Burgess v. Burgess, but very possibly a complete knowledge of the facts would show that the circumstances were such as would have induced an English court of equity to regard the transaction as fraudulent, or amounting to sufficient evidence of intentional misrepresentation. – Solicitors' Journal.
MARRIAGE AND DIVORCE. — The case of Shaw v. Gould, on which judgment was given by the House of Lords last week, illustrates the anomalous state of our existing laws with regard to marriage and divorce, and proves a necessity as urgent for legislation on the subject as that which led to the passing of 26 Geo. 2. c. 33. The facts are shortly these: On the 18th of June, 1828, a marriage was solemnized at Manchester, between Elizabeth Hickson, a girl under seventeen years of age, and a man named Buxton. Attempts were made to get rid of the marriage by an Act of Parliament, but without success, and in the month of December, 1838, Buxton and his wife joined in a deed of separation, under which certain benefits were secured to Buxton, in consideration of which he covenanted that his wife, who was described by her maiden name of Elizabeth Hickson, should be at liberty to live separate from him as if she were unmarried. The parties continued to live separate, and Buxton, from the time of the separation, if not before it, lived in adultery with a woman named Sarah Lant. In the year 1845, a gentleman named John Shaw, then studying for the English bar, formed an attachment for Mrs. Buxton, who was always designated by her maiden name, and he proposed to marry her. In order to accomplish this object, be resolved to take the necessary steps towards being called to the Scotch bar. In March, 1845, both Mr. Shaw and Elizabeth Hickson went to Edinburgh, and for ever afterwards they were resident in Scotland. In the month of September following, Buxton also went to Scotland, and when he had been there above forty days an action of divorce was raised against him by his wife before the Court of Session, founded upon the undisputed fact that he was living in adultery with Sarah Lant. The action was duly prosecuted, and the decree of divorce thereon was pronounced by the Court of Session, on the 20th of March, 1846. In the following month of June, a marriage, valid by the laws of Scotland, was duly celebrated in Edinburgh, between Mr. Shaw and Elizabeth Hickson, of which marriage there was issue three children.
The question which the House had to decide was, whether the three children of the Scotch marriage were legitimate or illegitimate for the purpose of inheritance in England; and this turned simply upon the point whether the decree of the Scotch Court of Session, in 1846, dissolved the English marriage of 1828. That the decree would have this operation quâ Scotland, and that, therefore, the children of the Scotch marriage are legitimate in Scotland, admits of no doubt, although it is an open question whether the validity of the Scotch marriage under the circumstances could be recognized by the tribunals of any foreign country,