379). The entirely untenable doctrine was set up that a native-born Victorian is under some peculiar and special subjection to the jurisdiction of Victoria, so that a Victorian judgment is always to be recognised as valid against him, though an English or a Nova Scotian one would not. Put in this form, of course the contention failed. And the view, which seems to flow necessarily from the admission of allegiance as a ground of jurisdiction, that a decision of any of the King's Courts against any of the King's subjects may be enforced in England is productive of too startling practical consequences to be readily admitted. The conclusion must be that, when allegiance is recognised as a ground of jurisdiction, it is foreign allegiance only which is meant. And even so, it is a proposition that will require considerable qualification, as colonial systems develop. How would it be applied to the United States? The allegiance of the Philadelphian is to the United States; but is he therefore to be forced in England to implement a judgment passed in Arizona?

Of course, a judgment which is made in the face of "natural justice" will not be enforced here. Robinson v. Farmer (ib., p. 835) shows that the injustice must be something very gross and palpable. The Superior Court of Quebec had excluded evidence of fraudulent misrepresentation which the defendant tendered, holding that the representation ought to have been embodied in the written contract. Mr. Justice Channell considered that this did not amount to a denial of justice. It was, in fact, an attempt to make the law of England apply to Canada. The argument was gratuitously complicated by the allegation of fraud. Of course, if a judgment is obtained by a fraud on the Court, the English Court will not recognise it. But a judgment on a contract which itself was obtained by a fraud on a party is a totally different matter.

Judgments against Co-respondents.

The decision of Mr. Justice Scrutton (Phillips v. Batho, ib., 25) to the effect that if a divorce suit is properly pending in India, a co-respondent having no other present connection with that country, and ordered to pay damages, will be liable in England to an action for their recovery, must probably be placed on the basis of allegiance, though the judge strongly repudiates that ground. But it seems doubtful whether the award of damages in such a suit is a final and liquidated decree of such a kind as it is usual to permit to be the ground of an English action. Damages in such a case are now almost completely attracted into the orbit of the divorce system. They may be ordered to be settled; and that fact of itself is enough to show that they are not in the position of an ordinary liquidated claim. In Henderson v. H. ([1844], 6 Q. B. 288), a Newfoundland decree, ordering a sum to be paid in an equity suit, was enforced in England, but only because it simply ascertained a balance and ordered payment by defendant to plaintiff. Mr. Justice Scrutton was impressed by the supposition that if he did not entertain the action, the plaintiff would be remediless, since he could not sue the co-respondent in England. But here again there is a petitio principii. Why should not a foreign husband sue a tort-feasor here? The act complained of was unlawful in India it would have been unlawful here. : And the Act of 1857, sect. 33, leaves it perfectly open to the injured party to bring his petition for damages here.

We have already commented on the serious character of an innovation which allows co-respondents to be brought from the ends of the earth to participate in divorce suits. In this particular case, the damages were assessed at the enormous sum of £7,200. We have pointed out that

President Evans, when he made the plunge of innovation in this (as in so many other matters),1 did so in reliance on a Scottish case where there was a clear ground of jurisdiction (on Scots principles) over the co-respondent. And we cannot affect to think the present state of the law satisfactory, or that it is improved by Phillips v. Batho.

Extradition.

The vexed question of the necessity of complying, on an application for extradition, with the terms of Extradition Treaties and of the Extradition Act, again arose in Exp. Servini ([1914], I K. B. 77). The Act of 1870 only comes into play on the conclusion of a Treaty and the consequent issue of an Order in Council. The Order may qualify the operation of the Act. On an application for the extradition of Servini, no proof was offered of any such Order having been issued with regard to his country (Italy) or of its qualifications (if any). Mr. Justice Bailhache regarded this as a fatal defect: "When a fact in a criminal case requires to be proved, and it is not proved, it is no answer to say that if it had been thought of, it could easily have been proved." But Justices Ridley and Scrutton assured his Lordship that it was not usual to grant a writ of habeas corpus in a case of mere irregularity. If they are right, it will be of little use complaining of minor irregularities in extradition in future. Mr. Justice Scrutton thought that the Order should have been proved, but declined to set at liberty a person against whom there was a substantial primâ facie case. This course has been taken in English criminal cases; and one can see why. The King's Bench, having authority to commit a criminal for trial, naturally committed the person brought before

1 Rayment v. R. ([1910], P. 271). Cf. L. M. & R., Vol. 36, p. 212. 2 Fraser, 8 M. 400.

them on habeas corpus, if he was found to be (however irregularly) in custody on a bona fide charge. But they have no such Common-law power to extradite: and, consequently, Mr. Justice Scrutton's opinion appears to be clearly fallacious. Mr. Justice Ridley found it "undesirable" to discharge a prisoner on a technicality. But neither is that a sufficient argument.

TH. B.

VII. NOTES ON RECENT CASES (ENGLISH).

TH

HE considered judgment of Pickford, J., in United States Steel Products Co. v. Great Western Railway (L. R. [1913], 3 K. B. 357), deals with a difficult commercial point on which it seems that no question had previously arisen. Goods sent from America on c. i.f. terms to a consignee in England, had been stopped in transitu, after being handed to the defendants, who received the consignment on a condition, which seems to be a common form, having a clause giving to them not only a particular lien for all their carriage and other charges on the goods, but a "general lien for any other moneys due to them from the owners of such goods upon any account." As a large sum was owing by the consignee to the defendants for other matters, they claimed to hold the goods until this was satisfied. The plaintiffs, who were quite unaware of the existence of such a debt, paid it, and brought this action to determine the right to the money. Pickford, J., reads the clause as entitling the defendants to withhold the goods from the consignee until their claims against him are satisfied, but not under the circumstances as giving them a lien against the plaintiff who had paid all charges on the goods in question. This is equitable, for it is against justice that the defendants should relieve themselves

from the effect of their want of care in collecting their debts, and affix the consequences on another person. He therefore gave judgment in favour of the plaintiffs. This reading of the clause is, however, a somewhat restricted interpretation.

Even if there had been no precedent on which the decision in National Provincial Bank of England v. Glanusk (L. R. [1913], 3 K. B. 355) could have been founded, and first principles had had to be applied, the judgment could hardly have been different. A man who guarantees up to a precise sum an overdraft allowed by a bank to a customer, must be presumed to contemplate the possibility of having to meet his undertaking. And no bank which, as a matter of favour, lends money to a customer would undertake the dangerous obligation of communicating to the guarantor suspicions which might arise in their minds that their debtor was not dealing with his account in a manner which was fair to the guarantor, for a mistake in their suspicions might lead to disastrous consequences to themselves. But independent of this, there is no duty on a bank to interpose in a transaction of this description. The contract which they have entered into is not one uberrimæ fidei.

The plaintiffs in Kacianoff v. China Traders Insurance Co. (L. R. [1913], 3 K. B. 407) were placed in a curiously difficult position under their insurance contract. Their ship, intended to carry provisions from America to a Russian port, was insured against total (not partial) loss by war risks only. When she was nearly loaded, the underwriters notified that, as the port of destination was then blockaded by the Japanese fleet, they would, if the ship were sent thither, set up that any loss that might follow was deliberately caused by the plaintiffs; and the underwriters refused likewise to allow, as not being within the contract, for any