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NOTES.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

THE NEW ZEALAND POISONING CASES.

IN reference to my article entitled 'Evidence in Criminal Cases of Similar but Unconnected Acts,' published in No. 13 of this REVIEW (January, 1888), the Editor has received the following from Mr. Fredk. Chapman, of Dunedin, N.Z.:[COPY.]

"The closing paragraph of Mr. Herbert Stephen's article on Evidence in Criminal Cases touching the case of R. v. Hall is as follows:

"The judgment of the Supreme Court [i.e. Court of Appeal] ends with a brief statement that they think the judge at the trial did right to reserve the point. This seems plain enough, but they give the astonishing reason that the English authorities state that no single judge could take upon himself the responsibility of declining evidence tendered by the Crown.' I am not acquainted with any such statement, but if it exists, it is certain that single judges in this country constantly ignore it."

'Mr. Stephen unfortunately must have had before him an incorrect newspaper report of the judgment; a similar misunderstanding arose, I believe, in the New Zealand Parliament, where the matter was discussed a few months after the judgment was given.

'The correct report of the judgment, which now appears in New Zealand Law Reports 5, Court of Appeal Cases 93, is as follows:

"The state of the English authorities is such that no single judge could take upon himself the responsibility of declining to receive the evidence tendered by the Crown."

Mr. Chapman's surmise is perfectly correct. I quoted from the report of the judgment of the Court of Appeal published in the Otago Daily Times of Monday, 14th March, 1887, at the end of which the words appear as I reproduced them. The same words appear in The Evening Star (Dunedin) of the 12th of March, 1887. Though the reports appear to be identical, that in the Evening Star is headed '[from Our Own Correspondent],' and that in the Otago Daily Times (per United Press Association).' The report in each case purports to be verbatim, and these circumstances led me, perhaps hastily, to assume that what appeared in the newspapers was a copy, supplied by the judge to the reporters, of the written judgment, and might therefore be taken to be correct. I am sorry that in this way I came to misrepresent the observation of Mr. Justice Johnson. My comment does not, of course, apply to the correct version of the judgment which Mr. Chapman has been good enough to send. HERBERT STEPHEN.

A correspondent sends the following Note on the Married Women's Property Acts:

Has this rather important point ever been mooted?

A dies intestate in 1884, leaving neither widow nor issue. His father and his mother survive him. To whom does his personalty go?

The text-books (Williams' Personal Property, 12th ed., 558; Williams' Executors, 8th ed., 1512; Prideaux, 12th ed., II. 417, &c.) say, To the father wholly. But why?

The law rests upon the 22 & 23 Car. II. c. 10, a positive, exclusive, and unrepealed enactment. The material sections are

VI. And in case there be no children nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who legally represent them.'

VII. . 'And in case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever.'

Under these sections for 200 years the father excluded the mother entirely, but this was because the law entitled him jure mariti to all his wife's personalty, and it would have been futile for the mother to insist on a right which could immediately have been rendered nugatory.

That the mother was recognised as one of the next of kin is, however, clear from the 1 Jac. II. c. 17. s. 7, which was, as regards her, a restraining section.

But the 7th section of the Married Women's Property Act, 1870, put the matter on a different footing. The section (which is remarkable for a classical instance of bad annotation) gave the wife, married after the 9th August, 1870, the position of a feme sole with regard to personal property coming to her by an intestacy; and this provision was greatly extended by the Act of 1882.

The question, which has now become very practical, is simply thisWhy should a judicial rule, originally a derogation from the express words of a statute, be allowed, now that its ratio has disappeared, to perpetuate an anomaly which is opposed to the tendencies of modern legislation, as it is also opposed to the historical rules on which the law of succession to personal property is generally based? If the mother should now claim her share of the personal property of her deceased child, is there any legal principle which could stand in her way?

Judge Chalmers' article on Imprisonment for Debt in the September number of the Fortnightly Review is heartily to be commended to all lawyers and legislators who are interested in the practical details of everyday justice. On these details, after all, the success or failure of a legal sy-tem depends at least as much as on the elegance or profundity of the judgments delivered in superior Courts. That which Judge Chalmers has to say does not the less afford serious matter for reflection because it is said in a pointed and amusing form.

We ought to have called attention sooner to Mr. J. B. Ames's discussion of 'The History of Assumpsit' in the April and May numbers of the Harvard Law Review. It is familiar learning that assumpsit was in its origin an action upon the case for a wrong, not an action upon a contract or promise as such; and that the traces of this origin are quite visible in the settled modern forms of common-law pleading. But careful and close examination of the authorities is needful to ascertain the precise nature of

the cause of action as it was conceived of in the earlier stages, and to fix the steps by which it was extended, first from express promises to a promise implied by law from the existence of a debt, and later to promises implied by an avowed equitable fiction in cases where there was neither express promise nor actionable debt. Much has been written on the subject, but we do not think any previous inquiry has been so complete as Prof. Ames's. He gives us new light on the greatly debated origin of Consideration, and it is hardly too much to say that he has definitely put the Romanizing theory out of court. His own view nearly approaches that of Judge Hare, and brings into prominence the element of deceit involved in the cause of action in its earliest form. If I meddle with your horse without your will, it is a trespass; but if with your will, how can it be a wrong, though I lame the horse? The answer is that if I have held myself out as competent'assumed' to handle the horse as a skilled farrier-and have lamed your horse by my want of skill, I have led you into damage by a kind of deceit, and that is a misfeasance for which I shall answer. Here is the beginning of the aspect of Consideration which has finally prevailed as the general definition, namely detriment to the promisee.

London is conventionally deemed to be a wilderness in the Long Vacation. But in our profession many juniors find it needful or useful to spend an appreciable part of the dead season' of August and September in the precincts of the Inns of Court. One would think it worth while to make those regions an oasis, rather than exaggerate the part of the desert. When a London club shuts its doors for two or three weeks' cleaning, the members are not barely confronted with a shut door; they are directed to some other club where they are made welcome under a treaty of reciprocal comity. Thus do the Athenaeum and the United Service clubs, to take one case familiar to many Benchers, exchange courtesies. Why should not the libraries and common-rooms of the Inns of Court do the like? Why should a barrister coming up in the vacation find mere vacancy? Why should he be driven into the street for his lunch and his newspaper, and put on private inquiry whether the library of some other Inn be haply open, and whether he will be allowed to use it as a favour? A little organization might greatly amend all this without appreciable detriment to any officer's or servant's holiday.

In Newbigging v. Adam, 34 Ch. Div. 582, the Court of Appeal discussed a nice question of the proper measure of indemnity upon the rescission of a contract of partnership obtained by misrepresentation. The Lords Justices all held that the plaintiff was entitled to be restored to his old position, and that, even though the misrepresentation were not fraudulent and would not have supported an action of deceit, this right included a right to be indemnified against any obligations imposed on him under the contract. Lord Justice Bowen thought the indemnity must be limited to obligations created by the contract and would not include liabilities arising out of the contract only in the sense of being natural consequences; for without such a limit the indemnity would not be distinguished from damages. Cotton and Fry L.JJ. thought it should extend-in the language of Fry L.J.-to 'all obligations entered into under the contract when those obligations are within the necessary or reasonable expectation of both of the contracting parties at the time of the contract.' As Bowen L.J. held that the liabilities

of the firm had been assumed by the plaintiff as part of the contract, and so came within his rule, the decision was not affected by this shade of difference.

In the House of Lords (Adam v. Newbigging, 13 App. Ca. 308) it appeared that the only outstanding liability of the firm was a debt to the defendants themselves, who, having obtained the contract from the plaintiff by misrepresentation, were estopped from saying that he was a partner or liable as such. Therefore not only the fine and rather speculative point above mentioned, but the general rule as to a right to indemnity against obligations contracted towards strangers, remains open so far as the House of Lords is concerned.

In Easton v. London Joint Stock Bank, 34 Ch. Div. 95, the Court of Appeal was astute to arrive at a 'sound commercial view' of the law concerning purchase for value without notice. The House of Lords has reversed that decision: Earl of Sheffield v. London Joint Stock Bank, 13 App. Ca. 333, holding in effect that it is not open to the Courts to depart from settled principles for the sake of real or apparent commercial convenience. The principal of an agent having limited authority may be estopped from denying that his authority was as large as it appeared to be. But this cannot be the case when the third person dealing with the agent knows in fact—from whatever source that his authority is limited. He is then put upon inquiry what the limits of the authority really are, and the mere representation of the agent that he has full power will not do, for otherwise authority could seldom if ever be effectually limited at all. Here the money-dealer may have been in a position to deal with the securities entrusted to him as his own, but the bankers well knew that they were not his own that the person who dealt with them as owner,' in Lord Macnaghten's words, 'was not acting by right of ownership. They took for granted that he had authority, but for some reason or other they did not choose to inquire what that authority was.' Consequently the dealing was at their own risk. In view of the actual knowledge which was admitted, it made no difference whether the securities were negotiable or not.

The decision of the Court of Appeal in Badeley v. Consolidated Bank, 38 Ch. Div. 238, is or ought to be the last nail in the coffin of the old doctrine that participation in profits is anything more than evidence-not different in rank from any other evidence that the partaker is a partner. Sharing profits is evidence of partnership, and may be ample evidence. But where it occurs only as one term or incident, we are not to take it first by itself, and say that it raises a presumption of partnership, and that a partnership there must be unless this presumption is specifically negatived by some other clause or circumstance. The transaction must be regarded and

judged as a whole.

The decision of the Court of Appeal in the case of the Christchurch Inclosure Act, 38 Ch. Div. 520, deserves the attention of those who are interested either in charities or in rights of common. It contains, we believe, the first judicial recognition of both the importance and the novelty of the principles laid down and acted on by the House of Lords in Goodman v. Mayor of Saltash, 7 App. Ca. 633. That case may bear its fruit slowly, but the House of Lords does not invent new ways of claiming quasi-public rights for nothing. If Demos but knew law enough, he would cry out for statues to Lord Cairns and Lord Bramwell.

Though prevention is better than cure and an injunction than an action for damages the Court will not, to prevent a libel, prejudge what is a ques

tion for a jury. To justify the Court in granting an interlocutory injunction,' says the Master of the Rolls in Coulson v. Coulson (3 Times Rep. 846), it must come to a decision on the question of libel or no libel before the jury have decided whether it is a libel or not. The jurisdiction is of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and, if written on a privileged occasion, that there was malice on the part of the defendant.' Clearly such a remedy is available only on the rarest occasions.' This is confirmed by the recent case of Liverpool Household Stores Association v. Smith (37 Ch. Div. 170). There a Liverpool newspaper had published letters commenting injuriously on the management of a local Household Stores Company and speaking of the savings of many working people as being jeopardised.' The Court of Appeal not being clear that a jury would have found it a libel refused the injunction. Lord Justice Cotton added, 'I think myself that a newspaper does occupy a peculiar position, especially with regard to matters of public interest which concern the interest of those amongst whom the newspaper circulates, such as the position and prospect of a public company like that of the plaintiffs. Does this mean anything beyond the liberty of free speech and fair criticism recognised in Merivale v. Carson (20 Q. B. Div. 275)? The construction placed by the Court of Appeal in Challender v. Royle (36 Ch. Div. 425) on sect. 32 of the Patents and Trade Marks Act, 1883, that the plaintiff to get an injunction for slander of title must prove non-infringement, corresponds with the principle of Coulson v. Coulson and Liverpool Household Stores Co. v. Smith.

Ex parte Lewis, 21 Q. B. D. 191, determines a point which has so often been determined before as hardly to call for decision, namely, that when a matter is left for determination to the discretion of a magistrate no Court will compel him to exercise his judgment in a particular way. Discretion' in short means discretion and nothing else.

Ex parte Lewis, however, especially if read in combination with the charge of Mr. Justice Charles in Reg. v. Graham, 4 Times L. R. 212, touches upon matters of high and increasing importance, and directs the attention. both of lawyers and of laymen to the following points which well deserve consideration.

1. The so-called 'right of public meeting' is quite a different thing from the alleged right of meeting in public places.' The two rights are in many countries, and notably in Belgium, kept perfectly distinct.

2. The limits of the right of public meeting, that is, of an indefinite number of persons to meet openly together and discuss any question they choose of public or private interest, depend at bottom on the definition of the term 'unlawful meeting.'

3. The term unlawful meeting or assembly,' like all expressions into which the word 'unlawful' enters, is vague and hard to define. No greater benefit could be rendered by systematic codification of the criminal law than the definition of an expression which everybody uses and few, if any, correctly understand.

4. When the expression unlawful assembly' is defined there still remains for decision a very knotty point. What are the exact rights of the Crown and its servants with regard to, first, prohibiting, secondly, preventing, thirdly, dispersing, an unlawful assembly? It is singularly unfortunate that