ment acts far more commendably if he at once gives notice of his intention, than if he keeps that intention secret till the time for fulfilling the promise is come. The reason is, that giving such notice at the earliest moment tends to mitigate, while the delay in giving it necessarily aggravates the injury to the other party. It has been urged that there must be great difficulty in thus assessing damages prospectively; but this must always be more or less the case whenever the principle of Hochester v. De la Tour comes to be applied. It would equally exist where one of the parties by marrying another person gave rise to an immediate right of action. It cannot be said that the difficulty is by any means insuperable, and the advantages resulting from the application of the principie of Hochester v. De la Tour are quite sufficient to outweigh any inconvenience arising from the difficulty of assessing the damages. We are struck by the fact that the majority of the Court of Exchequer, while holding that the present action would not lie, expressed an opinion that the wrong done by the repudiation of a contract of marriage might be made the foundation of an action on the case, in which the facts should be set forth. But the rights and obligations of the parties arising here entirely out of contract, we are at a loss to see But how such an action could be maintained. be that as it may; as in such an action the damages would have to be ascertained with reference to the same facts and the same considerations as in an action brought on the contract, it seems to us by far the simplest course-the case being, as it seems to us for the reasons we have given, clearly within the decision in Hochester v. De la Tour-to hold that the present action for breach of contract may be maintained, and that in it the plaintiff is entitled to recover damages in respect of the non fulfilment of the promise, as though the death of the defendant's father-the event on which the fulfilment was to depend-had actually occurred. We are there

fore of opinion that the judgment of the Court of Exchequer must be reversed.

CORRESPONDENCE.

attorney and client, does not extend to the members of any other calling or profession, and why, as a matter of abstract right, should it be granted exclusively to the members of the legal profession? The same arguments which you make use of in favour of the latter, might be used with greater force in reference to ministers of religion, because in the latter case a criminal might claim the right of unburdening his guilty conscience to his spiritual guide with a view of spiritual advice, and reformation, while, in so far as members of the legal profession are concerned, such communications are solely made for the purpose of legal defence against a public demand for conviction and punishment. I do not think that the exercise of the privilege which you contend for, would be in any way advantageous, morally speaking, to the members of the legal profession, or that they should exclusively claim the privilege. Members of the legal profession are also members of society, and, as members of society, they cannot, by simply assuming their particular calling, divest themselves of their obligations to the public and claim thereby privileges which, upon considerations of public duty they ought not to possess.

In Taylor on Evidence, 3rd ed., p. 752. "If from independent evidence it should clearly appear that the communication was made by the client for a criminal purpose, as for instance, if the attorney was questioned as to the most skilful mode of effecting a fraud, or committing any other indictable offence, it is submitted that, on the broad principles of penal justice, the attorney would be bound to disclose such guilty project. Nay, it may reasonably be doubted whether the existence of an illegal purpose will not also prevent the privilege from attaching, for it is as little the duty of a solicitor to advise his client to evade the law as it is to contrive a positive fraud." And in Note 2, same page, reference is made to several cases bearing upon the subject. Also, same note, "In Annesley v. Earl of Anglesea, 17 How. St. Tr. 1229, Serjt. Tindall," in argument, lays down the rule thus: "If the witness is employed as an attorney in any unlawful or wicked act, his duty to the public obliges him to disclose it. No private obligations can dispense with the universal one, which lies on every member of society, to discover every design which may be formed, contrary to the laws of society, to destroy the public welfare.

For this reason, I apprehend, that if a secret, which is contrary to the public good, such as a design to commit treason, murder, or perjury, comes to the knowledge of an attorney, even in a case wherein he is concerned, the obligation to the public must dispense with the private obligation to the client." Two of the learned judges, who tried that remarkable case, Bowes, C.B. and Mounteney, B., expressed the same sentiments, p. 1240, 1243. See also Gartside v. Outram, 26 L. J. Ch. 115, per Wood, V.C.

In Greenleaf on Evidence, 11th ed., p. 332, note 3: "This general rule, privilege, is limited to communications having a lawful object, for if the purpose contemplated be a violation of law, it has been deemed not to be within the rule of privileged communications, because it is not a solicitor's duty to contrive fraud, or to advise his client as to the means of evading the law." Russell v. Jackson, 15 Jur. 1117; Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528.

Other authorities might also be given, but I consider the above sufficiently establish my proposition.

A.

[Our correspondent asks why privilege should be granted to members of the legal profession, as a right, respecting communications with their clients in criminal matters? Whole essays have been written upon this subject; at present it is enough for us to reply in the language of Lord Brougham: "It is founded on a regard to the interests of justice which cannot be upholden, and to the administration of justice which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case.' Greenough v. Gaskill, 1 M. & K. 103. A. cannot surely seriously argue for a return to the old law when prisoners were not allowed counsel-he cannot mean to contend that the Statute granting them this right was a mistake and should be repealed. What proposition of A.'s do his authorities establish? That a counsel, after being retained by a person charged (for example) with murder, after having heard all

the details of his story under the seal, of professional confidence, is forthwith to tender himself as a witness and convict his unhappy client? The language of Mr. Baron Mounteney, in one of the cases A. cites, confutes this: Whatever either is or by the party concerned can naturally be supposed necessary to be communicated to the attorney in order to the carrying on any suit or prosecution in which he is retained, that the attorney shall inviolably keep secret." Annesley v. Anglesea, 15 St. Tri. 1242. The question is not as to whether the retainer is or is not to be accepted, but one in which the professional relationship exists. Now, what is established by A.'s citations is just neither more nor less than what we adverted to in our former article: ante p. 75. We said, "If the communication is made not as between client and professional adviser, nor in the usual course of business, or for a fraudulent or illegal purpose, then it is not protected." Now, it is not in the attor ney's usual or proper course of business to concoct a fraud or give advice upon the way to evade the law, or to assist a man in contravening the law. In such cases the solicitor is viewed by the court as a co-conspirator, and no privilege attaches. See Charlton v. Coombs, 4 Giff 380. So in the case from the State Trials, one of the defendant's declarations to his attorney was, (speaking of the plaintiff,) that "he did not care if it cost him £10,000 if he could get him (the plaintiff) hanged." The judges held that this was not such a communication as any man living could possibly suppose to be necessary for the carrying on of the prosecution in question. Therefore, according to Mounteney, B., the attorney was not only at liberty to disclose it, but it was his duty to make it known, as indicating an abominable endeavour to make away with a man's life. According to Dawson, B., the client went beyond what was necessary, and entrusted the attorney with a secret, not as an attorney, but as an acquaintance, so that the privilege did not attach. As we said before, the law is well settled on the subject, and may be found in any text book, as A.'s letter demonstrates. If, however, A. is not satisfied, and thinks that an attorney should be a competent witness in criminal trials against his own client upon a matter affecting the guilt charged, we advise him to get the point before the judges, by tendering himself on a suitable opportunity before, say, Chief Justice Hagarty or Mr. Justice Galt.-Eds. L. J.

drags on, the unfortunate litigant thinks the arbitrator, who delays his case, rather more vexatious than the judge who refused to try it. Such a state of things surely calls for an amendment of the law."

out of

Here is the way Yankee juries treat a recalcitrant juryman. In Rockland County, N. Y., during the Supreme Court Circuit, a jury went out to determine upon a verdict. After wrangling a whole day and failing to agree, they were discharged by the Court. Subsequently the following prayer for relief, signed by ten members of the jury, was solemnly preferred to the Court: "We the jurors in 'the above trial, hereby petition this honourable Court to order the name of the jury-box for the following reasons: In our opinion he is the most stubborn and contrary man that the Almighty ever made, and is not fit to sit as a juror in any case. He was never known to agree to any question of law with either judge or juror."We have no doubt this persecuted citizen went home after the trial and told his wife that he had been struggling all day against eleven mule-headed men who would not listen to reason.

COURTS OF APPEAL.

The subject of appellate jurisdiction is one which is now attracting much attention, not only in England, but in the most important of her colonies. We print in another place the report of the Commissioners of Victoria, concerning the establishment of a Court of Appeal for Australasia. As to the Dominion, we gave our readers some time ago the draft of the Supreme Court Bill; but difficulties have arisen in the establishment of the Court from the fact that Quebec pursues a system of law different from that of the other Provinces. This is precisely the same difficulty in kind, though less in degree, which has long prevented the establishment in the mother country of a more satisfactory Court for colonial and other appeals than the Privy Council.

The Judicial Committee of the Privy Council as a Court of ultimate appeal has long occupied a very anomalous position. Its decisions, final and of supreme authority as regards the colonies, are yet not considered binding upon the superior courts of Great Britain and Ireland. Unlike the decisions of the House of Lords, as a Court of Appeal,

which are authoritative declarations of the law to be followed in all Courts, not to be over-ruled by the House itself in subsequent appeals, not to be gotten rid of save by legislative interference; those of the Privy Council, while no doubt determining the particular case under appeal, are not necessarily to be followed in other cases involving the same point for adjudication.

That these observations may not seem exaggerated, let a few cases be noted as confirmatory of what has been advanced. Upon the construction of an Imperial Act of Parliament passed in 1861, giving the Admiralty jurisdiction in case of damage done to a ship, it was was held by the Privy Council that the term

damage" in the Act extended to a case of personal injury: The Beta, L. R. 2, P. C. 447. The Court of Queen's Bench declined to follow this decision, and have held upon demurrer to a declaration in prohibition that the term did not include injury of such a a character: Smith v. Brown. L. R. 6 Q. B. 729. So, on an earlier occasion, in The General Steam Navigation Company v. The British and Colonial Navigation Company, L. R. 3, Exch. 330, the majority of the Barons thought themselves not bound to follow a prior decision of the Privy Council on a question of pilotage as reported in The Stettin: Brow and Lush, 199, 203; 31 L. J., P. D., and Ad. 208 From this view Kelly, C. B., dissented, on the ground that he did not feel himself at liberty to depart from the law laid down "by the overruling authority of the Judicial Committee of the Privy Council, which, being a decision of a Court of last resort," should be taken to govern. Again: when upon the highly important question, as to whether Colonial Legislative Assemblies had inherent power to punish by imprisonment for a contempt committed outside the House, the Privy Council at first, in 1836, affirmed the doctrine that there was such a power: Beaumont v. Barrett, 1 Moo., P. C. C. 59. But when, in 1842, another appeal came up, presenting the same matter for adjudication, the same Court delivering judgment through the same Judge, Parke, B., disaffirmed the existence of any such constitutional power as a legal incident in Colonial Houses of Assembly: Kielly v. Carson, 4 Moo., P. C. C. 63. This later opinion was adhered to when, for a third and last time, in 1858, the same question arose in Fenton v. Hamilton, 11 Moo., P. C. C. 347.

With this fluctuation of decision contrast

the judicial position of the House of Lords as set forth in the language of Lord Campbell: "By the constitution of the United Kingdom, the House of Lords is the Court of appeal in the last resort, and its decisions are authoritative and conclusive declarations of the existing state of the law, and are binding upon itself when sitting judicially, as much as upon all inferior tribunals." The Attorney General V. The Dean and Canons of Windsor, 8 Ho. of L., C. 391. See also the language of Lord Eldon in Fletcher v. Lord Sondes, 1 Bligh, N. R. 144, 249, on the same point, and per James, V. C., in Topham v. Portland, 38 L. J. N. S., Ch. 513.

The Solicitors' Journal maintains that there are six points which are essential to the existence of a satisfactory Supreme Court of Appeal: It should be (1) single; (2) Imperial; (3) constant; (4) of weight corresponding to its authority; (5) reasonably rapid in ac

tion; and (6) not prohibitory in point of expense. Without commenting upon all these points, we may say, as to the first, there is no doubt it is extremely desirable to do away with the distinctions which we have shown to exist between the decisions of the two present Courts of ultimate appeal. The law as laid down by the one highest Court should be of validity for all purposes, in all Courts, and at all times, till changed by statute. In no other way can certainty in the law be reached. By the second requisite is meant that the members of the Court should be drawn not only from the English, but from the Scotch, Irish, and Colonial bench. In other words, that it should be in truth a representative court, where at least one of the judiciary body should be practically acquainted with each of the diff erent systems of law which obtain over the wide-spread dominions of England. Only in this

way, it seems to us, can the fourth requisite be secured; so that in learning and judicial experience, colonists may regard this tribunal as superior, not only in name, but in fact, to their own Provincial Courts. When Mr. Knapp first began, some thirty years ago, to report the decisions of the Privy Council, Sir John Leach, in his usual imperious style, refused to lend an ear to the new reports, at the same time acutely remarking that decisions regarding systems of jurisprudence of which the Court knew little or nothing, could never acquire authority; and that it was a useless

exposure of inevitable and incurable judicial incapacity to publish their judgments. These strictures are to a considerable extent well founded. The surest way to obviate them and others of a like kind, is to constitute the appellate court in manner as indicated; thereby its moral weight shall be decisively greater than the Colonial and other Courts whose decisions it reviews. Apart from this great advantage, there is another which we need hardly elaborate. That is, the very strong bond of union which would be thus formed between the mother country and her colonies. It would be, we conceive, constitutionally impossible, as well as highly undesirable to do away with the right of appeal from the colonies to the Privy Council. Practically but few appeals go there from this Province, so strong, and, in many respects, so well constituted is our own Provincial Court of Appeal. According to statistics laid before the Dominion Parliament, there were, between the years 1869 and 1872, but two appeals from Ontario to the Privy Council. From the other Provinces the figures stood thus: Nova Scotia, one; New Brunswick, two; Quebec, twentyone. Yet though we of this Province are seldom before the Privy Council, we should not relish being deprived of the right to go there. While our confidence is great in the present constitution of the Judicial Committee, yet a reformation such as has been mooted, and the infusion of a Colonial element into the appellate system, would afford us the highest satisfaction. In no more grateful way could our Colonial status be recognized than in the establishment of one great Imperial Court of pre-eminent jurisdiction and paramount authority, elevation to the bench of which should be the highest goal of colonial forensic ambition.

Some interesting questions on criminal law will be found discussed in the case of Regina v. Mason, on page 107, post. The notorious character who figures as the prisoner fortunately "took nothing by his motion."