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Executors, meaning his widow and children, or others nearest in kin, and it has been justly decided that the widow gets one-half.”
Mr Duncan, in his recent treatise on Ecclesiastical Law, expressly lays it down “that when the deceased minister leaves a relict and a child, or children, the ann divides into two equal shares, whereof one share belongs to the widow, and the other share to the children.” He cites the case of Macdermit as his sole authority.
On the whole, while the point is not free from doubt, the great preponderance of authority is in favour of treating the Annat as exceptional from Executry. It never was in bonis of the defunct, and at no time required confirmation to pass it to his representatives. The difficulty is in the use of the term Executors and Executry in the various statutes. If, as it
If, as it appears, intended to form a temporary fund for the wife and family of the deceased minister deprived of their former stay and support, there might appear reasons for confining it to those parties more immediately concerned, But there appears no occasion for extending it to next of kin, who might be of relationship very remote and independent, so that where there were a widow and no children, she should have only one-half and the next of kin the other. Nevertheless such appears a decided point. Where there are children, the more remote next of kin being thus excluded, there appears no reason why the widow should have less right and benefit than with the next of kin. The children may be of a former marriage, and all forisfamiliated and self-supporting. The children in the ordinary case of moveable estates take one-third as bairns' part and the other as dead's part, but the ann never having been in the person of the minister, and only emerging on his death, there is no room for such division. There is no place for bairns' part, still less for dead's part, and in the event of no claimant, it is clear that the Queen could not claim as ultimus hæres, which, with all ordinary cases, is a right inherent in the Crown. The wife and children take the annat in their own right, and not in any way through the deceased, and accordingly the whole principles and authority tend in the direction of an equal division between the widow and children, where such exists. If a doubt should have ever existed, it might fairly have been, whether the widow was not entitled altogether to exclude the next of kin beyond the minister's own family and take the whole,
Escapes of Prisoners on Technical Grounds. By W. B. DUNBAR,
Assistant Procurator-Fiscal, Dundee. Glasgow: Thomas
We are glad to see that Mr Dunbar has reprinted his able papers, which appeared originally in the Scottish Law Magazine. They begin with a description of the old days—when prisoners on trial sometimes craved for a copy of the charge against them, but were refused—when the torture was used to induce confession, and on the prisoner remaining firm, he was punished for contumacy! When the prisoner was often not confronted with the witnesses, but these last were examined apart before the Lords of the Privy Council, and their depositions put in as evidence at the trial--when juries were packed, threatened, and brow-beaten, till they returned verdicts of guilty—when the King, by letter under his hand, gave directions to the judges what sentence to pronounce, -times when prisoners were more likely to be convicted, than to escape, on technical grounds.
They conclude with examples drawn from the present halcyon days for accused persons, who, he says, "are surrounded by legal privileges.” “No confessions are extorted or sought from them; they are allowed to give any explanation or statement regarding the charges against them, after being judicially warned that the same may be used against them at the trial ”. a description fair enough perhaps as to the average run of cases, but to any one unacquainted with our practice, hardly conveying a fair idea of the first, second, and third examinations to which many prisoners have been subjected. The accused have fair notice of the charges, and every facility for finding bail-notice of the time of trial, the witnesses to be adduced, and even a list of the names from which the jury is to be selected—and counsel assigned to them. The jury are absolute judges of the facts, and practically can take a good deal of the law into their own hands. The interference of the Crown in regard to the sentence, can never assume a directory form, but can have place only to mitigate the doom pronounced by judges, whose position, once attained, is entirely superior to any influence coming from the Crown.
Than this system, a more perfect ideal cannot readily be
conceived, and the question raised by Mr Dunbar is, whether in carrying it out we have not gone too far in favour of the accused. The favour for the liberty of the subject, and the presumption of innocence are so great, that there is hardly a conceivable irregularity which has not led to a prisoner's escape —and that not merely when the irregularity has regarded substance, as, for instance, the accused receiving all the information and notices guaranteed by statute, but also as to his receiving them authenticated by the proper party, whether an important official or a mere servant of the Court. Most, however, of these grounds of escape, where substance was not involved, have been swept away by Sir William Rae's Act, 9 Geo. IV., cap. 29, § 6.
Mr Dunbar, however, while acknowledging the great value of that piece of legislation, holds that the course of decisions since its date has continued to be far too favourable to the prisoner, and with a view to removing fatal technical grounds of objection still existing in our ordinary criminal proceedings, he makes the following important suggestions :
“First—No formal objection whatever which could have been stated in limine should be allowed at an after stage of the trial.
“ Second—Where, during the course of a trial, a necessary witness, supposed to be present, is found to be absent, or a witness is found to be intoxicated, or otherwise unable to give evidence, the Court should have power to adjourn or direct a new trial.
" Third-Clerical errors in the record should be allowed to be corrected when the error is palpable, and the correction can be made before the conclusion of the proceedings.
“ Fourth-Where an innocent irregularity in the assize takes place, through no fault of the prosecutor, and by which the prisoner has suffered no prejudice, the verdict and sentence should stand, or a new trial be allowed.
“Fifth-If the proof disclose a discrepancy as to time, place, mode, or other essential particular libelled in the indictment, the prisoner should not escape on a verdict of not guilty, but the error should forthwith be corrected and the trial completed; or, if the interests of the prisoner require it, a new trial should be allowed.
“Sixth—Even in cases where the prisoner has taken the benefit of the Act 1701, any clerical error or omission in the criminal letters should not have the effect of liberating the prisoner, but the error should be rectified or the omission supplied.
“Seventh—Where the charge in the indictment is held to be irrelevantly laid, the prisoner, where he has taken the benefit of the Act 1701, should be detained till correct criminal letters are prepared and served.
“In the circumstances sixth and seventh above stated, the prisoner might still, in many cases, be brought to trial within the limited time under the Act 1701. If any prisoner, whether he has taken the benefit of the Act or not, has suffered lengthened detention in consequence of informality in the libel, this should be taken into consideration in determining the punishment in case of conviction."
An important section of Mr Dunbar's work is devoted to the cases where a power of review—whether on the merits or in respect of want of jurisdiction in the inferior courts—is exercised by the Supreme Courts. Practically, in this class of cases the mischief arises from the powers conferred on justices; they are felt to be a body of judges who require minute guidance, as little as possible is left to their discretion—the statutes are directory in the minutest procedure—schedules are provided according to which the court must walk. If the justices fail to do so, the higher court must. Mr Dunbar's suggestion in this matter, which perhaps calls more pressingly for remedy than the other, is, that the Supreme Court should have power to amend informal sentences by supplying what is defective, deleting what is improper, and putting them into proper form, or remitting to the inferior magistrates to do so.
We have not time to follow Mr Dunbar through his discussion of all these points. He is substantially sound, temperate, and judicious, though we cannot help thinking that his views are somewhat toned by his experience as a prosecutor, and that he is here and there willing to sacrifice something of what is due to the liberty of the subject, to permission of slovenly and careless discharge of duty on the part of those whose part it is to frame indictments and carry through trials.
EXTRADITION OF PRISONERS.
A VERY remarkable case is said to have occurred in Canada under the Extradition Act,—one of which, if the facts at all resemble the allegations, we are likely to hear more. The statements made are these :—About the end of July M. Lamirande, a French subject, was at Montreal, where the Consul-General of France demanded his surrender, under the Extradition Treaty, on a charge of having committed "forgery,” by defrauding the branch of the Bank of France at Poictiers, by making false entries. He was arrested on a Governor-General's warrant, obtained by a French detective through the French Consul at Montreal, and on the 22d of August was committed to prison
by a police magistrate, who held that a prima facie case had been made out against him. Next day notice was served that the prisoner would on the following day, the 24th, apply to the Court of Queen's Bench for a writ of habeas corpus, and an order of discharge. On that day, accordingly, the prisoner's counsel appeared before Judge Drummond in support of the petition, and the learned Judge intimated an opinion in favour of the prisoner, and was about to issue the writ, when the counsel for the prosecution asked for an adjournment, in order that he might reply to the arguments brought forward for the prisoner. At first the prisoner's counsel demurred to the adjourninent, on the ground that the prisoner might meanwhile be taken beyond the jurisdiction of the Court. Mr. Pommville, the prosecuting counsel, is said to have expressed indignation that so dishonourable an intention should be imputed to his clients, and ultimately the prisoner's counsel agreed to the adjournment. That night the French detective got an order signed by the Deputy-Sheriff, grounded upon an instrument signed by the Governor-General, and the prisoner was hurried into a train and carried beyond the jurisdiction of the Court, before any steps could be taken to effect his rescue. The document on which the Deputy-Sheriff signed the order is alleged to have been a false record, to which the Governor-General's signature had been obtained on false pretences. M. Lamirande may be the greatest villain unhung, but that does not in any degree affect the merits of the question so far as the British Government is concerned. A foreigner who had sought asylum, and the legality of whose extradition was at the moment sub-judice, was carried off and deprived of that asylum under the guise of a legal warrant. On the day after Lamirande had been thus kidnapped, Judge Drummond issued the writ of habeas corpus; but of course the gaoler was unable to produce the prisoner.