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VOL. IX.

Pump

LONDON, WEDNESDAY, JULY 3, 1889.

PUMP COURT.

The Temple Newspaper and Review.

Court

In the case of Hogan v. Shaw, before the Court of Appeal (Lord Esher, M.R., Lindley and Bowen, L.JJ.), a curious point was decided. Defendant was Mr. John Shaw, the well-known outside stock and share dealer. The terms of dealing with him were that anyone desiring to speculate in stocks through his agency must deposit a certain amount of money to cover the rise or fall in the value of the shares sold or bought. On June 30th, 1888, plaintiff entered into a contract with Mr. Shaw, that the latter should buy for him fifty Hotchkiss Ordnance shares at 16, to be delivered next account-day, which would be July 14th. Mr. Hogan deposited £1 per share as cover. On the back of the contract were the following conditions:-" Liability strictly limited to the cover in hand. John Shaw reserves to himself the right to close stock without notice whenever the cover is exhausted." On July 6th, at four o'clock, the shares in question fell to 15, and the fall consequently exhausted the cover. Mr. Shaw, however, did not become aware of the fall till the next morning, when he telegraphed to the plaintiff to say that the cover was exhausted and the transaction was closed. It was admitted that before the telegram was despatched the shares had slightly risen again, so as to bring them within the cover. The plaintiff then brought this action for the non-delivery of the shares on July 14th. The damages were agreed at £60, which represented the amount of the deposit and £10 profit. At the trial, before Huddleston, B., the jury were discharged, and judgment entered for the plaintiff. The Divisional Court declined to interfere. The Court of Appeal confirmed the judgment in favour of the plaintiff. holding that by the terms of the contract Mr. Shaw reserved to himself the right to close the transaction when the cover was exhausted, and that inasmuch as he had not elected to close the transaction before the shares rose, so as to come within the cover again, his right was gone.

AN interesting question on the law of discovery was raised before a Divisional Court, consisting of Denman and Charles, JJ., in Lowden v. Lakey. Defendant, the patentee of certain shoe protectors, had brought an action against plaintiff and others to restrain an infringement of his trade-mark, and the "get up" of the cards upon which he sold his protectors. He obtained in February last a

No. 142.

In re Duckworth, the question as to what constitutes desertion within the meaning of the Married Women

CURRENTE CALAMO (Maintenance in case of Desertion) Act of 1886, so as to

De Lege; de Omnibus Rebus et Quibusdam Aliis.

entitle Justices to make an order for maintenance against the husband, was raised. The facts were as follows:The parties were married in August, 1881; cohabitation was discontinued in October in that year, when the husband, who it was stated had ill-treated his wife, turned her out of doors. The following May a child was born, and a few weeks previously the wife obtained an order from Justices that her husband should pay her 8s. per week until the end of June. Before the end of June he left the country, not returning until August, 1886, and having in the interim contributed nothing to support his wife and child. She then took out a summons under the Act of 1886, and the Justices, being apparently satisfied that the husband had deserted his wife, were about to make an order, when an offer was made by him to take her back. This offer, however, consisted merely of a formal letter, written by his solicitor to her, to the effect that he was willing to take her back and find a house for her, and that the offer would be used in evidence against her if she did not avail herself of it. She did not, however, resume cohabitation, and in March last wrote him a letter, which she sent by her little boy to her husband's house, asking him to take her back. The little boy was sent away, and the letter not read. Subsequently she went herself, and was refused admittance. She wrote to her husband's solicitors, but with no result, and she then took out another summons under the Act of 1886. The magistrates found as a fact that the husband had deserted his wife, and that the offer made by him on a former occasion to take her back was not bona fide. They accordingly made an order, and declined to state a case. An application was now made to a Divisional Court, consisting of Lord Coleridge, L.C.J., and Mathew, J., to make absolute a rule nisi for a mandamus to compel them to state a case; but the Court declined to do so, holding that there was ample evidence to justify the magistrates in holding that there had been desertion, and that it was not necessary the desertion should have begun after the passing of the Act.

perpetual injunction restraining plaintiff and others from infringing the trade-mark, and selling protectors on cards similar to his own. Defendant, having heard that plaintiff was spreading reports amongst the trade that certain cards were not within the injunction, prepared, and subsequently published in the Boot and Shoe Trades Journal an advertisement. This advertisement was submitted to counsel for the purpose of ascertaining whether it was libellous. Plaintiff brought an action for libel in respect of the publication of this advertisement, and obtained an order from a master for production of the draft advertisement submitted to counsel. Defendant appealed, and Wills, J., referred the question to the Court, who held, reversing the Master's order, that though the communication had not been made to counsel for the purpose of legal proceedings, or with reference to existing or contemplated legislation, it was privileged, and its production could not therefore be compelled.

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THE Vexed question of the liability of a cab proprietor for damage caused by the negligence of the driver of a cab hired from him, has at length been set at rest by the decision of the Court of Appeal in King v. The London Improved Cab Company. There can be no doubt that the relationship which existed at Common Law between a proprietor who lets his vehicle on hire, receiving a fixed

frame of mind apparently than when cruising about in a shako or rolling on parade in loose trousers with a quid in his cheek.

PUMP COURT.

sum per week from the driver, the latter plying for hire
and keeping for his own use whatever he may make for
driving the public who employ him, is that of bailor and
bailee, and not that of master and servant. It is equally
indisputable that if the relationship be that of bailor and
bailee, then, should the bailee drive negligently to the
damage of anyone, no action for resulting loss would lie
against the bailor (i.e., cab proprietor). But the question
was whether the Metropolitan Hackney Carriage Acts have
constituted as against third parties the relationship of
master and servant as between proprietor and driver, so as
to render the proprietor liable to an action for damage
sustained through the negligence of the driver in accord-
ance with the principles regulating the liability of masters
for the acts of their servants. In Powles v. Hider, 6 Ell.
and Black 207, and two cases of Fowler v. Lock, L.R. 7 C.P.
272, and Venables v. Smith, 2 Q.B.D. 279, which were
based on
Powles v. Hider, it was laid down that
the relationship created by these Acts was that of master
and servant, and the proprietors were accordingly held
liable. In King v. Spurr, 8 Q.B.D. 104, in which case,
however, the driver had only hired the cab, and provided
the horse, harness, and whip himself, and which is
distinguishable from the previous cases on this ground-
the proprietor was held not liable. The Judges who decided
King v. Spurr were Grove and Bowen, JJ., and it is to be
regretted that the latter was not, as Lord Justice, one of
the Court before whom King v. The London Improved Cab
Company came, for in King v. Spurr there are very
strong remarks which cast grave doubt on the correctness
of Powles v. Hider, and the cases founded on it. As their
lordships pointed out, in King v. Spurr the words contained
in the Hackney Carriage Acts from which an intention on
the part of the legislature to constitute proprietor and
driver, as against third parties, master and servant, had
been inferred, are of the vaguest possible description;
while on the other hand, had the legislature entertained
such an intention, nothing could have been easier than to
say so distinctly in very few words. What weighed with
the Court in Powles v. Hider, and no doubt also in King v.
The London Improved Cab Company, appears to have been,
that if the proprietor were not liable as the master, anyone
injured by negligent driving would be practically
remediless, but that, though it may be an excellant reason
for legislation, is no ground for ascribing, on the vaguest
possible grounds, an intention of the legislature, which
otherwise would never have been gleaned by any process
However, the
of correct interpretation of the statutes.
law may now, we presume, be considered settled by this
decision of the Court of Appeal, consisting of Lord Esher,
M.R., Lindley and Lopes, L.JJ., to the effect that the
relationship is that of master and servant, by virtue of the
provisions of the Metropolitan Hackney Carriage Acts.

Ar a meeting held on Tuesday, 25th ult., at the offices of the Aborigines Protection Society, Broadway Chambers, Westminster, it was resolved to form a committee in aid of the appeal which is about to be made to the Judicial Committee of the Privy Council against the sentences lately passed at Etchowe on Dinizulu and other Zulu chiefs and headmen. We are glad to notice among the gentlemen who have already joined the committee, Earl Grey, Sir Robert Fowler, Bart., M.P.; Mr. W. S. Caine, M.P.; and the following members of the Bar-John Westlake, Q.C.; C. H. Hopwood, Q.C.; Charles Hancock, and W. Hunter, M.P. It is interesting to learn from a letter written by Miss Colenso, daughter of the late Bishop Colenso, or, as the natives still affectionately call him," Sobrantu " (Father of the People), that the Zululand Special Commission has been copied word for word from the Parnell Commission, except that the clause of indemnity to witnesses has been omitted.

WE beg to acknowledge receipt of General Boulanger's only too flattering note. We wrote what we felt on the matter. Indeed, there can be but one opinion as to the travesty of law perpetrated by his opponents and the contemptible role performed by M. Quesnay de Beaurepaire. Only fancy for a moment Mr. Gladstone being prosecuted by a Tory Government for endeavouring to make himself popular with the constituencies, and you have the situation. This is not merely the gravamen of the charge against General Boulanger, but the indictment expresses it thus in set terms.

THE benchers of Lincoln's Inn entertained Mr. Gladstone at dinner last week. Some years ago we made our readers acquainted with the fact that the ex-Premier entered as a student of this society in 1833, as did also It is not necessary to say that Lord Beaconsfield in 1824. neither of them proceeded to "call."

THE Irish Lord Chancellor has called the following members of the Irish Bar within the Bar; in other words, they have taken silk, viz.: Price, Robertson, Bird, Ronan, Craig, Fitzgerald, Adams, Sullivan, O'Shaughnessy, Carson, Shaw, and Barton.

19

A FEATHER will show which way the wind blows. From time out of mind the legal toast at the Lord Mayor's dinner to the legal profession, as at other dinners, has been, "Bench and Bar," and the response has always been by a judge and a barrister (the Attorney-General when present). Last Wednesday, however, a change was made, and the toast was, "The Judges and the Legal Profession,' and the response to the second part of the toast was committed to the care of a barrister (the Attorney-General) on behalf of the elder branch, and of a solicitor (Mr. Lake) on behalf of the other branch. We may add that the latter worthy gentleman, who has been described by the World as a soldierlike sailor or horse marine, did not appear either in nautical costume or in military garb, but as a He certainly plain lawyer, and made a sensible speech. He certainly performed both his dining and speechifying in a happier

A CORRESPONDENT writes: "On the notices of motion issued by the secretary of the Law Society in connection with the approaching general meeting, the following appears: 'If the report of the committee on rules of debate be not ready,' etc., yet this very report was actually sent out with the notices of motion. The secretary of a society of solicitors should be a little more careful. It is, however, a long time since Mr. Williamson (who is a popular officer) made such a curious mistake.

THE annual general meeting of the Incorporated Law Society takes place next Friday week, the 12th inst., at two o'clock. The occasion will prove a lively one, although an attempt to stop free discussion may be looked for on the part of certain members of the Law Club, as the stability of that separate part of the society is again threatened by Mr. Charles, who has been the plaintiff in two Chancery actions against the club. The president (Mr. B. G. Lake) is threatened with a vote of censure for committing "an error of judgment," and though rather late in the day, "rules of debate" are to be proposed.

The Marquesa, a new and original drama in four acts, by John Uniacke, will be produced at a matinee at the Opera Comique on Thursday, July 11th, with Miss Louise Moodie in the leading part, a very trying and important one. Mr. Albert Chevalier, Miss Kate James, and Mr Henry Bedford are included in the cast, the latter gentleman also being responsible for the stage management. The new play, although dealing with modern Spanish life, is not another adaptation from the Spanish.

THE WRIT OF HABEAS CORPUS.

any

Ir we are to judge from the proceedings which have
recently taken place in the Courts, a little more knowledge
about this celebrated writ may not be undesirable. We
are inclined to believe that Captain Woodward erred rather
desire to
the Courts;
oppose
from ignorance than from
but it was ignorance of such a nature that it required a sharp
lesson to do away with it, and that lesson Captain Wood-
ward received. It may be worth while to review the facts of
the case of which we are speaking, as they will serve to
illustrate the historical sketch which we purport shortly to
give. Just before Whitsuntide, on June 6th, Mr. Justice
Manisty and Mr. Justice Mathew had before them the case

of a writ of habeas corpus requiring Captain Woodward, of H.M.S. Duke of Wellington, at Portsmouth, to produce William Henry Thompson, a private in the Derbyshire Militia, who had been arrested and imprisoned at the instance of the Admiralty, on the supposition of his being William Floyd, a deserter from H.M.S. Calliope. It appeared that before the writ was served, although after the application for its issue had been reported in the newspapers, Thompson was sent back to his regiment. On Monday, the 10th, the rule for the writ had been made absolute, the return to be peremptory for that day. Thompson appeared in Court in his Militia uniform, accompanied by his corporal. The Judge-Advocate of the Fleet stated, on behalf of the Admiralty, that in obedience to the writ they produced the corpus; that Thompson was at present in the custody of the Nottingham police, and that the Home Office had been communicated with, and was willing that he should be produced. As counsel for Thompson submitted, it will be seen that this was no return to the writ. It was not a production of Thompson by Captain Woodward in obedience to the writ, but the corpus was simply borrowed from the Home Office for the day for the purpose. The judges demanded to see both the writ and the return, but it transpired that although there was a copy of the writ in Court, the original had “unfortunately" been left at Portsmouth.

The learned judges characterised the proceedings as an "absolute contempt of Court," and granted an attachment against Captain Woodward-bail, however, to be allowed. Mr. Justice Manisty said, "The liberty of the subject is not to be trifled with in the way which we are being trifled with. We are simply being trifled with, and I don't care whether it is by the Admiralty or the Home Office, or any other authority, we must be treated with ordinary respect." Mr. Justice Mathew entirely concurred, remarking that there seemed to prevail "a general ignorance of one of the fundamental rules of the Constitution, that the laws of this country were supreme, and that no official or other person could set at defiance an order of the Superior Court." When the case next came before the Court, Captain Woodward was fined £50, and the costs both of the writ of habeas corpus and of the writ of attachment, and an intimation was given to him that if it had not been for his humble apology he would have been sent to prison.

This punishment cannot be considered too severe, when we remember that Captain Woodward broke one of the fundamental principles of the Constitution by violating the liberty of the subject. The right of personal liberty is inherent by the common law, and from Magna Charta downwards there are provisions concerning it. At the time of Magna Charta the writ analogous to the writ of habeas corpus was the writ de odio et atiâ, concerning which clause 36 of that Charter provided: "Nihil detur vel capiatur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedatur et non negetur." This provision was due to the fact that the writ was not issuable as of right, but only ex regia potestatis beneficio. Needless to say, that during John's reign advantage was taken of this to extort large sums of money for the privilege. This clause provided that the writ should be issued gratis. There was also the writ de homine replegiando, but both this writ and the writ de odio et atia were only available in certain cases.

It was, however, provided by the celebrated clauses 39 and 40 of the Great Charter, that "Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittimus nisi per legale judicium parium suorum vel per legem terræ. 40. Nulli vendemus nulli negabimus aut differemus rectum aut justiciam."

"Whether (says Hallam) Courts of Justice framed the writ of habeas corpus in conformity to the spirit of this clause, or found it already on the register, it became from that era the right of every subject to demand it." Any freeman therefore imprisoned was entitled to demand of the Court of King's Bench a writ of habeas corpus directed to the keeper of the prison, and commanding him to bring up the body of the prisoner, with the cause of the caption and detention, in order that the Court might judge of its sufficiency. This writ, however, possessed various defects. "The gaoler was not bound to make an immediate return to the writ, and might wait for a second writ, called 'an alias,' and a third a 'pluries'; and other expedients, such as shifting the prisoner about from prison to prison,

were sometimes adopted in order to avoid obedience." It was also doubtful what Courts could issue this writ. In Darnel's case in 1627 the point arose whether it was not a sufficient return to the writ that the commitment and detention of the subject were by "special command of the King," and it was in consequence of this case that the Petition of Right was passed in 1628.

In Charles the Second's reign many cases of arbitrary imprisonment took place, one notable instance being Jenkes's case in 1676. It was three years after this celebrated case that the famous Habeas Corpus Act was passed, though, as Hallam shows, not in consequence of it. It is entitled "An Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas," and applies only to cases of persons imprisoned (before sentence) for "criminal or supposed criminal matters." Its principal provisions are: (1) That on complaint and request, in writing, by or on behalf of any person committed and charged with any crime (unless for treason, or charged in execution by legal process), the Lord Chancellor, or any of the judges in vacation, upon viewing a copy of the warrant or affidavit, that a copy is denied, shall (unless the party has neglected for two whole terms after his imprisonment to apply to any Court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other judge. And upon service thereof, the officer in whose custody the prisoner is, shall bring him before the said Lord Chancellor, or other judge, with the return of such writ, and the true cause of the commitment, and thereupon within two days after the party shall be brought before them, the said Lord Chancellor or other judge shall discharge the prisoner if bailable upon giving security. (2) That the writ shall be returned, and the prisoner brought up within a limited time, according to the distance, not exceeding in any case twenty days after service of the writ. (3) That officers and keepers neglecting or refusing to make due returns, or not delivering to the prisoner or his agent within six hours after demand a true copy of the warrant of commitment, or shifting the custody of the prisoner from one to another without sufficient reason or authority, shall for the first offence forfeit £100, and for the second offence £200, to the party grieved, and be disabled to hold his office. The Act also contains provisions as to recommittal, as to persons committed for treason, and as to where the writ shall run, but it was defective in the three following particulars, viz. :—(1) It only applied to commitments on criminal or supposed criminal charges; hence all other cases of unjust imprisonment were left to the habeas corpus at common law, as it subsisted before this Statute. (2) The amount of bail demandable was not fixed. (3) There were no provisions to guard against falsehood in the return (see Stephen's "Comms.," Vol. 3; Langmead, 3rd ed. 633).

The second of these defects was remedied by the Bill of Rights in 1689. The other two were not finally remedied till 56 Geo. III., c. 100.

The latest statute on the writ of habeas corpus is 25 and 26 V., c. 20, which was passed in consequence of the decision of the Court of Queen's Bench in Anderson's case (30 L.J. Rep., Q.B. 129), where the writ was issued into Upper Canada. This statute provides that no writ of habeas corpus shall issue out of England by authority of any judge or court of justice therein into any colony or foreign dominion of the Crown where Her Majesty has a fully-established court or courts of justice, having authority to grant and issue the said writ, and to ensure the due execution thereof through such colony or dominion.

Almost every case seems now to be provided for by statute to prevent a person being wrongfully imprisoned. The punishment meted out to Captain Woodward is a trifle compared with a case noted by Forsyth, of a bishop who was fined £4,000 for returning that he was Count Palatine, and so not liable to make a return to the writ. Probably the next offender will not be let off so lightly.

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