save under special circumstances, to be stated in the order.

This new economy of the Treasury will result, like all former attempts unduly to curtail the expenses of prosecutions, in the further paralysis of the criminal law. The reduction of the allowance to prosecutors and witnesses has already operated to deter the one from prosecuting crime, and the other from detecting it. The limitation of counsel's fee to a guinea will prevent practised men from appearing in prosecutions, because thereby they will deprive themselves of the chances of a better fee for the defence.

Something will depend, of course, upon what the Clerk of Assize may hold to be special circumstances. He may, we think, fairly deem any number of witnesses above three, or the fact that the prisoner was defended, to be such "specialties" as would justify a larger fee. If he should so determine, this cheeseparing order will be more in show than substance. But if it is to be strictly enforced, either the Bar will be treated in a manner that will amount almost to an insult, or prosecutors will be subjected to an additional punishment in the discharge of a public duty.

IMPRISONMENT FOR DEBT. A GREAT improvement has been introduced into this Bill. The most effective power possessed by the County Courts, that, indeed, by which only they are enabled to compel payment of debts, is the power to imprison for disobedience to an

limited to the counties of Northumberland, Cum-
berland, and Westmoreland, a sum of 500l. per
annum would afford a sufficient remuneration.
They do not see any reason for an alteration in
the salaries of 500l. per annum each, now received
by the clerks of assize on the two Welsh circuits.
The committee further propose that the ad-
ditional salary of 1007. a year, which the clerk
of assize can now assign to one of his officers
whom he may select to act as his deputy, should
be discontinued on the death or resignation of
the officers at present receiving these extra
allowances. They are of opinion that the power
thus placed in the hands of a clerk of assize to
remunerate one of his officers more highly than
the others might be exercised with partiality,
and that it has a tendency to diminish that
responsibility which rightly belongs to his office,
and to induce him to delegate to others duties
properly devolving upon himself.

The real grievance of the Unions, though was not the ostensible one, is that they have not the help of the Friendly Societies Acts for the recovery of the subscriptions from their own members, nor powers wherewith to compel observance of their rules. It is to obtain this, and not for protection against embezzlement, that the privilege of enrolment under the Friendly Societies Acts is so eagerly sought, and it would have been more candid in Mr. HUGHES so to have told the House and the public.

66

On all sides doubts were expressed whether it
would be practicable to repeal the Combination
Act without some enactment bringing within
the criminal law certain offences of which some
of the trades unions have been guilty, and for
which the criminal law now makes no provi
sion. It needs but small acquaintance with the
criminal law in the letter and in practice to
determine this question. Try it thus. The
end sought by all the offences made punish-
able by the Combination Act, is to deter
'knobsticks," as they are called (that is to say,
men willing to work on other terms than those
prescribed by the Union), from pursuing their
employment. To this end divers forms of
"molestation" are devised, such as dogging the
steps, hooting and hissing, gestures and words
1. The equal right of employers and workmen which, though not punishable by the present
to combine for the regulation of wages.
law, are not the less invasions of that per.
2. That such combinations were not in them-sonal liberty of act and thought which is
selves opposed to public policy, nor operated in
restraint of trade, within the legal meaning of
that term.

THE TRADES UNION BILL.
THERE was a gratifying unanimity of opinion in
the House of Commons upon the principle of
this Bill, and very little difference about its
details. Both sides of the House frankly ad-
mitted

3. That associations for such a purpose were

the right of the poorest labourer because they are inflicted by persons of his own class. This wrong it is that the general criminal law fails to meet, and it will be absolutely necessary to

order to pay, unless the defendant satisfies the entitled to the same protection from the law for the security of the workman from oppression

court that he does not pay because he cannot pay. This power, which it was impossible to take from the County Courts without paralysing them, was objected to as drawing an invidious distinction between small debtors and great debtors, when the latter are relieved from liability to imprisonment for debt, and there was great danger lest the popular tribunal should be practically destroyed for the sake of avoiding a seeming inequality. The difficulty has been removed by a process of "levelling up." The Bill that abolishes imprisonment for debt extends to the Superior Courts the same power to imprison for contempt in non-obedience to an order as is possessed by the County Courts. Where after judgment a debt is not paid at a time ordered by a court or a Judge, the defendant may be summoned to show cause why he should not be imprisoned for such contempt. If he satisfies the Judge that he had not ability to obey the order, he will be discharged, of course; but otherwise he may be imprisoned for a limited time.

A very foolish argument against imprisonment for debt has been founded on the small number of such imprisonments. But the effect of fear of it is forgotten. It is the knowledge that he might be sent to gaol if he do not pay that keeps many a man honest who would readily escape the obligation if he knew he could do so with impunity. The efficacy of punishment cannot be measured by the number of those who suffer it. The question is, how many does the dread of it deter from crime? The relaxation of severity in the law of debtor and creditor has been undoubtedly attended with an enormous increase of fraudulent debtors, and the pending Bill will doubtless largely increase

their number.

CLERKS OF ASSIZE. THE report of a committee, consisting of Mr. Justice BRETT, Mr. SCLATER-BOOTH, and Mr. M. LAW, appointed by the Treasury to inquire into the duties and salaries of clerks of assize has been made. The committee come to the conclusion that it will be desirable to retain the office of clerk of assize, but that it would be expedient to prescribe that persons appointed to these offices should have had some degree of legal training, i.e., that he should be a barrister or certificated attorney of three years' standing, or should have served for a similar period in a subordinate office on circuit. The committee consider that a salary of 1000l. per annum is more than sufficient to secure the services of officers properly qualified to fill those posts, and they recommend that the salaries of the clerk of assize on the Home, Western, Oxford, Midland, and Norfolk circuits, should, as vacancies occur, be reduced to a sum not exceeding 8001. per annum. As regards the Northern Circuit, they state that if the duties of the clerk of assize remain, as at present,

their persons and their property as is given to all

other lawful associations.

4. That there should be some recognition by law of such associations, so as to enable them to act in a corporate capacity. But there was and is much diversity of opinion what should be the form of such incorporations. The Bill simply proposes the extension to them of the Friendly Societies Acts; but many friends of the Trades Unions, and notably the Economist, object to this, as being to some extent a misrepresentation of their character. The Acts in question are constructed purposely to promote certain objects of charity; but the main purpose of the Trades Unions is not charity, and there is no reason why they should have the benefit of Acts designed with a different object than a joint-stock company, or a cricket club, or any other association.

Thus all the main principles for which the LAW TIMES has contended on behalf of the Trades Unions are conceded; and in framing the measure which Mr. BRUCE again promised on behalf of the Government, they must form its foundation. It will then, we doubt not, be seen that the plan here proposed for the incorporation of Trades Societies, very much upon the model of the Companies Act 1862, is the most feasible and the best calculated to give permanent satisfaction.

A good deal was said about the absence of legal protection for their property, and so little is this point understood, that the HOME SECRETARY has brought in a short Bill to give such protection pending the production of the general cheme.

But there is no need for it. The trades unions possess precisely the same protection, neither less nor more, as all other associations not enrolled under the Friendly Societies Acts. Certain summary jurisdiction is given to magistrates by those Acts for the protection of the funds of enrolled societies; but this is not a substitute for the general protection provided by the criminal law. A trades union can punish a defaulting treasurer or secretary by indictment, and Mr. RUSSELL GURNEY'S Act of last session removes the only obstacle that practically impeded such a prosecution. At this moment every trades union possesses the identical protection against embezzlement by its servants which is possessed by every other employer. To say, then, as Mr. HUGHES and other speakers ventured to say, that their funds are unprotected, was to mislead the House and the country, for Mr. HUGHES, who is a lawyer, cannot but know that the law gives to them precisely the same protection as it gives to him. It was surprising that of the many lawyers in the House not one rose to correct this mis-statement, and it is still more strange that it was not noticed by Mr. BRUCE, who also must have been better informed.

by his fellows that sufficient provision should be made for it simultaneously with the repeal of the Combination Act.

SPECIAL BAILS BILL.

WE have received the following letter:

TO THE EDITOR OF THE LAW TIMES.

Sir,-As a specimen of the esteem in which the Profession is held, I beg to call your attention to what is reported to have been uttered by the Lord High Chancellor of Great Britain on the occasion of moving the second reading of this Bill. His Lordship is reported to have said that by an old Act of Parliament (alluding, no doubt, to the 4 Will. & M. c. 4) no person was allowed to take special bail in the country who was an attorney or solicitor, but that now it was not worth any per son's while to take the office who was not an attorney or solicitor, and the object was to enable attorneys and solicitors to take special bail. In other words, now that the office and duties of commissioners for taking special bail was utterly worthless in a pecuniary sense, it is discovered that they are eligible to fill the office. Is any comment necessary? I abstain from making any. I leave you to deal with the subject as you may deem right. S. J. H.

WHAT WE SHALL HAVE TO PAY. THE British taxpayer is in for it. When the Budget was propounded, there was so much dexterous dealing with the various duties henceforth to be levied, and especially with the periods for future payments, that very few in or out of Parliament had formed any definite notion when they would be called upon to put their hands into their pockets to meet the demands of the State. Tables were authorotatively published purporting to show when the taxes of the next twelvemonth were to be paid. But strings of figures are read by few, and understood by fewer, and at this moment probably not one taxpayer in a hundred has any definite conception in his mind of what the law has imposed upon him. It is the law now, and the statute is before us, and a summary of its provisions will doubtless astonish many of our readers.

The Act that is to wring so vast a sum from the taxpayers in so short a time is c. 14 of 32 & 33 Vict., Part 1 of which relates to the Customs, and does not concern the present inquiry. We turn to Part 2 which relates to the income-tax, land-tax, and inhabited house duty.

The sums assessed to the income-tax for the last year are to be taken as the annual value for assessment during the present year, but subject to increase or diminution in the same manner as the original assessment.

The 8th section then proceeds to repeal the provisions for collecting the house duty, landtax, and income-tax quarterly, and enacts that

the duties for the year ending April 5, 1870, one week of a month, I cannot sign it until four shall be payable on the 1st Jan. next.

Observe the effect of this. In practice, the taxes for the year ending April 5 next would be collected, one half in November and the other half in May; that is to say, half the incometax for the current year would not be payable until the 6th April next, and would not be in fact collected until May or June. But, according to the text of Mr. Lowe's new law, it must be paid in full in January next, thus anticipating the period of payment by four or five months, and compelling that payment at the period of the year when most persons have more demands upon them and less receipts to meet them than at any other season.

But this is not the only hardship inflicted by the new law. Another screw is to be applied to the unhappy taxpayer in this same black month of January. The assessed taxes, as well as the income tax and land tax, are to be paid in January in full. This is effected by a process even more stringent. The assessed taxes are converted by sect. 16 into excise duties, for which licences are to be taken out on the 1st Jan. for the ensuing year, so that we shall be called upon in September to pay the half year's assessed taxes for this year; in January the whole year's assessed taxes for next year, and in April the remaining half year's assessed taxes for the present year-practically two years' payments will be demanded in one year, and the greater portion of them in the most inconvenient month of the whole year in which to provide the money to meet them.

We shall make this complicated arrangement more intelligible by an instance.

B. is assessed, say, at 204 for assessed taxes, at 50% for income-tax, at 10% for land tax. As it would have been but for Mr. Lowe's scheme, he would have paid this 807. thus:1869. In September 1870. In May

£40
40

sent year

£10

80

10

The Budget offers many and considerable improvements in taxation, but they will be dearly purchased at the price of so terrible a screw in the collection as is described above, and the working of which is as yet but imperfectly understood by those who are to be subjected to it. In January there will be such an outcry from the taxpayers as England has not heard for many a year. A general election would then assuredly leave the Government in a minority. It is fortunate that they are not likely to be compelled to appeal to the country at a time when it will be smarting under the infliction of two years taxes levied in three months.

COUNTY COURT APPEALS. Ir is not often that we find a County Court Judge reviewing a decision of a court of appeal which has reversed his own judgment. As a general rule of course there can be no practical utility in this, and the Judge who would make it a practice would simply waste the public time. There should be good grounds for making any comment upon the judgment of a court of appeal, and the question is, what we are to consider good grounds.

Mr. FALCONER, of the Welsh Circuit, has afforded us some material upon which we may arrive at a reasonable conclusion. He gave judgment in a case which was pretty much one for a jury, involving as it did a claim for demurrage, and the question being whether certain delay in unloading was excusable or not. In the first place his Honour pointed out that it is a very easy matter for a case stated for appeal to go to the court above in a defective condition. He takes occasion to say, "At first I thought the case was too hastily prepared. This arose from a rule of the courts, that the appeal case shall be drawn up by the parties and settled, in case of dispute, by the Judge; and also to an absurd provision which interferes with a prudent delay, namely, that the case shall be signed in open court. So that if I do not sign the case in

weeks afterwards."

This being so, we think that wherever the case is one principally of fact, and where there can be any doubt as to the construction to be put upon the facts, it should be open to a County Court Judge further to inform the court of appeal. There are obvious objections to such a proposal, the main one being that it might be abused; but we think that a restatement of the case might be permitted in certain cases, and the first thing to be done is to abolish the provisions now existing as to stating and signing cases for appeal.

PASTURAGE ON HIGHWAYS.

The question is one of fact for the magistrates to determine. It would be hard not to allow the proprietors of these roads to depasture their cattle on the sides, but they must place them under sufficient charge to prevent their straying."

This makes the matter sufficiently clear, and disposes of the doubts entertained by the writer of the letter which we have quoted above.

LAND.

THE INCLOSURE OF COMMON
THE Inclosure Commissioners, it appears, are not
doing so well as it was hoped they would. We
are not at all surprised at their failure, because
they had imposed upon them a most difficult
not so situated that their utility and public
Sir, I think the paragraph which you copied advantage can be appreciated at a glance. It is
from the LAW TIMES into your Market Telegraph in every case a work of difficulty to discover the
last Saturday calculated to mislead many of your variety of interests which may be affected by
readers, as they are very likely to infer from it inclosing any particular portion of common land.
that they may stock the sides of our ordinary In the first place, the persons who enjoy rights
roads without infringing on the laws, if they keep of way and common rights of pasture and the
their cattle off the metalled parts, in which I think like, may not be numerous, their places of resi-
they will soon find themselves mistaken, as it is dence may be scattered, and it must be a matter
quite clear to my mind that the grass sides of the
roads in this neighbourhood are as much high- of very considerable labour to find them out and
ways, or parts of highways, as the metalled parts, ascertain from each individual what his wants
and are so pleasant for the public to canter along and desires really are. The Commons Select
when on horseback, or to drive cattle on, that I Committee on this question point this out in
wonder the surveyors are allowed to place their their recently issued report. They say that the
heaps of materials upon them so much as they commissioners sitting in London can have few
are, for which they are just as liable to be fined as opportunities of obtaining local information by
those who stock them, and they are further liable other channels than the reports of the assistant
for any damage which they may occasion; for commissioners, and they think that the reports
example, supposing they were to cause a convey-presented to Parliament should contain more
ance to be upset, and a man was injured for life, precise and minute statements of the informa-
or killed, leaving a widow and children, either he
or they would have just as great a claim on the tion on which the provisional orders are framed,
surveyors for compensation, as we so frequently such as the population of the neighbourhood,
hear of against the companies in railway accidents. the number of persons attending the meetings,
Then, again, footpaths are as much highways as
the distance of the waste or common land from
any other parts of our roads, and I cannot con- the towns and villages within reach, the par-
ceive where the owner of the herbage on the sides ticulars of any other ground available for
of highways can have a right to depasture them, recreation, and of other cottage gardens and
except where roads run across commons or other field allotments, and any other details calculated
waste lands; for if a highway is defined by fences to enable Parliament to judge of the grounds on
(no matter how wide it may be) no one has a right which the provisional orders relating to public
either to obstruct it or encroach upon it. The only allotments are based. And the committee
way I can see for the owners of the herbage law- recommend better publicity of the notices of
fully to avail themselves of it is by mowing.
meetings given by the assistant commissioner.
These are very judicious and necessary re-
commendations. But we think that a more
important matter is the mode in which the
local inquiry is conducted. The assistant
commissioner to whom this work is assigned
is commended by the committee, but it appears
that in the only case in which a complaint has
found its way to the committee, the assistant
commissioner stated that he set apart the small
extent of an acre, out of the 1904 acres of
common which were to be inclosed for the follow-
ing reasons-because a larger amount would not
be used; because the population never resort to
the common for exercise and recreation; because
there are other commons where the children and
grown-up people can rove about, and because the
ground is steep. This single acre of recreation
ground he intended specially as a playground for
the children of the school. On the other hand,
the parish clerk and the schoolmaster testified
that the common is a general resort of the in-
habitants for exercise, for games, and for the
meetings of their friendly societies; that there
is no other common within five or six miles to
which the public are allowed free access; that
one acre is not sufficient either for the children
or the adults; that seven acres equally suitable
are adjoining, and that there is much dissatis-
faction among the inhabitants at the small
extent set apart for recreation, which finds vent
in the remark that when the common is inclosed
they will be as badly off as in a town, and will
not have even the accommodation which they
would get in a town in the way of recreation
ground.

A CORRESPONDENT Writes as follows to the task. The commons throughout England are
Wisbech Advertiser:

The writer of the above was evidently un-
aware of the decision upon which the paragraph
quoted from this journal was based. If he, and
those similarly interested, will refer to the case
of Golding v. Stocking, 20 L. T. Rep. N. S. 479,
it will be found that persons entitled to the
pasturage on the sides of the highway may turn
out their cattle in charge of some person whose
duty it is to see that they do not stray on to
what is commonly called the metalled part of
the highway. The cattle in that case were sent
by their owner under the control of a keeper, in
order that they might depasture on the sides of
the highway, and the contention before the
justices was that the cattle could not be said to
have been found straying within the meaning of
the 25th section of the Highway Act 1864. The
justices found on the evidence, however, that
nine of the bullocks were seen straying upon the
metalled part ("central or gravelled" is the ex-
pression used), and that the appellant was not
at the time, as to those nine bullocks, legally
exercising the right which he had of the pas-
turage which existed on the sides of the highway.
The justices further found that the keeper of the
bullocks was at the time in a field divided from
the highway by a ditch, and forty yards off the
nearest bullock. Accordingly they convicted the
appellant, on the ground that his cattle were
straying on the highway. The Chief Justice,
at the close of the argument, said, “The justices
might very easily have found the other way
on the facts of the case, but we cannot say they
were wrong." And in the course of the argu-
ment the same Judge said, "A stranger's cattle
might be found straying on the sides of the Now it would seem from this that the assistant
highway, though that could not be said of the commissioner arrives at his conclusions by the
cattle of a person having a right of pasture unaided light of his own view of the wants of
there, as the appellant has, but the cattle of the the vicinity. If such a flagrant disregard of the
appellant may be found straying on the high-state of things as it appears on reliable evidence
way itself, though not on the sides, and that is occurs in the only instance in which alarm has
found to be the case here. If his cattle had been been taken and a complaint made, what is the
pasturing on the sides under competent charge, probability as regards other places? We should
and through some accident they escaped for a have expected that the assistant commissioner
short time from under the charge of their keeper would have been inclined rather in the other
and got on the highway, that would not be a direction, and to compensate liberally those who
case for conviction by the magistrates, but if are being deprived of what may be called a
the cattle are found straying on the highway for natural privilege attaching to the locality.
any length of time, the case would be different.

The committee conclude their report by ex

pressing the opinion that the annual Inclosure Bill requires the constant attention of Parliament. In this we heartily concur. We would further recommend that the condemnation of common lands to inclosure should in each instance be made the subject of a proper inquiry, the assistant commissioner being empowered to hold a court, and persons compelled by subpoena to give evidence before him.

CONTRACTS TO LOAD AND

UNLOAD.

A CASE of Nelson v. Richards, recently before the Queen's Bench, but not reported, raises a question upon the construction of a contract to deliver to consignees within a reasonable time, and it was there decided that unless there is an

express clause providing for contingencies, the delivery must be made subject to contingencies. There the facts were these: A ship, the Rivulet, arrived at Swansea, on Friday morning, the 2nd Oct., at eight o'clock, laden with calamine or oxide of zinc. She was not discharged until Saturday, the 17th Oct. She might have been discharged in six days if her discharge had commenced on her arrival, but seven other vessels, laden with zinc ore for the same consignee as the consignee of the Rivulet, had arrived in port

before the Rivulet and four of the seven arrived the same day. The "unloading" in the terms of the charter-party was to be "through the charterer's agency at Swansea as expeditiously as the custom of the port would allow, for which special arrangements were made." The ore was unloaded into barges, and the distance they had to traverse was about three miles, and through locks. The unloading was accomplished expeditiously and with as much despatch as this mode of discharge permitted, and so far, "unloaded" with all reasonable despatch. But this despatch related only to the unloading, that is the taking of the ore out of the vessel and the claim for demurrage, for which the action was brought, depended on the delay preceding the unloading. The consignees took the vessels in turn, and employed as many barges as they could get.

Looking at this case in connection with previous decisions, we see that a nice distinction may exist where states of facts are somewhat different. In the above case the court said that the charterer could not be taken to have contracted that the port should be free, and that if the shipowner had desired to protect himself against possible delay by the happening of any contingencies he should have had a clause inserted in the charter-party.

The previous decisions are not numerous. The earliest that we know of-Rodgers v. Forresters, 2 Camp. 483-decided that if the freighter of a ship employed to bring a cargo of wine into the port of London, covenant to unload in the usual and customary manner at her port of discharge, he is not liable for detention of the ship in the London Docks, if she is unloaded in her turn into the bonded warehouses. There, however, there was a particular custom, that ships should unload in rotation. "The wines," said Lord Ellenborough, "might have been landed sooner, by an immediate payment of the duties; but since the bonding system was introduced, this has ceased to be the usual and customary mode of unloading a cargo."

Another case in the same volume, at p. 488, is that of Burmester v. Hodgson, and comes near the principal case which we have already mentioned. The facts were very similar to those in Rodgers v. Forresters, Chief Justice Mansfield holding, indeed, that the two cases were not distinguishable. It was therefore held that the consignee was not liable to make compensation to the owner of the ship in the nature of demurrage for any delay occasioned by the crowded state of the London Docks, although the cargo might have been landed sooner if the duties had been immediately paid.

This case, however, is apparently in conflict with a third case on the point, occurring in the same volume-Randall v. Lynch, p. 352. It was laid down there that if by a charter-party leave is given to detain the ship a certain number of days for the purpose of discharging her cargo, this amounts to a covenant on the part of the freighter, that he will not detain her longer; and further that the vicissitude of the crowding of the London docks was one for which the freighter was liable to the shipowner in respect of the delay in unloading. Lord Ellenborough said, "The question is whether the detention of

the ship arising from the inability of the London
Dock Company to discharge her is, in point of
law, imputable to the freighter; and I am of
opinion that the person who hires a vessel de-
tains her if at the end of the stipulated time
he does not restore her to her owner. He is
responsible for all the various vicissitudes which
may prevent him from doing so.
The
defendant is as much responsible for the want
of a berth, as if it had arisen from tempestuous
weather, or any other cause."

The reader will, of course. perceive that in
this last case there was a contract of hiring for
a fixed period, so that the question of reasonable
delay did not arise. But from the decision we
conceive that it could be forcibly argued that
the freighter would be liable for the delay where
there was no express contract, the condition
being implied that all vicissitudes which give
rise to claims for demurrage should impose a
liability on the freighter.

In other cases the question what is a vicissitude which may reasonably cause delay, for which neither party can be made responsible to the other, has been somewhat arbitrarily decided. In Adams v. The Royal Mail Steam Packet Company, 28 L. J. 33, C. P. which was an action for not loading in the customary manner, the Judge was held rightly to have directed the jury not to take into consideration a delay occasioned by a strike among the colliers, and a dispute with a railway company, along whose line the coal had to be brought to the port for shipment, these not being matters contemplated by either party when the charter party was made. Chief Justice Cockburn said, "It happened that extraordinary circumstances arose which prevented the defendants getting their coals down to the vessel. That cannot now avail them. They ought to have protected themselves by a clause to that effect in the charter-party."

Mr. Justice Lush is said to have held that this case and another, to which we shall refer, were not applicable to the case of Nelson V. Richards, but in our opinion, there is very little in the distinction drawn between contracting to supply a cargo and contracting to unload, that the one is absolute, the other contingent. Could it be said that a contract to supply a cargo is invariably absolute? The question, however, is now concluded by authority, and must be considered as no longer open for discussion, for Kearon v. Pearson, 31 L. J. 1, Ex., established that a contract to load with usual despatch means "usual despatch of persons who have a cargo in readiness for the purpose of loading," and that if the party contracting to supply the cargo is prevented from obtaining it within a reasonable time, the loss must be his. This being so, we will only say that there are some cargoes which could not be kept in readiness. In Kearon v. Pearson, the cargo was coal. But what if it had been perishable?

The distinction, however, must be held sound on authority, and the deduction must be, first, that there can be no excuse for not loading at the time agreed upon, and secondly, that whilst delay may be excusable in unloading, the question of what contingencies will excuse delay is a question for the jury. If a time of hiring be agreed upon, all detention after that time must be paid for as demurrage, the fact of there being no berth available offering no excuse: (Randall v. Lynch, sup.) But where no time of hiring is agreed upon, the case of Nelson v. Richards recognises that contingencies must be considered, and that the crowded state of the docks is a contingency which will be taken into calculation.

COUNTY COURT ADVOCACY.
Ir is a delicate matter for a journal whose
interests are absolutely identical with the in-
terests of a profession to point out blots in that
profession, and the conduct of its members. As
a rule we are very reluctant to do it, but regard-
ing the County Courts as a developing institu-
tion, we consider the duty incumbent upon us to
correct abuses where they exist, and by depre-
cating what we think improper to check a
repetition of the offence.

County Court advocacy is at present very
largely in the hands of solicitors who, in the
great majority of instances, emulate the
courtesy and forbearance of the Bar, and leave
really nothing to be desired. The occasions,
however, on which counsel come into collision
with one another and with the learned Judge,
are very rare. This cannot be said with regard
to the other branch of the Profession, and until

it can be said there will always be some barrier to the solicitors attaining the object of the ambition of so many of them. But we cannot say that this result is wholly owing to the solicitors. We have one instance before us which shows that a Judge may, in a great degree, govern the behaviour of those who practise before him. That it is hard to leave untouched an obstreperous advocate, we allow, but the temptation to meet such an one with his own weapons can rarely be submitted to without loss of dignity.

the following information: "It is a well known From a western court a local reporter sends us fact," he says "that Judge SAUNDERS and Mr. Attorney JOLLIFFE seldom meet without having a mutual go-in.' This may be all very well as a vent-peg for a lawyer who has a losing cause, or as a safety-valve for the wrought-up feelings of a Judge, whose ears are bored day after day with

long and tedious cases, and some excuse may even be found in the fact that these passing flings between the Bench and the Bar afford them with a great deal of gusto, but surely the amusement to the public, who generally swallow unfortunate client who is in waiting is a subject for commiseration. If his case is to be left to the consideration of a jury, ten to one but they are listening to the legal retort courteous, instead of reviewing the arguments. Again, a Judge would be more than human, and Judges are but human, if he failed to give a combaopportunity presented itself, even if it were tive lawyer a slap in the face when the would possess a more peaceable disposition at the expense of a client; and an attorney than is usually exhibited if he did not at once destroy any favourable consideration that may have existed for his client, by returning an answer that must have the effect of raising the judicial ire. To his Honour it must be particu larly trying, after sitting hour after hour, in a crowded room with the thermometer at 90, to have inflicted upon him a long-winded statement of the case of an hour's duration, that might have been laid before him with equal force and clearness in ten minutes; but at the same time it must be particularly mortifying to Mr. JOLLIFFE be an elegant peroration, suddenly pulled up to be, in the middle of what appears to him to with a remark from his Honour that raises a laugh at his expense in court among those who better men than themselves; or to be told in the are only too pleased to see the humiliation of midst of what he considers an acute examination of a witness, that in the judicial opinion, the question he has just put is an absurdity. if Mr. JOLLIFFE would consider that time is made, not only for slaves, but for men of business, and, accordingly, cut it short, all this would cease."

According to this local observer the fault is on the side of the attorney, but it is somewhat difficult to come to that conclusion on looking through the report of a case occurring at the court. We shall quote, however, not for the purpose of founding on the quotations any and amusement of our readers. The amusement judgment of our own, but for the edification will, no doubt, be as much caused by the kind of thing which law reporting is in the provinces, as by the eccentricities of the persons engaged in the scene.

Mr. JOLLIFFE called the attention of the jury to the Six Carpenters' case. We here quote: His Honour.-Tell the jury what year that case was decided in.

Mr. Jolliffe.-That can't affect the decision. His Honour.-Well, tell them. Tell them that it was some centuries ago (derisive laughter in court).

Mr. Jolliffe. That does not, for one single moment, alter the case. (To the jury): It is right and proper for me to tell you, and I hope and trust that I shall be allowed to make any observations annoyance-that in quoting this case I am quoting without the slightest unnecessary interruption or one of the leading cases of the land as bearing upon this point.

Juryman (of an inquiring turn of mind): We should like to know what year t'was decided in.

His Honour.-Oh, never mind, that makes no difference; it is a very old case, but it is established law.

Our readers will judge whether there was any necessity for this piece of banter. But better follows. His HONOUR asks where the Six Carpenters' case is to be found, and we think there is some cause for being ashamed of the following discussion, the peculiarities of the report notwithstanding:

His Honour.-Where is the case to be found?
Mr. Jolliffe.-In Law Terms.

His Honour.-No, it is not. (Mr. Joliffe begins to search a large volume of law.) Here, let me have the book; perhaps you haven't looked into it before, and I'll tell you.

Mr. Jolliffe (not quite certain, but near the mark). -In Coke's Reports.

His Honour.-No, it isn't; it's Cooke's. (Audience, whose sympathies lie with the defendant, go into ecstacies at Mr. Jolliffe's discomfiture.)

Mr. Jolliffe (who doesn't relish matters).-Well, wherever it's reported, it can make no difference; it is the highest authority in the case.

His Honour.-Well, you have not told us yet what you want it for; go on!

Upon this again we will say nothing, but proceed to a point in the proceedings where the Judge and a boy in the audience have it all to themselves. The reporter tells us :

A small model, made from a cigar box, was put in to show the alterations done to the premises. His Honour (viewing it humorously).-That is the house that

Sharp boy in the audience (promptly).-Jack

built!

His Honour (facetiously).-No; the six carpenters. (Roars of laughter from appreciative listeners.)

The most marvellous part of the whole business, however, seems to have been the effect of the verdict of the jury for the defendant, the simple question involved relating to a breach of an agreement to repair. We are told that "on the announcement of the verdict there was loud and long-continued cheering, which the officers of the court found it impossible to check for some time, and immediately afterwards a peal of the church bells rang out, notwithstanding the late hour of the night."

And finally, to point the moral of this singular history, the reporter says, "This trumpery case was begun at twelve o'clock and finished at

4. That such fines constitute a fund for the benefit of the army generally.

5. That the punishment of non-commissioned officers the ranks. need not necessarily be accompanied by reduction to

6. That greater facility be afforded for the discharge of men of bad character.

7. That the practice of "marking" be abolished when

altered circumstances referred to in the report will admit of it.-Pall Mall Gazette.

under its jurisdiction, as far as may be practicable,
the protection afforded to a prisoner on his trial
before one of the ordinary courts of law. It is
recommended, therefore, that courts-martial should
in the main be constituted as at present, and that
the duties of deputy judge advocate should con-
tinue to be discharged as heretofore, but that in
all appointments to that office, a competent know-
ledge of the laws of evidence, and of the procedure
in the ordinary criminal courts, should be con-
sidered an indispensable qualification. It is also
recommended that every subaltern officer, before SAYINGS AND DOINGS OF THE
sitting as a member of a court-martial, and
COURTS
previous to each step of promotion, should pass
an examination before a board, of which a deputy-
judge advocate, or some one deputed by the Judge
Advocate General, should be a member, and con-
duct that part of the examination which relates to
the duties of a member of a court-martial.

Whenever it is practicable, cases of embezzlement of more than common importance should be submitted to an ordinary criminal court, as having more experience in dealing with such charges, and greater facilities for thoroughly investigating them.

[CONTRIBUTED by the ReportERS OF THE SEVERAL COURTS.]

HOUSE OF LORDS. Judgment in three cases, two of much general interest, was given on Tuesday last.

66

The circum

twenty minutes to ten. Mr. JOLLIFFE exhausted whom in the course of the proceedings it may be There was no proof that defendants were ever in

an hour and five minutes in opening it and fifty minutes in reply, thus occupying nearly two hours, or 20 per cent. of the time spent on the

whole case."

COURTS-MARTIAL.

THERE are several points of interest and importance in the second report of the Courts-Martial Commission. The commissioners express their conviction, founded on the evidence of soldiers of all ranks, that, though there may be defects requiring correction, these courts have the confidence of the army, and are satisfactorily spoken of even by those who have suffered from their jurisdiction. The evidence laid before the commissioners has convinced them that military law as laid down in the Acts of Parliament and the Articles of War is in a complicated state, and that not only in the courts themselves, but even in the highest military departments, there is often much difficulty in arriving at a just conclusion, owing to the different sources to which reference has to be made. His Royal Highness the Field-Marshal Commanding-in-Chief has expressed an opinion that the frequent reassembling of courts-martial for the purpose of revising their proceedings is attributable mainly to the difficulty which the courts often experience in ascertaining the meaning of the Mutiny Act and Articles of War, and his Royal Highness strongly recommends that both should be revised, with a view to their being rendered more clear and simple. Other authorities cited agree in this opinion. The task of conolidating military law should be undertaken, the commissioners think, on the responsibility of Her Majesty's Government.

When a prisoner is found not guilty, the finding should be announced in open court, and the prisoner immediately discharged. In the case of a verdict of "guilty," the verdict should also be announced in open court, and the sentence declared. The prisoner should be detained in custody, but the sentence should not be further carried out until the legality and propriety of the verdict and sentence have been examined by the proper authority.

In the Great Western Railway Company v. Sutton, in error from the Exchequer Chamber, the question raised, as to the legality of charging to carriers an exceptional rate for the conveyance It is recommended that the present rule of of "packed parcels," was one that has been for examining witnesses in general courts-martial, nearly thirty years past constantly before the which requires that questions shall be submitted courts. The respondent sued the appellants to in writing to the president of the court, previous recover over-charges made by them. The declato being put to the witness, shall be relaxed. It ration contained counts for money had and is clearly the duty (the commissioners say) of the received, and on account stated. president and Judge-Advocate to protect the pri- stances were these:-Sutton was a carrier, and soner from any improper question, and they rehis chief business was to collect parcels at a central office in London. These he packed together commend that wherever the services of a sworn shorthand writer can be conveniently obtained, according to the places of their consignment, and and a full and accurate record of the proceedings forwarded them by railway to his country agents thereby secured, the examination be conducted for delivery to the various consignees. Such viva voce as in our ordinary courts. By the pre-packages, on being declared "packed," were sent Articles of War a prisoner under trial before charged by the railway company at the highest a general court-martial is not entitled as of right rate named in their tariff, and 50 per cent. in to a list of the witnesses to be brought against addition. At the trial, before Baron Martin, him. The commissioners think that this right evidence was given for the plaintiff to the effect should be conceded to him, and a list of the wit- that various wholesale houses (not carriers) for nesses, together with the charges, should be the accommodation of tradesmen and customers, were in the constant habit of sending "packed furnished to him as a matter of right a reasonable time previous to the trial, and that he should also parcels" by defendants' railway, and that these have reasonable notice of any additional witnesses were not charged as packed," but at a less rate. found desirable to adduce. formed that the parcels were packed, but no questions were asked. The jury found a verdict for the plaintiff. On a bill of exceptions, to the admission of evidence and the summing up by the learned judge, it was held by the Exchequer Chamber (Chief Justice Erle dissenting) that the evidence above mentioned was properly admitted; that the judge was right in directing that there was evidence that defendants had knowingly carried parcels for other persons, "containing goods of a like description and under like circumstances," at a less rate than for the plaintiff; and that in the absence of any evidence that the difference of charge was on account of a difference of the contents of the parcels or of the circumstances under which they were carried, the jury were justified in concluding that the extra charge was within the meaning of and against 7 & 8 Vict. c. iii., s. 50, providing that "no reduction or advance in any charge shall be made partially . . . in favour of or against any particular company or person." A full report of the case will be found in 13 L. T. Rep. N. S. 221. Lord Chelmsford delivered judgment, in which Lords Colonsay and Cairns concurred, to the following effect :-There were three questions-(1) Whether there was evidence to go to the jury that the appellants knowingly charged the respondent at a higher rate than the wholesale houses for packed parcels ? (2) Whether the evidence stated above was properly admitted? (3) Whether an action for money had and received would lie to recover the overcharge? Now, there was the direct evidence of several persons that hundreds of packed parcels were carried day after day by the appel lants for wholesale houses, and this without objection or extra charge. No specific instance in which the appellants were informed that these parcels were packed" had been proved; but that was not necessary. The appellants could have given notice that packages, unless otherwise declared, would be assumed to be "packed parcels," and Information of the fact charged accordingly. might therefore have been obtained. It was essential that the equality clauses of the Act (7 & 8 Vict. c, iii., s. 50; 10 & 11 Vict. c. ccxxvi., 8. 53) should particular parties and a monopoly by the railway be strictly observed, to prevent the favouring of companies. Charges had not been made "equally

The following is a summary of the chief altera-
tions which the commissioners recommend:

be carefully redrawn.
1. That the Mutiny Act and Articles of War should

2. That a text-book on military law be prepared for
the convenience and instruction of officers, and for the
use of courts-martial.

3. That a stricter examination of officers in military
law be enforced, such examination to be conducted
before a board of officers by a deputy-judge advocate, or
some one deputed by the judge advocate-general.

4. That the convening officer of a district court-
martial be enabled either at his own discretion, or on
the application of the prosecutor or prisoner, to require
the attendance of a deputy-judge advocate.
judge advocates be increased.
5. That for this object the present number of deputy.
6. That with the view to reducing the number of regi-
mental courts-martial enlarged powers be given to
commanding officers

7. That whenever the services of a shorthand writer
general court-martial be conducted viva voce.
8. That cases of embezzlement be submitted to the
ordinary criminal tribunals, where there are facilities
for so doing.

can be obtained the examination of witnesses before a

9. That in general courts-martial the lists of witnesses, together with the charges, be furnished to a prisoner as a matter of right previous to trial, and that he should also have reasonable notice of any additional witnesses whom in the course of the proceedings it may be thought desirable to adduce.

10. That the practice of reassembling a court for the purpose of revising their proceedings be discontinued, power being given to the confirming authority in certain

cases to commute the sentence.

11. That a regimental court should only be had recourse to when a district court cannot conveniently be assembled, and that it be composed of officers of not less than three years' standing.

be forwarded to the general officer commanding the

12. That the proceedings of all regimental courts

district.

The commissioners advert to the opinion so
often expressed that courts-martial are inadequate,
as at present constituted, to deal with difficult
questions of law which frequently arise in the
course of military trials. Two remedies have been
proposed the one that the president of every
general court-martial should be a barrister; the
other, that more attention should be paid to the
education of officers in military law, and that the
office of deputy judge advocate should invariably
filled by a barrister or by an officer on whose
advice in legal practice, and especially on points
of legal evidence, the court could at all times con-
fidently rely. The commissioners adopt the latter
ew. They think that, inasmuch as courts-mar- 1. That one or more central military prisons be esta-
tial are tribunals for the trial of issues, the deter-blished, in which an improved system of military disci-
can be carried on, in which separate confinement
mination of which must, to a great extent, depend Plint form an indispensable part, and that until that
upon the custom and usages of war and of military time arrangements should be made with the authorities
service, the president and all the members of the of civil prisons for the reception of the requisite num-
court should have a practical knowledge and ex- ber of military prisoners, care being taken to separate
perience in those usages, and that it is therefore them as far as possible from the other prisoners.
essential to maintain strictly the military cha-
hter of the court. At the same time no means
uld be neglected of securing to those who come

With regard to military punishment, the commissioners recommend:

2. That the term habitual drunkenness as applied to the fourth offence be abolished.

3. That a scale of fines be substituted for the present system of imprisonment for this offence.

to all persons" for the conveyance of goods "of a like description and quantity . . . . and under the like circustances." The packed parcels, whether of Sutton or the wholesale houses, did not differ in themselves; the only difference was that the persons sending. And it could not be said that Sutton's packed parcels were not carried" under the like circumstances," because he was an intercepting carrier. There was, therefore, a violation of the Acts. The evidence was admissible. It was but general proof, but it was the only means available to prove that for which it was offered. The form