custom in such case, the recommendation of the Judge was adopted. ment. labours of his office, let him devote some time and thought to the construction of a Bill by The newspapers contend that the HOME which the complaints so loudly made on all SECRETARY should not be guided by the opinion sides, of the law's delay, not in procedure but in of the Judges, but exercise an independent judg-trial, will be completely remedied. A partial But we ask our complaining contempo- relief would be time and thought wasted. It raries if they would be content for the Home must be a great reform, boldly devised and Office to insist upon the execution of a sentence inflexibly carried out. which the presiding judge had advised it not to enforce? What would have been the howl of execration against a minister who should take upon himself to inflict capital punishment when the jury had prayed a commutation and the judge had recommended it? Was not the weak Mr. WALPOLE sorely abused because, in TOOMER'S case, he so far deferred to the opinion of the Judge as to be reluctant to overrule it, even in favour of liberty? What is a minister to do when, do what he will, he is certain not to give satisfaction? BANKRUPTCY COSTS. THE Bankruptcy Bill is promised for next session, and in the meanwhile let it be subjected to the keenest scrutiny. There is no better aid in the construction of a new scheme than a clear knowledge of the defects of the existing system. An angry creditor has sent to the Times the following balance-sheet of a bankrupt's GROCER AND PROVISION DEALER. The Creditors' Assignee in account with the estate. DR. RECEIPTS. £ s. estate: IN THE MATTER OF Of a debtor There is a remedy for this, if the Government would adopt it. Let the Home Office shift its responsibility, by ordering a new trial in cases of doubt as to the propriety of the verdict. This would remove three-fourths of its troubles. There would then remain only the cases in which the prerogative of mercy is sought for the guilty, and it is one which might be properly and safely left to the authority in whom the law has vested it. Being a prerogative, its exercise To Bank of England, for the credit of should not be permitted to be questioned. THE LAW'S DELAY. THE machinery of justice is insufficient for the needs of our time. It has not kept pace with the increase of population, the progress of commerce, nor the changed habits of the days of railway and telegraph. Why should not this fact, which stares us in the face almost daily, be frankly acknowledged, and the rational remedy resorted to of adapting the machine to the work it is required to perform? The centres of population have been transferred from the west and south to the north, yet do we retain very nearly the judicial arrangements of a time when commerce and manufactures were found only south of the metropolis. Nor have we made any adequate provision for the enormous increase of trade everywhere, and the consequent claims upon the services of civil tribunals. Hence the numerous delays, amounting to a positive denial of justice, of which we hear such loud complaints; hence the dead-lock in the Nisi Prius Courts of London and of Lancashire. The Manchester Grand Jury has made it the subject of a special presentment, and suggested as a remedy that Lancashire be made a Circuit of itself. There can be no doubt of the propriety of this. At the close of the assizes in that city, an immense list of causes remained untried. During the last two days no better device could be adopted that to select three special and six common jury causes for trial, and throw over all the rest for several months. Think for a moment of the amount of pecuniary loss and mental anxiety involved in this delay! The only consolation for the unfortunate suitors is that their sufferings will hasten the necessary reform. If Lancashire be made a circuit of itself, the entire circuit scheme-nay, all our judicial arrangements-must be revised. Here is a great work for Sir JOHN KARSLAKE, in the doing of which he would immortalise himself. It must be done by somebody, and soon, and he could not confer a greater service upon the community. It is understood that the next session, which will be the last of the Parliaments of the middle classes, is to be devoted to business about which there is no great difference of opinion. The House of Commons will bring up sure for the reconstruction of our judicial machinery, adapting it to the changed wants of our own time, would be a worthy legacy of the Legislature which passed a law for its own extinction, while asserting its belief that no better law-making machine was likely to be provided by the new hands into which power is to pass. Let them sustain their boast by a bold and complete scheme of judicial reform; let them not leave the work to their successors, who are not likely to execute it so well. The law officers of the Crown have had a hard time of it, and are its own arrears of work before it dies. A mea entitled to a long holiday. Nobody will begrudge to Sir JOHN KARSLAKE, more especially, a couple of months upon the moors he knows and loves so well. But when he returns, as we all hope he will, with renewed health and vigour, to the CR. estate Total PAYMENTS. Solicitor, taxed costs..................................... Wages in full Rent, rates, and taxes........... Messrs. -, taxed costs d. 307 12 3 0 19 5 300 0 0 finally disposed of, two or three different people may be legal owners of different parts, without possessing the smallest beneficial interest. When an estate is sold by an embarrassed proprietor, it is so expensive to give purchasers a properly perfect title that the owner gains much less relief from the sacrifice than he ought; and one-half of this at least might be saved, were it not for the different legal incidents attending on incumbrances different in form, but not in real effect. The same difficulties impede the operation of Lord Westbury's Land Transfers Act, almost the only measure which tends theoretically to the abolition of that distinction of which we have been speaking, though its practical utility has hitherto not been great. Such are a few among the many anomalies which we owe to the feudal system, and to the gradual and accidental manner in which the edifice of English law has been built up. That the advantages to the nation is unquestionable; and it same process of slow growth has produced many is equally certain that the law, complicated as it is, is administered with perfect integrity and independence. But the existence of so much practical good need not blind us to the imperfections of theory; 17 1 6 the sun does not shine the brighter because of the spots upon its surface. Meanwhile it is discouraging to see Parliament neglect every opportunity of inci8 150 dentally removing anomalies. During the session which is now virtually over, the electoral franchise has been remodelled, but the absurd distinctions between freehold and leasehold property remain untouched; an Act, most important in the principle which it implicitly recognises, has considerably shifted the burden of rates in London, but there has been no attempt to clear away any anomalies except those which were starving the East Eud. No one has ventured to revive the 9 8 0 proposition for making succession ab intestato the same to realty as to personalty, which failed last year. All that has been done, even remotely tending to improvement, is the appointment of a Royal Commission, which has reported what every one knew already. If practical steps follow this report, and a Digest of the Law, and ultimately a code, be pre267 18 2 pared, we shall have made a slight advance. To have it compendiously and clearly stated what the law is, before proceeding to consider what it ought to be, is, no doubt, necessary, but it ought to be only the first step. The two things must be jealously kept apart, for no form of codification would be accepted, if there was any suspicion that the compilers of the code were really introducing new legislation; but there is no reason why they should not be carried on simultaneously. Probably the last enemy to justice and simplicity which law reformers will venture directly to assail will be the division between real and personal property; but it will perish ought to bring us nearer to that desirable consumsome day, and every piece of statutory legislation mation. ..... 634 8 2 £ s. d. £ S. d. 265 18 2 -, re-assignment of lease, &c. .................. Licences, per lessor's solicitor Balance, viz.: In Bank of England ............... £265 18 2 With creditors' assignee 200 Total Audited 28th June 1867. WINDING-UP. 137 7 S 22 0 0 36 13 8 9 1 10 64 12 6 80 0 6 7 510 £634 8 2 THE offices of the Chief Clerks are choked with winding-up business. An immense mass of it is of necessity postponed until after the vacation, notwithstanding the loss and anxiety imposed by the delay upon thousands of persons, and the losses certain to accrue to the estates by reason of the time thus given to contributories to dispose of their effects and go out of the jurisdiction. The Chief Clerks must have some holiday, like other people, but they should so arrange that the business should not stand still. Other public offices are not closed while the officials are touring, and why should those of the Chief Clerks. Deputies perform the work in the one case, why not in the other? Justice may not be so perfectly dispensed by a stranger, but imperfect justice is better than none at all. The matters that come before the Chief Clerks are often urgent; complaints are growing louder of the delays, which we believe to be unavoidable, but which will be needlessly aggravated if any of the Chief Clerks' offices are to be closed during the long vacation. If the appointment of a deputy is undesirable, let them take their holidays in turn. Let all the offices be kept open through the vacation. The vacation Clerks are more wanted than the vacation Judge, and now there is special need for them. REAL AND PERSONAL PROPERTY. THE THWAYTES CASE-TESTAMENTARY INCOMPETENCY. THIS remarkable case raises a curious questionwhat are religious delusions, and what degree of delusion on religious subjects constitutes such a monomania that, according to the decision in Waring v. Waring, “if disease be once shown to exist in the mind of the testator, it matters not that the disease be discoverable only on a certain subject, or that on all other subjects the mind is apparently sound, and the conduct even prudent, the testator must be pronounced incapable." This is good law, but bad philosophy. Like all the law relating to insanity, it is founded upon a theory of metaphysics which more exact modern science has utterly exploded. Practically it assumes that the mind is a whole without parts; that if disordered in one particular it insomuch that a person cannot be insane in one must be more or less disorganised altogether, or more directions and sane in others. The LAST week the Spectator based an article upon the existing differences in the law affecting real and personal property, and it complains of the existence of monomania is, indeed, recognised in confusion and collision between realty and per- terms, but not in fact. When used, it means to the fact that Parliament should once more sonalty. Its chief grief, however, has reference only that the patient is madder on some subjects than upon others, and not, as the science of separate without supplying a remedy for the mind teaches, that a man may be wholly insane anomalies at which it points. Parliament in one or more faculties, while all the other assuredly has done its duty this year, whatever faculties are sound. The consequences of the may be said of the years that are past. Never-law thus lingering so far in the rear of science theless we are willing to hear our contemporary, are sometimes very serious, and the conflict is even though it be unreasonable, and these are its becoming more frequent with every year. meditations upon the impediments which at present incumber the transfer of real and the distribution of personal property: The difficulties which beset the transfer of land arise quite as much from the confusion and collision between realty and personalty as from the intricacies of the real property law itself. One sort of mortgage is real estate, and passes to the heir-atlaw of the mortgagee; another sort is personal, and passes to his executors. The same trust estate often comprises both kinds of property, and it may easily happen that when a long-continuing trust is The famous Thwaytes case, just decided, scarcely called for the elaborate judgment that has been bestowed upon it, nor does it fairly raise the issue of partial insanity. The evidence amply sustained the allegation of general insanity amounting to incapacity to have a disposing mind. The history of it has been thus succinctly narrated by one of the daily papers: The story of the will may be briefly told. The testator, a woman in a very humble rank, married a rich gentleman, very much older than herself, who at his death left her property to the amount of about half a million. Her husband was devotedly attached to her, but she took it into her head that he wanted to poison her, and a year or two before she became a widow she fancied that she was seized with blindness and was physically born again, with new body, bones, nerves, and blood. From this period dates the beginning of a conception on her part that she was a member of the Trinity. She spent 15,000%. in fitting up the drawing-room of her house in Hydepark for the judgment of the world at the last day, and provided herself with a superfine chignon and a coronet of diamonds that she might play her part with due splendour on that occasion. In Dr. Smith, whose first acquaintance with her appears to coincide with the beginning of the hallucination, she recognised another person of the Trinity, superior to herself in dignity and power. Together they could, she held, do anything-spread pestilence or stay its course, command the thunder and the lightning, and so on. Dr. Smith, she often declared, knew everything she did; when he came to see her once a fortnight, "it was then they managed all their affairs, that was the express time the work was carried on." Whatever the "work" was, Dr. Smith made a good thing of it. When her husband was lying dead, and before his burial, she made a draft will (dated Dec. 19, 1834), by which, with the exception of about 50,000l., she bequeathed all the vast property she had just acquired to Dr. Smith, who was a stranger to her by blood, and whom she had known only since the illness two years before, when her mad notions about the Trinity first appeared. This was followed by an annuity of 2000l. to the same gentleman in payment for the trouble he took in drawing dividends for her, and by donations amounting altogether to nearly 50,000l. Mr. Samuel Smith, the doctor's brother, also obtained a free lodging in her house and 4007. a year, although Mrs. Thwaytes appears to have had a personal dislike to him. Nor did the influence of the Smith family stop here. When Mrs. Thwaytes came into her fortune she was very kind to her sister, Mrs. Tebbitt, providing a house for her, and giving her 30,0007.; but a year or so later, on a trivial difference of opinion as to a cadetship for young Tebbitt, she turned her sister out of doors, declaring before all the household that she was a "child of the devil." In taking this step Mrs. Thwaytes said that she acted by the advice of her friends, and the Judge Ordinary finds it difficult to suppose that fluenced her against her sister. The testator's mode of life was very simple, and her expenses moderate -within 2000. or 3000l. a year. But at her death she left barely as much as she had received from her Dr. Smith was not one of the "friends who in husband. What became of the rest is not known. It may have been absorbed in the "work" of the Trinity, for which there are no vouchers or accounts, or simply muddled away by bad management. By the will now overthrown Dr. Smith and his brother were made residuary legatees to the amount of 18,000. Here was manifest insanity extending far beyond merely religious delusions. But the argument and the greater part of the judgment went much into the question what constitutes religious delusion amounting to insanity; and as this is a question of great interest and importance, it will deserve some consideration. THE PRIZE ESSAY ON JURIES. would be for sending all other sects to asylums. of the prisoner's youth. Chief Justice Monahan, in The practical conclusion is, that religious "delusions" should be banished from the list of proofs of insanity admitted in the Probate Court. LITIGATION IN IRELAND. First we had IN the calmer atmosphere of Engish politics, The echoes of the last fierce struggle for the re- Take the first step in the inquiry-what is a be so. The second beneficial influence is the advan Trial by jury protects the Judges from the imputation of impartiality. If they had the power to acquit, they might offend the Governa collusive one. A question of law is thus raised, ment or the class to which they socially belong: Is it a belief in something differing from the which may prolong the dispute until the litigants if they could convict, they might become odions common creed? That cannot be, for, if so it fight their way into the House of Lords. Another to the people. It is true that Judges are not now be, WICKLIFFE and LUTHER were insane and action for peualties was brought against Mr. Hum-removable by the Crown; but they have sons to incompetent to make a will. So, with reverence freys, son of the land agent of the Marquis of be advanced through interest in high quarters. be it spoken, was the Divine founder of Christ-Abercorn, and the chief interest centres in this and daughters to be married. ianity so were the Apostles and all the early owing to the circumstances of the case and the rank of the person concerned. A trial took place in Christians; so were the founders and first con- December last in the Court of Exchequer, and ended tage to the class from which common jurymen verts of all the religions upon the face of the in a disagreement of the jury. In support of the are taken. A juryman acquires a knowledge of earth. prosecutor's case a witness named Daniel Miller was men, manners, and things; learns to discrimiproduced, who swore that he saw Lord Claud John nate duly between right and wrong, between Hamilton, Mr. Humfreys, and Mr. Thomas Lindsay truth and falsehood, and to recognise the differin the public-house of Thomas Kelly, in London-ence between arbitrary power and liberty and derry, the day of the election, and heard Mr. Hum- order. Hence, by being a juryman, a man grows freys call for three half-glasses of brandy, and saw Mr. better able to form an opinion upon political Humfreys hand something, which he thought was a and social matters, and to become a loyal, free +roll of notes, to Kelly." For this statement he has and order-loving member of the community been put in the dock at the commission to answer charge of perjury. Mr. Macdonogh, Q. C., and Mr. The intelligence and general knowledge of Hamilton conducted the prosecution; Mr. Dowse, Juryman are greatly increased by the nature o Q. C. and Mr. M'Lughliu defended the prisoner. the proceedings in a court of justice. He see The several parties stated to have been present were the consequences of guilt, and learns tha produced as witnesses, and contradicted in express honesty is the best policy. The pleadings of the and positive terms every one of the allegations made lawyers, and the summing up of the Judge in the prisoner's evidence. Mr. Dowse, for the must convey instruction, and teach a lesson on defence, contended that the trial had been brought for the right use of words, likely to improve an the purpose of strangling the action for penalties ordinary juryman, and extend the narrower against Mr. Humfreys. He examined witnesses, bounds of his thoughts and language. This who deposed that they saw the above-named gentlethey attempted to prove nothing more, and on crossmen coming from the direction of Kelly's shop, but literary education of a juryman appears to us to be rather fanciful, and beside the mark. It is examination they were not positive as to identity, just the kind of ornamental speculation one The jury in a few minutes returned a verdict of meets with in a prize essay. The real advantage guilty, with a recommendation to mercy on account to the class from which common jurymen are Is it a belief in the miraculous? That would condemn the great majority of ourselves. There is nothing intrinsically more improbable in the delusions of Mrs. Thwaytes than in the miracles all of us believe. If it be said that she had a firm faith in things impossible according to our human reason, the answer is that, if it be so, the belief in the real presence, in the literal resurrection of the body, and many other articles of the creeds of millions, are equally contrary to reason, or as we would say, above it. Again, if any amount of strangeness of religious creed is to be deemed a delusion and a proof of insanity, mark the logical consequences. Every man has his own creed more or less. Who is to assign the limit at which faith ceases to be a duty and becomes madness? Every man must in such case look upon every other man who differs from him as a madman. By the Protestant all Roman Catholics would be counted as insane; all Christians would call all Mahommedaus madmen; and almost every sect a selected, and to the law in its administration | through their services, is that both the law and the administration must be habitually adapted to the understanding of common men, and so be kept in a wholesome practical shape. The third beneficial influence is the avoidance of the disadvantages to suitors and prisoners of having their causes tried by Judges only, if both the facts and the law were to be in the same hands. The famous legal maxim, "Fact for the jury, law for the Judge," ought to be thoroughly understood by everybody. All matter of law arises out of matter of fact; so, until this point be settled by the jury, there is no room for law. After the verdict the Judge carries it into effect according to the law of the land, or, in other words, pronounces the judgment which the law makes a consequence of the verdict. The disadvantages themselves to which he alludes are not further enlarged on by Mr. OVEREND. The maxim which he quotes means, we take it, merely the present state of things, and furnishes no argument one way or the other. goods, delivered by one man to another to keep 2. Commodatum, or the loan of goods or 4. Vadium, a pawn or pledge, or the delivery 5. The delivery of goods or chattels to be carried, or for the purpose of something being done about them for a reward, to be paid by the person who delivers them to the bailee, who is to do the thing about them. 6. The sixth species of bailments is the one of which the leading case is the subject, viz., the delivery of goods or chattels to somebody, who is to carry them, or do something about them gratis, without any reward for such his work or carriage. This essay is full enough in its historical naked bailment of goods, delivered by one man 1. In a bailment of the first species, a bare inquiries, but meagre in its practical exposition. to another to keep for the use of the bailor, It is the working of the system which requires unless the bailee be guilty of gross neglect, he discussion, and the full light of examples from will not be liable. Common neglect will not actual trials. The abstract juryman is an imma- make him chargeable for the loss or damage of terial gentleman. No one denies that trial the property. After citing anthorities (29 Ass. by jury has great advantages and great disad-28) in support of this proposition, and in oppovantages. The question to be solved is, in what sition to the decision in Southcote's case, in which class of trials a jury is advantageous and in Lord Coke expressed an opinion that a depositary what disadvantageous, and the solution must be is reponsible if the goods are stolen from him, looked for in a diligent gathering and careful unless he accepts them specially to keep as his weighing of facts. own, the Chief Justice observes that if the bailee keeps the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them; for the keeping them as he keeps his own is an argument of his honesty. A fortiori, he shall not be charged when they are stolen without any negTried in Trinity Term, 2 Anne. [Reported, Lord lect in him; a doctrine in accordance with Raymond, 909.] MANUAL OF LEADING CASES IN By A. K. ROLLITT, LLD. No. IV. COGGS v. BERNARD. Principle Illustrated. The absence of a pecuniary consideration is no defence OUTLINE OF THE CASE. This was an action on the case in which the declaration alleged that damage had been occasioned to the plaintiff by the staving of a cask of brandy, contracted to be removed safely and securely from one cellar to another by the defendant and in consequence of the negligence of himself, or his servants or agents. A verdict having been given for the plaintiff upon a plea of not guilty, a motion in arrest of judgment was made upon the following grounds: 1. Because it was not alleged in the declaration that the defendant was a common porter. 2. Nor that he had anything for his pains. Upon the delivery of the judgment of the court, Gould, J., declared the omission immaterial, and the declaration good; the trust reposed in the defendant being a sufficient consideration for his promise, and depriving it of the character of nudum pactum. Powys, J., having agreed upon the neglect, Powell, J., cited several authorities in favour of the validity of the declaration, and pointed out the distinction between a mere promise to do an act without consideration, and the obligation to exercise care in the performance of an act actually undertaken by the promisor. In the one case, the absence of a consideration renders the promise a mere nudum pactum, and the performance of the act cannot be enforced; in the other, the law requires and implies, even in the absence of a consideration, the exercise of due care in the execution of a trust reposed in the promisor. Bracton (lib. 3, c. 2, 99 b) and with the Civil 2. In a bailment of the second species-commodatum or gratuitous lending the benefit conferred on the bailee obliges him to the exercise of the strictest care and diligence in the custody of the goods, and for the least neglect he will be answerable. The Chief Justice selects the following as an illustration. "If a man should lend another a horse to go westward, or for a month; if the bailee go northward, or keep the horse above a month, if any accident happen to the horse in the northern journey, or after the expiration of the month, the bailce will be chargeable, because he has made use of the horse contrary to the trust he was lent to him under; and it may be that if the horse had been used no otherwise than he was lent, that accident would not have befallen him. But if the bailee put his horse in his stable, and he be stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse." Bracton says, the bailee must use the utmost care, but yet he shall not be chargeable when there is such a force as he cannot resist. 3. Bailment of the third species-locatio, or lending for hire-demands on the part of the bailee the utmost care, and the return of the goods at the expiration of the time for which they were hired; or, as Justinian expresses it, such diligence as that exercised by the most diligent father of a family (Just. Inst. lib. 3, tit. 25, text 5). The bailee, however, is not liable for the loss of the goods by robbery. 4. In the case of bailment of the fourth sort ordinary care in the custody of the goods, and to restore them on payment of his debt. 5. The fifth and most usual and practically important species of bailment, viz., a contract to carry, or otherwise manage, chattels for a reward to be paid to the bailee, is of two sorts: a. A delivery to one who exercises a publicemployment, i.e., to a common carrier. b. A delivery to a private person. a. The common carrier, in which term is included the master of a ship, is bound to answer for the goods at all events, acts of God and the King's enemies excepted; a rule requisite for the protection of the public, who, being obliged to trust persons of this class, might otherwise be prejudiced by their combining with thieves in a clandestine manner. b. Bailees, factors, and others to whom goods. are intrusted, are only bound to do the best they can; and if they be robbed it is a good account, because it would be unreasonable to charge them with a trust further than the nature of the thing puts it in their power to perform it. 6. The sixth species of bailment, which forms. the subject of the leading case, and in which the bailee is to have no recompense for his pains, is called by Bracton mandatum, which may be construed an acting ex mandato, or by com-mission. Such a contract obliges the undertaker to diligence; and if, in consequence of his ill and negligent management, the goods are spoiled he is liable to the bailor; for a breach of such a trust undertaken voluntarily is a good ground for an action (1 Roll. Abr. 10; 2 Hen. 7, 11), and is a deceit to the bailor. The Chief Justice having thus classified and commented on the various species of bailments, overruled the objection that the declaration disclosed no consideration upon which to ground the promise, on the following grounds: 1. That the owner's trusting the defendant with the goods was a sufficient consideration to oblige him to a careful management. 2. That, although an executory agreement to carry these brandies could not have been enforced in the absence of a consideration for the promise, still a miscarriage in the performance of the trust, once entered upon, involves liability. And judgment was given for the plaintiff. The case of Coggs v. Bernard is illustrative of several points of law of constant practical importance, and especially of the nature and office of the consideration as an essential element of a simple contract, and of the duties and obligations of bailees, including common carriers.. In reference to bailments of the first, second, third, and sixth species, depositum, commodatum, . locatio et conductio, and mandatum, it is still theleading authority; but the law bearing upon the rights and obligations of common carriers and of pawnees has been materially modified both by direct or statutory, and by indirect or judicial, legislation since the judgment of Holt, C. J. was pronounced. The maxim that a common carrier is, ex necessitate rei, an insurer has been gradually entrenched upon, and the law upon the subject is now chiefly regulated by legislative enactment and by a series of recent decisions of the utmost importance which we shall shortly consider. Caggs v. Bernard must now be read, so far as it. affects the duties and liabilities of carriers, by the light of MManus's case, 28 L. J. 353, Ex. ; . Peek's case, 32 L. J. 241, Q. B.; Simons v. Great Western Railway Company, 26 L. J. 25, C. P. ; . Beal v. South Devon Railway Company, 29 L. J. 441, Ex.; Rooth v. North Eastern Railway Com-pany, 15 L. J., N. S., 624, Ex.; Hund v. London, Chatham, and Dover Railway Company; 11 Geo. 4 & 1 Will. 4, c. 68; 17 & 18 Vict. c. 31; and other cases and statutes which will be noticed in discussing bailments of the fifth species. The leading case derives its chief celebrity from the occasion which it afforded Holt, C. J.. to pronounce a lucid exposition of the law of bailments; his classification of which is still generally adopted, and appears to be more corvadium, or a pawn-the bailee has a special pro-rect than that of an eminent authority upon the perty in the goods, which, if the user would not subject: Sir William Jones (Jones on Bailments, be detrimental, as in the case of jewels, or if the 36; Chitty on Contracts, 424, 7th edit.; Smith's pawn be of such a nature that the pawnee is at Leading Cases, 166, 4th edit.). We propose at any charge about it to maintain it, as a horse, present to state some of the leading features of cow, &c., he may use in a reasonable manner, the law relating to the various classes of bailbut at his ovn risk. Thus he may milk the ments specified by Lord Holt in the leading case. cow as a recompense for its meat, and he may wear the jewels at his own risk, since in the case of robbery he will be answerable. The pawnee 1. A depositum, or bare naked bailment of is also, as by the civil law, bound to exercise Holt, C. J., before whom the action was originally tried at Guildhall, and who at first entertained some doubts upon the points in question, now expressed his opinion in favour of the declaration. In the course of his judgment the Chief Justice thus classified, and summarised the law of, bailinents: There are six species of bailments: I. And first of a deposit or simple bailment without reward. In this species of bailment thebailee is, as we have seen, liable for gross negligence in the care or custody of the chattei; but, be liable: (Braigloe v. Morris, 1 Mod. 210; 3 the bailment being solely for the advantage of In determining the degree and character of the negligence in cases similar to those of Doorman v. Jenkins, regard must be paid not to the amount of care exercised in any isolated instance, but to the caution usually or habitually manifested by the bailor in the charge on his own goods. If the bailee has been habitually incautious and careless; if the bailor thinks fit to entrust his property to a notorious drunkard, a minor, or a lunatic, he must, if the goods be lost, even by the gross negligence of the bailee, bear the result of his own want of caution. Volenti non fit injuria, et vigilantibus, non dormientibus, jura subveniant. "Having invited the disaster himself he must bear the brunt of it." On the other hand that may be gross negligence in one class of persons which would fail to amount to it in others. Those occupying a position or exercising a profession which implies the possession of skill and special knowledge are bound to exercise both, and an omission to do so will render them responsible for the results of what is in them, though it might not be, perhaps, in others, gross negligence: (Per Rolfe, B. in Wilson v. Brett, 11 M. & W. 113; see also Pothier, Contrat de dépôt, cap. 2, art. 1. s. 72.) A finder of goods is by the common as by the civil law clothed with the liabilities and obligations of a depositary: (Noy's Max. c. 43; Doct. & Stud. Dial. 2, c. 38.) As to the duties and liabilities of a stakeholder in his character of a depositary, see Addison on Contracts, 5th ed. 433. By the civil law, a depositary was entitled to the reimbursement of all extraordinary expenses incurred by him in order to preserve the chattels entrusted to his care-a right which may exist, under certain circumstances, by our own law. No right of lien for such expenses is, however, conferred by the common law, which in this point differs from the provisions of the French Code: (Cod. Civ. 1948.) II. Commodatum, or a lending of a chattel without consideration, to be used by the bailee, involves liability for misuse, for the least neglect, or, as it is expressed in the digest, for the absence of the most exact and vigilant care, for gross want of skill in the user, and for the slightest actual or constructive fraud or breach of trust. It is reasonable that the bailee should be responsible for even slight negligence, inasmuch as the loan is for his advantage solely, and since great trust and confidence is, from the nature of the loan, reposed in him by the lender; and for gross want of skill, since the request for the loan may be said to imply competent skill: (see Wilson v. Brett, 11 M. & W. 116. Per Parke, B.) If, therefore, a horse should sustain injury in consequence of an accident caused by the borrower's incapacity in riding, or in violating the rule of the road; or if, having been lent for the purpose of being ridden by the borrower, he should sublend it to a friend, or even to his servant, and it be injured, the borrower, having deviated from the conditions of the loan, will if it would not be thereby deteriorated, as by wearing jewels, or if its value be such as to create a charge on the pledgor in keeping it. His liability also becomes unrestricted if the chattel pledged be injured or lost after the tender to the pawnee of the debt secured to him by the pledge (the time of payment having arrived, or no time being fixed), since the pledgor by his refusal to deliver the goods becomes a wrongdoer (King v. Gallwich, Carth. 277; Bac. Abr., Bailment; Ratcliffe v. Davies, Cro. Jac. 244), "and a man that keeps goods by wrong, must be answerable for them at all events: " (Isaack v. Clarke, 2 Bulst. 306.) Upon the statutory rights and liabilities of pawnbrokers: (see Addison on Contracts, 310, & 25 Geo. 3, c. 48; 39 & 40 Geo. 3, c. 99; and 9 & 10 Vict., c. 98.) (To be continued.) COMPANY AND COMMON LAW. THE rights and liabilities of railway and parlia As to deposits with and the duties and liabili-mentary companies respecting real estate, and III. Locatio, or hiring. The law relating to 4. Upon the nature of the contract of pawn The contract of pledge being for the benefit of both parties, the obligations and liabilities of the pledgor are analogous to those of a hirer of chattels. He impliedly undertakes to take the same care of them as a prudent and cautious man ordinarily takes of his own property. But this restricted liability ceases, and he becomes liable at all events, if he uses the subject of the pledge, which he is at liberty to do, at his peril, A no less difficult question is involved in a matter which occupied the attention of this journal in several articles at the beginning of last year, the injuriously affecting of land railway company. Ricket v. The Metropolitan Railway Company, since carried to the House of Lords (16 L. T. Rep. N. S. 542), and other cases, including Chamberlain's and Senior's, which it overruled, were discussed. Here the common law principle, governing the right of an adjacent landowner to damages under the Lands and Railways Clauses Acts, is, that a man cannot recover for an obstruction to a highway unless AUG. 17, 1867.J there is a special and particular damage to himself beyond that suffered by the rest of the public. Consequently, if a diversion of a public way, or an obstruction to it by a company in the execution of its works causes loss of custom to a tradesman who has his shop there, he is not entitled to damages, inasmuch as he or his shop has no right in the custom of passers-by, and so is not legally interfered with more than other owners or persons. It appeared to the LORD CHANCELLOR, in Ricket's case, hopeless to attempt to reconcile the cases on the subject of the limits within which claims against railway and other companies for compensation in respect of damage caused by their works was to be confined, so much had principle been lost sight of in their decision. We are glad, then, to have, in the recent case of Winterbottom v. The Earl of Derby, in the Exchequer (16 L. T. Rep. N. S. 771), a pure common law decision on highway obstruction. The Earl had caused a fence to be erected across a public footway; the plaintiff continued to use the path, and on one occasion he was told by an agent of the defendant that there was no road that way, but he replied that there was one, and passed on. On another occasion he was hindered while some workmen whom he sent for removed the rails. On many other occasions he was stopped and was obliged to pursue his walk by a more circuitous route, or was delayed while the obstruction was being taken down. The way was the shortest from Prestwich to Manchester, and the plaintiff had been accustomed to use it for his pleasure or business, but only in The public the same manner as other persons. user was proved, the question was as to there being sufficient ground for damages. The obstruction, as noticed by the CHIEF BARON, was exactly one of the kind which comgas a commissioners of sewers, pany, or commissioners for draining or paving or lighting a particular parish, might cause If there in the discharge of their duties. were want of authority, there might be ground for an indictment. "But, if we were to hold that every one who has simply walked up to an obstruction and walked back again, or who has thought it necessary to remove the obstruction, and perhaps to go to some expense in removing it, and for his own convenience, is therefore to be entitled to bring an action on the case, there would be no limit to the multiplicity of actions, and to the vexation, inconvenience, and injustice that would follow from establishing such a rule of law." or But although an owner of property on or near a highway could claim no damages at common law, and therefore no compensation as for land injuriously affected, against a railway or other company which obstructed the highway, as in Winterbottom's case, yet it is apprehended that if the obstruction not only diverted or lessened the custom of the house, or diminished the number of persons coming there to do business, but also prevented or impeded communication between a shop and a warehouse, or otherwise between places connected in a manner peculiar to the person's business, then, on the authority of the leading case of Iveson v. Moore, 1 Ld. Raym. 486, compensation would be recoverable. road was obstructed which the plaintiff used for taking loaded waggons from his colliery; and, there being thus special and particular damage, There a THE LAW TIMES. incur a similar expense in the case of railway THE NEW LAW COURTS. Sir,-From reports which have reached me it So much for Mr. E. M. Barry. Mr. Street now comes upon the stage, and the why and wherefore of his position necessarily de mands our attention. In the first place, the recommendation he has received can be regarded in no other light than that of a compromise. Nobody will for a moment accuse the judges of making it a job, but neither will the Profession indorse the decision, nor will the public accept it as satisfactory. It is simply a compromise, entailing a forced and uncongenial partnership, in which every possible element of success is conspicuously absent, and every ingredient of combusI have already borne testimony to Mr. Street's tion and speedy dissolution glaringly palpable. brilliant powers and abilities as a draughtsman, and I have briefly set forth the beauties of his compohe was able to maintain his action. We are not aware whether the point has arisen on an ob-sition, suitable either for a monastic or collegiate struction caused by works carried on under an building, but altogether inappropriate for the required purpose. My reason for coming to this conclusion Act of Parliament. But whenever, in the case of companies, the court can see its way to give is the ostensible poverty, not to say meanness, of his compensation for injury suffered without laving Strand front, arising from two distinct causes,the company open to undistinguished attack, it first, the absence of consecutiveness, which gives it the appearance of eight distinct detached buildings will, no doubt, support the action. But it must in any part except in the entrance, which although be borne in mind that the injury must always tacked together; second, an utter want of dignity in such a case be of a character to affect the well grouped and balanced is, after all, a contemptible land as distinguished from the mere person; entrance for one of England's most extensive buildThe lateral gables receive and, moreover, that if the person be an owner ings. It is beautiful in detail, but narrow and any of whose land has been taken by the com- cramped in the mass. pany, he is not subject to the restriction that importance not from the majesty which should the injury must be one which would be ground naturally be made apparent by ennobling one main feature, but by compounding one of the weakest of for an action at law. gables I ever recollect seeing from the pencil of Mr. Street. The towers throughout are crude, and the turrets in almost every case tend to weaken rather than strengthen the building, and, what is worse, So far, therefore, I am at a loss to know the they are apparently merely ornamental constructions. One of two things is grounds on which Mr. Street has obtained the preference accorded to him. certain-either that Mr. Street was the best man to have had the commission without any competition There was a further point decided in the principal case which may be of service indirectly where railway companies are concerned. The plaintiff, in his declaration, charged that he had incurred expense in removing the obstruction. But the Court thought this damage was not such special damage as entitled the plaintiff to maintain his action. It is true that no one is likely to attempt to remove, or therefore to mere repetition of a farce which but too often sig- Having stated my objections I may now suggest what I believe would have been the right course to pursue. I cannot but think that a far more satisfactory result might have been arrived at in a tenth part of the time and a twentieth part of the cost if a small body of barristers and attorneys had been appointed to assist Messrs. Pownall and Shaw in arranging a general scheme, setting forth the actual requisitions for the intended building. By this means we should surely have obtained a far better plan than any we now have; the architects would have been left free to make any changes or improvements they thought fit; all would have had a fair start; and the competitors would have begun where they have now left off. As things at present stand there is but one course left-viz., to reject the decision, either with or without the compromise.-Your obedient servant, E. WELBY PUGIN. 21, Savile-row. A NEW EDITION OF THE STATUTE- (From the Saturday Review.) A BILL repealing, wholly or in part, some 1300 Acts Acts of Parliament are at present classed prac- It is not very important that Acts of the second class should be arranged in any sort of order, or should be made easily accessible as a whole. The with the title-deeds of individual proprietors, or the general public is no more concerned with them than charters of particular corporations, which are in many respects very similar in their nature to private in his own possession such documents of this nature Acts of Parliament. It is enough if each person has as may affect himself, and can produce them whenever it may be necessary. It is far otherwise with the so-called "Public General" statutes which are comprised in Class I. They contain rules with which it is as necessary that every citizen should te acquainted as with the maxims of the common law It is therefore highly desirable that these statutes such of them as are repealed should be easily disshould be well arranged and clearly expressed, that they should be published in as cheap and convenient tinguishable from such as remain in force, and that a form as possible; and this not only that the people at large may have a chance of acquiring some |