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Lunacy plus pauperism is the most abject state to which humanity can be reduced. Beside it a creditor not getting paid his debt is a very petty grievance. The Court had long ago to weigh these two evils in the scales of justice, to determine whether a helpless lunatic was to be stripped by his creditors or to be maintained, durante vitá, at their expense, and it held that the stronger claim lay with the lunatic. The creditor in such a case is not denied justice. He is merely delayed till the lunatic's death. The only point in Re Plenderleith ('93, 3 Ch.(C. A. 332)) was whether the fact that the creditor had got a charging order made any difference. The Court had no difficulty in holding it did not. To allow such a thing would nullify the beneficent jurisdiction of the Court, for every creditor would get one.

The Court of Chancery has incurred a great deal of popular odium and obloquy 'traduced by ignorant tongues' but whatever be its sins and shortcomings its protecting care of lunatics and infants, not to speak of unprotected women, will always redound to its honour.


Somerset v. Poulett (62 L. J. Ch. 720) is stuffed full of morals, morals for trustees, for tenants for life, for surveyors, for solicitors. By the way, why is this case, which Kekewich J. described as the most difficult and most important of pure Chancery cases' which had ever come before him, not in the Law Reports? It was the old story of the importunate tenant for life and the good-natured trustee—the tenant for life wanting to improve his income and the trustees relying on the advice of others instead of using their own judgment. The case illustrates more especially the remedial operation of the Trustee Act 1888 (now the Trustee Act 1893). Instead of the security being thrown back on the trustees, it is now allowed to stand for the proper amount, but even this alleviation left the trustees liable for an over advance of nearly £10,000. Tenants for life will tremble when they read of Kekewich J. impounding the life interest of the tenant for life under sect. 6 of the Act to assist in recouping the trustees, but this severity the Court of Appeal abated, holding that the breach of trust in the section must be an act which is itself a breach of trust, not one which becomes so by reason of the want of care on the part of the trustees (28 L. J. 783). It is just as well, however, that tenants for life should know the risk they run in beguiling trustees to their ruin.

The law certainly wants popularizing. Foreigners may be forgiven for thinking that an Englishman sells his wife at Smithfield seeing there are records of Black Country savages having claimed


to exercise some such supposed common law right. But in Whitworth v. Whitworth (62 L. J., P. D. & A. 71) we have a husband, a not illiterate person, signing a paper providing that the parties should live separate and that each might marry again (which they proceeded to do) and actually believing bona fide that he might do so. A hardly less crude matrimonial fallacy (Chudley v. Chudley, 69 L. T. R. 348) is that a husband cannot desert his wife if they are temporarily parted. This, to use an old judge's expression, is 'worse than false. It is a heresy.' The reciprocal duties and obligations arising out of marriage are many and complex. Cohabitation is one, but it is only

It may be dispensed with for a time by the consent of both parties, as when a husband goes to look for work in the Colonies, or a wife goes to her mother for her confinement (Chudley v. Chudley), but the suspension of one of the obligations of the spouses does not affect the rest. The husband is still bound to maintain his wife, he is still the guardian of his children, and these duties he cannot by any absence abdicate.


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Reichardt v. Sapte, '93, 2 Q. B. 308, raises à curious question which it does not decide. Suppose that A and B each compose a play without any communication with each other, and without any knowledge of each other's work. Suppose, further, that the two plays are substantially alike. Have A and B each a right to the exclusive representation of his own play? Mr. Justice Hawkins is clearly inclined to answer this question in the affirmative. It is clear, we may add, that this extraordinary coincidence between A's drama and B's drama can in practice only arise when A and B have each stolen their ideas from some more original writer, probably from a French playwright. In point of justice and common sense there is certainly no reason why under these circumstances the rights of each party should not be precisely equal. Indeed there might be a good deal to be said in favour of a law which refused every kind of privilege to the author of a drama which is a mere adaptation of a foreign piece.

A decision such as In the Goods of Marchant, '93, P. 254, shows that the formalities apparently required by the Wills Act, 1837, may to a considerable extent be evaded. A testator may execute a short document bequeathing to A all his property for the purposes mentioned in another unexecuted document. The document need not be distinctly referred to or designated in the will. It does not in fact form part of the will. Yet whoever takes out probate of the will, will be compelled to carry out the trusts described in the unexecuted document. In other words, effect is given to a will which is not properly executed.


The December Law Reports are good reading, but owing to their bulk we can only notice a few of the more interesting cases.

The rule that an executor may pay a Statute-barred debt at any time before decree is one of the time-honoured anomalies of our English law. No one, as Cotton L.J. said in Re Rownson (29 Ch. Div. 358), quite knows the origin of it, but it was probably due to a feeling that it was unconscionable to set up the Statute. But an executor has nothing to do with these expensive feelings. His duty is to protect the estate and pay only enforceable claims, and if he chooses against the wishes of his co-executor to pay a debt which has been judicially declared statute-barred he must take the consequences of a devastavit (Midgley v. Midgley, '93, 3 Ch. (C. A.) 282). There was no martyr's crown either for the executor in Midgley v. M., for he had paid the debt only with a reverted eye to his own interest. Solicitors whose zeal outruns their discretion will also find a warning in this case.

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To have towers, wings, and a vestibule to your mansion-house as well as first-class stabling, is a perfectly legitimate ambition. Bacon thought you could not have a 'perfect palace' without them : only they are the sort of fancies a man must pay for out of his own pocket, not out of capital moneys under the Settled Land Acts. (Re Lord Gerard's Settled Estate, '93, 3 Ch. C. A. 252.) These Acts make no provision for beautifying an ugly house. The improvements on which they sanction expenditure are severely, not to say basely, utilitarian, such as drains, roads and saw-mills. True such improvements as stables, bath-rooms or billiard-rooms might be sanctioned under the Settled Land Act, 1890, if they were necessary for the letting of the mansion-house, but this again is business, not aestheticism.

It is a nice point of legal casuistry, that raised by Bernstein v. Bernstein ('93, P. (C. A.) 292). A husband knows of his wife's adultery with A and condones it: but he does not know at the time he does so that she has also committed adultery with B, C, and D. Is the condonation—so far as A is concerned-good ? The Court of Appeal say yes, which is the more generous construction and also the truer. Condonation is not a restitutio in integrum, but it is a blotting out for good of the condoned offence. If it were conditional, subject to reservation and retractation, it would soon come

to mean nothing. As it is, it often saves wedlock from the misery and scandal of the Divorce Court.


In speaking of Earl-Bishop Odo, the first of our English Justiciars, Lord Campbell says, 'in the former capacity he left behind him a natural son,' &c. The solicitor ('93, 2 Q.B. (C. A.) 439) who let his houses at Bristol as brothels, sought to draw a somewhat similar distinction between his character of solicitor and of landlord. Why should he be struck off the Rolls for an offence committed as a landlord? It was ingenious but ineffectual. The distinction of personae is important in jurisprudence, but in the domain of morals or conduct this Jekyll-Hyde theory is too metaphysical. How are we to know that the person in the ascendant is a fit and proper person to be on the Roll ?

When a husband makes his wife a present of jewellery within two years before his bankruptcy, this is a voluntary settlement within the meaning of sect. 47 of the Bankruptcy Act, 1883. So Re Vansittart, '93, 1 Q. B. 181 (No. 1) decided. But what if the wife has pawned the jewellery in the meantime? Is the pawnbroker to be simply wiped out by the trustee in bankruptcy; as he must be if the section is to be read strictly as making the settlement 'void ?' To satisfy the fitness of things, Vaughan Williams J., in Re Vansittart (No. 2) 193, 2 Q. B., 377, and Re Brall,'93, 2 Q. B. 381, construes' void' as 'voidable,' and reads into the section a saving clause in favour of a bona fide purchaser for value. Acts of Parliament have to be rationalized in this sort of way.


It seems convenient to repeat in a conspicuous place that it is not desirable to send MS, on approval without previous communication with the Editor except in very special circumstances ; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.


VHE year 1877 is famous in the annals of German legislation,

for in this year were passed what are known as the Laws of Justice (Justiz-gesetze); that is to say, the Code of Judicial Organization, the Code of Civil Procedure, the Code of Criminal Procedure, and the Bankruptcy Code.

The Code of Criminal Procedure was passed on February 1, 1877, and came into force on October 1, 1879. Some of the principal features of the German judicial system have their origin in the primitive customs and procedure in force among the ancient Germans. It is not necessary to notice these at any length ; their history has been very similar among all races of Teuton origin.

The original principle which ruled penality was private vengeance, exercised by the victim or his relatives (faida, fehde). A few acts of a specially grave or shameful nature were regarded as a direct attack on the public safety or national honour, and were visited with public punishment 1; but the majority of crimes merely gave rise to individual reprisals. As the unrestricted right of vengeance would have caused a state of perpetual warfare, as harmful to the peace of families as to the interests of the State, the criminal was allowed to escape the terrible consequences of his crime by paying to his adversary a money payment or composition (Wehrgeld). This transaction was sanctioned by the public authority, which received a sum of money (Fredum, friedensgeld) as the price of its intervention. Gradually it came to be perceived that the crime harmed interests higher than those of the particular persons injured, and private vengeance gave way to a system of public punishment.

Early justice used to be administered with the aid of assessors (Scabins, Scabini, Schöffen), who heard orally the testimony of persons having knowledge of the offence.

If proof was not complete, but there were grave presumptions of guilt, the Rachimbourgs or Scabins could order the accused to purge himself of the accusation, either by the purgatorial oath, or ordeal, or challenging his adversary to single combat. In the first case, the accused affirmed on oath that he had not committed the act imputed, and produced, in support of his affirmation, a certain number of

1 See Tacitus, De moribus Germanorum, c. xii.

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