obstruction erected upon a highway without lawful authority, and which renders the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law; and where defendants, for the purposes of profit to themselves, placed telegraph posts upon a highway, with the object and intention of keeping them there permanently, and did permanently keep them there, such posts being of such sizes and dimensions and solidity as to obstruct and prevent the passage of carriages and horses or foot-passengers, it was held, that the defendants were liable to be found guilty. Also, that if the posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or if sufficient space was left for the public traffic, the defendants were still liable to conviction.-(R. v. The United Kingdom Electric Telegraph Co. (Limited), 31 L. J., M. Ca. 166.)

HIGHWAY.-Upon the trial of an indictment for making a tramway upon and along a public highway in the parish of L., the jury found that accidents had happened in consequence of the tramway being laid down; that the tramway was a nuisance, an obstruction in a substantial degree of the ordinary use of the highway for carriages and horses, and that it rendered the highway unsafe and inconvenient in a substantial degree. Defendants proposed to offer evidence to show that a great number of persons were carried along the tramway; that a saving of money was effected thereby; that the tramway was not a nuisance or an obstruction, and that it was a great advantage to the public in general who used the highway. But it was held, the finding of the jury amounted to a verdict of guilty, and that the evidence tendered by defendants was inadmissible. The tramway was laid down under a contract entered into by one of the defendants with the vestry of L., in pursuance of resolutions which were passed by the vestry; but it was held, the laying down the tramway could not be said to be a paving or repairing of the street within the Metropolis Local Management Act. -(R. v. Train, 31 L. J., M. Ca. 169.)

SALE.-Plaintiff wrote to A., offering to purchase of him a horse at a certain price, and saying that if he heard nothing further he should assume that A. accepted the horse. He did hear nothing further, until after a sale by auction had taken place, when both A. and defendant, who was auctioneer at the sale, wrote to plaintiff to say that the horse had been sold at the sale by mistake, and expressing their regret at the occurrence. In an action by plaintiff against defendant for the conversion of the horse, it was held that as there was no memorandum in writing binding on A. in existence at the time of the sale, the property in the horse had not then vested in the plaintiff, and that he could not rely on the subsequent letter of A., as that would not relate back so as to complete the plaintiff's title at the time in question.-(Felthouse v. Bindley, 31 L. J., C. P. 204.)

MARINE INSURANCE.-S., a shipbroker, was directed by plaintiff, a shipowner, who was liable for loss by jettison, to take out an open policy against jettison on deck goods, and S., shortly afterwards, received from plaintiff a notice declaring the shipment to be on deck per La Plata, from Grimsby to Ostend, of certain specified goods. S. not being then able to effect such a policy as plaintiff required, caused a declaration as to the risk insured against, similar to the notice which he had so received from plaintiff to be indorsed on a general policy, which had been effected a month previously by S.'s agents in their own names, and in that of any other person to whom it might appertain, from any port on the east coast of Great Britain to any port on the Continent between Hamburg and Havre, upon any kind of goods, to be valued and declared as interest might appear.' Defendant underwrote this policy, and also put his initials to such declaration. There were other goods in other vessels belonging to other persons, in which the plaintiff had no interest, also declared by indorsement on the policy. Plaintiff was duly informed by S., that the risk by the La Plata had been covered not upon plaintiff's own policy, but on S.'s general one. It was held, plaintiff could not sue defendant on such policy, as it had never been made

with plaintiff, nor with any one on his behalf, nor had it ever been ratified by him. Quære, whether S. could sue on it as trustee for the plaintiff. Keating, J. Mercantile usage, though always treated by the Courts with deference, must not contradict any known rule of law. Now, to give effect to the usage here, if any such exists, which would enable the plaintiff to maintain this action, would be to allow a party to sue on a contract which had not been made by him, or by any one on his behalf, or had even been ratified by him. If it should be considered necessary that such right to sue should exist, the Legislature must be applied to on the subject, as was done in the case of the transfer of bills of lading.-(Watson v. Swann, 31 L. J., C.P. 210.)

CONTRACT.-Plaintiff, having travelled to London by defendants' railway, left a box at the cloak-room of the station, paying 2d. for booking, and received a ticket, on which was the condition that defendants would not deliver up luggage deposited without production of the ticket. Plaintiff called the next (Sunday) evening with the ticket, but there was no one in attendance; and after waiting some time, plaintiff went to another part of the station, found an attendant, and so obtained his box: he was thus delayed forty minutes. The cloak-room on week-days was practically open all day, but on Sunday only a few minutes before and after trains arrived; but plaintiff was not aware of this. Plaintiff having brought an action for damages caused by this delay, in which he obtained a verdict for 40s. of damages, it was held that the ticket being silent on the subject, the contract by defendants was to re-deliver the box within a reasonable time after a reasonable demand; that whether there had been unreasonable delay, under the circumstances, was a question for the jury alone, and that there was evidence which ought to be left to them.-(Stallard v. The Great Western Railway Company, 31 L. J., Q. B. 137.)

PARTNERS.-Statements by one of two persons that another is his partner, he not being so in fact, will not be evidence to render the other liable as an ostensible partner, the statements not having been made to the person who seeks to render the other liable, and not having come to his knowledge as a matter of notoriety, and it not being shown that he has acted on the faith of such statements. Pollock, C. B. It was said that Thompson, the person who undoubtedly carried on the business, had stated that the other defendant was a partner, and that this was evidence against the latter so as to constitute him a partner, and that this would be a sort of holding out by one party to render the other liable. But we are of opinion, and it is quite clear, that the agreement did not constitute a partnership, and that there was no evidence of any holding out which was shown to have reached the plaintiff; and the statement by Thompson, that the defendant Blakey was a partner, did not at all affect the defendant Blakey so as to make him liable to the present claim.-(Edmundson v. Thompson, 31 L. J., Ex. 207.)

DOMICIL-ADMINISTRATION.-Held by Lords Cranworth and Chelmsford (diss. the Lord Chancellor), that while the administration of the personal estate of a deceased person belongs to the Court of the country where the deceased was domiciled at his death, the duty of administering personal estate in this country is to be discharged by the Courts of this country, though, in the performance of that duty, they will be guided by the law of the domicil. The Lord Chancellor : To the Court of the domicil belong the interpretation and construction of the will of the testator. To determine who are the next of kin, or heirs of the personal estate of the testator, is the prerogative of the judge of the domicil. In short, the Court of the domicil is the forum concursus to which the legatees under the will of a testator, or the parties entitled to the distribution of the estate of an intestate, are required to resort. To these general rules must be added a remark on the great danger and inexpediency of the Court of a foreign country taking upon itself the task of interpreting the will of a testator, which is written not in the language of that country, but in the language of the country of the domicil. I entirely adopt upon this point the language of Lord

Lyndhurst, in advising your Lordships in the case of Trotter v. Trotter, 3 Wils. and S. 407. I am therefore of opinion that the executors might have excepted to the jurisdiction of the Court of Chancery as a Court of construction and administration. Lord Cranworth: In every case the succession to the property will be regulated not according to the law of this country, but to that of the domicil. The duty of administration is to be discharged by the Courts of this country; though, in the performance of that duty, they will be guided by the law of the domicil. This was the mode in which the law was laid down by Lord Cottenham in this House, in the case of Preston v. Lord Melville, 2 Rob. Ap. Ca. 88. Lord Chelmsford: The fund is within the jurisdiction of the Court; the rights of the parties according to the law of the domicil (assuming an intestacy) have been ascertained; the next of kin are for the most part in this country; and why, under these circumstances, the property should be remitted to the forum of the domicil, in order that it should be sent back again to be distributed, and why the Court should be incompetent to act effectively and finally in the suit which has been instituted, by decreeing a distribution among the several persons entitled, and transmitting to Russia the shares of the next of kin resident there, I am unable to comprehend.—(Enohin v. Wylie, 31 L. J., Ch. 402.)

WILL.-Testator, a native of Great Britain, domiciled in Russia, and possessed of real and personal property in that country, and also of a large sum of consols in the English funds, made his will in the Russian form, which commenced with the words: I dispose of all my moveable and immoveable property, honestly acquired by myself, in the following manner;' and after directing a sale of his real estate, proceeded- The money proceeds of all the above, as also the whole of my capital which shall remain with me after my death in ready money and in bank billets belonging to me, shall be divided into ten equal parts; and after disposing thereof and appointing executors, in conclusion contained the following words-' and as all my moveable and immoveable property is mine own, and honestly acquired by myself, so nobody has a right to interfere with my dispositions and contest the same under any pretence whatever; and likewise, no one has a right to interfere with or contest the proceedings and dispositions of my executors.' It was held by the House of Lords, affirming the decision of the Lords Justices and of Vice-Chancellor Wood, that the testator died intestate as to his beneficial interest in the English funds.(Enohin v. Wylie, 31 L. J., Ch. 402.)

MERCHANT SHIPPING ACT.-A seaman's share of salvage cannot be recovered by action from the owner or captain of his vessel, although the salvage claimed shall have been paid by the owners of the vessel saved to the owner of the salvor. All questions relating to salvage, both as regards the amount due in respect of services rendered, and the apportionment of such amount among the different classes of salvors, are within the jurisdiction of the Court of Admiralty, subject to the provisions of The Merchant Shipping Act, 1854.' Where the sum claimed as salvage is under L.200, and any dispute arises thereon, such dispute must be referred to two Justices of the Peace, as provided by sections 460-3 of that statute. An offer to pay a sum less than the sum claimed, if not accepted, is no evidence against a defendant in an action for a larger sum, on a count for money had and received to the plaintiff's use, or on an account stated.—(Atkinson v. Woodall, 31 L. J., M. Ca. 174.)

BILL OF LADING.-An indorsee of a bill of lading, who has indorsed the same over before the arrival of the vessel and delivery of the cargo, does not, under the 18 & 19 Vict., c. 111, s. 1 (the Bills of Lading Act), remain liable for the freight. Erle, C. J.: It is proposed to read this section as meaning that because the consignor remains always liable for the freight, and the assignee of the bill of lading has had transferred to him by the statute the liability of the consignor, such assignee is to remain liable, although he has passed away the goods and bill of lading to a third party. I think the consequences this would lead

to are so monstrous, as to make me pause before I adopt such a construction of the statute. The party who receives cargo is considered generally to be liable for the freight, but that is under an implied contract, arising from the fact of his receiving the cargo, and not from the bill of lading. I think the meaning of the statute is, that the assignee of the bill of lading who receives the cargo shall have all the rights and liabilities of the contracting party; but that if he assigns the bill of lading before the arrival of the cargo, he parts with all such liabilities.-(Smurthwaite v. Wilkins, 31 L. J., C. P. 214.)

ARBITRATION.-The Court of Chancery referred to arbitration certain matters in dispute between parties to the suit of H. v. H., and also between the same parties as to the estate of H., the testator in the cause; those disputes related to certain collieries, their management, and the dealings with them for many years. One of the parties had a son, who was well acquainted with the mining accounts, and had assisted his father in the business, and this party applied to the arbitrator to allow his son to be present; but that officer refused to permit him to be present, on the ground of his behaviour in the matter. A shorthand writer, whose presence the same party wished to take notes at the meetings, was also excluded. After the award, a motion was made to set it aside; and it was held, that, without going into the question whether the award did or did not do substantial justice between the parties, it must be set aside, the exclusion by the arbitrator of the son and the shorthand writer having been made without adequate ground, and the acquiescence of the party complaining in the proceedings under the reference after their exclusion, not being such as to deprive him of his right to have the award set aside. Observations on the duties of arbitrators, and on their power to delegate authority. Lord Justice Turner: It is to observed in the first place, that an arbitrator being a judge selected by the parties, and chosen to decide without appeal, this Court has nothing to do with any mere error of judgment on his part. The parties have chosen him to be their judge, and have agreed to abide by his determination; and by that determination, if fairly and properly made, they must be content to be bound. But, on the other hand, arbitrators, like other judges, are bound, where they are not expressly absolved from doing so, to observe in their proceedings the ordinary rules which are laid down for the administration of justice; and this Court, when called upon to review their proceedings, is bound to see that those rules have been observed. I think that before an

arbitrator excludes any one from attending on behalf of any of the parties interested, he is bound to ascertain that there is good reason for the exclusion, and to take the best care he can that the party who is affected by the exclusion is not prejudiced by it.-(In re Haigh's Estate: Haigh v. Haigh, 31 L. J., Ch. 420.)

VENDOR AND PURCHASER.-A purchaser in fee of a piece of land cannot, by the purchase of a lease granted of the same land, avoid covenants which his vendor had taken from his tenants over a wide area in aid of covenants which he had entered into with third parties.—(Jay v. Richardson, 31 L. J., Ch. 398.)

NOTICE OF ACTION.-In pursuance of a resolution at a parish vestry, that it would be advantageous if a weighing-machine were erected to check the weight of materials purchased for the highways, the surveyors appointed under the Highway Act, 5 & 6 Will. IV., c. 50, caused a machine to be placed in the highway; and it was held, that although the statute gave no express power to erect weighing-machines, the surveyors were acting in pursuance of the Act, so as to entitle them, under section 109, to notice of an action brought for injuries sustained in driving over a heap of earth excavated for the weighing-machine. (Hardwick v. Moss, 31 L. J., Ex. 205.)

THE

JOURNAL OF JURISPRUDENCE.

THE SANDYFORD MURDER CASE, AND CRIMINAL LAW
ADMINISTRATION.

It was our intention to have referred in our last number to a case which has attracted an unusually large share of public attention and anxiety, and which, interesting as it was when regarded as a problem in the law of evidence, is also suggestive of considerations bearing upon the administration of our system of criminal investigation; and upon the means which our code of criminal justice has provided for the obtaining of redress, in the event of any accidental miscarriage in the course of criminal proceedings. Up to the time of publication the case was still under consideration in the Home Office; and, as it was understood that a further investigation would be instituted, we were under the necessity of postponing our observations until the issue of the inquiry. That inquiry has been completed; and the favourable result of the appeal to the Royal prerogative having now been communicated to the public, the case is at once removed from the arena of popular discussion, and may be considered with the calmness befitting the discussion of professional topics. We do not propose, however, to enter upon the merits of the issue presented to the Glasgow jury, of which probably our readers have heard enough ere this; but will confine our remarks to the questions of professional interest to which we have alluded. These relate, (1) to the abuse of the power of examining prisoners upon declaration, of which the preliminary examination in Mrs M'Lachlan's case presents a flagrant example; (2) to the expediency of vesting in the Court of Justiciary the power of removing cases from the circuit towns to Edinburgh, upon the application of the prisoner; (3) to the admitted inadequacy of our machinery of

VOL. VI.-NO. LXXI. NOVEMBER 1862.

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