THE COLUMBIA JURIST. Entered at the New York Post Office as Second Class Mail Matter prosecution was in no way irregular, as the THE COLUMBIA JURIST. EDITED BY J. P. KIRLIN, LL.B., RICHARD G. BABBAGE, LL.B., culprit had failed to keep his promise, and jurisdiction had previously been obtained. If its effect was to end the first proceeding, still the court could lawfully proceed against him for publishing in Mexico the libel that was printed in Texas. There is warrant for such a course both in international and municipal law. The Penal Code of New York provides that "a person who commits an act without this State which affects persons or property within this State, . . . and which if committed within this State would be a crime, is punishable as if the act were com$3.00 2.00 mitted within this State." The statute under which Cutting was convicted is understood Up-town Office, Columbia College, 49th Street and Madison Avenue, Down-town Office, Temple Court, 5 Beekman Street. 10 * Contributions solicited from all students, gradu- to be of similar import. But the State Deates and friends of the College. **Correspondence solicited. partment seems to have rested on the princi **All communications and exchanges should be ple that offences against the persons or in addressed to the down-town office. VOL. II. NEW YORK, SEPT. 4, 1886. When the correspondence of our Department of State with the Government of Mexico, respecting the case of Editor Cutting, comes to light, it is greatly to be feared that our own representatives will be found to have come out second best. The true facts of his case appear to be that Cutting first published the libel in Mexico, and then after suit was begun upon it, made a suitable retraction, on which he was allowed to return to Texas; that he then republished the libel in Texas, and either caused or instigated its dissemination in Mexico; and that when next discovered in Mexico he was seized, tried according to the local law, convicted and imprisoned. On these facts it is supposed the State Department demanded his release, and intimated that a refusal to comply with the demand would be regarded as a causus belli. terests of foreigners, committed on American soil, no matter whether by Americans or not, No. 49. are cognizable exclusively by the American courts. This principle in a narrower form has undoubtedly been heretofore asserted by the United States; but in this case it is not the principle at all to be applied, because the publication of the libel in Mexico was what that government prosecuted Cutting fornot for the printing of it in Texas. If it had been the latter the principle above mentioned might have been invoked. But to invoke that principle and then declare that its nonobservance by Mexico would be considered by the United States as a causus belli is, if true, wholly unjustifiable. For Mexico and other nations do not acknowledge it to be a correct principle. Mexico contends that every nation has the right to punish offences against its own citizens, whenever the offenders are found within its own territory; and a threat of war in such a case of conflict, unless Mexico immediately acceded to the request of our Secretary, and thereby affirmed our prinIf the effect of the step taken by Mexico ciple and abandoned its own, without at least in releasing the prisoner after the retraction making an earnest endeavor to arrange the was made amounted simply to a suspension matter diplomatically, if true, reflects little of the proceedings, then the subsequent credit upon us, and suggests the idea that we may be trying to recover from our weaker neighbor some of the prestige we have lost at the hands of more powerful opponents. The case of Pandorf vs. Hamilton, 17 Q. B. D. 629, to the effect that sea water entering through holes in the pipes, gnawed by rats, is a peril of the seas, has been reversed by the Court of Appeal; whereupon the Irish Law Times makes the following observations: In those dull days the decision in Pandorf & Co. vs. Hamilton, Frazer & Co. is indeed a boon. As Lord Esher remarked, it is a case not alone of considerable importance, but moreover, of a curious and interesting character. Let us thank the Times (of the 10th inst.) for its report. The point has troubled mercantile lawyers for over a century, and its solution may now serve to entertain as well as to instruct. that the rats which caused the damage were not brought on board by the shippers in the course of shipping the cargo at Akyab, and that those on board had taken reasonable precautions to prevent the rats coming on board at Akyab during the shipping of the cargo. And, on the other hand, there was no finding of the jury and no admission by the parties as to the condition of the vessel in respect of rats when she left Liverpool for Akyab, or as to the original cause of the presence of rats on board the ship. Now, there is no doubt that damage done to a cargo by the direct action of rats, devouring it during the voyage, is not due to dangers or perils of the seas' (Kay vs. Wheeler, L. R. 2 C. P. 302; Laveroni vs. Drury, 8 Ex. 166); and so it was held in an American case, cited by Lord Justice Bowen (Aymar vs. Astor, 6 Cowen, 266). It was contended, however, in the present case, on behalf of the shipowners, that the question is a different one where cargo is directly damaged by sea water entering a ship through leaks which rats have caused, and that, although the shipowner is not excused when the rat eats a cargo of rice directly, if a rat eats through a pipe which lets the sea water in upon the rice the accident is one for which the shipowner will not be responsible. This question was curiously anticipated by Pollock, C.B., in Laveroni vs. Drury, The question was whether damage done to the cargo of a ship by an in-road of sea water, caused by rats, can be considered as having been caused by the ' dangers or perils of the seas,' within the ordinary exception in a charter-party or bill of lading. Lord Justice Lopes had decided in the affirmative, but an appeal was taken, and with it we have here to do. Lord Esher has now decided in the negative, holding that the judgment of Lopes, L. J., should be reversed; and so observing that, if indeed the rats had made have Bowen and Fry, L. J. J., despite the positive assurance of the Times report, that 'Lord Justice Bowen read a written judgment of himself and Lord Justice Fry to the contrary effect that the judgment was right and must be upheld.' Jupiter was nodding. a hole in the ship through which the water came in and damaged the cargo, that might very likely be a case of sea damage.' Roccas, an early writer on mercantile law, quaintly put it that, 'if mice eat the cargo, and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship, he shall be excused.' It is here assumed that cats alone are 'rough on rats,' but the vermin should, at all events, be inferior to those of Goa, whereof an old writer, Linschotten saith 'there are some as big as young pigs, so that the cats dare not touch them, which dig down Walls and Houses.' But as Chief Baron Pollock observed, whatever might be the case when Roccas wrote, it cannot but be thought that rats might be now banished from a ship It appeared that the damage to the cargo, consisting of rice, was caused during the voyage of the ship, of which the defendants were the owners, to Liverpool from Akyab, by sea water passing through a hole in a metal pipe connected with a bath room in the vessel, this pipe having been gnawed through by rats. It was not disputed at the trial of the action, brought by the charterers of the ship against the owners to recover damages, that all reasonable precautions had been taken by the captain and his crew to keep down the rats on the voyage from without any peculiar or special viligance on Liverpool to Akyab. The jury found further the part of the master. And accordingly, Bowen, L. J., put it that, as a rule, rats can but, damage done to the ships or cargo by be kept out of ships which are fit to carry rats is not a damage caused by the sea nor cargo, and, speaking broadly, a loss which is peculiar to the sea-the real effective cause due to leakage caused by rats will probably must be looked to, and that was the gnawing be found to be due, not to the perils of the by the rats, not the incursion of the seasea, but to the defects of the ship or the water, which was merely the immediate want of precautions of the shipowner.' He cause. In this respect the interpretation of proceeded to quote from the great American charter-parties has always differed from that jurists, Story and Kent, to the effect that of policies of marine insurance: the causa negligence forms the basis of liability in proxima only being regarded in reference to such cases, the same position being accepted the latter, and the causa causans in reference by Lord Tenterden in his work on Ship-to the former. If then there was no negliping. While here the burden of proof gence, would it not be only the more maniresting with the shipowner-he pronounced fest that the real and effective, though not that it was consistent with all the findings the immediate, cause of the damage was the that the mischief done to a pipe, and the in- act of the rats and not the action of the cursion of sea water which followed, would water? But the anomaly remains that in never have happened but for either a defect reference to a policy of assurance the saine in the condition of the ship or some want of law would not apply. It is not, to our mind, providence in the shipowner or his servants. writes the Law Times, so absurd that the This being so, he held that the case came damage caused by the immediate action of a within what he described as the 'broad and rat should not be a peril of the sea, while every-day rule' intended to be laid down, that caused by his letting in the sea water holding that the shipowners were liable un- should be a peril, as it will be to find that der such circumstances, while it was not the damage so caused is not a peril within strictly necessary to decide what would be the meaning of a charter-party, but is a the result in the somewhat improbable case peril within the meaning of a policy of insurof a shipowner who succeeded in proving ance; and, if the effect of a rat gnawing that the presence of rats, that have caused through the bottom of a ship differs from mischief by leakage to the cargo, was neither that of the same animal making a hole due to any defect in the reasonable condi- through the floor of a warehouse, surely that tion of his ship nor a matter which by rea- is a danger to which the shipowner is liable sonable precautions could have been prevent- because he carries on his business on the ed. But from what was said, indefinite sea, a description of a 'peril of the sea' laid though it was, we should be inclined to down by Lord Esher himself; while the Law gather that the tendency was rather towards Journal remarks that, if a peril of the sea the opinion that even in such case the ship- must be, as the Court consider, indigenous, owner would not be exempt. Rather more why are pirates and collisions perils of the is expected from the carrying ships of the sea? The law of England sadly wants a present day than of old, and the English law master-hand to crush these refinements. is less indulgent to the carrier than either the Roman law or the law of many Continental nations. Yet it is hardly likely that the hypothetical case will ever come to be decided, for the broad and natural inference will always commend itself to the strong common sense of the judges that there must have been at least ordinary negligence to let a rat do such mischief in a vessel. And even apart from that, would not the reasoning of Lord Esher cover such a case? 'Perils of the seas' means perils to which vessels are exposed by reason of their being on the sea; NOTES OF CASES. In Stanhope vs. Stanhope, 11 Prob. Div. 103 (Ct. App.), it was held that where a husband had obtained a decree nisi for the dissolution of his marriage because of his wife's adultery, and died before the time for making the decree absolute arrived, the representatives of the deceased could not revive the suit for the purpose of applying to make the decree absolute. Bowen, L. J., said: A man can no more to settlements and deal with the settled property. But to assume that the lis still exists because the legislature has given this power is begging the question, for it is consistent with the language of the enactment to hold it to mean that even though the suit is at an end the Court shall have power to vary settlements, and that seems to me to be the true view. The legislature is giving, over and above relief in the suit, a relief outside the suit-a relief which is the creature of the statute. It is said that this divorce proceeding affects the personal estate of the husband, and that therefore his executor has an interest in it. No doubt it may affect his personal property, every change of status may affect personal property, but that is only con tion of a marriage is not to affect property but to change the status, and it cannot be looked upon as a suit relating purely to prop be divorced after his death than he can after to the 22 & 23 Vict. c. 61, s. 5, which enables his death be married or sentence to death. the Court after a final decree to inquire inMarriage is a union of husband and wife for there joint lives unless it be dissolved sooner, and the Court cannot dissolve a union which has already been determined. An act of Parliament might indeed give the Court power to pronounce after the death of one of the parties a decree declaring the marriage dissolved from a certain past date, but has the Act done so? I think not. The act of 1857 (20 & 21 Vict. c. 85, s. 31), enabled the Court to pronounce declaring the marriage to be dissolved. Now, under 23 & 24 Vict. c. 144, s. 7, a decree nisi must precede the decree absolute, but though the decree is thus split into two parts its effect is the same, it is a decree dissolving the marriage. The appellant's counsel to escape from this difficulty tried to show that the parties after a decree nisi stood in a peculiar relation. It sequential. The object of a suit for dissoluis difficult to understand in what position they considered them to be. They seemed to think that the marriage was in a sort of suspended existence and that the parties erty. were neither married nor divorced, but were The appellants referred to Baker vs. Baker, in such a peculiar relation that in some 5 P. D. 142, where it appears that the Lords case, the name of which was not mentioned, Justices gave leave to a committee to take it was held that intercourse between them proceedings for dissolution of marriage on in the interval might constitute adultery. I behalf of a lunatic, and they relied on this do not know what the case may be, Laxton vs. as showing that other persons than a husLaxton, 30 L. J. (P. M. & A.) 208, but the band and wife may carry on divorce proceedideal seems to me worthy of Tristram ings. But that case was entirely different Shandy. Some observations have been made, from a proceeding by an executor. It was a one by Lord Cairns, to the effect that the lis proceeding to dissolve an existing marriage, comes to an end on the pronouncing of the and as the lunatic could not himself take decree nisi, but in Norman vs. Villars, Ex. D. proceedings it was reasonable to allow them 359, the subject was fully gone into, and it to be taken in his name and on his behalf by was settled that a decree nisi effects no his committee, but how can an executor ask change in the status of the wife. If a decree to dissolve a marriage which no longer exnisi is made, and the husband dies before it is made absolute, he dies while he is still at law a husband, and his wife becomes his widow. After this, how can a decree be made which would displace a dissolution of the marriage by death, and untie a knot that no longer exists? How can a woman, once a widow, be converted into a divorcee, unless there is some enactment enabling the Court to make such a retrospective order? ists? An executor does not act for a dead man or in his name, but for the estate of the dead man. It is contrary to the idea of a divorce that it should be sought after the death of one of the parties. In order to prevent waste of time arising from the common law doctrine of abatement it was no doubt enacted by 17 Car. 2, c. 8, that in all actions, real, personal, or mixed, the death of either party between the verdict and the judgment should not thereafter be The appellant's counsel tried to show alleged for error, provided the judgment be that the lis still continues, and they referred entered within two terms after the ver dict. But that does not apply in the present swamping of the lighters. Mr. Justice Field case, which comes within the principle that held that the underwriters were discharged, every personal action dies with the person because the accident happened after the exunless some statute revives it. Revivor, as piration of a reasonable and ordinary period Cotton, L. J., has explained, goes on the from the time at which the goods had been principle that there is a continuing interest placed on the lighters for transhipment. which devolves upon some one, but here the Against this judgment the plaintiff has apobject of the suit is gone. The legislature pealed. might have authorized the continuance of divorce proceedings for some collateral purposes, though their main object was gone, but it has not done so. The case appears to me to be clear on principle, and if authority were wanted, Grant vs. Grant, 2 Sw. & T. 522, is enough to show that the appeal must fail. dismissed with costs. The question whether a reasonable time had elapsed after the discharge into lighters for transhipment does not arise in its simple sense if the risks covered by the policy did not include the risk of waiting in lighting for transhipment into an export vessel, and our opinion is that such was in fact the case, and that these goods, though lost upon the lighters, were not lost by any of the perils during the continuance of any of the risks covered by the policy. Fry, L. J., said: I am of the same opinion and feel no doubt on the case. The only decree that could be asked for would be that the marriage should be dissolved, or that it The policy in question includes all risks should be deemed to have been dissolved of craft until the said goods or merchandise from the date of the decree nisi. Neither al- be discharged and safely landed.' The risk ternative is possible. As regards the first, insured against is the risk of the transit upno power can dissolve a marriage which has on the lighters which have in the ordinary been already dissolved by the act of God. course of business to convey the goods to the As regards the second, the Court cannot pro- shore. The nature of this risk can be pernounce a decree declaring that the marriage fectly appreciated and estimated by the parwas dissolved at an earlier date, because the ties to the contract. Landing gosds means statute gives it no such power, but only au- putting them upon the land, or upon that thorizes it to pronounce a decree 'declaring which by custom of the port is its equivasuch marriage to be dissolved.' For these lent. In the present case, instead of placing short reasons I agree that the appeal must be the goods on lighters to carry them to the shore, the goods were placed upon lighters which were to take them to an export In Houlder Bros. vs. Merchants Marine Ins. vessel and there to load them as soon Co., 17 Q. B. D. 354, it was held that a poli- as she was ready to receive them. Such cy of insurance on goods which includes "all transhipment, however usual in the trade, risk of craft until the goods are discharged is not the same thing as landing the goods and safely landed," does not cover the risk directly and immediately upon the quay. A to the goods while waiting in lighters at the lighter which has to land its cargo has only port of delivery for transhipment into an ex- to make for the quay and to wait its turn in port vessel. The court, Bowen, L. J., said: accordance with the usages of the port. A This is an action by the shipper of a car-lighter which is intended to tranship the go of iron rails against the underwriters of a goods to another ship may have to wait for policy on the goods from Hull to London, in- its arrival and till it is ready to take the cluding all risk of craft. The ship arrived cargo, and may thus be subject to additionsafely in the port of London, but the rails in- al risks of exposure to the weather and of stead of being landed were placed in lighters collision with other vessels or barges in the for transhipment in dock to an export vessel, dock. In the smaller London docks lighters and during the process of transhipment in may be comparatively safe, but in the larger the dock, which process was lengthened by docks they are often swamped by the wind reason of the export ship not being ready to and by the waters; and yet might be oblig. receive the rails, a portion were lost by the' ed to wait days or possibly weeks for the |