The practice of citing unpublished MS. reports was not extinct in 1815. We read in Sidney v. Miller (p. 250) how "the Lord Chancellor said he had not been able to find anything amongst his own manuscript cases, but he had been favoured by Mr. Eden with a manuscript note of Lord Northington's of what Lord Hardwicke said in Brown v. Jones." The rule against hearsay evidence, which we may find luminously expounded by Sir James Mansfield in the Berkeley Peerage case (p. 796), was never applied, of course, to the Court's judicial knowledge of previous decisions.

Brisbane v. Dacres (p. 718) is a leading case on recovering back money paid by mistake. Hagedorn v. Bell (p. 497) is one of the minor oddities of the law of nations in time of war. It exhibits the free city of Hamburg, while under French occupation, in the curious position, as regards Great Britain, of a neutral by sufferance. The British Government would have been justified in treating the Hamburgers as enemies, but thought it better for the interests of British trade not to do so.

On p. 557 Bayley, J., utters one of those pithy reductions of a too clever argument to absurdity which now and again enliven the reports. "It is not possible to convert the landlord into a trespasser through the medium of a writ locked up in a drawer."

The once leading case of Waugh v. Carver is reproduced as an appendix. The proper place for it would really be as a note to Cox v. Hickman, 8 H. L. C. 268: but, as it will at best be some years before the Revised Reports can deal with the reported cases of 1860, we thought it fair to

take an earlier occasion (see note on p. 475). On the rule of "holding out" what is said in Waugh v. Carver is still sound enough, though hardly required as authority.

We shall now deal with some matters of a supplementary and critical kind. In Clifford v. Brandon, 11 R. R. 731, 2 Camp. 358, the reporter states in a note (11 R. R. p. 741) that he has not been able to find any authentic account of the trial of several persons for a conspiracy against Macklin to hiss him off the stage. A correspondent obligingly points out to us that a report of the trial was published in 1775 (Brit. Mus. 6496, aa. 11: not in the library of Lincoln's Inn). The defendants were Leigh and others. Apparently it was for riot as well as conspiracy. See further Macklin's life in the Dictionary of National Biography. It is not now possible to say (nor worth inquiry) whether Lord Campbell did not know of this report or did not think it authentic.

Quite lately some cases have been judicially cited belonging to the period of the Revised Reports and not reproduced in them. We have not received any complaint as to these cases, but we have thought it only proper to re-examine them. The result has been that, although they are directly or indirectly cited or even discussed by the learned Judges, the citations and discussion are such as on the whole to show, in our opinion, rather that the cases are not of modern practical utility than that they

are.

Marshall v. Critico, 9 East, 447, referred to by Wright, J., in Musurus Bey v. Gadban, '94, 1 Q. B. 533, 541, is so short that the simplest way is to reproduce it bodily for the

1808. Monday, May 23.

reader's judgment.† We considered that the abolition of arrest as an ordinary incident of civil process, coupled with the very special nature of the facts, had rendered the case obsolete.

Tattersall v. Groote, 2 B. & P. 131, is distinguished by Stirling, J., in Belfield v. Bourne, '94, 1 Ch. 521, 8 R. Feb. 115, and in the course of the learned Judge's observations

† MARSHALL . CRITICO.

(9 East, 447–448.)
One who had been appointed
Consul General from the Porte,
but was dismissed several months
before from his employment, and
another person resident here ap-
pointed in his room, is not at any
rate privileged from arrest, though
at the time of the arrest he had not
received any official notification of
his dismissal, or of the appoint-

ment of the other.

BURROUGH moved to discharge
the defendant from an arrest, on
filing common bail, on the ground
of his privilege, under the stat. 7
Ann. c. 12, as being consul general
from the Porte, and invested with
a superintending authority over
the Turkish consuls in the differ-
ent sea-port towns, and not an
ordinary consul or agent for com-
mercial
in which respect
purposes;
he distinguished this from Barbuit's
case. But he also stated from
the affidavit, that some months
previous to the arrest, the defend-
ant had in fact been dismissed
from his employment, and another
person of the name of Natali, who

was before residing here, had been appointed in his place; but the defendant had then received no official notification of his dismissal, and continued in fact to exercise his office here until after the arrest. And he contended that the defendant's privilege did not cease until notification at least of his dismissal, and reasonable time to depart the kingdom if he thought fit. It did not however appear that he had had any intention of departing.

LORD ELLENBOROUGH, Ch. J.:

This is not a privilege of the person, but of the state which he represents. And that state having. some months before devested him of the character in which he claims the privilege, and appointed another person here to exercise it, there is no just reason why the defendant should not be subject to process as other persons; nor for the state, by which he had been so dismissed from his employment, to take offence at his arrest.

Per CURIAM: Motion denied.

Cas. temp. Talb. 281, and vide Lord Mansfield's account of the same case in Triquet v. Bath, 3 Burr. 1480-1.

a sufficient account of the case is given: '94, 1 Ch. at pp. 525-6, 8 R. Feb. at pp. 118-9. The tenor of those observations is that, so far as consistent with later authorities, Tattersall v. Groote is superseded by them, and that at all events it is of no general importance in England since the Partnership Act, 1890.

In re Gasquoine, '94, 1 Ch. 470, contains, in Lord Justice Lindley's judgment, at p. 476, a citation from a judgment delivered by Lord Cottenham in 1837, which cites Powell v. Evans, 5 Ves. 839. This by no means shows that Lord Justice Lindley would himself have thought it worth while to cite Powell v. Evans at this day. The point for which it is cited has long been elementary, and the later case of Tebbs v. Carpenter, 1 Madd. 290, cited in the same passage, will appear in due course in the Revised Reports. Then in Mayfair Property Co. v. Johnston, '94, 1 Ch. 508, 514, North, J., went through a series of old cases on partition, and mentioned among them Turner v. Morgan, 8 Ves. 143, and Baring v. Nash, 1 V. & B. 551, which were deliberately omitted from the Revised Reports as having no importance for modern practice. Neither case appears to have been used in the argument, and we see no reason to alter our opinion. We have always professed, nay insisted, that nothing short of the old reports at large will suffice for the complete historical investigation of any branch of English law. But such investigation is only in the rarest cases a needful or desirable object for the practising lawyer. Gillaume v. Adderley, 15 Ves. 384, a case on the construction of special words in a will, is cited by the same Judge in Re Pratt, '94, 1 Ch. 491, 495,

only to be pronounced irrelevant. It is not referred to by Jarman.

We take this opportunity to desire the learned reader to note on Wilkinson v. Adam, 12 R. R. 255, i V. & B. 422, that the decision was affirmed by the House of Lords upon appeal (1823) 12 Price, 470. The opinion of the Judges in attendance was taken without hearing the respondents, and was unanimous and the House affirmed the decree without any further reasons being given.

F. P.