NOTES.

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.

COKE says, Co. Lit. 18 b, 'Note, that in some places chattels as heirlooms (as the best bed, table, pot, pan, cart, and other dead chattels moveable) may go to the heir, and the heir in that case may have an action for them at the common law, and shall not sue for them in the Ecclesiastical Court; but the heirloom is due by custom and not by the common law.' I should be obliged if any reader will inform me of any instance of heirlooms existing at the present day, other than the ancient jewels of the Crown. To avoid confusion, I ask only as to heirlooms in the strict sense of the word, i.e. as to chattels which devolve on the heir by custom, not as to chattels which devolve on the heir by the common law.

H. W. ELPHINSTONE.

Every few months produces decisions which develop the principles of private international law as understood by English Courts.

The judgments however, recorded in the recent Law Reports with reference to the conflict of laws, are at least as remarkable for what they do not, as for what they do, determine.

The judges who decided the case of Cochrane v. Moore, 25 Q. B. Div. 57, were so occupied in investigating the principles of the law of England governing the gift of chattels by word of mouth, that they forgot to consider the equally interesting question, whether the case was, according to the principles of English law, governed by the territorial law of England (lex domicilii), or by the territorial law of France (lex situs). There is a good deal to be said for either opinion. The donor and the donee were (we may presume) both domiciled in England. The gift, on the other hand, took place in France, and the horse of which a share was given was, at the time when the present was made, in France. Now there is authority in the way of general dicta for asserting that the valid assignment of a chattel depends on the lex domicilii of the assignor. But these dicta refer to general assignments, e. g. in consequence of death, or marriage, and there is, it is believed, no English case definitely ruling that the gift or sale of an individual movable depends for its validity on the lex domicilii. On the other hand, there is the authority of some of the weightiest writers on private international law, such for example as Savigny (s. 366, Guthrie's Translation, p. 174) and Westlake (3rd ed. p. 164), for asserting that the validity of such a gift is determined by the lex situs, and there are English cases which point in the same direction. It is therefore maintainable that the question really calling for decision in Cochrane v. Moore was one which the Court never considered. No student of English law can regret that three of our most eminent judges have solved an interesting legal problem

as to the transfer of chattels. But every one interested in legal theory must hope that the right in an eighth of the horse, 'Kilworth,' may be referred to the House of Lords, and that their Lordships may then answer the most interesting enquiry whether the assignment of a chattel is governed by the lex domicilii of the owner, or by the lex situs.

Colonial Bank v. Cady, 15 App. Cas. 267, might well appear to a reader of the head-note to decide an important question as to the choice of law, and to determine that the legal effect of certain transactions taking place in England with regard to the certificates of shares in a New York Company were governed wholly by the law of England without reference to the law of New York. It is more than possible that the House of Lords would, had it been necessary, have laid down this doctrine; but in fact the case decides nothing of the kind, for it is clear that their Lordships held the law of New York to be in substance, as regarded the matter in hand, the same as the law of England. The point actually decided is noted below, p. 466.

Vadala v. Lawes, 25 Q. B. Div. 310, decides nothing new, for it simply follows Abouloff v. Oppenheimer, 10 Q. B. Div. 295. But it adds additional weight to the principle first clearly established by Abouloff v. Oppenheimer, that where an action is brought in England to enforce a foreign judgment by A against X, the latter may raise the defence that the judgment was obtained by the fraud of A, even though the fraud alleged is such that it cannot be proved without re-trying the questions adjudicated upon by the foreign Court. This principle is one of extreme importance. It contravenes, or at any rate greatly limits, the effect of a long line of authorities including Bank of Australasia v. Niass (16 Q. B. 717), Ochsenbein v. Papelier (L. R., 8 Ch. 695), and Cammell v. Sewell (5 H. & N. 728), all recognising and enforcing the general proposition, that in an action on a foreign judgment you cannot re-try the merits' (per Lindley, L. J. 25 Q. B. D. p. 316). That the now established doctrine will in particular instances protect defendants from injustice is indisputable, but that it will on the whole promote justice is open to serious question. The respect paid to rights acquired under foreign judgments is simply one application of the very beneficial canon which lies at the basis of private international law, that rights acquired under the law of one civilised state ought to be recognised in all other states; and the introduction of any practice lessening the extra-territorial validity of rights acquired abroad is in itself a serious evil. Moreover, it is hard to see why an English Court should be deemed more competent to decide whether a fraud has or has not been committed in an action before an Italian Court than the Italian tribunal itself. On public grounds it is greatly to be desired that Vadala v. Lawes should be carried to the House of Lords. The idea will some day occur to the public, that when the decision of a private case establishes principles of immense public import, there ought to be some means provided on behalf of the State for ensuring an appeal to a Court whose decisions are final.

Warter v. Warter, 15 P.D. 152, taken together with Scott v. AttorneyGeneral, 11 P. D. 128, clears up an important point as to the extraterritorial effect of divorce.

(1) A decree of a foreign Court, in the particular instance an Indian

Court, which does not absolutely dissolve a marriage until the lapse of a certain time cannot be treated as a divorce in England till that time, e. g. six months has elapsed, and a marriage therefore in England between the respondent and the co-respondent celebrated before the lapse of six months is invalid. (Warter v. Warter.)

(2) A decree, on the other hand, of a foreign Court which absolutely dissolves a marriage but restricts the capacity of the guilty party to remarry imposes upon such party a penal status, and in its penal character is, according to a well-known rule, not entitled to extra-territorial recognition. Hence the re-marriage of the guilty party in England in contravention of the decree granting the divorce is valid. (Scott v. Attorney-General.)

The really important decision with regard to the conflict of laws is Gibbs v. Société Industrielle, &c. 25 Q. B. Div. 399. The Court of Appeal here distinctly lays down the principle that a party to a contract made and to be performed in England is not discharged from liability under such contract by a discharge in bankruptcy or liquidation under the law of a foreign country in which he is domiciled. There is much to be urged in favour of this doctrine (see Dicey, Domicil. pp. 355, 356) though expressions may perhaps be found in English cases which favour a different view.

But on speculative grounds it is difficult to accept the view of Lord Esher that the rules of the bankruptcy law existing in a country by the law whereof a contract is governed are part of the contract (see judgment of Esher M.R., 25 Q. B. D. 405). If this were so the consequence would seem to follow that the rights and liabilities of the parties to a contract are to be determined by the bankruptcy law in force at the time when the contract is made, a conclusion which in England, where a Pankruptcy Act never remains in force for more than ten years, would lead to results as practically inconvenient as they are theoretically unsound.

The judicial legislation based on the Income Tax Acts grows steadily and quickly. Colquhoun v. Heddon, 25 Q. B. Div. 129, and the Gresham Life Assurance Society v. Styles, 25 Q.B. Div. 351, each affirm the judgments of the Queen's Bench Division and meet attempts of life assurance societies to elude the grasp of the income tax. The points decided are not of wide importance, but the cases suggest two reflections. The one is that the Income Tax Acts, which were in substance drawn under different commercial circumstances from those of the present day, require remodelling in order to meet modern systems of insurance. The second is that the decisions under the Income Tax Acts and the House Duty Acts curiously illustrate the truth of the principle, well known to students of comparative jurisprudence, that a change in procedure may be equivalent to a change in substantive law. It is just sixteen years since questions arising under these statutes were first habitually brought before the Courts of law, yet the mere fact that the rights of tax-payers and the Crown have even for so short a time been the subject of regular judicial determination has developed something like a new department of revenue law.

The Governors of Charterhouse School v. Lamarque, 25 Q. B. D. 121, determines that the Charter house is not a charity school, and cannot therefore, as such, escape from the payment of house duty. The decision is fully in accordance with common sense, and disposes of the almost absurd con

tention that a school once a charity must always be a charity.' From a public point of view it is most desirable that exemptions from house duty should be limited rather than extended. The public would in many ways gain a great deal if these in common with most exemptions from taxation were abolished. People are so led by words that the fact of taxes being nominally paid to the Crown fosters the delusion that the nation has some interest adverse to the revenue. Were it not for this delusion every one would see that the exemption of A from payment of a tax means the imposition of an additional tax upon B, C, and D.

The Queen v. Paul, 25 Q. B. D. (C. C. R.) 202, deserves the careful study of the hasty philanthropists whose efforts passed the Criminal Law Amendment Act, 1885. For the sake of placing a check on an admitted evil they violated a fundamental principle of law, not to say of common sense. The statute makes the guarantees for the truthfulness of evidence depend upon the nature of the offence charged. The general principle of English law is that all evidence must be given on oath, or under some guarantee thought to be equivalent to an oath. The Act of 1885 provides that in the case of a particular offence evidence may be received, though not given upon oath, by a child incapable of understanding the nature of an oath, that is by a person whose evidence, according to the ordinary principles of law, cannot be relied upon. It is perfectly clear that only two courses were rationally open to a legislator. He might adhere to the received view that evidence given by a person too young to understand the nature of an oath cannot be trusted, and therefore ought not to be received. He might adopt the view that where a child is 'of sufficient intelligence to justify the reception of the evidence and understands the speaking of truth,' the child's evidence should be received and taken for what it is worth; this seems to have been the sensible opinion or practice of Hale. The reformers of 1885 despised logic, and enacted that a man might be convicted of a particular offence on what the law held in principle to be inadequate evidence. The Queen v. Paul shows how anomalous and self-contradictory are the results of unreasoning legislation.

Xis indicted under the Criminal Law Amendment Act, 1885, s. 4, for an attempt to have carnal knowledge of a girl not thirteen years old, and is also indicted in another court under 24 & 25 Vict. c. 100, s. 52, with an indecent assault upon her. The unsworn evidence of the girl is received under the 4th section of the Act of 1885. It does not establish the first, but does establish the second charge. But on the second charge unsworn evidence is, as the Court for Crown Cases Reserved holds, not receivable. The consequence follows that A's statements both are, and are not, evidence; they can be, and they cannot be, relied upon. A escapes punishment.

In one department of human conduct the ethics of the Courts are far higher than the morality of ordinary life. The judges condemn with the utmost severity attempts to corrupt agents which under the name of commission, perquisites, and the like, are tolerated, if not sanctioned, by men of business. The facts of the Mayor &c. of Salford v. Lever, 25 Q. B. D. 363, are complicated, but the principles it enforces are clear and admirable. Every penny gained by an agent in fraud of his employer under whatever name and in whatever form, is the money of the principal and may be recovered by him; and in addition to this the principal may recover, either

from the agent or from the other parties by whom the agent has been corrupted, damages for the fraud by which the employer has been injured.

In Atkinson v. Bradford Building Society, 25 Q. B. Div. 377, the Court of Appeal determined two points. The one point that certain money was not repayable by the society till the borrower had produced a particular book depends upon the terms of the particular contract and is of general importance in one respect only, namely, that taken together with the language of the judges, it must increase the doubts entertained by many lawyers as to the soundness of the principle supposed to be established by Pott v. Clegg, 16 M. & W. 321. The second point which is new and of importance is that if a creditor dies intestate on the day of a debt becoming due to him, and there is no evidence to show whether he died before or after the debt became payable, the Statute of Limitations does not run against his administrator until letters of administration have been taken out.

The question has for some time perplexed the Courts whether the Institution of Civil Engineers is a society whereof the property is appropriated for the promotion of education and science, and is therefore exempt from the duty imposed by the Customs and Inland Revenue Act, 1885. The difficulty of decision arose from differences of view existing among the judges both as to the nature of education' and as to the true character of the Institution. The Institution has now established before the House of Lords, Commissioners of Inland Revenue v. Forrest, 6 Times L. R. 456, that its objects are educational. No one will grudge a deserving society its exemption from taxation, but it may be doubted whether the public will gain anything by a judgment which will be found to extend very widely the exemptions under the Act, or, what is the same thing, to limit the area of taxation on corporate bodies.

What is calculated to deceive the British public is a question which admits of great latitude of opinion, as the opinions of the law lords in Eno v. Dunn (15 App. Cas. 252) show. A clergyman once protested against all conduct being regulated by the conscience of the 'weak brother.' In like manner the gullibility of the public is not to be measured by the easy dupes of the confidence trick.' We must take the ideal man of average intelligence and experience. What then would be the impression produced on his mind by a pictorial advertisement of a cook with a tray of confectionery on his head, and underneath, Dunn's Fruit Salt Baking Powder?' It really seems a not unfair inference that he would conclude Mr. Eno's Fruit Salt to be an ingredient in the composition of the baking powder, and this conclusion would doubtless be fortified if he happened to know that Eno's Fruit Salt does make a capital baking powder. At all events, it was for Mr. Dunn applying to register to prove that his mark was not calculated to deceive. Considering the resources of the English language, its possible permutations and combinations, there is really no excuse for a trader adopting words which can cause any semblance of suspicion. In choosing words traders do not yet seem to have realised that descriptive words such as Washerine,' 'Satinine,' &c. are not registrable (Re Meyerstein, 38 W. R. 440; Burland v. Broxbury, 38 W. R. 89). Hart v. Colley (38 W. R. 440) conveys a useful warning, that if you register in