« ElőzőTovább »
as it was before the statute passed." Willis v. Newham seems to have been founded on the notion that the word " acknowledgment" in the statute was applicable to an acknowledgment by a debtor of a payment by himself on account, which, however, as remarked by Maule, J., would be rather in the nature of a boast than in that of an admission.
MERCANTILE LAW-BILL OF LADING-ITS EFFECT WHEN SIGNED BY MASTER FOR Goods never SHIPPED.
Grant v. Norway, 20 Law J. C. P. 93.
A POINT of some importance with respect to the nature of a bill of lading was decided for the first time in the present case. It had been mooted, indeed, in the case of Berkeley v. Watling (7 Ad. & Ell. 29), but not settled, although Mr. Justice Littledale expressed an opinion in conformity with the present decision. In some respects similar in its nature to a bill of exchange, especially in its sometimes transferring to a bonâ fide indorsee a better right than his indorser himself had, as the law has been ever since Lickbarrow v. Mason, yet is a bill of lading in others very different. Both, indeed, represent property, and pass it by indorsement, but one transfers the contract itself, the other does not. A person who takes a bill of exchange bonâ fide, takes it with the assurance that the acceptor is bound by the sum it is expressed to be drawn for; but for the indorsee of a bill of lading, it will be necessary to ascertain that the goods in respect of which it is given are actually shipped, in order to give him a remedy against the owners of the ship.
The facts here stand thus: the master of a ship belonging to the defendants signed a bill of lading in the usual form, for goods which were to be shipped in pursuance of a charterparty between B. & Co. and the defendants, but which in fact never were shipped. B. & Co. deposited the bill of lading with the plaintiffs as security for the payment of a bill of exchange, which they thereby persuaded the plaintiffs to give cash for, and which was afterwards dishonoured; and thereupon the question arose, whether the master was the agent of the defendants, authorized to sign a bill of lading under such circumstances. It was held that, with respect to goods put on board, the master of a ship had a general authority to sign a bill of lading, conclusive upon the owners, as to the nature, quality and condition of the goods, which general authority could not be so restricted in particular instances as to affect third parties having no notice
of the restriction, in favour of whom it will be implied that he had authority to do all that is usual in the management of a ship. But is it usual," asks Jervis, C. J., in delivering judgment, "in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board? The very nature of a bill of lading shows that it ought not to be issued until goods are on board, for it begins by describing them as shipped." Thus is the question disposed of according to the general principles of the law of principal and agent. A parallel is drawn in the judgment between the case of a bill of exchange accepted or indorsed by procuration, in which case the person taking the bill has notice of a limited authority, and should see that the agent has as much as he professes to have, for the existence of such authority must be proved to enable him to recover. So, in the case of a bill of lading, general usage affects an indorsee with notice of an authority to sign, limited to goods on board; and if a more ample authority exist in a particular case, it must be shown in evidence. If the effect of this decision be to relieve shipowners from being bound by all bills of lading which their captains might fraudulently sign, on the other hand it throws much difficulty in the way of those who take bills of lading relying on the transfer of the property of the goods specified in them, and who, as they must know less of masters than the owners, who engage them, will be cautious of accepting bills of lading as valuable securities, without assurance of a special authority.
PLEADING-SET OFF-DISTRIBUTIVE REPLICATION.
Mead v. Bashford, 20 Law J. (N. S.) Exch. 190.
THE Common Law Commissioners in their Report, which has just been published, observe (p. 20), "that the excessive precision required" [to escape a special demurrer]" is scarcely practicable, except in pleadings of well-known character and daily occurrence, in which, former generations of suitors having paid costs for the settlement of the law, the pleadings have become easy and intelligible. The general plea of set-off in the actions of assumpsit and debt falls so well within this description, that one would think that in a case, which is exceedingly common, of a set-off being made up of items to which the plaintiff has various answers, he would, by this time, have been easily, and without any risk, able to avail himself in pleading of his various answers. Yet several very late cases (of which the present is one) are to be found in the Reports, in which plaintiffs, in proceeding
along this not yet sufficiently beaten path (?), have been tripped up by a special demurrer. In truth, simple as it may appear, there really is some little difficulty. In the first place it was necessary to take an accurate view of the meaning of a plea of set-off. It asserts in effect, that the plaintiff was, when the writ issued, in the defendant's debt to an amount at least equal to the balance left unanswered by the other defences (see Tuck v. Tuck, 5 M. & W. 109; Spradbery v. Gillam, 20 Law J. Exch. 237); should the defendant, therefore, prove but a shilling short of that amount, the plaintiff has a verdict upon that issue, but so much as the defendant can prove is allowed him in reduction of damages. It thus becomes important to plaintiffs not merely to answer any part of the set-off, whereby alone, indeed, they would succeed, but to negative, if they can, every part of the set-off; and if they can do so by one replication, as "nil debet" to the whole plea, no difficulty occurs. But if part of the set-off is barred by the Statute of Limitations, and part has been paid, or otherwise satisfied, it becomes no longer so easy. "At present," says the learned counsel for the plaintiff in this case, "it is impossible to say what the right form of replication is where there are different answers to different parts of the set-off." The plaintiff can plead but one replication; neither must it be double: the consequence is, that if he reply separately various matters to different parts of the plea, no one of his answers alone must meet the whole plea. This was the fault committed in the present replication, which was-to so much of the plea as related to one parcel of the demand, the Statute of Limitations; and to so much of the plea as related to the residue of the demand," nil debet." It was, perhaps, an attempt to escape from another replication, viz., to parcel of the plea, the statute; to the residue, "nil debet," which at first seems obviously the way to reply, but which has been declared bad, because "nil debet," or " nunquam indebitatus," to the residue, being a traverse of the debt modo et formâ, involves a denial by the plaintiff of what was not affirmed by the defendant, that the residue equalled (or exceeded) the plaintiff's demand. According to this case, and Fairthorne v. Donald (13 M. & W. 424), the proper replication would have been that part of the set-off was barred by the statute, and that the plaintiff was not indebted to the defendant in any sum which, with the part so barred, equalled the amount of his demand. Altogether, it is impossible not to feel that there is much subtlety-more, perhaps, than justice requires-in all this. Tricky pleas are pleaded on purpose to demur, as in Nutt v. Rust (19 Law J., Exch. 54). In the present case, too, the court was not unanimous. Alderson, B., in delivering judgment,
observed, "This case was argued a very long while ago. It has been delayed in consequence of a difference of opinion among the judges, which has not altogether been removed, even at the present moment." It was argued on May 27, 1850, and judgment was given 26th February, 1851. Surely a system in which a short plea, of daily occurrence, cannot be dealt with without so much doubt and delay, is not about to be modified too soon. Plaintiff had leave to amend on usual terms.
LAW OF EVIDENCE-INCOMPETENCY-MONOMANIA.
AN incompetent witness is defined, by Mr. Best, in his excellent Manual of the Law of Evidence, p. 148, to be one whose testimony the judge is bound, as matter of law, to reject. Of those whom the jealousy of the common law discarded as such, there were, not many years ago, numerous and comprehensive classes; of late, however, a more enlightened policy has begun to prevail; objections of several kinds to the reception of evidence have been removed by various statutes, and, perhaps, the chief remaining disqualification is about to be removed, to some extent at least, if not entirely. In the present case, a class of witnesses was, for the first time, judicially decided to be competent, which the progress of medical science has succeeded in distinguishing from similar classes which were and remain clearly incompetent. As the office of a witness is solely to relate facts, he must be clearly unfit if he cannot both observe, retain and communicate in some way or other. Thus we find it laid down in text books that idiots, persons of non-sane memory, and those who are deaf, dumb and blind are incompetent; and the same is said of lunatics, except in their lucid intervals. But insanity is now found to be sometimes partial, not only in time, by intermitting, but also in extent, as touching only one or more matters. Men are to be found constantly mad and irrational on one or two points, yet constantly lucid and sensible on all others. These are all, in some sense of the word, lunatics (although some only there are whose delusion is of a nature to render restraint advisable); and as they do not generally enjoy intervals of total lucidity, i. e. on all points, they would fall within the class of incompetent persons above mentioned, but never within the exception to it. The distinction, however, between monomania, or partial lunacy, and total, though intermitting insanity, is now recognized by the Court of Criminal Appeal. The prisoner was
convicted of the manslaughter of a lunatic under his charge; and the question reserved was, whether the evidence of one, Donelly, also a lunatic, ought to have been admitted. Donelly was proved to have a delusion about numerous concomitant spirits, but to be always perfectly rational on all subjects disconnected with his delusion. His knowledge of the nature and obligation of an oath was sufficient. Lord Campbell, C. J., in delivering the judgment of the court, said—"I am glad that this case has been reserved; it is one of great importance, and ought to be solemnly decided." And adopting a dictum of Parke, B.-"Supposing a man called as a witness has a delusion, it is for the judge to examine him as to the nature of an oath and his sense of religion, and then to say whether he is competent as a witness; and then the judge, having determined as to the admissibility of his testimony, it is for the jury to decide what credit is to be given to his evidence. . . . He may be cross-examined as to the state of his mind; and witnesses may be called to prove that his mind is so diseased that no reliance can be placed upon his statements; but in the absence of evidence to discredit his testimony, it would be competent for the jury to hear what he said and to act upon it." It would almost seem, from the tone of these observations, that lunacy generally will, like other grounds of exclusion, go rather against the credibility than the competency of a witness who is not obviously and entirely insane; and that judges will leave the degree of insanity and its connection with the subject of the testimony entirely to the appreciation of the jury..
COUNTY COURTS CONCURRENT JURISDICTION OF SUPERIOR COURTS-COSTS UNDER 13 & 14 VICT. c. 61, s. 13, DISCRETION
Jones v. Harrison, 20 Law J. Exch. 166; S. C. 15 Jur. 337; Latham v. Spedding, 15 Jur. 576.
ALTHOUGH, strictly speaking, the superior courts still have a concurrent jurisdiction in every case, yet the term is specially applied to those cases only in which a plaintiff suing in one of them may recover his costs, and in this sense alone must it in general be taken. Previous to the Extension Act, plaintiffs in a superior court always got their costs, unless the defendant entered a suggestion, and by it showed that the case was none of those in which concurrent or exclusive jurisdiction was retained by the superior courts; and by this means the end was attained, but not unfrequently at such expense, to say nothing
VOL. XV. NO. XXVIII.