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CONTENTS.

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THE JURIST.

LONDON, SEPTEMBER 6, 1856.

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VICE-CHANCELLOR STUART'S COURT.

By T. F. MORSE, Barrister at Law.

Ashmall v. Wood.-(Shipowner and master-Prin· cipal and agent--Dealing with the agent of another party-Purchase of goods-Lien-Contract) 827 COURT OF QUEEN'S BENCH.

By G. J. P. SMITH, Barrister at Law. Macgregor v. Rhodes.-(Bill of exchange-Indorsee against indorser-Traverse of prior indorsementEstoppel-Immaterial issue)

Reg. v. The Archbishop of Canterbury.-(3 & 4 Vict. c. 86, ss. 9, 11, 24-Proceeding against incumbent -Bishop patron of benefice-Archbishop substituted for bishop--Party charged to be summoned within the diocese)

......

COURT OF COMMON PLEAS.

By W. PATERSON and W. MILLS, Barristers at Law. Passingham v. Pitty.-(Parliament-County vote Tenants of a manor when freeholders-PracticeCosts of appeal under 6 Vict. c. 18).

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down in the principal case, although in the judgment in that case the real distinction was not clearly pointed out, Lord Abinger laying more stress upon the inconvenience of including that case in the general rule than It is a rule of law that a master is not responsible to on anything else. His argument was, that he who is his servant for an injury caused either by the negli- responsible by his general duty, or by the terms of his gence of another servant employed by the master, or contract, for all the consequences of negligence in a by the condition of the apparatus or premises upon matter in which he is principal, is responsible for the which he is employed. This rule, although now well negligence of all his inferior agents. If, therefore, the established by numerous decisions, has not yet been owner of the carriage is responsible to his servant for explained with reference to all the principles with the sufficiency of his carriage, upon the same principle which it is allied. The leading case upon the subject he is responsible not only for the negligence of his is Priestley v. Fowler, (3 M. & W. 1), the circum- coachmaker and coachman, but also of every person stances of which, as collected from the declaration, employed by him; and not only might the footman were the following:-The plaintiff was servant to the have an action against him if the carriage broke down, defendant in his trade of a butcher; upon one occasion but he might have an action against him for the neglithe plaintiff, at the request of his master, the defend-gence of the housemaid in putting him into a damp ant, mounted upon, and proceeded in the ordinary course of his employment upon, a van belonging to his master, loaded with meat; the van had been loaded by, and was driven by, a fellow-servant of the plaintiff; and whilst the plaintiff was so being conveyed in the van it broke down, by reason of its having been overloaded and in an insufficient state of repair, and the plaintiff was seriously injured. After a very full consideration of the case, Lord Abinger and the Court decided that the master was not liable.

In the first place, there is no doubt of the general rule, that a master is liable to answer for damage arising to another from the negligence or want of proper skill of his servant in the execution of his employment. (Bac. Ab., “Master and Servant," K.; Anon., 1 Ld. Raym. 739). And the reason and principle of the rule is this-where one acting for himself injures another, he is of course responsible for the injury; when, therefore, instead of doing it by his own hand, he does it by

the hand of his servant, it is still to be considered as

his own act, upon the principle qui facit per alium facit per se.

The exceptions to this rule are rather apparent than real, and a little examination of the subject will shew that it does not apply to either branch of the rule laid

bed, whereby he took cold; or of the upholsterer for sending in a crazy bedstead, whereby he fell down and was injured whilst asleep; or of the builder for a defect in the foundation of the house, whereby it fell and injured both master and servant in the ruins; the inconvenience, not to say absurdity, of which propositions, undistinguishable in principle from the one to be decided, were sufficiently conclusive upon the subject.

The exception, or apparent exception, which this case establishes to the general rule is twofold.

First, when any person, having as good an opportunity as the master of being acquainted with the danger, voluntarily incurs the risk, and is injured, the master is not liable*, whether the injury arose from the negligence of his servant or a defect in his property, unless by the relation of the master to the injured person, or by his contract, the master was bound to see to his safety. Thus, if one enter the carriage of another, and an accident happen, the owner of the carriage is not responsible to such person if he is injured; but if he had been a passenger for hire, then the owner of the conveyance would have been liable, under his implied contract to carry safely.

*Hutchinson v. The York, Newcastle, and Berwick Railway Company, (5 Exch. 343).

Secondly, a master is never responsible, within the | Exch. 343); Patterson v. Wallace, (1 Macq. H. L. C. rule, except for the acts of his servant*—that is, one748); and Seymour v. Maddox, (16 Q. B. 326). under his immediate control: therefore, when one employs a contractor, or other skilled person, to perform THE only clauses in the County Court Amendment certain work for him, he is not liable to a third person Act, which remain for us to notice, relate to costs. for the negligence or want of skill of one so employed By these a scale of costs to be paid to counsel and by him, unless, indeed, he was himself guilty of care-attornies is to be framed for actions in county courts lessness in employing an unfit person. where the claim exceeds 201.; costs between party and

whose taxation may be reviewed by the judge of the court; costs between attorney and client in such actions, on the application either of attorney or client, are to be taxed by the registrar, the taxation being liable to review by the judge; no costs are to be allowed on such taxation which are not sanctioned by the scale then in force, unless the registrar is satisfied that the client has agreed in writing to pay them. No attorney is to recover from his client any costs in respect of such actions, unless they have been allowed on taxation. In actions where the claim does not exceed 201., costs between attorney and client are to be those mentioned in the 9 & 10 Vict. c. 95, s. 91, unless upon taxation the registrar is satisfied, by writing under the hand of the client, that he has agreed to pay further costs. (Sects. 33

Now, applying these exceptions to the injury sus-party in such actions are to be taxed by the registrar, tained by the servant under the circumstances of the principal case, it stands thus-first, he has at least an equal if not better opportunity of being acquainted with the danger than his master has; he is not bound to risk his safety, and he may decline any service in which he reasonably apprehends danger; and, secondly, there does not arise from the mere relation of master and servant any implied duty upon the master to see to the safety of his servant, nor to secure him against any vice or imperfection unknown to himself either in his other servants, his premises, or his property. (Seymour v. Maddox, 16 Q. B. 326). The rule, however, is by no means carried to an extreme length, and there is no doubt that the master is bound to use reasonable care for the safety of his servant; he will, therefore, be liable if he knowingly places him in a position of dan-36). Until the scale of costs above mentioned is framed, ger unknown to the servant, whether by associating him with unskilful fellow-servants, in whose selection he has not exercised reasonable care, or in furnishing him with defective apparatus, or placing him upon unsafe premises.

This last proposition will be found laid down in the principal case, and fully explained in the late case of Patterson v. Wallace, (1 Macq. H. L. C. 748).

The cases to be found in the reports illustrating different branches of the above rule are very numerous: the principal are the following:-That a master is not liable for the negligence or unskilfulness of one employed by him as a contractor, or otherwise than as a servant. (See Wigmore v. Jay, 5 Exch. 354; Knight v. Fox, Id. 721; Peachy v. Rowland, 13 C. B. 182; Smith v. Thorpe, 16 L. J., C. P., 65. See also 5 B. & Cr. 547; 8 Ad. & El. 109; 12 Ad. & El. 737; 7 Jur., part 1, p. 150; 10 M. & W. 109; 4 Exch. 244; and 1 C. B. 578). Although, if one employ a contractor to do an unlawful act, he is liable. (Ellis v. The Sheffield Gas Company, 2 C. L. R. 249; 2 El. & Bl. 767). A proprietor of a hackney cab is liable for the negligence of the cabman, even although the latter pays a sum certain per day for the hire of the cab, and the owner has no control over it, as the statute has created the relation of master and servant between them, and they cannot by any act of their own divest themselves of this relation as between them and the public. (Powles v. Hider, 2 Šur., N. S., part 1, p. 472). A master is not liable for the negligence of his servant acting independently, and out of the course of his employment. (Mitchell v. Crassweller, 13 C. B. 287). That a master is not liable to his servant for the negligence of a fellowservant, or defect in the premises or apparatus, see Priestly v. Fowler, (3 M. & W. 1); Hutchinson v. The York, Newcastle, and Berwick Railway Company, (5

* Sadler v. Henlock, (1 Jur., N. S., part 1, p. 677); Cole

man v. Riches, (16 C. B. 164).

the same is not inconsistent with the provisions of the the scale now in operation in county courts, so far as new act, is to continue in force. (Sect. 37).

The fees payable on proceedings in county courts are specified in the schedule. (See also sect. 78). A list of the acts and parts of acts repealed is also contained in of the 9 & 10 Vict. c. 95, as enacts that "no protection, the schedule; and among these is so much of sect. 102 order, or certificate granted by any court of bankruptcy, or for the relief of insolvent debtors, shall be available to discharge any defendant from any commitment under an order of a judge.”

REFORMATORY SCHOOLS.

LORD STANLEY, in the course of his address upon t this subject at Bristol on the 22nd ult., made the following observations:-In England and Wales there were, by the last returns, yearly coming under the hands of the down as juvenile offenders-that is to say, as being law about 99,000 prisoners. Of those the number set under seventeen years of age-was about 11,500. You will not be far wrong, taking it in round numbers, if you say that our yearly return of criminals in England and Wales is 100,000, and upon that number the juve nile offenders are eleven and a half per cent. Now, of that number it is shewn in the same return that about 4000 are recommittals-that is to say, they are known to have been in prison before. But, besides the number so set down, it is a matter of every-day experience that a very large number, changing their resi dence, as vagrants and criminals do, from place to place, time, whereas, in point of fact, they have been before are officially returned as being committed for the first under the hands of justice. Probably a large per centage, therefore, must be added to the list of official recommittals. The number of first offenders is, therefore, in all probability, not more than one-half of that yearly 11,500. I will not trouble you with the data on arguments by which they are proved. It is enough to which these calculations are founded, or go through the say that those whose accuracy may be relied upon, and who have paid the greatest attention to the subject, tell you that the number of juvenile offenders, exclusive | merely of trivial cases, where a reformatory is not ne

cessary-the number that you will have yearly to deal with falls between 2000 and 3000. Now, under the law as it stands, the utmost period for which juvenile offenders may be committed is five years; the majority, however, are not intended to remain, and will not re'main, in a reformatory school for more than one-half to two-thirds of that period. You may take three years as an average; and the calculation is, if you intend this reformatory movement to be effectually and properly carried out, that you will have sooner or later to provide accommodation in these schools for about 10,000 children at one time. The great difficulty which we have always met with in advocating this cause of reformation is the doubt which many persons entertain as to the possibility of reclaiming one who is framed and trained to criminal habits. I think our course has in some respects suffered by the mixing up of two questions, essentially and in their natures distinct. There are persons, many of them able men, all of them benevolent men-there are many, both of the present and of the last generation, in this and in other countries-who have devoted their energies to the reformation of adult criminals sentenced to periods of imprisonment. God forbid that I should lead such benevolent persons to despond in their endeavours; that is not my purpose; but at the same time we say and none are more ready to admit it than those who themselves have taken part in such efforts that the difficulty of that task is far greater than when you deal with the young; the proportion of success is much smaller, the proportion of failures is much greater. The difference between the two cases is not merely one of degree; they differ altogether in their natures. The adult criminal-one who, after arriving at man's estate, has habitually and successfully practised a life of crime -can hardly do so in entire ignorance of the moral character of his pursuits, or of the opinion which society has formed of him. Of course ignorance and bad training are some excuse for him, but he must be to a certain extent criminal in intention as well as in act. But our case is, that among juvenile offenders there are many-in all probability a large majority of the number-who, though criminal, deeply criminal in act, can hardly be said to be so in intention. Various tables have been prepared with reference to this subject, differing a little from one another, but shewing nearly similar results. In one case it was shewn, that of 100 criminals, 75 per cent., three-fourths of the whole, had been either directly led into crime, or so neglected as that others had an opportunity of leading them into crime, by their parents. Another similar calculation, made in Manchester some years ago, gave nine in ten of the criminals, whose cases were investigated, as the children of dishonest, criminal, or profligate parents, and only ten per cent., or one in ten of the number, as the children of honest parents. All these figures, and many more computations of the same character, agree in this that in crime, as in the analogous case of pauperism, there is a very strong tendency to become hereditary; and the inference we draw from that is, that there is a large proportion of the whole number of juvenile criminals who are so from circumstances and not from choice-whose organisation, whose character does not more incline them to dishonesty than does that of others who have never come under the sentence of the law, but who, from the accident of their social position, have never had the chance given them, from the time of their birth, of obtaining their livelihood by honest means. They are known, they are marked in the places where they reside; honest children will not associate with them, respectable employers will not have any thing to say to them, for another boy to be seen with them is a stigma-a mark of not being respectable. That is their position; they grow up thieves, not because they want to be thieves, but because they have

literally no option offered to them. Now, you see at once, if we can make out that case-and we believe there is a mass of evidence to substantiate it-there is no reason to despair of the reformation of those who are brought within our reach under those circumstances. We do not want to overstate our case; it is not fair, and it never answers, to do so. We quite agree that among the entire number there may be some who are wholly, or very nearly so, incorrigible. We quite admit the existence of such cases. All we say is, that they are the minority, and the curable cases are the majority; and even as regards those who are themselves incorrigible, we conceive that a certain advantage is gained in placing them where they have not an opportunity of corrupting others. I may repeat, in passing, an instance, to which I alluded yesterday, of a lad, an inmate of a reformatory, who had trained, formed, and educated to thieving eight other lads, all of whom were expert thieves; so that even in the case of the incorrigible there is something gained when you can isolate them so that less criminal youths cannot come within their influence. Criminality does not, as we believe, follow the ordinary law of supply and demand; it does not at all follow that because you have a certain amount of property, and only a certain number of police to guard it, you will always have a certain and fixed amount of crime. We believe-and the experience of at least one town where a reformatory has been for some time in active operation confirms our opinion—that when you have once succeeded in clearing the streets, as it were, of these regular, trained, educated criminals, you will find that the cases of crime with which you will have to deal in future will be fewer in number, and less difficult to deal with in point of quality. Now, what has been the actual success obtained in reformatory institutions in our own and other countries? Mettray, the great reformatory of France, has recovered eightynine per cent., and of the eleven per cent. who relapsed a certain proportion were again in the way of recovery. There are many cases where relapses are only temporary, and the per-centage they bear upon the whole number of boys should not therefore be a subject of alarm or discouragement to the promoters of the movement. You are probably aware of the extent to which the Legislature has taken up this movement. The law gives power to the magistrates to send boys, not exceeding sixteen years of age, to reformatories for a period not exceeding five years. The State grants 58. weekly137. a year-for their support. It endeavours to recover that from the parents; and by the minute of last June large and liberal assistance is afforded in other shapes to those who desire to set up and carry on reformatory schools. The object of the National Reformatory Society is to render the law practically available. We want to put its provisions in force; we want to assist in the establishment of new reformatory schools where they are needed; we want to give facilities for comparing the various methods in use at the different schools; we want to furnish opportunities for the discussion of the general subject; we want, if changes in the law should be required, to discuss those changes; and, which is most important of all, we wish to furnish to those inmates of reformatory schools, who in course of time will leave them, a fair opportunity of getting a start in life, and of obtaining respectable employment. We have sometimes been asked to include within the scope of our operations the other subject of adult reform. That, I confess, I should be unwilling to do. I attach great importance to keeping the two distinct. I think if we were to go beyond that line of operations which we have immediately traced out for ourselves we should run some risk of diminishing our utility by attempting too much, and, by combining the more hopeful with the less hopeful cases, might, I will not say incur the prejudice, but to some extent might

be held accountable for failures, which in the other enterprise are inevitable. There may be a future field of operations open to us in connexion with that wide question of industrial schools for vagrant children. It is a question at present rather for the Legislature than for society; therefore, though we gladly receive information and accept discussion upon it, we at present, so far as practical action is concerned, confine ourselves rather to cases of schools, reformatory in their character, provided for criminal children. In discussing this subject there are three general heads under which the whole inquiry falls. First, on what conditions and in what manner are children to be admitted to reformatory schools? Secondly, on what principles are those schools to be conducted? Thirdly, when the boys come to leave the schools, what is to become of them? As to the first question, we have had here and elsewhere very animated and important debates upon the question of previous imprisonment. By the law as it stands, it is necessary that a boy should have been convicted before he enters a reformatory schoolshould have gone through a short term of imprisonment. There are some of our friends who think that that should not be made compulsory upon magistrates, but that it should be left optional with them. There are others who think that in every case a boy should be sent at once to a reformatory. On the one hand it is contended that there is danger, in sending a boy to gaol, of affecting his mind with the idea that he has received his allotted punishment for his offence, and is therefore entitled to his liberty; that the superadded detention in a reformatory is looked upon as so great a hardship that it materially interferes with the success of the system. On the other hand, it is urged that a short period of separate confinement gives the boy time for reflection, and that he comes again into the society of other boys, even though that society be accompanied with hard fare and hard labour, with a feeling of pleasure rather than of pain. If I were to express any opinion of my own upon the subject, which I would do with great deference, I should be inclined to steer a middle course to apply the previous imprisonment in some cases, but to leave it as an optional matter with the magistrates, instead of, as at present, making it compulsory on them to commit to prison. The next branch of the subject relates to the actual management of these schools. Boys are detained for periods varying from two to five years. They are taught habits of hard work and industrial occupation; in some cases being made to learn a trade; in other cases, as in the Ship Reformatory at Liverpool, they are prepared for service It is held, I think rightly, as an essential point, that he is to be lodged and treated generally in the simplest and plainest manner, so that no honest parent need have any cause to envy, on behalf of his own children's condition, the condition of the convicted child. That is a point on which we lay great stress. Another fundamental rule is, that where you have a large number of boys, the "family system" should be adopted the system of associating together not more than forty, probably not so many, boys in one house under one teacher, so that the personal character and personal influence of the superintendent may have their effect, and his personal supervision exercised over all. Another important rule is, the obtaining from parents, wherever it is possible, either the whole or a part of the sum which Government pays for the maintenance of the child. This system puts a check on parents, who, anxious to get rid of the responsibility of maintaining their children, put them in the way of being committed, and sent to these schools. Another question on which, to some extent, there is a difference of opinion, relates to the character of the instruction to be given. I, for my own part, hold most strongly, and shall always express my opinion most openly, that the

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training ought to be of the plainest and simplest character. The object you have in view is not an intellectual object-it is a moral object. I do not hesitate to say, that on the whole it would be a disadvantage, rather than a benefit, if any large number of those, who had been trained in reformatories were to rise far above their class, and become eminent members of society. One would not regret it on account of the boys themselves, but for the danger of exciting in the minds of honest parents a degree of envy as to the fate of their own offspring. The last point on which I would touch is the very important question, what is to become of the children on their dismissal? There are various methods in which their services may be made available. There is the field of ordinary agricultural occupation at home; there are the colonies; there is the chance of admission into the army and navy; and there is the merchant service at sea. Now, what I say of one of those outlets applies equally to all-that you must take great care not to introduce to them these criminal elements in such proportions that the influx shall be noticed and made a subject of comment. The great rule you must adopt is to scatter these children abroad as much as possible. But if it were made a practice (in the army or navy, for instance) that such a per-centage should be composed of these criminals, there would be a feeling that the profession was lowered in the public estimation, and would seriously affect the chance of enlistment from among other classes. We all know what has been the feeling in several of the colonies on the subject of transportation to their shores; it has been overdone, and there is now so strong a feeling against it that to a great extent we are debarred from availing ourselves of that system of outlet. A valuable suggestion was made to-day, that in every leading colony where friends to this cause may be found agencies should be established. I think the plan is practicable, but I repeat that great caution must be exercised. What has been accomplished as yet with regard to this reformatory movement? I am sorry to say, if you look to actual results, not much as yet. I am afraid there is a little misapprehension on this point. I believe the actual state of the case to be this-that the number of boys in the reformatory does not exceed 600 or 700; the number of girls 100. But though the results actually accomplished are small, there is a great deal doing; all the counties, or nearly all, are exerting themselves; well-informed teachers are called for in all directions, and it is with a view to increasing the progress of the movement that these meetings are held and that this society exists. I must just add a word with reference to another institution similar in kind to ours, which calls itself the Reformatory and Refuge Union. The difference between that society and ours is as to its mode of operation. It is established on a basis somewhat more sectarian than ours. Our principle is unsectarian. We exclude no one on account of diversity of theological opinion; but feeling as I do that our real danger in this cause arises from apathy, from indif ference, and from neglect, I for one shall quarrel with no display of sectarian zeal out of this society, which may have the effect of advancing the cause. The two societies work in friendship, differing only in their methods of doing the work. As to the assistance you can give to this movement, of course pecuniary aid is important; but there is another support you can afford, namely, in the provision for those boys who will shortly be leaving the Reformatory. The difficulty of disposing of them does not press upon us, but we ought to take early precaution to provide for the necessity when it arises; and I would suggest that the best and most practical service which any one can render us is to express a willingness (which they can do by addressing the secretary) to provide employment for at least one of the boys who will be leaving

our schools.

Sept. 6, 1856.

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Stevens & Norton, 26, Bell yard, Lincoln's-inn.

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and PRACTICE as to PROOFS in COURTS of COMMON LAW; with Elementary Rules for conducting the Examination and Cross-examination of Witnesses. By W. M. BEST, A.M., LL.B., of Gray's-inn, Esq., Barrister at Law. Second Edition, with a SUPPLEMENT, shewing the Alterations effected by the Common-law Procedure Act and other Statutes of 1854. ** The SUPPLEMENT can be had separately, price 2s., sewed in wrapper. H. Sweet, 3. Chancery-lane, Fleet-street.

POLLOCK'S PRACTICE OF THE COUNTY COURTS.
In I vol. royal 12mo., price 188, cloth boards,

THE PRACTICE of the COUNTY COURTS; in Eight
Parts:-1. Proceedings in Plaints.-2. Jurisdiction under Friendly
and Industrial and Provident Societies Acts.-3. Jurisdiction under
Joint-stock Companies Winding-up Act.-4. Jurisdiction as to Insolvent
Debtors.-5. Jurisdiction under Protection Acts.-6. Proceedings against
Judgment Debtors.-7. Arrest of Absconding Debtors.-8. Administra-
tion of Charitable Trusts. With the Decisions of the Superior Courts,
and Table of Fees. Also an Appendix, containing all the Statutes, a
List of the Court Towns, Districts, and Parishes, and the Rules of
Practice and Forms. By CHARLES EDWARD POLLOCK, Esq., of
the Inner Temple, Barrister at Law. The Second Edition, much
enlarged.
H. Sweet, 3, Chancery-lane, Fleet-street.

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THE COMMON-LAW PROCEDURE ACT, WITH THE NEW
RULES, &c., 1854.
Recently published, in 1 vol. 12mo., price 10s. cloth boards,
PROCEDURE ACT, 1854,
THE COMMON LAW

(17 & 18 Vict. c. 125); with Treatises on Injunction and Relief, By HENRY THURSTAN HOLLAND and THOMAS CHANDLESS. Jun., of the Inner Temple, Esqrs., Barristers at Law. Also, a Treatise on Inspection and Discovery, under the above Act and the 14 & 15 Vict. c. 99. By CHARLES EDWARD POLLOCK, of the Inner Temple, Esq., Barrister at Law. Together with Notes, Cases, Index, and the New Rules and Forms of Michaelmas Vacation, 1854.

H. Sweet, 3, Chancery-lane, Fleet-street.

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