The Month. Lien on Cargo for Freight and Demurrage.-Several important questions have arisen within a short period, both in this country and the United States, as to a ship-owner's lien for freight and demurrage, and a recent case in the Common Pleas, Le Blanch v. Wilson, 28 L. T. Rep. N. S. 514, and a libel in Admiralty, the Hyperion's cargo, Am. L. Rev., vol. vii. p. 457, present some features which recall the general question. In Le Blanch v. Wilson, a direction of Mr. Justice Brett, in an action for demurrage caused by the detention of a ship and other expenses, that a master could not land his cargo and keep his lien, was considered, and it was held that such a direction was insufficient, as the cargo might, under certain circumstances, be landed without loss of lien. The question considered in the Hyperion's cargo was whether a ship-owner, whose ship was delayed by lack of cars to unload the cargo, could libel the cargo in admiralty for demurrage. In this case Justice Lowther reflects somewhat harshly upon our English courts. He lays down as a principle, recognised by Pardessus and Valin-the latter says that a contrary principle would be absurd-that the law merchant considers that the master contracts rather with the merchandise than with the shipper, and that he has his privilege for the freight even against the true owner of the goods though they had been stolen. Then the learned Judge proceeds: "I quote this example to show that the privilege does not depend on any doctrine of agency, as well as to fortify my opinion that the merchandise is liable for whatever the shipper is liable for. When the common law of England was modified by the introduction of many rules from the law merchant, it had no process for enforcing this reciprocal privilege of the ship and the goods, and had succeeded in repressing the only court that had the requisite modes of action; and was, therefore, obliged to say that it could not recognise the maxim, even when embodied in express contract, as it usually is in English charter-parties. From the time of those decisions to that of Gray v. Carr, the history of this question in the courts of common law in England has been that of a struggle between shipowners to create liens by stipulation, especially liens for demurrage, and of the courts to narrow the stipulation by construction. In nearly all those cases the obvious intent of the parties has been disregarded, and a remedy refused for a violated right. In this country the courts of Admiralty have retained their proper jurisdiction, and can enforce the privileges by whichever party their action may be evoked." If these views were adopted by our courts, it is beyond doubt that they would not have to consider the troublesome question of the creation and preservation of the shipowner's lien. Cargo can be proceeded against in Admiralty for freight, and in the United States it has been frequently libelled for average contribution. A doubt is noticed in a note to Williams and Bruce on Admiralty Practice (page 194), whether the maritime lien on cargo for freight can be enforced if the cargo ceases to appertain to the owner whose property it was at the time of the creation of the lien. The learned authors appear to think that it can, unless the cargo had been sold in market overt, a view which agrees with what is laid down by Pardessus and Valin. The judgment of Baron Cleasby in Gray v. Carr, 25 L. T. Rep. N. S. 215, in our opinion shows an extreme regard for artificial distinction. Whatever signification may be attached in the minds of merchants to the word "demurrage," it is, in its nature, as closely analogous to freight as anything can be, and if an illustration of the narrowness of our common law were required, the following passage shows it: "As regards the claim for lien in respect of demurrage, I do not see how there can be any doubt about its existing under the charter-party. It appears clear to me that whether the demurrage days are occupied in the loading of the ship or in the discharge of it, the charterer is equally discharged from personal liability as soon as a sufficient cargo is loaded, and that the claim of the owner in respect of it exists only by virtue of the lien which is given by agreement." We are not about to discuss Gray v. Carr, for undoubtedly the charter-party in that case was somewhat precise in its terms, but it may be taken to go to this extent, that if, by default of a charterer, the ship is delayed beyond the lay days. contracted to be paid for, the shipowner has no lien for the damages sustained. He cannot proceed in Admiralty, where undoubtedly different principles would prevail, and if he brings his action he is pinned to the agreement. The opinion of Mr Justice Willes was evidently in favour of giving the shipowner a remedy, for in Meyerstein v. Barber, 15 L. T. Rep. N. S. 355, he said: "What would have been the state of things if the Acestus had arrived in the port of London and had found no person ready to take delivery of the goods or to pay the freight? What would have been the master's duty?... According to our laws he might have kept the goods on board the vessel on demurrage-at all events, a reasonable time." It is quite obvious that this equitable principle should apply and be added to charter-parties unless by their terms it is expressly noticed and made inapplicable. It is also clear that the best tribunal to dispose of such questions is the court of Admiralty, and it is to be hoped that under a more enlightened jurisprudence difficulties of the kind referred to may be got rid of, and a maritime lien be held to attach for demurrage.-Law Times. The Bench and Bar of Quebec.-A remarkable article appears in La Revue Critique (Montreal), on the condition of the Bench and Bar of Quebec. We may hope that the condition is not quite so bad as represented, yet it is impossible to doubt that is bad enough to be a serious evil to the community. Mr. W. H. Kerr, the writer of the article, says: "Verily it would seem as if it had been for the last twenty years the aim and desire of our rulers to degrade the Bar and to abase the Bench. To be a Queen's Counsel, one need not to be an honourable man or a distinguished lawyer; to be a Judge, it is not required to be jurist;" and he then examines the causes of the decline of the legal profession in the province. We shall briefly notice one or two of his statements, because they may be of some interest to us at a time when we are promised all sorts of changes in the administration of justice. Mr. Kerr asks this very pertinent question: "Is it that, with the increase in importance and wealth of the mercantile class, the learned professions must lose weight in society?" Mr. Kerr does not think the wealth of the profession of great moment, and is, evidently, of opinion that the profession may be poor, honourable, and honoured. We are persuaded that he is utterly wrong. He asks: "Is it that the capacity to make and keep money is recognised nowadays as the most virtuous and useful occupation of man?" We reply that the tree has always been valued for its fruit, and the occupation that has not been profitable has not been popular. At present, in England, the Bar is open to all men of talent-open, we mean, in the sense that he who has talent has a fair chance of competence and honour, and the consequence is that our best men enter the profession. When we hear of the splendid incomes realized by some of the leaders, we ask ourselves whether, after all, the income of the profession is increasing at the same ratio as the wealth of the country, for, if not, we are afraid that the best men will adopt other occupations. Of course, we do not say that he who adopts the law as a profession has a right to expect the same pecuniary success as he who devotes his time and talents to commerce, which is the readiest road to wealth. The honours of the profession are of appreciable value, and the honour of a seat on the Bench, which is the meet and ever sure reward of a brilliant career at the Bar, is worth a great deal of money. But men cannot keep themselves and their families upon honour. They cannot mix in society upon equal terms without a sufficient income, and therefore, unless the profession is fairly remunerated, it will not attract our best men. We have on more than one occasion expressed our opinion that the profession is by no means overpaid, and, in the interest of the community, we should deplore a diminution of professional remuneration. A poorly paid profession will be filled with inferior men. Mr. Kerr tells us that the Barristers of Quebec are so badly off that when there is an election for batonnier, the office is "open to any one willing to canvass the Bar and expend fifty pounds in paying arrears" of the members of the Bar. As the members are so poor that they cannot pay the trifling professional dues, we are not surprised that the profession is degraded. Mr. Kerr censures the Act of 1849. The Bar of the province is divided into sections, according to the several districts, and the members are entitled to elect their own officers, and to manage their own affairs in each section. To us it seems simply absurd to make the leadership of the Bar depend upon the favour of the profession instead of success. But the gravest objection to the Act of 1849 is, in Mr. Kerr's opinion, that it decentralizes the Bar. Our readers are aware that Mr. Justice Blackburn has strongly protested against the scheme for decentralizing the Bar of England, and it is worth while to see the effect of the policy in Quebec. Mr. Kerr says: "Of all legislative enactments, decentralization is the one most fraught with fatal effects to the Bar and to the Bench. Life in a country district is destruction to a judge. His faculties rust, his energy declines, his learning is forgotten. In certain cases, without society, in a few years he neglects his duties as a judge, and ends by forgetting his duty as a man and a Christian. In lieu of being an example to his fellow-citizens, he becomes a reproach to the community at large. To the lawyer, in many of the country districts, the monotonous life he leads exposes him to many temptations, to which, alas, he very frequently succumbs-how many men of fine ability have been destroyed, owing to casting their lot in a country village. Moreover, country practice tends to narrow the ideas, to turn the liberal practitioner into a pettifogger, to transform the advocate into a money-lender at exorbitant interest, and to make him a kindler of family feuds. The highest talent will always gravitate to the great cities, leaving, as a rule, inferior men in the country. Generally, the Judges appointed in the country places are inferior even to those named in the chief districts, and with the happy con junction of Bench and Bar, not composed of excessively good material, rejoicing in as many different interpretations of our codes, it may almost be said, as there are districts, can it be wondered at that our law, with its mixture of English, French and civil principles, should, by its administration, be a veritable olla podrida, with an unsavoury smell, affecting most unpleasantly the nostrils of the public?" This may be an exaggerated picture, and it may be further suggested that in the districts of England the local Barrister would not be without society. Still, the member of a local Bar will not have the ample stage of a member of a central Bar. There cannot be the same sharp conflict of the finest intellects; and, when an important point has to be discussed, the respective parties will not have the pick of the best men of the Bar. At all events, what has happened in Quebec is well worthy of our earnest consideration before we make any radical change in our system. We shall not comment on Mr. Kerr's strictures as to the condition of the Bench. The Bench is selected from the Bar, and if the Bar is degraded the Bench must inevitably be degraded. In Quebec, a place on the Bench is accepted as a means of living. Happily, in this country, the profession is so well remunerated, that a leading Barrister takes a Judgeship for the dignity and honour, and not, as a rule, because his income will be thereby increased.-Law Journal. Law Schools in the United States.-The following is a list of the Law Schools in the United States, with the locality of each, the date of foundation, and the name of the President or Senior Professor : Yale College Law School New Haven, Conn. |1843 | Noah Porter, D.D., LL.D. ... Henry E. Davies, LL.D. 1859 F. A.P. Bernard, D.D., LL.D. 1853 Sam. G. Brown, D.D., LL.D. 1856 Richmond Fisk, Jr., D.D. B. Craven, D.D. 1832 Bellamy Storer, LL.D. 1856 John Crowell, LL.D. 1859 R. F. Howard, A. M., B.L. 1850 F. Spencer Miller, A.M. 1871 George Woods, LL.D. 1854 Isaac N. Rendall, D.D. James H. Graham, LL.D. 1847 R. W. Barnwell, LL.D. Nathaniel Baxter, LL.D. 1842 B. W. M'Donnold, D.D. 1845 William Carey Crane, D.D. 1870 B. Puryear, A. M. J. W. Brockenbrough, LL.D. 1825 John B. Minor, LL.D. 1868 H. S. Orton, LL.D. 1826 James C. Welling, LL.D. 1868 John M. Langston, A.M. 1870 Rev. John Early, S.J. Anecdote of Chief-Justice Marshall.-Judge Marshall's simplicity of character and absent-mindedness have been the theme of a number of anecdotes. The best one known is about his puzzle over the buggy and the sapling. Turning aside one day, to avoid one of those awful mud-holes which abound in Virginia country roads, the axle of the buggy encountered a stout sapling. The sapling was between the hub of the wheel and the body of the buggy. Too big to bend down, and too supple to break, this sapling seemed to the Judge to be wholly unconquerable. What to do he knew not. He got down out of the buggy, the better to apply his great intellect to the knotty subject, and to study it thoroughly up. While pondering, a negro came along. "Uncle," said the Chief-Justice, "I wish you would tell me about this sapling. I can't get over it, I can't get around it, and I don't want to stay here all day and miss court. What do you think I had better do?" The negro could not repress a broad but silent grin. "Why, ole marster," said he, "I spec' the bes' thing you kin do is to back yo' buggy till you git clar de sapling; den turn de hade (head) of yo' hoss, and den you kin 'void de sapling, and go to cote slick as goose-grease." "Thank you thank you kindly, uncle, I should never have thought of that in the world. You are a man of superior mind. There's half a dollar for you," and the Judge drove joyfully off. VACATION ARRANGEMENTS. South-Lords Justice-Clerk and Young. Ayr, Tuesday, 7th April; Dumfries, Friday, 10th April; Jedburgh, Tuesday, 14th April. Roger Montgomerie, Esq., Advocate-Depute; Æneas Macbean, Clerk. North-Lords Deas and Jerviswoode. Dundee, Tuesday, 7th April; Perth, Tuesday, 14th April; Inverness, Tuesday, 21st April; Aberdeen, Tuesday, 28th April. W. E. Gloag, Esq., AdvocateDepute; William Hamilton Bell, Clerk. West-Lords Ardmillan and Neaves. April; Stirling, Monday, 20th April, at Thursday, 23d April, at 12 o'clock, noon. cate-Depute; Alex. Ingram, Clerk. 12 Inverary, Thursday, 16th o'clock noon; Glasgow, Robert Lee, Esq., Advo Box Days.-Thursday, 9th April, Thursday, 30th April. Bill Chamber Rotation of Judges.-Saturday, 21st March, to Saturday, 4th April, Lord Benholme. Monday, 6th April, to Saturday, 18th April, Lord Ormidale. Monday, 20th April, to Saturday, 2d May, Lord Mure. Monday, 4th May, to Meeting of Court, Lord Gifford. Notes of English, American, and Colonial Cases. COMMON CARRIER-Bill of Lading.-Action to recover a balance alleged to be due for freight on a load of corn from Buffalo to Albany. The bill of lading contained this clause: "All damages caused by boat or carrier, or deficiency of cargo from quantity, as herein specified, to be paid by the carrier and deducted from the freight, and any excess on the cargo to be paid for to the carrier by the consignees." Held, that this was not a guaranty of the quantity specified, or an agreement that the bill of lading should furnish the only evidence of the quantity; that no damages could have been sustained in case the carrier |