secured by law to the teachers, whether they collected them or not was their own business; but they were absolutely secured to them by law. Whether a fair reduction of fees by a School Board, if made solely with reference to the circumstances of a particular school, would be competent or not is a question which it is not necessary here to decide. But it seems to the S.-S. that if so large a reduction as the one in question were sustained, either without a compensating salary or with one calculated on any other basis than the old amount of fees exigible from the pupils, it would leave the 55th section of the Act a dead letter. The defrs. also allege acquiescence on the part of the pursuer in the change made. This is very broadly asserted, and the S.-S. has therefore allowed a proof of it. He may, however, remark that it does not appear to him that, even if the pursuer was present at the meeting when the change of fees was announced, and did not remonstrate, it would of itself prove acquiescence in surrendering the amount to be derived from the fees under the old scale as part of his emoluments. If the other schools had their fees reduced, it is clear that the pursuer's must also be, or he could not have competed with them; and as the School Board had the absolute power of doing so, and he had no voice in the matter, it by no means followed that his failure to remonstrate implied a discharge of any claim which might remain to him in consequence of the reduc tion. Of course he may have acted so as to imply such a discharge, and the S.-S. has therefore allowed a proof; but to have any bearing on this case the S.-S. considers that it must be proved not only that he did not remonstrate, but that he acquiesced in the change to such an extent as to be prepared to take the emoluments arising either from the fees under the new scale, or from some other source in place of that arising from the fees under the old scale, G. H." Act.-D. MacLachlan-Alt.-J. C. Maclullich.

THE

JOURNAL OF JURISPRUDENCE.

A FEW WORDS ON THE LAW AND THE LEGISLATION OF THE PAST YEAR.

AN ADDRESS DELIVERED BY SHERIFF HALLARD TO THE SOLICITORS-AT-LAW AND OTHER LAW AGENTS PRACTISING BEFORE THE SHERIFF COURT OF EDINBURGH, ON THURSDAY, 1ST OCTOBER 1874.

GENTLEMEN,-We meet this morning to resume our labours for the winter session. I have thought it worth while to note the occasion by addressing to you a few words on the law and the legislation of the past year. If in what I am about to say, you shall find anything profitable or interesting, I shall, to that extent, deem my present attempt to have been successful. You will then absolve me from the charge of presumption in thus venturing to call you together.

When I say the law and the legislation of the past year, I use a form of speech which scarcely needs explanation. I mean the decisions of our Supreme Courts and the Statutes of our Parliament. Out of this mass of material I intend to select some points which as practitioners and judges we ought to remember, or which may have an interest for us as speculative jurists. Let none of the more practical minds amongst you be too ready to believe that what is addressed to speculative jurists has not, and ought not to have, any interest for them. Practice and theory are, as it were, twin sisters, which in no branch of intelligent human activity it is ever safe to disjoin.

One word as to the mental attitude which it seems to me fit that we should assume towards these decisions of our Supreme Judges, and these deeds of our legislators. As practitioners and judges our duty is simple; it is one of implicit obedience. As critics (and that is our position to day) our proper attitude is one of respect, but one also of perfect freedom. Roman Catholics, who once objected to the dogma of Papal Infallibility, must now not only accept the Vatican decree of July 1870, they may no longer even discuss it. We are VOL. XVIII. NO. CCXV.-NOVEMBER 1874.

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not in that position. We must accept, but it is still lawful for us to discuss. And surely there need be no difficulty in reconciling sincere respect with perfect freedom. No doubt, from the very conditions under which we meet to-day to begin our winter session, the discussion must be unilateral. But I would hold it an abuse of the privilege you have allowed me to assume, if I were to speak on these subjects in a tone which it would be unpleasant for you to hear, and which you would not yourselves adopt if you were debating them. On the other hand, I would do myself injustice if I were to allow you for one moment to think that an attitude of respectful freedom is not that which I would myself prefer in approaching the topics which I am now to submit for your consideration. It certainly is the most convenient and effective way as well as the most becoming; but it is as the most becoming that I feel bound to adopt it.

Let me now, without farther preface, enter upon my self-imposed task, requesting your attention, in the first instance, to some of the more notable decisions of the past year.

The first case on my list is Stevenson v. Henderson, decided on 26th November last. A question of carriers' responsibility for passengers' luggage is a common one in our Sheriff Courts, having therefore something of a directly practical interest for us. But a principle of considerable width was also involved in it as you will Here is a summary of the decision:

see.

A passenger ship was lost by the captain's fault before completion of the voyage. She was bound from Dublin to Whitehaven, and was wrecked near the Isle of Man. The pursuer was saved, but his luggage went down with the ship. The question was, whether the company, who were owners of the ship and consequently employers of the master, were protected from liability for the lost luggage by the following declaration posted up in the office, and printed on the back of the ticket delivered to the passenger on payment of his fare before he went on board: "The company incurs no liability whatever in respect of loss, injury, or delay to the passenger, or to his or her luggage, whether arising from the act, neglect or default of the company, or their servants, or otherwise."

You will probably agree with me in thinking it difficult to draw up a clause of immunity in broader and clearer words than these. The scribe who framed this proviso must have felt, that if the thing were possible, surely he had made matters safe for his employers happen what might. Let us see then how this stout-seeming shield stood the shock of judicial encounter.

The Lord Ordinary refused effect to the clause, in respect the passenger's knowledge thereof, and consequent assent thereto, were not sufficiently proved. The Inner House were equally divided on that point, but held unanimously, that the non-performance of the voyage by the captain's fault, was a breach of contract bringing into existence a state of things to which the declaration, even if

assented to by the passenger, became inapplicable. Suppose the assent clear, it was implied in the contract that the voyage should be performed. The voyage was not performed, therefore the condition did not apply. That was a contingency for which the draughtsman of the clause had not provided, and so his labour was in vain.

Let me just suggest a doubt whether this poor draughtsman was, in that manner, quite fairly treated. Did he really leave out something which he ought to have put in to make the company safe? You will find in the report that the passenger, after the wreck, was conveyed to his destination at the company's expense in a different steamer. They did, after all, fulfil their contract; they did in fact convey him from Dublin to Whitehaven. He suffered delay; he also suffered loss of luggage. But these two things were expressly provided against by the immunity clause, which the decision assumes him to have accepted. Did the change of steamer introduce such a material variation as to make the clause inapplicable?

It would have been useful for us had there been a majority, one way or the other, on the question, whether posting up in the office and printing on the back of the ticket, was sufficient intimation of this very peculiar condition to the passenger. There was an equal division upon it in the Inner House. I regard that equal division quite as a misfortune. The difficulty was avoided by agreeing to hold that non-conveyance of the passenger the whole way by one and the same steamer, rendered the proviso inapplicable. I do not know that the contract bound the company to convey by one and the same steamer, and forbade a change at the Isle of Man. Anyhow the basis of decision seems narrow and artificial. And surely there was a ground on which the pursuer might have got judgment against the company, which would probably have been as satisfactory to the legal profession, as it surely would have been to the public. An intending passenger is often helpless where such a condition is thrust upon him by a steamboat company. I dare not say that it is, but to me it seems as though it ought to be, an axiom of jurisprudence that a public carrier cannot effectually stipulate immunity for the immediate consequences of his own gross neglect. It does not make against the adoption of this principle, but rather in its favour, that it is expressly embodied in the Railway Traffic Act of 1854. As the matter stands, the Court had it in their power to adopt it as a rule of common law, and deliberately passed it over in favour of a much narrower and more special ground of decision. The wider question therefore remains intact and open for discussion when discussion of it becomes inevitable.

I have assumed, as throughout the argument it was assumed, that the company and their servant, the master of the steamer, were one and the same person. This principle of one man's responsibility at law for the neglect or fault of another, embraces a class of cases of

quite familiar occurrence in our Inferior Courts. It received last Session not a novel certainly, but a very striking illustration in the case of Virtue v. The Police Commissioners of Alloa, decided on 12th December 1873, and to which I propose in the next place to direct your attention. That case was quite the capital event in our record of judicial decisions during the past year, and I therefore propose to dwell on it a little. Here it is:

Statutory Police Commissioners are liable to the effect of making good, out of the statutory trust funds under their charge, any injury done by the act or neglect of their servants in the fulfilment of a statutory duty.

The pursuer had been injured by collision of his cart with a trestle improperly left unlighted in the night time on one of the streets of Alloa. The streets were then undergoing repair under the defenders' authority, and the collision arose through neglect of the defenders' servants.

The plea that the statutory trust funds were not liable to make good this wrong, in respect of their specific appropriation by Parliament to other purposes, was repelled by the Sheriff-substitute and Sheriff; and their decision was confirmed by a majority of four to three judges.

I need scarcely remind you that the interest of this decision lies in its departure from the rule laid down by the House of Lords in the well-known case of Findlater v. Duncan in 1839. You also know that this departure was founded upon what has been considered as an opposite decision by the same supreme tribunal of appeal in an English case, or cases, known as The Mersey Docks Trustees v. Gibbs and The Mersey Docks Trustees v. Penhallow, decided on 5th June 1866.

If I am not mistaken, the tone of the profession in reference to this case on our side of the Tweed (it has not yet got across that boundary) has been one of unmixed exultation. This is the kind of thing which we Scotch lawyers feel inclined to say to the great English lawyers, who decided the Mersey Docks cases in 1866, and whom we feel quite justified in identifying with their predecessors of the year 1839:-"You upset our old Scotch practice in 1839. You told us, knowing better than we,-you told us that our practice was not justifiable by the law of Scotland, or that of any other civilized country;; that it was contrary to all reason, and sense, and justice. These were hard words, but, as in duty bound, we made submission. For thirty years we have refused to entertain any such claim as that which you threw out in 1839. But time works wonders. The despised, senseless, illegal and unjust doctrine of 1839 is solemnly set up again in 1866. It will not do to say that you have merely thrown aside some obiter dicta in the former decision without making any essential change. What you have done is this: you have reversed your reversal and returned to our doctrine. We, the Scotch lawyers, by your own confession, were in