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dom for finding the solution to any ambiguity or obscurity in an Act of Parliament. We venture to express the opinion that the way in which the Scotch Court meets the difficulty is much less dangerous than that suggested and adopted in Woodward. The Second Division appear to have given its real meaning and inten; tion to section 28; for what other can have been its purpose than to remove any doubt as to the full, authority of the schedules and directions ? Acting upon this conception, their Lordships construed the whole as one Act, whereas the English Court gave a sort of duplex action to one enactment, gave some portion of it more weight than the rest, and that, too, despite the precautions taken by the Legislature to prevent such misapprehension.

Were different portions of the same Act to be always construed in this way, it is to be feared that the number of actions turning upon the interpretation of statutes, already more than sufficiently large, would be increased to an indefinite extent, and that Courts of law might find themselves frequently occupied in deliberating whether this or that section of the Act was meant to be “absolute” or merely “ directory." No doubt such “directory” provisions may be inserted in any statute, but where the Act itself bears ex facie such a clause as section 28, it would seem to be pressing the distinction far beyond the intention of the Legislature. The form by which the directions and schedules are placed at the end and together is merely one of convenience for reference, and lest that form should lead to the undervaluing of the authority of the directions and schedules, we find in section 28 the incorporating clause.

When the action of Robertson v. Brown was raised in the Outer House, the Lord Ordinary, Lord Craighill, after the debate, felt, as he says in the note to his interlocutor, that the sole Scotch Authority in 1874 could not be reconciled with the sole English Authority in 1875, and accordingly he reported the case to the Second Division, with a view to an immediate decision. After a hearing before seven Judges, the Court, with one dissentient voice, that of Lord Deas, adhered to the decision in Haswell's case, and thus affirmed the view taken previously by the Second Division, although the case of Woodward was before them. It may therefore be taken that the law of Scotland is upon these two points quite clearly established, and Lord Neaves, in giving his opinion as to the straight line marked on one of the papers, pointed out, that apart from the views already adverted to, there was the possibility of the voter having stopped short, and not gone beyond the straight line, changing his mind, and resolving then and there not to give a vote at all. It may not be an unfair illustration of the force of his Lordship’s remark to take the case of an election where the voter had the power of giving, say a vote to five out of eight candidates, and where he distinctly marked a cross opposite four names, while opposite another there was only a straight line. Applying the case of Woodward, it is difficult to see on what principle that fifth vote could be disallowed, and yet it appears to us that, considering the four crosses on the paper, the balance of probability would be vastly in favour of its not having been meant as a vote at all, but merely a mark after which the voter stopped, and made no cross, not meaning to give a vote as he had done to the other four, but refraining in the fifth case from the exercise of his franchise.

The opinion delivered in Roberston by six of the Judges upheld entirely the Wigtown decision, and Lord Gifford in reading his opinion observed that he would have been disposed to regard the " directions" as to filling up the ballot-paper rather as directory than imperative had the purpose of the Act been to confer an electoral franchise, but that he was unable to do so, because he considered the real object of the statute to be the preservation of absolute secrecy of voting, so that the vote of any elector should not be discoverable from the voting-paper to any of the interested persons necessarily and by statute entitled to be present during the hours of the election and at the counting of the votes. The view generally taken on this point was simply that the principle applied to writing on the voting-paper should also apply to any other mark differing substantially and essentially from the statutory cross, with the proviso that the Court always would in dubio be inclined to sustain rather than to reject a vote. The making of any mark which might be made the means of identification is a violation of the spirit as well as the letter of the Act, even though there be no evidence of any such purpose.

A cross placed to the left was deemed in the Wigtown case a direct violation of the provisions of the statute, and the Second Division in Robertson adhered to the former judgment.

Besides these two points, however, there are others upon which the law of each country is illustrated only by a single authority; thus, marks upon the back of the ballot-paper other than the printed number, and substantive marks in addition to the cross, such even as a superfluous cross, were held in the Wigtown case to nullify the vote, and in the Birmingham case not to do so in the absence of any evidence of connivance. It is to be hoped that some legislation will obviate the necessity of further decisions on these points, and will assimilate the law of the two countries; and if this be done, it appears to us that by adopting the cautious policy of the Scotch decisions a greater protection will be afforded against the unknown and insidious attempts to defeat the real operation of the Act, than by the more trusting latitude allowed by the English Courts.

In concluding these remarks, it may not be out of place to observe that an excellent suggestion was some time ago made by a well-known member of the Bar, which would obviate all difficulties, at least as to the position of the cross or mark on the yoting-paper. The plan proposed was that the voting-paper should

be black, with the candidates' names printed in white, and a white space left for the mark of the voter opposite the name of each candidate. The voter thus, if he wished to make a mark at all, must do so in one or other of the white spaces. In order to reconcile the law in both countries, nothing less than a short declaratory Act would, we think, suffice, and were such a provision as to the colour of the voting-paper at the same time to receive statutory effect, the difficulties of election petition questions would be largely modified, and the antagonism of the decision obviated.




(From the Albany Law Journal.) This volume seems to us the most interesting of the series, with one exception. It contains the cream of twenty volumes of reports of the States of Alabama, California, Indiana, Maryland, Massachusetts, Missouri, New York, North Carolina, and Wisconsin. The annotations of the editor surpass, in extent and value, even his former labours on these reports. There is not a case embraced in the volume which does not deserve remark, and we are quite puzzled in making a selection among the most striking. In looking over the several volumes of this series, we have frequently been struck with their superior interest to the English reports. It would seen that the law questions arising in this country are more various, novel, and curious than those of our mother-country. We shall hastily glance at a few of the most important cases in the present volume.

A curious practical test in evidence was sustained in State v. Garrett (71 N. C. 85). The defendant was indicted for murder. Her defence was that the deceased had been accidentally burned to death. Upon the coroner's inquest it was proved that the prisoner had said that she had burned her own hand in trying to extinguish the fire, and being then in custody, she was ordered by the coroner to show her hand, which appeared to be uninjured. Evidence of this fact was held admissible upon the trial. It seems that such etidence is admissible, even although the prisoner has been induced to make the disclosure by force or improper influence.

In State v. Parrott (71 N. C. 311), it was held that where a railroad company, authorized to erect a bridge with a draw across a navigable river, constructed it without a draw, the defendant, the owner of a steamboat, was justified in running his boat through the bridge and tearing it down.

In Ward v. State (48 Ala. 461), it was held that dogs are not the subject of larceny. This differs from the law of New York, but the distinction seems to be that with us dogs are recognized as property, and subject to taxation. In Burns v. State (48 Ala. 195), it was held that a statute making the marriage of whites with negroes a criminal offence is unconstitutional. In Bell v. State (48 Ala. 434), there is a curious example of falling to the ground between two stools. The prisoner indicted for burglary and larceny, in one bill, was found guilty of burglary. The judgment was reversed on error, and a new trial had on the same indictment, when the jury found a verdict of guilty of larceny, and were discharged. It was held that the first verdict was an acquittal of larceny, and the second verdict was therefore a nullity, the discharge of the jury, without finding a verdict as to the burglary, operating as an acquittal of that charge. Another similar case is State v. Brannon (55 Mo. 63). The defendant being indicted for robbery in the first degree, which covers larceny, was found guilty of robbery in the second degree. This was set aside, as there are no degrees in robbery. Subsequently he was tried again on the same indictment, and convicted of larceny. This was held error; as he could on the first trial have been lawfully convicted either of robbery or larceny, but was lawfully convicted of neither, the verdict operated as an acquittal.

In Massachusetts we note some interesting cases of morals. In De Witt v. Pierson (112 Mass. 8), it was held that where the rooms beneath a tenant are occupied by another tenant of the same landlord, a woman of notoriously bad character, who keeps lewd women as lodgers, uses the rooms for prostitution, and receives there the visits of drunken men, does not constitute an eviction, although the occupants are noisy, disorderly, offensive to decency, and disturb the tenants overhead, and the latter are entitled to no diminution of rent. In M Grath v. Merwin (112 Mass. 467), it is held that the plaintiff cannot maintain an action for injuries to the person by the defendant's fault, sustained while clearing out a wheel-pit on the Lord's Day, to prevent a stoppage of mills employing many hands. In Minor v. Sharon (112 Mass. 477), it was held that the owner of a dwelling-house, who knowing that it is so infected with the small-pox as to be dangerous, leases it for habitation, without disclosing the fact, to one who is ignorant of its condition, and who without contributory negligence, by reason of the infection, becomes diseased, is liable in damages; and it is for the jury to say whether, under all the circumstances, the lessee ought to have been vaccinated.

In Gannon v. Housatonic Railroad Co. (112 Mass. 234), it is held that a servant may recover consequential damages from the master for injuries inflicted upon the servant's wife through the carelessness of a co-servant in the same employ. In Smith v. City of St. Joseph (55 Mo. 456), it is held that in an action for negligence to recover for injuries to the wife, two actions will lie, one by the husband alone for loss of service, expense, etc., and the other by husband and wife for the injury to the person,

The principal New York cases embraced in this volume have been heretofore alluded to in these columns. Among them are People v. Ingersoll, Tilton v. Beecher, and Carroll v. Staten Island Railroad Co. The latter decided that one travelling for pleasure on Sunday was not precluded from recovering for injuries sustained through the carelessness of the carrier in whose vehicle he is ridiny. Caswell v. Davis, the “Calisaya Bark” trade-mark case, is also given, with the two pages of authorities cited by the counsel for the appellant, in spite of which the judgment was affirmed. An important distinction in the law of partnership is given in Leggett v. Hyde (58 N. Y. 272), where it is held that a loan of money, to be used in the business of a firm, with an agreement that the lendor shall share in the profits, renders him per se a partner as to creditors of the firm. This is distinguished from the case of one receiving a stated proportion of the profits as compensation for services. Wade v. Kalbfleisch, holds that an action for breach of promise of marriage dies with the person. St. Peter v. Denison (58 N. Y. 416), holds that one engaged in blasting with gunpowder is liable for injury caused thereby to another, who was ignorant of the danger. This case has an important note. In Bliss v. Lawrence, (58 N. Y. 442), it is held that an assignment of the salary of a public officer, before it is earned, is void as against public policy.

It is evident from two Wisconsin cases that railroad corporations will be held to a strict behaviour toward ladies in that Siate. In Bass v. Chicago and North-Western Railway Co. (36 Wis. 459), it was decided that a regulation of a railroad corporation, setting apart one car of each passenger train for women and the men accompanying them, is reasonable, and that, although if there is no room elsewhere in the train, a male passenger may take his seat in such car if peaceably permitted, yet he has no right forcibly to intrude. The language of the Court is remarkably gallant, although a portion of it suggests an apparently impracticable arrangement. The Court say: "The use of railroads for the common carriage of passengers has not only vastly increased travel generally, but lias also specially led women to travel without male companions. To such, the protection which is a natural instinct of mankind toward their sex, is specially due by common carriers. And in view of the crowds of men of all sorts and conditions and habits constantly travelling by railroad, it appears to us to be not only a reasonable regulation, but almost if not quite a humane duty, for railroad companies to appropriate a car for each passenger train primarily for women and men accompanying them, from which men unaccompanied by women should be excluded, and even women or men accompanying women of offensive character or habits ; so as to group women of good character on the train together, sheltered as far as practicable from annoyance and insult.” The Court do not point out any method of ascertaining the character and habits of the men and women presenting themselves for transportation, and it is difficult to imagine VOL. XX. NO. CCXXXVI.- AUGUST 1876.

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