not generally. And, according to the hypothesis, it is not clear, but equally uncertain, that the testator has intended to describe any one but his expected heir or legatee; or there may be no competitor in the field at all, except the heir-at-law or the residuary legatee. May we not then distinguish the question, "What the testator intended by this deed?" and the question, "What outside the deed altogether the testator intended?" Two certainly never means three; but is the illustration not fallacious? There are always a No. 2 and a No. 3, perfectly distinct. But if the description in the will applied as exactly as numeral adjectives do, there would be no case of ambiguity at all. A part at least of the language must apply, and if we credit the testator with a sober intention to bequeath, the strong presumption afforded by previous conduct and family relations seems relevant to the question of written intention. But, at the same time, we think that declarations are excluded generally, and admitted only in the case of what Lord Bacon called "equivocation," upon this ground that, in the latter case, there is no other possible method of giving effect to the provisions of the will. It is not likely that the ordinary extrinsic evidence would be sufficient to remove the doubt from a case of perfect ambiguity; and yet in one sense this ambiguity arises from no defective expression of will on the part of the testator. We do not say that the interpretation of a will is to depend on the supposed culpa or negligence of the man who made it; and it might perhaps be said that the argument "from despair" applies to every case where the extrinsic evidence is insufficient to prevent intestacy. But, after all, there is something less opposed to principle in proving an intention which literally corresponds with that expressed in the will than in proving one which is not there accurately expressed. And although the opportunity of fraud may be as great as in any other case, it is practically reassuring that "equivocation" does not often occur. At least the issue raised under Rule VIII. seems distinguishable from that under Rule VII.

We are glad to observe that Mr. Stephen sharply criticizes the practice in England of " insisting on a child's belief in punishment in a future state for lying as a condition of the admissibility of its evidence. This," he says, "leads to anecdotes and to scenes little calculated to increase respect either for religion or for the administration of justice;" and he argues that the reason of the Act 32 & 33 Vic. c. 68, admitting as competent witnesses persons without any religious belief, applies, a fortiori, to the case of a child who has received no religious instruction. The English rule requiring that a child shall understand the nature of an oath does not obtain in Scotland; but under the form of a preliminary examination into the intelligence of the children, we sometimes hear questions put which do not add to the solemnity of criminal procedure. For instance, in the case of M'Carter (11th Nov. 1831, Bell's Notes, p. 247), a boy, aged nine, stated that he knew he should tell the truth,

but at the same time candidly admitted that he had not been taught his questions, and did not know where liars go to. The case, a serious one of theft, was abandoned. In the case of Sinclair, however (8th April 1822, Shaw, p. 75), Lord Meadowbank allowed the testimony of a boy, aged twelve, who stated that he did not know God would be offended with him if he told what was not true; and in the case of Collins (18th July 1834), a remarkably well-informed girl was examined, after stating that she was three years old, that God made her, and that people who tell lies go to an ill place when they die. Again, in the cases of Howison and Galloway (Bell's Notes, 247), both for murder, two boys, aged eight and nine respectively, were allowed to be examined, although they had never got their questions. We do not doubt that in all these cases the intelligence of the child may have been fairly tested by all the questions put in initialibus. But when a Circuit Judge shouts to a trembling girl of six, "Do you know where you'll go to if you tell a lie?" and the answer, "Yes," is jerked out with the mechanical accuracy of a parrot who has received instruction in "questions," we do not think that respect for justice is much increased. A much better plan sometimes pursued is that of appealing to the child's conscience through a parent or adult friend.

Whether clergymen can be compelled to disclose the secrets of the confessional is a matter of more speculative interest than practical importance. It was the subject of a pamphlet, published in 1865 by a Mr. Baddeley, who argued that the privilege must have existed in Roman Catholic times, and has not since been withdrawn. Mr. Stephen, on the other hand, while admitting (contrary to the usual statement of the law) that the point has not been decided in England, maintains that nearly all the English Law of Evidence belongs to the last two centuries, and that therefore it probably does not contain any exception favourable to auricular confession. It seems that an Irish Judge (Sir Michael Smith) in 1802 ruled that the privilege did not exist, for it was the constitutional right of every subject to call for the testimony of his fellow-subjects. On the other hand, C. J. Best said that he would never compel a clergyman to disclose communications made to him. by a prisoner, but that if he chose to disclose them, they should be received in evidence. It may be that from the silence of the law the legal inference is that no exemption has been established; but considerations of legal symmetry are hardly sufficient for the treatment of a great ecclesiastical institution. Besides, Mr. Stephen seems hardly to have given due weight to existing legal authority. From the learned note by Mr. Finlason in Reg. v. Hay (2 F. and F. 4), we learn that except in cases of high treason (an exception. introduced, it is said, to the Saxon from the Norman law) the privilege of confession was recognized; and as the law undoubtedly recognizes a power of confession and absolution in the priests of

that portion of the Catholic Church established in England, it might be argued that, whether communications to clergymen outside confession are protected or not, this ancient privilege survives. The "satisfaction" which the rules of the confessional generally require to accompany confession may often involve the clergyman in matters beyond the privilege. This was the case in Reg. v. Hay, where the priest had received a stolen watch from a penitent after confession, and was sent to jail for refusing to say who gave him. the watch. Very much the same thing occurred in the leading Scotch authority (M'Laughlan v. Douglas and Kidston, 17th Jan. 1863, 4 Irv. 283), where a priest, who had addressed and sealed an envelope returning a stolen bank-note, was sent to jail because he would not say to whom he gave the envelope to post. In his judgment the Lord J. G. M'Neill "assumes, though he does not assert, that the law may regard as confidential, and therefore not to be disclosed, a confession made by a criminal to his spiritual pastor to ease his conscience and to obtain consolation and advice, and even that it protects the whole of what I may call spiritual intercommuning between them." This agrees with the opinions of Hume and Sheriff Dickson; and it certainly places the law on a better basis than the narrow and technical basis of the Catholic confessional. If there be any good in the practice of confession (and who can deny this, however much he may regret the weakness which makes it necessary), it is certainly not confined to one communion, nor to statements made on the faith of a vain promise of absolution.

There can at least be little difference of opinion with regard to the superiority of one of the Scotch rules in cross-examination. Mr. Stephen has no desire to conceal the faults of the English system. His Article 129 says that a witness may be asked any questions which tend (1.) to test his accuracy, veracity, or credibility; (2.) to shake his credit by injuring his character, and the witness (except where the answer might expose him to a criminal charge) is bound to answer, however irrelevant and however disgraceful the answer may be. This is illustrated from the Tichborne case, where a witness, who was adduced merely to prove that he had made certain tattoo-marks on the arm of the lawful heir, was asked whether at a time, separated by long intervals from both the tattooing and the trial, he had committed adultery with the wife of a friend. No doubt Chief-Justice Cockburn in his charge, rebuked Dr. Kenealy in the strongest language for introducing Lord Bellew's "practical joke;" and carefully pointed out how remote was the connection between untruthfulness and various other kinds of immorality. But as the question was put, it seems the honour of the English Bar is not an absolute guarantee that it shall not be put; and though the jury probably paid no attention to the forgotten scandal, but believed Lord Bellew's account of the tattoomarks, the cruel mischief was done when the witness left the box.

The Scotch rule has always been qualified by the common-sense condition that specific crimes referred to in cross-examination must indicate either disregard of truth or general depravity of character, while general allegations against character are admitted only in prosecutions for rape and assaults with intent to ravish. The Indian Evidence Act 1872 empowers the Judge to decide whether a witness shall answer a question intended to injure his character; and in doing so he is to consider (1.) whether the imputation would seriously affect credibility; (2.) the remoteness in time of the matter alleged; (3.) the disproportion between the value of the imputation and the value of the evidence.

We hope that Mr. Stephen, in his new character of Professor of Common Law, will make many more attempts at "private codification," equal in interest and success to the book we have just

described.

LIABILITY OF A JUDGE FOR JUDICIAL ACTS.

(From the Albany Law Journal.)

THE case of Lange v. Benedict, recently decided at the General Term of the New York Supreme Court for the First Department, involves an interesting question. The case was heard on a demurrer to the complaint which was overruled by the court at Special Term. The action was brought to recover for the unlawful imprisonment of the plaintiff by the defendant, who is the United States District Judge for the Eastern District of New York. It appears by the complaint and the copies of the papers annexed to it, showing the proceedings had, that the plaintiff was indicted, tried and convicted at a term of the Circuit Court of the United States for the Southern District of New York, held by the defendants of the crime of larceny committed by stealing mail bags of the value of less than £20. By the Act of Congress defining the offence and its punishment, that rendered the plaintiff liable to be sentenced to pay a fine not exceeding £200, or to be imprisoned not exceeding one year. In finally disposing of the case the defendant imposed both these punishments upon him. The plaintiff paid the fine and applied to be released from custody by means of the writ of habeas corpus, because he had suffered one of the alternative punishments provided for the offence. That was denied, and the Court, by order entered, directed the sentence which had been pronounced to be vacated, and then sentenced the plaintiff to one year's imprisonment upon his conviction. He had then been in custody five days, and afterward applied to the Circuit Court of the United States, where the Circuit Judge, Lewis B. Woodruff, the District Judge of the Southern District, Samuel Blatchford, and the defendant were upon the bench presiding, for a writ of habeas corpus to discharge him from further imprisonment because of its illegality. The

application was heard, and after being considered, was denied. He then applied for another writ of habeas corpus, which, together with a writ of certiorari, was issued by the Supreme Court of the United States, and upon the hearing had on the return made to both writs the plaintiff was discharged from custody, the Court holding that he could not lawfully be sentenced to imprisonment after what had transpired in the case (ex parte Lange, 18 Wall. 163). After that this action was brought against the defendant for false imprisonment.

In reversing the decision of the Special Term, the Court say: "The rule by which judicial officers have been exonerated from liability for the consequences of their decisions has gone much further than is required for the protection of the defendant. In Yates v. Lansing (5 Johns. 282), the assertion was approvingly mentioned, that no authority or semblance of an authority' had been urged for an action against a Judge of record, for doing anything as Judge; that this was never before imagined, and no action would lie against a Judge for a wrongful commitment any more than for an erroneous judgment (id. 294). And that principle was affirmed afterwards in the same case by the Court of Errors (9 id. 396). And to the same effect are Jenkins v. Waldron, 11 id. 114; Vanderheyden v. Young, id. 150; Wilson v. Mayor of New York, 1 Denio, 595; Weaver v. Devendorf, 3 id. 117; Bradley v. Fisher, 13 Wall. 335. In the case of The Rochester White Lead Co v. The City of Rochester (3 Conn. 464), it was said that whenever duties. of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed' (id. 466). To secure this immunity it is sufficient that a case requiring judicial action is presented to the Judge (Hannan v. Brotherson, 1 Denio, 537; Sands v. Hells, 19 Barb. 283). The defendant's right to exemption from personal liability in this case rests upon still more cogent circumstances than those already relied upon. For the decision of the United States Supreme Court, to which he was bound to subordinate his action, had previously affirmed the existence of the authority which he exercised in changing the punishment (Cheangke v. United States, 3 Wall. 321; Bassett v. United States, 9 id. 38). In the last case the person proceeded against has pleaded guilty to an indictment and had been sentenced to imprisonment, and was actually sent to prison, in pursuance of the sentence. A few days after that he was brought again into Court by means of a writ of habeas corpus, and on the District Attorney's motion the judgment was set aside, and the prisoner had leave to withdraw his former plea of guilty. This was all done during the same term, as it was in the case of the plaintiff, and the Court unanimously held it to be proper. That was not done because the proceeding was favourable to the defendant, but for the