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sole reason that during the same term the Court had full power to control and change its judgments. And that subject was very fully discussed and the authorities cited upon which the principle rested by Mr. Justice Clifford, in his opinion in ex parte Lange (18 Wall. 191-5), and a decision of the same nature was made after the execution of the sentence had commenced by reducing the term for which transportation had been provided in the case of Rex v. Price (6 East, 323, 327). The Circuit had no power, even if it had the disposition, to gainsay or deny the accuracy of the legal principle sanctioned by the case of Bassett v. United States (supra). It not only had the power, but it was bound to conform its action to the principle maintained by that authority: That was obligatory upon the defendant at the time as positive legislation would have been. And he appears to have acted under its sanction. At that time his action was strictly lawful, and it cannot be denied but that the authority of that case then afforded him complete protection for the change made in the sentence, and it would probably be conceded to continue to do so, had it not been since impaired as authority by the final decision made in the plaintiff's favour. Under the doctrine of that case, he was vested with clear jurisdiction over the subject-matter brought before him, and it at the same time indicated the manner in which it should be exercised by him.

That it was, as the learned Justice stated in his opinion, in the plaintiff's favour, it had been decided “in general terms without much consideration " (18 Wall. 167), could not change its effect as authority where it was followed by the Circuit Court. The defendant presiding there could not then, with the least propriety, have assigned that as a reason for disregarding it as authority. The decision was then in full force as it had been made. It was promulgated by the Court in its published reports as a proper exposition of the law, and it would be exceedingly unjust under such circumstances to render the defendant's protection dependent upon the views afterward taken to correct it by the Court that had pronounced it. That tribunal could correct it as it has, when it was discovered to be wrong, but he had no such power over it. It was bis duty to conform his official action to it, and for that it cannot be that he can be held personally liable because the authority of the decision has since been superseded by another. His conduct, on the other hand, should be so far sustained as to secure him immunity the same as it would have been if a statute had existed in favour of it, which the Legislature afterward repealed. For future purposes the repeal obliterates the law the same as though it had never been enacted. But acts previously performed are still maintained by force of the law which sanctioned them at the time of their occurrence. This principle is too familiar to require the citation of authorities for its support, and all its reasons are applicable to the case now before this Court.

The principle invoked for the support of this action would sanction suits against Judges for their official acts in a large class of cases, if it should receive the approval of the Courts. It would be difficult to exclude from its comprehension any cases where imprisonment should be pronounced or continued which might afterward be declared to be warranted by the final view taken of the law. No authority has gone so far as that, and it is not probable that any will be hereafter so widely extended. The settled principle, on the contrary, is that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the Judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful (Bradley v. Fisher, supra, 347).

PRESUMPTION OF SURVIVORSHIP WHEN SEVERAL PERSONS PERISH BY A COMMON CALAMITY.

(Abridged from the Southern Law Review.) An interesting case was lately tried in the Circuit Court of the United States for the District of Louisiana, before the Hon. W. B. Wood, involving the above question, and which, inasmuch as the law of Louisiana on this subject, adopted from the Napoleon Code, differs in many essenial particulars from the Common Law of England and most European countries, and the enquiry itself seldom occurs, an outline of the case and of the authorities cited may interest some of your readers.

LOSS OF THE STEAMSHIP EVENING STAR." This steamship left New York, bound for New Orleans, on the 29th September 1866. Among the passengers were Mr. James Gallier, sen., aged sixty-eight, and his wife, aged forty-four, who, after several years' absence in Europe, were returning to New Orleans, the place of their residence, and the residence of James Gallier, jun., the only child of Gallier, sen., by a former wife. By his will he had left Mrs. Gallier a house and lot in New Orleans and 5000 dollars in gold.

The first three days passed with comparative fair weather and smooth seas, and without any prognostics of the calamity which was soon to befall her. Cape Hatteras was passed in safety ; but on the 20 October a strong south-easterly breeze overtook the vessel, accompanied by a heavy swell, which in the evening increased to a gale, and during the night assumed the form of a hurricane, or rather cyclone. The fury of the wind went on increasing, extinguished the fires of the engines, rendered the vessel unmanageable,

caused it to fall in the trough of the sea, while the water in the hold rose with such rapidity that in spite of the almost superhuman exertions of the passengers, male and female, and the crew, it became evident the vessel could not outlive the storm.

The scene which ensued, as described by the survivors, was solemn and appalling. The passengers, both male and female, exhausted by their toils in bailing the vessel, when convinced that all hope of saving her was lost, met their fate with a resignation truly admirable. The lifeboats were lowered, but few of them could live in the raging waves, which tossed the ship as a feather on their crests. When the vessel finally went down, the loose spars and lumber on the deck, and the woodwork detached by the pressure of the sinking steamer, floated around the wreck and destroyed many of the passengers, who, trusting to their life-preservers, had thrown themselves into the water in the hope of being rescued by the lifeboats. Three of these, after having been repeatedly capsized, succeeded in leaving the vessel and in saving twenty-three persons, of which seventeen belonged to the crew of the vessel and six were passengers, among which two were females. Mr. and Mrs. Gallier were lost.

After the death of James Gallier, jun., who had, as sole heir, taken possession of the estate of his father, a suit was brought against the widow of James Gallier, jun., and her four minor children, and it alleged, in substance, that Catherine Robinson, wife of James Gallier, sen., survived her husband, and that her father and her half-brothers and half-sister were, as her heirs, entitled to the legacy.

According to the law of Louisiana no one can inherit from another unless it be shown that he was alive at the time of the opening of the succession, i.e., at the death of the person of whom he claims to be the heir, and all legacies lapse (become null) if the legatee die before the testator. Hence it becomes important, in cases where several persons entitled to inherit from each other perish by a common calamity, such as shipwreck, battle, conflagration, etc., to determine who died first. This question has given rise to numerous commentaries, ancient as well as modern, and has embarrassed the jurists of most countries, and can as yet not be considered as definitely settled in any.

The Civil Code of Louisiana, following in this respect the Napoleon Code, provides “that if several persons respectively entitled to inheritance from one another happen to perish by the same event, such as a wreck, a battle or a conflagration, without any possibility of ascertaining who died first, the presumption of survivorship is determined by the circumstances of the fact.” (Art. 936.)

“In the absence of circumstances of the fact, the determination must be decided by the probabilities resulting from the age, strength, and difference of sex according to the following rules :-(Art 937.) If those who have perished together were under the age of fifteen years, the eldest shall be presumed to have survived."

VOL. XX. NO. CCXL.—DECEMBER 1876.

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“ If both were above the age of sixty years, the youngest shall be presumed to have survived. If some were under fifteen, and some above sixty, the first shall be presumed to have survived.” (Art. 938.)

“ If those who have perished together were above the age of fifteen years and under sixty, the male must be presumed to have survived, where there was an equality of age or a difference of less than one year."

If they were of the same sex, the presumption of survivorship, by which the succession becomes open in the order of nature, must be admitted : thus the younger must be presumed to have survived the older. (Art. 939.)

The preceding provisions of the Louisiana Code are adopted textually from Articles 720, 721, and 722 of the Napoleon Code, and establish a series of artificial presumptions often at variance with experience, and which we believe have not been received except in France and Louisiana.1

But cases often arise in which no human being survived who witnessed the events, as where a vessel is lost at sea and no tidings of the loss have ever been obtained. In such cases, and in such cases alone, the laws of France and of Louisiana establish certain presumptions for the guidance of the Courts, which, although not always in conformity to the usual course of events, were probably adopted to prevent the exercise of an arbitrary discretion, which the law always desires to check.

The theory on which the presumptions in the French Code are founded divides human life into three different periods. The first begins at birth and ends at puberty (fifteen years). The second

1 Article 720 of the Napoleon Code, as it stood originally, declared that when it could not be ascertained who died first, the age and sex of the parties should guide the Judges in their decision. To this the Consul Cambacérès objected as too absolute, and the article

was accordingly modified. (Motifs et discours du Code Civil, vol. ii. p. 321, ed. of Firmin Didot. Paris, 1838.) As the law of France now stands, the presumptions created by law are not resorted to unless in the absence, 1st, of material facts, resulting from the appearance of the body, examined by physicians ; 2nd, the testimony of persons who witnessed the cvent; and 3rd, circumstances of fact. Thus, in deciding cases arising out of the massacre of the Huguenots, on St. Bartholomew's Day, the Parliament of Paris acted on the presumption that the murder of the older persons preceded that of the children and the younger persons, believing that the assassins would in the first place destroy those who were able to offer resistance, in preference to those from whom they had little to fear. (Stryk. Diss. 10 c. 6, No. 11.) So in the case of the wife of Bobé, daughter of the celebrated Dumoulin, who, together with her two children, one aged twenty-two months and the other eight years, was murdered by robbers on the 19th February 1572, the Court presumed that the mother was killed first. (Pothier Traité de Suexes, c. 3, § 1; Merlin Rep. art. Mort, $ 2, 1.) Merlin quotes l. 32, § 14, d. 24, which declares : “Si quidem possit apparere quis anté spiritum posuerit, expedita est quæstio ; si vero non appareat, difficilis est quæstio;" and he adds: “Si cette question est epineuse par ellemême, on peut aisement se persuader que les interprètes et les docteurs en out encore augmenté embarras." Merlin has, with his usual industry and thorough acquaintance with the French and Roman law, analyzed and commented on the different decisions had in France from the earliest period to the present time, and a perusal of them, we think, will show that they cannot be referred to any certain standard, or definite rule.

begins at fifteen and ends at sixty years, and the third begins at sixty. In the first period the oldest is presumed to have survived ; in the second and third periods, the youngest. Hence if in the third period a man over sixty perish at the same time with a child of only one year, the child is presumed to have survived. Mourlon, a very able commentator on the Napoleon Code, calls this a shocking presumption, but says, by way of consolation, “Mais il n'est pas de présumption qui, poussée à ses dernières limites ne touche à l'invraisemblance." That may be so, but that which is improbable ought not to be relied on as a rule of decision in a Court of Justice.

The counsel who brought the suit for the heirs of Mrs. Gallier evidently relied on the disparity of age which existed between her and her husband. In proportion as he examined the law applicable to the question, he appears to have become convinced, that inasmuch as Mrs. Gallier could never be regarded as the heir of her husband, as long as he had children and grandchildren, his lawful heirs, she would be compelled to establish her survivorship by facts tending to prove her allegation.

In order to ascertain the facts of the case, the testimony of some of the survivors was taken, which established conclusively, that a minute or two before the vessel sunk, the waiter who attended Mr. and Mrs. Gallier, saw them in their state-room, Mrs. Gallier lying down and Mr. Gallier standing up and holding on to the door. Mr. Gallier was perfectly calm and collected, while his wife appeared sick. The vessel went down stern foremost, as soon as Gannon the waiter had attained the deck, he having effected his departure from the cabin through the skylight, because the staircase was encumbered by passengers seeking to reach the deck. This testimony having been corroborated by other evidence, it became apparent that Mr. and Mrs. Gallier perished in their state-room on the foundering of the steamer.

The law of Louisiana and of France, as we have shown, only apply the presumptions of survivorship established by their Codes, to cases where persons, who perish by the same calamity, are entitled to inherit from each other. Under the provisions of Art. 76 of the Louisiana Code, the heirs of Mrs. Gallier were consequently bound to prove, affirmatively, that she survived her husband, of whom she was not the heir. An attempt was accordingly made to establish the fact that she was seen floating in the water and helped into one of the boats after the vessel sunk. But the testimony on this subject was given by witnesses, who were proved not entitled to any credit, and who deposed to facts not only improbable, but proved to be false.

This case being the only one that had occurred in Louisiana, no adjudications could be found to guide the Court in the application of the law to the facts it presented. Hence the French commentators of the Napoleon Code were referred to, in order to show

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