Page images

principles of morals or not. The law 42, de verb. signif. (50, 16,); says in this respect:—proba quaedam natura turpia sunt, quaedam civiliter et quasi more civitatis, ut puta furto, adulterium natura turpe est, enimvero tutelae damnari, hoc non natura probrum est, sed more civitatis, nec enim natura probrum est, quod potest etiam in hominem idoneum incidere." As actions of this kind are only objectionable, according to the view of a particular people, at a particular time, and this character does not of necessity belong to them, they may, according to the view of another people, which does not depart from the general principles of morals, or even according to the view of another people, which allows of the same, possess a different character at another time. To this class belongs the prohibition contained in the Roman law against partitions of estates, because such contracts were held to be contra bonos mores; * whilst, by the German law, these contracts have always been considered as valid. The law of insurance furnishes another example. Several of the old laws of particular states forbid the insuring of the life of a man; * and Pothier * gives as a reason for this principle, that it is repugnant to good manners to estimate the life of a free man at a sum of money. But the modern law finds nothing offensive in such an insurance, which renders it invalid.” This being premised, the decision of the question, whether a transgression of the revenue laws of a foreign state is repugnant to good manners, is no longer difficult. According to general principles, trade is free; and, consequently, every one may, both in respect to his own and to a foreign state, import and export what he pleases, without being subject to any restriction. A state may always have grounds, upon which to restrict commerce of the one or other kind; but such a regulation can only be binding upon the subjects of that state; for the prohibition or restriction of an action, which is in itself permissible, cannot bind foreigners, nor does such an act, by being thus forbidden, assume the character of immorality in general. The above-mentioned ground of Pfeiffer, that it is immoral to take from a third person that to which he has a right, must in general be admitted as true; yet it is not sufficient for the present case, because a state clearly has no such right in regard to a foreigner; for the right of the state, which results from the prohibition to import or export, reaches so far only as the law itself has binding power, that is, for the subjects of such state. Inasmuch, therefore, as it cannot be asserted, that, according to the peculiar view of the German law, the transgression of the revenue laws of a state, to which the smuggler does not stand in the relation of subject, is an immoral act, it follows, that a contract of insurance, which refers to such an undertaking, must be regarded as valid among foreigners. L. S. C.

• Adversus bonos mores hujus civitatis, in the law 15, § 6 de inj. (47,10). * Thibaut, System, $852, (8th ed.) * Benecke, part 1, p. 54; Pohls, parti, p. 74.

* Traité d’Assurance, n. 27. * Pohls, p. 75.

[ocr errors]



Selections from 3 Meeson and Welsby, Part 3; 6 Dowling's Practice Cases, Part 3; 8 Carrington and Payne, Part 2; 2 Nevile and Perry, Part 3; 3 Same, Part 1; 5 Scott, Part 1; 6 Adolphus and Ellis, part 2.

ARBITRATION. (Award, when final.) A cause and all matters in difference having been referred to arbitration, the arbitrator set out all the facts upon the face of his award, and then awarded that the plaintiff had no cause of action against the defendant; and stated that he determined the action in favor of the defendant. He then, after awarding by whom the costs of the reference should be paid, concluded as follows:—“But if the court shall be of opinion, upon the facts hereinbefore stated, that the plaintiff is entitled to recover in the action, then I determine the action in favor of the plaintiff, and order and award that the defendant pay damages to the plaintiff to the amount of one shilling, and also pay to the plaintiff the costs of the reference.” Held, that, the arbitrator having come to a positive finding, and expressly declared his own opinion, the award was sufficiently final, and the latter clause might be rejected. Barton v. Ranson, 3 M. & W. 332; S. C. 6 D. P. C. 384.

ATTORNEY. (Change of name by.) When an attorney changes his name, the court will not grant a rule for altering his name on the roll, by adding his new name to that which is already engrossed on it. Exp. Ware, 6 D. P. C. 463. BURGLARY. (Misnomer.) The prisoner was indicted for breaking the house of S. W., and striking D. James; the evidence was that he struck D. Jones, and it was held that the prisoner could not be convicted of the burglary. Rer v. Parfitt, 8 C. & P. 288. CHARTER-PARTY. (Pratique, what is.) On an issue on a clause in a charter-party, that the plaintiff on a certain day had been ready to unload a vessel, and had received pratique, the plaintiff proved that the port of unloading was on the coast of Africa, where no custom-house or institution for giving pratique existed; that he was ready to unload the vessel on that day, and that no impediment to unloading existed ; the jury found that the vessel was ready to unload on the day, but had not received pratique: Held, that on this issue the plaintiff was entitled to the verdict, for pratique, in this charter-party, meant unloading the vessel in accordance with the laws or customs of the country. Balley v. De Arroyave, 3 N. & P. 114. CONTRACT. (Construction of building contract.) The plaintiffs, on the 19th April, 1836, entered into a written contract to build, for the sum of 1700l., a brewery for the defendants, so far as regarded the carpenters' work, within the space of four months and a half next ensuing the date of the agreement; and in default of completing the same within the time thereinbefore limited, to forfeit to the defendants 40l. per week for each week that the completion of the work should be delayed beyond the 31st August, the amount to be deducted from the said sum of 1700l., as liquidated damages. The plaintiffs did not begin the work for four weeks after the date of the agreement, in consequence of the defendants not being able to give them possession; they were afterwards delayed one week by the default of their own workmen, and four weeks by the default of the masons, &c. employed by the defendants; and the work was not completed till five weeks after the time limited: Held, that the defendants were not entitled to deduct from the 1700l. any sum

in respect of the delay, either for the one or the four weeks. Holme v. Guppy, 3 M. & W. 387. EVIDENCE. (Of reputation—Declarations against interest, or accompanying act.) Indictment for obstructing a highway. Plea, not guilty. A witness stated, that about forty years ago a deceased occupier of land over which the road passed, planted a willow near the road. The witness was then asked what the occupier said when he planted the willow. The witness answered that the occupier said that he planted the willow to show where the boundary of the road was when he was a boy. It was held, that the statement of the occupier was not receivable in evidence, on the ground that it was evidence of reputation, or as a declaration accompanying an act done, or as a declaration against the interest of the party making it. Reg. v. Bliss, 2 N. & P. 464. 2. (Cross-examination.) When a statement made by a party to a suit in giving evidence on a former trial has been got out in cross-examination, only so much of the remainder of the evidence is allowed to be given on re-examination as tends to qualify or explain the statement made on cross-examination. 2 B. & B. 297.) Prince v. Samo, 3 N. & P. 139. 3. (Accomplice.) The evidence of an accomplice must be confirmed in some matter relating to the prisoner, as connected with the subject-matter of the inquiry. Reg. v. Dyke, 8 C. & P. 261. 4. (Examination.) A witness cannot be examined from a written paper, without allowing the counsel on the opposite side to see it. Reg. v. Duncombe, 8 C. & P. 369. 5. (Husband and Wife.) B., having been convicted of felony, his wife was allowed to be examined as a witness upon an indictment for the same identical offence against A. Reg. v. Williams, 8 C. & P. 284. FORGERY. (Intent to defraud.) Upon an indictment for uttering a bill of exchange, knowing it to be forged, the jury found the uttering with a knowledge of the forgery, and the judges, upon a case reserved, decided that the intent to defraud must

« PreviousContinue »