evidence a United States Court, or the Court of any neutral State, would pronounce a sentence of death. With no better jurisdiction, with no different facts and the same obligation to conform their decision to the established rules of international law, a German Court could not lawfully reach the conclusion that piracy had been committed and that the accused could in accordance with law be punished with death. The only basis upon which the decision of the German Court can be justified is that the German statute has superseded international law as a rule of conduct on the high seas. Now it is clear that if the German legislature has the legal right to do this, it may with equal propriety change any other provision of international law. With this latitude of action, it might readily provide that any neutral vessel on the high seas could be lawfully seized as a prize by a German warship and its crew be enslaved or executed as pirates. A German Court would not need, in common with the Courts of the United States, to ask the question whether or not this statute was in conflict with international law; and, if so, whether or not the latter might take precedence over the former. If, however, the German Courts and the German legislature, in common with the German army and navy, do not consider it necessary to take cognizance of the fact that there is such a thing as international law, except where it suits their purposes to do so, we must then raise the question whether Germany is entitled to a place among the family of nations, or whether she has not voluntarily placed herself in the outlaw class. When the individual places his own will above the authority of law and insists upon translating his theory into action, he at once becomes an outlaw. Such anarchistic ideas make him an unsafe member of society and his liberty of action is restricted. Equally clear is it that a nation which does not consider itself amenable to international law must be restricted in its liberty of action or the present order of society breaks down. I do not mean that a State may not be guilty of minor violations of international law without sacrificing its right to a place among the family of nations. But when it refuses to shew a decent regard for the rights or the lives of the citizens of other States and attempts a legal justification for this disregard, it strikes at the very fabric of orderly society; it insists upon a principle which if forced to its legitimate conclusion is destructive of all law, because it makes the individual the final judge as to his rights. Punishments of such harshness that they shock the moral sense of mankind, particularly when under official sanction, are sure to lead to retaliation. War at best tends to cheapen human life, but official acts of this sort cheapen it unnecessarily and by so doing shake the confidence which one nation should have for another and render peace much more difficult. If I mistake not, the execution of Captain Fryatt has not only decreased English respect for the German gov ernment, but, in common with the piratical behaviour of German submarines, has lessened the respect which individuals of all the allied countries had for individual Germans. This will have a more direct bearing on the terms of peace which Germany can secure than official or unofficial Germany appears to realize. In fact the German programme seems to have proceeded upon the assumption that peace would never again be necessary, or that if it would be that Germany would dictate the terms thereof. To understand the execution of Captain Fryatt we must look upon it as one in a long series of acts in a policy of frightfulness which has cost Germany far more than she has gained by it. Fortunately, the policy is too much of a concession to the mob spirit to be anything more than a short lived policy, unless civilization is to lapse into barbarism. It is the realization of this fact that has turned the civilized world against Germany. EDWIN MAXEY. CURRENT COMMENTARY UPON RECENT ENGLISH AND CANADIAN DECISIONS.1 Consignment note-Construction-"Non-delivery of any consignment." In the May number of [1917] A. C. the construction put in Great Western Railway Company v. Wills, upon a clause in a consignment note respecting liability for "non-delivery of any consignment fully and properly addressed," viz., that it meant non-delivery of the consignment as a whole, as contrasted with short delivery, and did not apply to a case where only seven out of 752 carcases of frozen meat consigned were not duly delivered, appears startling at first, but arises from the context of the particular document. Trial-Irregularity in respect to jury list. In Montreal Street R. W. Co. v. Normandin,3 the Privy Council decide that the verdict of a jury in an action will not be set aside on account of irregularities in the due revision of the jury list unless the litigant applying proves that he has been prejudiced thereby. Perhaps the case would scarcely call for notice here were it not for the following general statement in the judgment as to when statutory provisions for the performance of a public duty should be treated as merely directory (p. 175): "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and vold acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." 1 The aim of the Editor is to make this feature of the C. L. T. a really complete and conscientious review of recent English decisions likely to be of use to Canadian lawyers, so that readers of it from month to month may rely on no case important for them to be advised of, escaping their notice. Cases under the English Workmen's Compensation Act, 1906, are not considered as coming under this category. 2 [1917] A. C. 148. [1917] A. C. 170. Negligence-Unbroken colt loose on highway at night-Damage to traveller on highway. In Turner v. Coates, the defendant was held liable under the following circumstances. A young unbroken colt belonging to him was being taken along a highway on a dark night. It was allowed to go loose behind a mare which was being led, and in front of a trap driven by the defendant. The plaintiff, who was riding a bicycle, was coming from the opposite direction when the colt, being startled by the light on the bicycle, suddenly ran across the road and collided with and injured the plaintiff, to whom no warning was given by the defendant of the presence of the colt. The case is interesting because of the admitted principle that the mere fact that an ordinary domestic animal strays from the owner's premises on to the highway does not necessarily make the owner liable because some injury is done by it while on the highway. But here the Court was dealing with an animal of a particular class with particular propensities-an animal as to which the witnesses said that it was not only likely to do harm to passers-by, but that it could hardly fail to do harm; and the view taken by the judges is well expressed by the following extract from the judgment of Bailhache, J. (p. 675): "I attach a good deal of importance to the fact that it was dark at the time. In the dark precautions have to be taken in connection with the driving of animals along a highway different from those that have to be taken in the daytime. In the daytime people can see what is in the road and can take care; in the dark precautions cannot be taken by them unless there is warning. In this case no warning was given to the plaintiff. The test to be applied in all these cases is that which was laid down by Erle, C.J., in Cox v. Burbidge:— 'I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it."" [1917] K. B. 670, 86 L. J. (K.B.) 321. '13 C. B. (N.S.) 430, 436. Contract-Sold note-Condition-Assent of buyer. Roe v. R. A. Naylor, Ltd, is as Bailhache, J., says, "an interesting case." The plaintiff claimed damages for breach of contract in respect to certain timber sold to him under a sold note, for non-delivery of part thereof. On the left-hand side of the sold note, printed in very small type, was the condition: Goods are sold subject to their being on hand and at liberty when the order reaches the head office.' A new trial was ordered on the ground that it was not clear that the trial judge had properly directed himself according to the law as thus laid down by Bailhache, J., with whom Atkin, J., agreed: "I take the law to be that when the parties to a contract of sale exchange bought and sold notes, or when the seller hands to the buyer a sold note which is accepted by the buyer as being the contractual document, it is no part of the seller's duty to request the buyer to agree to the terms contained in the sold note or to call his attention to its terms. If the buyer accepts the sold note without reading it he does so at his own risk. He is bound by any conditions which may be in the note even if he has not read them. What are sometimes called the ticket cases are not in point; there seems to me to be a broad distinction between that class of case and the case of a contract of sale. There is, however, in my opinion, an exception to the rule that a buyer who accepts a sold note is bound by its terms even though he has not read them. The note may be misleading. The conditions may be so ambiguously worded that they may be read equally well in two different ways; or the conditions relied on by the seller may be placed in such a position in the document that a man of ordinary care and intelligence would not expect to find them there. Nor would he be bound if the condition was printed in such small or illegible type as to be unreadable by a person of ordinary eyesight. . . . In this case the question may be put thus: Taking the smallness of the print, and the fact that the clause is printed along the side of the document, can a reasonably careful business man be heard to say that he did not see the clause, and could not have been expected to see it? If so, he is not bound by the clause." Landlord and tenant-Breach of covenant to repair -Acceptance of rent after notice to repair-Necessity of new notice before action to recover possession. In New River Company v. Crumpton," the defendant was tenant to the plaintiffs of a house under a lease con 6 [1917] 1 K. B. 712. 7 [1917] 1 K. B. 762, 86 L. J. (K.B.) 614. |
