EXTINGUISHMENT OF

MUTUAL DEBTS.

See "COLONIAL Law," 3.

FAMILY NAME, PROPERTY
IN.

In England, the assumption of a
name, the patronymic of a family,
by a stranger, who had never be-
fore been called by that name, is
not the subject of a civil action,
as by the English law there is no
right of property in a person to
the use of a particular name, to
the extent of enabling him to
prevent the assumption of his
name by another.

Aliter, as to the exclusive use of a

name in connection with a trade
or business, which right is re-
cognized, and a party assuming
it colourably, or otherwise, being
an invasion of another's rights is
a fraud, for which a remedy lies
either at law or equity. [Du
Boulay v. Du Boulay] -

See" COLONIAL LAW," 1.

FELONY.

- 31

A Prisoner having been tried and
convicted of a capital Felony, by
a Court of Oyer and Terminer
in New South Wales, and sen-
tence of death passed, and the
judgment entered upon Record,
an application was made to the
Supreme Court, sitting in Banco,
for a rule for a Venire de novo, on

an affidavit which stated, that one
of the jury had informed the
Deponent, that pending the trial,
and before the verdict, the jury
having adjourned to an hotel,
had access to newspapers which
contained reports of the trial as
it proceeded, with comments
thereon. The Supreme Court
made the rule absolute, consi-
dering that there had been a
mis-trial, and ordered an entry
to be made on the Record of the
circumstances deposed to:-that
the judgment on the verdict
should be vacated, and a fresh
trial had. On appeal to Her
Majesty in Council, held, by the
Judicial Committee, acting on the
case of Reg. v. Bertrand (4 Moore's
P. C. Cases (N.S ), 460),
First, that the discretionary power
of the Supreme Court to grant
new trials does not extend to
cases of Felony; and that a Ve-
nire de novo cannot be awarded
after verdict upon a charge of
Felony, tried upon a good indict-
ment and by a competent Tri-
bunal;

Secondly, that if a Venire de novo

could be awarded upon an appli-
cation by way of error on appeal,
the proceeding in the Supreme
Court was defective in form, and
not warranted by the suggestion
entered on the Record; and
therefore,

Thirdly, that the Order for vacating
the judgment, and for a Venire
de novo, must be reversed. [Reg.
v. Murphy]

177

FOREIGN ENLISTMENT.
The Foreign Enlistment Act, 59
Geo. 3, c. 69, for prevention of
enlisting into Foreign Service, or
the fitting out or equipping in
Her Majesty's dominions Vessels
for warlike purposes provides, by
sect 7, (1) That such Ship or
Vessel must be acting without
leave or license of the Sovereign
of this Country; (2) That she
must be equipped, furnished, fit-
ted out, or armed, or there must
be a procuring, or an attempt, or
endeavour to equip, furnish, fit
out, or arm the Ship; (3) That
such equipment, furnishing, fit-
ting out or arming, must be done
with the intent or in order that
the Ship or Vessel shall be em-
ployed in the service of some
"Foreign Prince, State, or Po-
tentate, or of any Foreign
Colony, Province, or part of any
Province or People, or of any
Person or Persons exercising, or
assuming to exercise, any powers
of Government in or over any
Foreign State, Colony, Province,

or part of any Province or Peo-
ple; " (4) That there must be an in-
tent to employ the Ship or Vessel
either as a Transport or Store-
ship, or with intent to cruise
or commit hostilities against any
Prince, State, or Potentate, or
against the subjects or Citizens
of such Prince, &c., or the persons
exercising, or assuming to exer-
cise, the powers of Government
in any Colony, Province, or part
of any Province or Country, or
against the inhabitants of any
Foreign Colony, Province, or part
of any Province or Country; (5)
That such Foreign Prince, State,
or Potentate, &c., is one with
whom His Majesty should not

then be at war

A Vessel having been seized under
warrant from the Governor of the
Bahama Islands, and proceeded
against in the Vice-Admiralty
Court there, for breach of the
7th section of the Foreign En-
listment Act, was, upon the hear-
ing of the cause, ordered to
be restored, the Vice-Admiralty
Court not being satisfied that
the Vessel was engaged, within
the meaning of that section, in
aiding parties in insurrection
against a Foreign Government,
as such parties did not assume
to exercise the powers of Govern-
ment over any portion of the
territory of such Government.
Such decision overruled on ap-
peal by the Judicial Committee,
on the ground that it was estab-
lished, that there was an insur-

rection in the Island of Cuba,
the Foreign Government in ques-
tion; that there were Insurgents
who had formed themselves into
a body of people, who formed
part of the Province or people of
Cuba, acting together, and under-
taking and conducting hostilities;
that the Vessel was employed as
a Transport or Store-ship, in con-
nection with, and in the service
of, this body of Insurgents; and
that the Judge of the Court
below had miscarried in confining
his attention to the second alter-
native of the third branch of the
section, which requires that the
person or persons aided must be
exercising, or assuming to exer-
cise, the powers of Government.
[The Salvador] -
- 509

IMPLIED WARRANTY.
Two of the Directors of a Joint-
Stock Company, by a letter to the
Company's Bankers, notified that
their Manager had authority to
draw cheques on account of the
Company. Such two Directors
did not form a majority of the
Directors of the Company, as
required by their Act of incor-
poration, so as to bind the Com-
pany. Although the Company's
account was at the time over-
drawn, and that fact was known
to the two Directors, the Bankers
honoured the Manager's cheques
on the authority so given to them.

In an action brought by the Bank
against the two Directors, for
advances made on account of the
Company upon the faith of their
letter, the Court below held, that
there was an implied warranty
on their part, and that they were
personally liable to the Bank, and
judgment was given to the extent
of the sums overdrawn by the
Manager subsequent to the date
of their letter. Such judgment
sustained on appeal. [Cherry
v. The Colonial Bank of Austra-
lasia] -

INDIAN ACTS.

No. XIX. of 1859, s. 69;
No. X. of 1866, s. 174.

See "COMPROMISE."

INSOLVENCY

Of Owner of Vessel.

See "BOTTOMRY BOND," 3.

INSURANCE.

- 235

and

Suit brought to recover the amount
of two Policies of Insurance upon
the cargo and disbursements re-
spectively of a Ship; both policies
being for a total loss. The Ship
having become a wreck, the Cap-
tain, without taking any steps to
save or discharge the cargo,
deeming such impracticable, pro-
ceeded to dismantle the Ship,
and gave notice to the Insurers
of the abandonment of the cargo,
and sold both Ship and cargo by
public auction. A large part of

The Court below held, that as the
cargo might have been, and was,
in fact, partially saved, there was
no such total loss of the cargo
and freight as entitled the Assured
to recover on either of the Poli-
cies. Such ruling, as regarded
the cargo, affirmed, but as the
Ship, when she was reduced to a
wreck, was incapable of earning
any freight, the Judicial Com-
mittee were of opinion, that there
was such a total loss of the dis-
bursements, to be paid out of the
freight, as to entitle the Assurers
to recover on that Policy.
The authority of Parmeter v. Tod-
hunter (1 Camp., 541), with re-
spect to the form of notice of
abandonment, observed upon and
questioned. [Currie v. The Bom-
bay Native Insurance Co.] - 302
See "BAILMENT.”

INSURRECTION IN CUBA.
See "FOREIGN ENLISTMENT."

JERSEY,
Law of.

See "COLONIAL LAW," 6.

JOINT-STOCK COMPANY.

See "COMPROMISE."

"IMPLIED WARRANTY."

JUDGE AND JURY,

Functions of.
See "LIBEL."

JURISDICTION.

written by the Defendant to the
Colonial Secretary of the Island,
stating that the Plaintiff was
drunk and disorderly at a certain
time and place. At the trial, the
Letter was not given in evidence,
or the publication proved, but the
Judge told the jury that they had
to find, whether it was a privi-
leged communication or not, and
directed them to decide, whether
or not, the Defendant had taken
sufficient care to ascertain the
truth of the statement made to
the Colonial Secretary, and upon
this it would be for him to decide
whether the Defendant's com-
munication was a privileged one
The jury found for the
Plaintiff, with damages, and the
Judge, a few days afterwards,
gave judgment concurring with
the verdict.

or not.

Held, that the proceedings were
altogether irregular, and judg-
ment arrested, the Judge having
taken upon himself the functions
of the jury, first, in leaving it to
them to determine whether the
alleged libel was contained in an
official document and a privileged
communication; and, secondly,
in not leaving it to them to say,
whether the Letter, if published,
was bona fide; and if so found,
then it was for him to determine
whether, under all the circum-
stances, it was not a privileged
communication.

The Defendant did not apply to the

Court below for a new trial, but
upon special application for leave,