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VOL. XXIV.

SOLICITORS'

JOURNAL.

SATURDAY, MAY 31, 1890.

No

on 8

DANGER DEEMED A "DEFECT" IN THE CONDITION OF MACHINERY. Does danger constitute a defect in the condition of a machine, within the meaning of section 1, subsection 1, of the Employers' Liability Act? doubt, to attempt to define what "defect" is in the abstract would be to attempt an impossibility, and it would be hardly less difficult to define every possible thing which might come within the meaning of the word "defect"; but, Morgan v. Hutchins, reported in this month's number of the Law Journal, lays down a principle sufficiently broad to cover, at all events, the narrower question in reference to danger-a principle, too, that will be found susceptible of very extensive and general application. That important case came before Lord Coleridge, C.J., and Lord Esher, M.R., County Court appeal, under those circumstances :— An action had been brought under the Employers' Liability Act by the plaintiff, a boy of thirteen, against the defendants, for damages for the crushing of one of his hands in a leather-pressing machine. The County Court Judge directed the jury to consider whether, in the first place, the boy was using the machine in the performance of his duty; and in the second, whether there was a defect in the machinery in not fencing it or covering the cogs. The jury found a verdict for the plaintiff for £195. From the facts proved at the trial it appeared that the machine in question consisted of rollers which were put in motion by cog-wheels at the side. The boy's duty was to feed the machine with leather, and to keep the leather straight as it passed between the rollers through the machine. The boy was put to the work after merely being told by another boy how to do it. Upon the day of the accident the leather became twisted in some way, and the boy, in endeavouring to straighten it, got his hand entangled in the cogs of the wheel at the side of the machine and it was crushed. The wheel and cogs were not so fenced by wire-guard or otherwise as to render such an accident impossible, nor were they in any way covered or protected. An inspector of factories had, in 1885, warned the defendants against employing young persons to work the machine, for if the cogs of the wheel were not protected it was dangerous even to adults.

The contention on behalf of the appellant was, that the defect, for the purposes of the Act, must be a defect which prevents the machine doing properly the work it is required to do, that defect must apply to the machine itself, and so that danger was not a defect if the machine here in question was not otherwise defective for the purpose of rolling leather. What was the alleged defect? A part of the machine was wanting that is, a fence to the cog wheels

No. 1,218

but, then, that would not have made it a better machine for pressing leather --so that, on the facts, the question was distinctly raised as to whether, however dangerous a machine may be, it can be defective if it is not defective for the purposes for which it is used. For instance, contended the plaintiff, a machine may be defective in the hands of a boy when it is not defective in the hands of a man ; but, without necessarily going that length, the fact that here the machine could not perform its work without human skill and labour was, of itself, something that had to do with the "condition" of the machine. As Lord Esher put it: If its condition be such that the workman cannot do his part with safety, is that, or is it not, a defect in the condition of a machine the working of which is a necessary performance? However, no authority precisely in point was cited. Heske v. Samuelson & Co. (12 Q. B. D. 30) was rather the case of the misapplication of a perfect machine, defective in this, that all lifts for coke ought to have something in the way of a guard or fence to prevent the coke falling out; but, in a measure, the Court there decided the principle which the Court here were called on to lay down definitely. While, again, in Walsh v. Whiteley (21 Q. B. D. 371) it would rather seem to have been assumed that if the machine were dangerous to a workman, without any fault of his own, it came within the Act, the only doubt that existed in the minds of the two Lords Justices, who differed from the learned Master of the Rolls, being as to whether the defect had arisen from the negligence of the employer. In Morgan v. Hutchins, however, a distinct and unqualified enunciation on the subject has been delivered. "The governing principle, in my opinion," said Lord Coleridge, "is that when a machine is defective with reference to a danger, and such defect is within the knowledge of the employer, he is then liable."

And "within the knowledge of the employor," it' must be, no doubt; for, though the sub-section says nothing as to this qualification, it should be remembered that Walsh v. Whiteley (ubi supra) decides that the sub-section must be read together with subsection 1 of section 2, thereby adding the words "owing to the negligence of the employer, or of some person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition." The Court here, however, were not pressed by that decision, as the danger was clearly traceable to the employer, and indeed it was not suggested that it was not well within the defendant's knowledge. So that the learned Master of the Rolls was abundantly | justified in observing, "it seems to me that unless we hold the defect complained of here to be one

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THE REMUNERATION ORDER.

In re Robson, decided on the 14th inst., and noted this week at p. 75 of the Notes of Cases, is a most important case upon the construction of the Solicitors' Remuneration Order of 1882, The simple point was whether a solicitor who had prepared a lease at a rent of £50, with a premium of £4,400, was entitled to the scale fee on the premium as well as on the rent, and Mr. Justice North, reversing a master's decision that the solicitor was entitled, in respect of the premium, to remuneration according to the old system, held that the scale fee applied, The difference in amount was £42. Mr. Robson, with commendable perseverance in his inteution to appeal, had declined to avail himself of the opportunity given him by the master of bringing in a bill of costs to be tixed on the old footing.-Law Journal.

Solicitors will doubtless congratulate themselves (and with good reason) upon the decision of Mr. Justice North in Re Robson. Mr. Robson, a solicitor, was instructed to prepare a lease for a term of ninety years, the consideration being an annual rent of £50 and a premium of £4,400. The bill of costs subsequently delivered amounted to £69 10., consisting of £3 104. for disbursements and £66 for professional charges. The last item, calculated according to the scale under the Solicitors' Remuneration Act, 1881, was made up of £14 by way of percentage on the rent and £52 in respect of the premium. The taxing master, however, refused to allow anything beyo d the £14, and struck out the £52 altogether, at the same time giving leave to the solicitor to bring in a bill of costs according to the old system, as altered by schedule 2 of the rules under the Act of 1881. The fallacy of this mode of dealing with the costs was very clearly shown by the judgment of Mr. Justice North. A solicitor must be paid according to a scale, or independently of a scal. There can, speaking generally, be no blending of the two systems. A reasonable interpretation of the rules and schedule as applying to transactions between lessor and lessee can only lead to the conclusion that the basis on which Mr. Robson's costs were made out was perfectly correct. the taxation had been sustained it would be quite possible that, in the case of a lease at a nominal or small rent, where the real consideration was a large premium, no title being deduced, the solicitor would receive a most inadequate remuneration for his services-a result which, as Mr. Justice North pointed out, was scarcely coutemplated by the framers of the Act, orders, and rules. In the opinion of the learned judge, the language of rule 5 (referring to a further sum equal to the remuneration of a purchase at a price equal to the premium) made the object in view perfectly intelligible. In the result, therefore, Mr. Robson is held to be entitled to the full amount claimed, and an important precedent has been established.-Law Times.

If

AUDIENCE OF PERSONS UNQUALIFIED AS SOLICITORS.

At the Lisburn Petty Sessions, on the 15th inst., John M Creight, house-agent, summoned a tenant for possession of a house at the suit of Mr. John Bradbury, landlord.

Mr. Wilkins, solicitor (addressing Mr. Gibson, R.M.), said-You will remember, sir, that upon the last courtday, I objected to Mr. M'Creight appearing without employing a solicitor. You (relying upon a dictum of

Lord Cairns) allowed M'Creight to put the case through. I reported the case to the Incorporated Law Society, and they have written me to ascertain from your worship the particulars of the case you refer to, as they propose to institute proceedings against agents who encroach upon the privilege of solicitors in this court.

Mr. Gibson said he would be very happy to give the information asked for. He had not the particulars with him, but the matter arose before Mr. Horue, R.M., at Westport, and what he relied upon was an auswer given by the late Earl Cairns to a question put by the late Lord Oranmore and Browne, referring to this case in the House of Lords.

Mr. Wilkins thanked his worship, and said he would give the information to the Incorporated Law Society.

APPEALS IN CRIMINAL CASES.

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Sir Henry James's "Criminal Cases Appeals Bill' gives a right of appeal to "a defendant convicted on an indictment upon whom judgment of death has been pronounced, on any ground whether of law or fact, or of mixed law and fact arising in or out of his trial." At present the possible proceedings in the nature of an appeal in criminal cases are three (1.) Proceeding in error-only available where there has been an error in the proceedings themselves, such as an irregularity in empanelling the jury (Mansell v. R., 8 E. & B. 54), or a defect appearing upon the face of the indictment (Bradlaugh v. R., 38 L. T. Rep. N. S. 118; Castro v. Murray, 32 L. T. Rep. N. S. 675). These proceedings are consequently of rare occurrence, and the procedure is very technical. (2.) Motions for a new trial, which can only be had when the case has originated or been removed into the Queen's Bench Division. (3.) The judge may state a case for the Court for Crown Cases Reserved (by 11 & 12 Vict. c. 78). This can only be done on a poiut of law, and if the court holds the judge at the trial decided wrongly on the point of law submitted-as e.g., by the improper reception or rejection of evidence, however unimportant-the court can ouly quash the conviction, and has no power to order a new trial.

It is proposed by Sir Henry James's Bill to abolish the Court for Crown Cases Reserved, aud in its place to constitute a court consisting of the judges of the High Court of Justice and the Court of Appeal (except the Lord Chancellor). The court is to have power to use the judge's notes at the trial, and to hear fresh evidence by affidavit, or, "if it thinks it essential for the purpose of doing justice," to call witnesses, whether such witnesses were called at the trial or not. The court also is to have very extensive powers in dealing with cases that come before it. It may (a) quash the indictment and the proceedings thereon, or (b) direct a verdict of not guilty to be entered, or (c) order a new trial; (d) where a special verdict has been found, or (e) where the punishment awarded is illegal, the court may pronounce judgment upon such special verdict, or remit the case to the court of trial to give judgment. There is also an important provision, that where it appears that any matter complained of in any appeal was immaterial and either could not reasonably have affected the result or did not occasion any substantial wrong or miscarriage, the court may disregard such matter and dismiss the appeal. The grounds upon which a new trial are to be granted are: (1) that the verdict was against the weight of evidence, or founded on insufficient evidence, or misreception or improper reception of evidence; (2) misdirection or wrong conclusion in point of law; (3) informality or irregularity in the trial or non-production of material evidence.

It appears, however, that if such a court is established it will have very little work to do. In criminal trials, especially for capital offences, such care is taken to give the prisoner every chance, and the jury are generally so anxious to give him the benefit of any doubt, that it is very rarely indeed that a verdict is given against the weight of evidence or on insufficient evidence. Such cases as that of Mrs. Maybrick, e.g., could not be considered by the court. No oue pretends that the verdict

in that case was against the weight of evidence, the only ground for reviewing the finding of the jury in that case, and in all such cases, is that there was some reasonable ground for doubting the prisoner's guilt-that the evidence for the prosecution, though strong, was not ovewhelming. If evidence such as was produced against Mrs. Maybrick were the foundation of a verdict in a civil action, it is ludicrous to suppose that a new trial would have been granted on any of the grounds set forth in the Bill.

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As for the other powers of the proposed court, they are all such as can be exercised now by the Court for Crown Cases Reserved; and so careful are judges to give every consideration to the prisoner that it is impossible to suppose that, if any case of difficulty arose as to the reception of evidence or as to the law in capital cases, a judge would refuse to reserve a point. experience even in trivial cases of larceny is that the judges invariably reserve a point for the Court for Crown Cases Reserved rather than decide against the prisoner, if there can possibly be two opinions on a point of law. Moreover, the Bill does not propose to transfer the exercise of the prerogative of mercy from the Home Secretary to the court. The court will have no power to remit or commute the sentence on the ground of youth, provocation, or any of the numerous grounds which may influence the Home Secretary. Nor, it seems, will there be that unlimited power which the Home Secretary has of making inquiries and giving weight to matters which are not legal evidence, such as hearsay, or the general character of the prisoner, which, though not admitted as evidence in a court of law, may in particular cases be of very great value in determining the guilt of a prisoner.

dence necessary to qualify for the electoral franchise. It is to be hoped that the Attorney-General's bill dealing with the subject may be so amended in committee as entirely to remove this grievance; but we should esteem it a misfortune if any incomplete measure were to be passed. We respectfully maintain, upon the grounds we are about to state, that the decisions in question are not good law, and that there is no reason why they should not be overruled by the Court of Appeal, if matters be allowed to take their course. But an Act which granted a partial relief from their effect, by that very fact could not fail to be regarded as a legislative confir. mation of their principle, aud thus to prejudice those persons who are within the principle, but not within the statutory exception. The earliest statement we have been able to find of the law as to residence in relation to Parliamentary elections is the following note on 10 Hen. VI., c. 2, in Crompton's work on "Tue Anthority and Jurisdiction of Courts," published in 1598 "Si home gard householde in au countie et demort in service oue auter in auter countie, uncore poet estre al election de chival' de countie ou tient son houshold, car serra dit in ley a demur in chescum des dits couties." Here the words "in service one auter'' show that it was then considered immaterial whether the voter's absence was for pleasure or duty. Tue enactment in question does not seem to have been the subject of any decisions by election committees, probably because it soon became "obsolete," according to the recital in 14 Geo. III., c. 58, which repealed it. Bat an opposite tendency-in favour, namely, of residence--was exhibited in relation to the borough franchise. It was early established that, where no certain custom appeared to the contrary, all men inhabitants, householders, residents within the borough were entitled to vote. By custom also the right of election was frequently in inhabitants of a more extensive class, as potwallers, or of a more limited class, as resident burgage holders. There was thus abundant opportunity for the raising of questions as to residence or inhabitancy, terms which for election purposes were before the Reform Act of 1832, as they are now (see Regina v. The Mayor of Exeter, Dipstale's case, L. R. 4 Q. B. 114; Atkinson v. Collard, 55 Law J. Rep. Q. B. 18; L. R. 16 Q. B. Div. 254), construed as synonymous. The object kept in view was to restrict the vote to those described in the Act, 26 Geo. III., c. 100, as "the real inhabitants, who bear the burthens of such cities aud boroughs, aud to whom the right of sending members to Parliameut belongs," in other words, to the permanent population, as distinguished from visitors or "occasional" residents. The guiding principles adopted for determining the question of inhabitancy were two: First, the voter must have in his possession or at his disposal a certain dwelling within the borough; if that condition failed at any time, be thereupou ceased to reside or inhabit. Secondly, he must have the animus manendi, or, if for the time absent, the animus revertendi; it mattered not in the former case how lately he had acquired the dwelling, nor in the latter how long he had been absent from it. To meet the difficulty caused by "occasional voters," who came to live in a borough just before an election, and claimed to have the animus manendi, in the year 1786 the Act referred to, 26 Geo. III., c. 100, made six mouths' resideuce previous to an election essential to the franchise in all cities and boroughs where the electoral qualification was residential. This enactment made no change in the character of the residence required; its effect was merely to provide that the above conditions must be satisfied throughout the prescribed period. Neither before nor after the passing of that statute can we find that it was ever contended COMPULSORY ABSENCE FROM HOME IN REbefore an election committee, that in a case of conLATION TO THE ELECTORAL FRANCHISE. structive inhabitancy it made any difference whether There can be no doubt that a serious grievance is in- the voter's absence was compulsory or optional. But flicted on a large number of the Queen's subjects by the in Rex v. Mitchell (10 East 511), in 1809, the point was decisions in Ford v. Barnes, 55 Law J. Rep. Q. B. 24; raised on a similar enactment, 3 Geo. II., c. 8, as to L. R. 16 Q. B. Div. 251, and other recent cases, which municipal elections in the city of Norwich, and decided have laid down that temporary absence from home on in the negative. The voters objected to were militia duty, military or other, constitutes a break of the resi-substitutes, who had been absent with their regiment

In the Criminal Code Bill of 1878 there were provisions for constituting a Court of Criminal Appeal with powers somewhat similar to those contained in the present Bill. A commission consisting of Lord Blackburn, Mr. Berry, Sir Robert Lush, and Mr. Justice Stephen reported on the Bill as follows: "Cases in which under some peculiar state of facts a miscarriage of justice takes place may sometimes, though rarely, occur, but when they occur it is under circumstances for which fixed rules of procedure cannot provide. Experience bas shown that the Secretary of State is a better judge of such circumstances than a court of justice can be. He has every facility for inquiring into the special circumstances; he can and does, if necessary, avail bimself of the assistance of the judge who tried the case, and of the law officers. He is fettered by no rule, and his decision does not form a precedent for subsequent cавея. We do not see how a better means could be provided for inquiry into the circumstances of the exceptional cases in question." The commissioners then suggest that power should be given to the Secre. tary of State, where he thinks the opinion of a second jury should be taken, to direct a new trial on his own individual responsibility.

A consideration of the Bill now before the House of Commous shows that cases where an appeal can be advantageously brought to the proposed court, on grounds other than those now entertained by the Court for Crown Cases Reserved, will be very rare, and will not be like those which have recently awakened in the Press a demand for the establishment of a Court of Criminal Appeal. Those are cases in which it may or may not have been desirable for the Home Secretary to interfere, but are not cases where the assistance of a Court of Appeal could have been successfully invoked.Law Times.

288

during part of the qualifying period, leaving their wiv s
and families at home in Norwich. The objector laid
stress on the fact that they were substitutes, and there-
fore under no compulsion to be absent, but such as was
of their own choosing; had they been balloted meu it
was conceded that their position would have been more
favourable. It was pointed out that by their absence
on military service they escaped the burtheus of keep-
jug watch and ward and other corporate duties. The
objection was overruled on the ground that there was
an honest, not an occasional, residence, Lord Elien-
borough observing that, though the voters escaped the
corporate duties, they had other burthens in respect of
their houses, and that, as all who were balloted could
not serve in person, he thought their absence on duty
would be as much protected upon the ground of the
exigency of the public service as if they had themselves
been balloted men. It has been suggested (in Ford v.
Hart, 43 Law J. Rep. C. P. 74; L. R. 9 C. P. 273) that
the decision was upon some special meaning of the
word "inhabitant" in the Norwich charter; but a
perusal of the judgments will couvince anyone that the
suggestion is without foundation. The word was con-
strued in its ordinary seuse, and the decision was that,
the absence being temporary, and the home retained,
the voters were in effect what the Act of Geo. III. calls
"real iubabitants,"

The report mentions that at the trial evidence was tendered, but not admitted, to show that the usage had always been to receive votes given in the circumstances objected to; and undoubtedly the same practice prevailed at Parliamentary elections before and after Rex v. Mitchell. In 1832 Mr. John Campbell (afterwards Lord Campbell) stated in debate on the Reform Bill that soldiers, sailors, aud militiamen commonly flocked in at elections to vote as inhabitants (Hansard, Feb. 7, 1832, vol. x. (third series), 57). The Local Militia Act of 1812 (52 Geo. III., c. 38), s. 196, exempted uilitiamen going to vote at a Parliamentary election from liability to penalties or punishment for absence from duty.

By the Reform Act of 1832 the provisions of 26 Geo. III., c. 100, were extended, six months' residence being made part of the qualification for the borough franchise in all cases. In committee on the bill Captain Boldero proposed an amendment excepting soldiers and sailors from this requirement. He referred to the case of a soldier stationed in Scotland, while his family were living in Westminster and paying rates and taxes there. The Attorney-General (Denmau), speaking against the mendment, said: "With regard to the case put by the honourable and gallant officer relating to the residence of a person's family who was absent in the public service, provided the rates and taxes were paid he was always considered a resident, and would consequently be en titled to a vote; such was the law now, aud the bill made no alteration in it" (Hansard, February 7, 1832, vǝl. x. (third series), 55, 56).

The law thus to all appearance settled was acted upon by election committees so long as these continued to decide questions of residence. For a late instance, see Adam Robinson's case (B-rwick Election, August, 1859, W. and Br. 171), where the voter, leaving his wife and children at Berwick, had taken a situation as railway porter, and was required by the terms of his employment to live at Pensher, eighty miles off; the vote was held good.

Before passing to the decisions by which the modern doctrine has been developed, it will be convenient to refer to the cases on irremoveability by residence under 9 & 10 Vict. c. 66, where the same question has beeu raised. In Regina v. Salford, 17 Law J. Rep. M. C 170; 12 Q. B. Rep. 106, aud Regina v. Pott Shrigley, 18 Law J. Rep. M. C. 33; 12 Q. B. Rep. 143, it was ass ned, without argument, that residence was broken by imprisonment or transportation; but on the point being argued iu Regina v. Holbeck, 20 Law J. Rep. M. C. 107; 16 Q. B. Rep. 404, the Court held otherwise. Lord Campbell, who delivered the judgment of the Court, after observing that it had been contended that imprisonment would

create an interruption "because the power of returning
would be taken away by law," said "we find no good
reason, and no analogy, to support this contention."
In Regina v. Stapleton, 22 Law J. Rep. M. C. 102; 1 E
& B. 766, the pauper was employed away from the
parish as a workhouse porter, and slept in the work-
house, as required by his duty, every night for
It was held that be
four years and four months.
had broken his residence, and there are expressions
in the judgments of Lord Campbell and Mr. Justice
Erle which iudicate that they attached weight to
the fact that he had bound himself by his contract
to sleep out of the parish. But in Regina v. Brighton,
43 Law J. Rep. M. C. 41; 4 E. & B. 23, the Court
definitely rejected the contention that temporary
absence on duty constituted a break. Lord Campbell
and Mr. Justice Erle concurred in the judgment, and
the latter observed that in Regina v. Stapleton the pauper
never intended to return unless he should be discharged,
and that, if there had been an absolute intention to
return, the time even there would not have been thought
too long. Here, then, we find the Court, after a slight
vacillation, coming back to the same view of residence
which was adopted iu Rex v. Mitchell.

Returning now to the election cases, we find the germ
of the new docrine in a passage in "Elliot on Parlia
mentary Electors" (2nd ed., p. 204), where the writer,
after citing the authorities, sums up their effect thos:
"That in order to constitute residence, a party murt
possess at least a sleeping apartment; but that an
uninterrupted abiding at such dwelling is not requisite.
Absence, no matter how long, if there be the liberty of
returning at any time, and no abandonment of the
intention to return whenever it may suit the party's
pleasure or convenience so to do, will not prevent a
constructive legal residence. But if he has debarred
himself of the liberty of returning to such dwelling y
letting it, for a period however short, or has abandoned,
his intention of returning, be cannot any longer be said
Now it is plain
to have even a legal residence there."
from the context that "the liberty of returning" refers
only to the power involved in the possession of the
dwelling, not to the absence of any duty or compulsion
So under-
regulating the voter's personal movements.
stood, but not otherwise, the rule is in accordance with
the authorities it purports to summarise, among which
are included Rex v. Mitchell and the above quoted speech
of Sir T. Deumau. But in Powell v. Guest, 18 C. B. Rep.
(N. 8.) 72; 34 Law J. Rep. C. P. 71, decided in 1865, Chief
Justice Erle, adopting Elliot's language as a correct
statement of the law, treated it as excluding from the
franchise one who had been imprisoned for crime with
"The learned author," he said,
out the option of a fine.
"has expressed it 'if he has debarred himself of the
liberty of returning to such dwelling he has not even a
legal residence;' and he has put two examples, by
letting it' or 'by abandoning the intention to return.'-
I think that the claimant did debar himself of the
liberty of returning to such dwelling,' for he was
voluntarily guilty of a criminal act, by reason of which,
according to the laws of his country, he was put in
prison; his power of regulating his movements was
taken away from him, and he lost the liberty of returning
to his dwelling." Elliot, it is scarcely necessary to
point out, did not put a man's abandonment of the
intention to return as an example of his debarring him
self of the liberty of returning. The gloss put upon his
words is a mere distortion of their meaning. In deciding
against the vote in Powell v. Guest the learned judges
were manifestly influenced by the circumstance, on
which they all lay stress, that it was a criminal act
which had caused the loss of liberty. They are careful
to distinguish the case from that of the militiaman, of
the person imprisoned for debt, or on a criminal charge.
before trial, or ou a conviction with the option of a
fiue. Nevertheless, they are certainly responsible for
the introduction of the principle, which was carried to
greater lengths than they iutended by subsequent
decisions.

In Ford v. Hart, 43 Law J. Rep. C. P. 24; L. R. 9 C.

P. Div. 273, decided in 1873 without, it is important to note, any argument in support of the vote, the respondeut, an officer in the army and unmarried, had a room set apart for his exclusive use in his mother's house, which was at all times ready to receive him, and which be used when on leave from his regiment, during three months of the year. In Ford v. Drew, 49 Law J. Kep. C. P. 172; L. R. 5 C. P. Div. 59, decided in 1879, the respondent was an articled clerk in London having a room similarly reserved in his father's house at Exeter for his use when on leave of absence. Both votes were disallowed. Upon these cases it may be remarked that the actual decisions are not inconsistent with Rex v. Mitchell. There was no occupation by wife and family, the use of the rooms was dependent on the will of the parents, and it was quite possible, without assenting to the view that the absence on duty had of itself caused a break of residence, to hold upon the facts stated that the respondents were not permanently residing with their parents, but merely came to them as occasional visitors. Indeed, s far as appears, this was the ratio decidendi in Ford v. Hart of Mr. Justice Denmau, who simply stated that upon the whole of the facts he thought the residence was not made out, and of Mr. Justice Grove, who, on that occasion, intimated his concurrence without giving reasons, but in Ford v. Drew dwelt much on the fact that the power to reside was dependent on two permissions-that of the father as well as that of the employer. On the other hand, Mr. Justice Keating and Mr. Justice Brett certainly based their judgments in Ford v. Hart on the ground that the respondent had incapacitated himself from returning at his own pleasure; and their opinion was adopted in Ford v. Drew by Mr. Justice Lindley.

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In Ford v. Barnes and Ford v. Elmsley, 55 Law J. Rep. Q. B. 25; L. R. 16 Q. B. Div. 257, decided in 1885, the doctrine of the latter judges was treated as having been established by Ford v. Hart, and was definitely accepted as law by a Divisional Court (Lord Coleridge, Mr. Justice Grove, and Mr. Justice Cave). It was there laid down that, "in order to make out a constructive inhabitancy, there must be an intention of returning after a temporary absence and a power of returning at any time without breach of any legal obligation." Rex v. Mitchell is referred to in the judgment, but dismissed with the remark that, if it is inconsistent with Ford v. Hart, "the later case should be followed." There is nothing to indicate that the comparative merits of the two cases in point of principle were ever considered, though such consideration was surely not beyond the competence of the Conrt. The judgment draws some ingenious distinctions between legal and physical compulsion with the view of obviating inconveniences which were suggested in the argument; but these distinctions Beem inconsistent with Ford v. Drew, where the respon. dent was free to sleep where he pleased, but physically incapacitated from passing his nights in Exeter and his days at the office in London, and they have been disregarded in the subsequent cases-Beal v. The Town Clerk of Exeter, 57 Law J. Rep. Q. B. 128; L. R. 20 Q. B. Div. 300, and Donoghue v. Brook, 57 Law J. Rep. Q. B. 122. The votes in Ford v. Barnes and Ford v. Elmsley were claimed under the service franchise, and to that extent the cases differed from Rex v. Mitchell, inasmuch as the occupation itself was permissive; but the difference is unimportant, since it could scarcely be argued that the respondents were occasional visitors in their barrack quarters.

Three attempts have been made without success to obtain a reconsideration of the question-namely, in Spittal. Brook, 56 Law J. Rep. Q B. 48; L. R. 18 Q. B. Div. 426, in 1886, and Beal v. The Town Clerk of Exeter and Donoghue v. Brook in 1887, the last a militia case ou all fours with Rex v. Mitchell. No appeal has yet been taken in this country beyond a Divisional Court.

But in Ireland, where regis ration cases are taken direct from the revising barristers to the Court of A peal, the point has several times arisen. UnfortuDately the rule, adopted by the majority of that Court in Hasson's Case, 18 L. R. (Ir.) 68, in 1885, for the pur

pose of securing uniformity, of following the English decisions, though only of Divisional Courts, has pre cluded it from giving effect to its own views as to the true interpretation of the law. In M'Kendrick v. Buchanan, 20 L. R. (Ir.) 206, in 1886, the Court held it clear that a porter on duty at an hotel six days and nights in the week was an inhabitant occupier of bouse where his wife and family lived and he himself slept every Saturday night. Here the Euglish cases seem not to have been cited, but they were cited and followed in Martin v. Hanrahan, 22 L. R. (Ir.) 452, 1887, where a militiamau, and in Hassan v. Chambers, 24 L. R. (Ir.) 139, 1888, and Duffy v. Chambers, 26 L. R. (Ir.) 100, 1889, where sailors, were held to be disqualified by absence on duty. In Donnelly v. Graham, 24 L. R. (Ir.) 127, 1888, Powell v. Guest was followed and slightly extended, as to the effect of imprisonment when, and only when, the result of a criminal act, in breaking residence, In all these cases where the English authorities were referred to the members of the Court expressed in the strongest terms their approval of Rex v. Mitchell, and their dissatisfaction with the reasoning upon which Ford v Hart and Ford v Barnes proceeded.

Briefly stated, then, the history of the doctrine bere discussed is that it was founded on a mistake, and, in the first instance, so hedged about with distinctions ag to be applicable to none but convicted criminals, that it was next formulated as of general application by two judges out of four in a case argued only on one side where the decision might have been rested on other grounds, and that it was thereafter accepted by Divisional Courts as concluded by authority, and never submitted to the Court of Appeal. Our objections to it may be summed up as follows: First, in the words of Lord Campbell, "we find uo good reason and no analogy to support it." If the fact of compulsion ought to make any difference, it should rather, upon the analogy of the law of domicil, be in favour of the vote, as supply." ing a motive for absence not inconsistent with the iu. tention to return. Secondly, it is opposed to the usage of centuries, as shown in the reports of election committees, in text-books from Crompton downwards, and in such speeches as those of Deuman and Campbell in 1832. Thirdly, it is in conflict with the great authority of Rex v. Mitchell, and with the unanimous opinion repeatedly expressed of the Irish judges of appeal. Lastly, its adoption has defeated the intentions of those by whom the Reform Act of 1832 was passed, as appearing by the debate referred to. For a remedy we personally should prefer a decision of the Court of Appeal to any legislation, but assuming that there is to be legislation, we would only again urge that it ought to be complete. So far as we can gather, while the Government have consented to make their bill apply generally, and not, as at first proposed, exclusively to those engaged in the military and naval service of the Crown, and in the police force, the four mouths' limit of absence is to be retained. This is to be regretted; nothing short of the abolition of all distinction between compulsory and optional absence will be satisfactory." If it be thought desirable that an exception should be made in the case of convicted criminals, and that they should still be disqualified for registration during six or twelve months after their release from prison, let them be disfranchised, not as non-residents, but as criminals, whether they claim a county or a borough vote, aud whether in the latter event they have been imprisoned within the borough or more than seven miles from ita boundary.-Law Journal.

CAUSING BODILY HARM.

A recent decision as to the words “unlawfully aud maliciously," reported in another column, illustrates the great variety of decisions which turn more or less on the application of those words, and the nicety often required in distingishing what kind of evidence of an offence is sufficient to go to a jury. Though the cases on this subject are as uamerons as those on any other branch of criminal law, yet only a few can be singled

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