Bryan is now finally cleared out of the way, and the points which remain undecided must be discussed, when the occasion arises, on broader principles.

From a legal point of view Finlay v. Chirney, 20 Q. B. Div. 494, is the most interesting decision which has been reported for a long time; it fills up a singular gap in the law as to the survival of actions, and determines that an action for breach of promise of marriage does not survive against the personal representative of the promisor. The oddity of the thing is that though it has long been decided that such an action will not survive to the representatives of the promisee (Chamberlain v. Williamson, 2 M. & S. 408), the particular point raised in Finlay v. Chirney has not hitherto come definitely before the Courts, or if it has arisen has never been reported. This is one of those instances which excite in the minds of legal theorists some regret that the judges do not deal with the many speculative points which a case often suggests. The judges are not infallible, but they are far more competent both to expand and expound the law than are legislators who are always ignorant and generally prejudiced, or lawyers who being consulted or retained on a particular side, are inevitably biassed even if they be not ignorant. To anyone who reflects on the growth of English law it may appear a plausible theory that the country would gain much by the extension of judicial and the curtailment of Parliamentary legislation. The natural regret that modern judges do not more frequently give full expositions of the law will be certainly increased by a study of Lord Esher's and Lord Justice Bowen's judgments in Finlay v. Chirney; they are different in style, the one deals with the practical, the other with the historical side of the question before the Court. Lord Justice Bowen's judgment is as admirable a criticism of the history and meaning as regards English law of the maxim actio personalis moritur cum persona' as can be found in any judicial utterance or book. Every line in it is suggestive of thought and reflection.

Cooper v. Cooper, 13 App. Cas. 88, is a Scotch case, but deals with two matters which are of wider interest than enquiries depending for an answer on peculiarities of the law of Scotland. The House of Lords decide in the first place, that it is competent for the House when sitting as a Scotch Court of Appeal, to take judicial notice of English and of Irish law. This doctrine conforms to precedents and to common sense, yet as a matter both of theory and occasionally of practice it may give rise occasionally to curious difficulties. Their lordships, when hearing Scotch appeals, are as much a Scotch Court as is the Court of Session, and logically it is not easy to see why it is more competent for the House of Lords than for the Court of Session to take judicial notice of English or Irish law. The common sense answer, no doubt, is that their lordships are the most eminent English lawyers, and that it were ridiculous for them to ignore their own knowledge and seek information from inferior authorities. This reply, like most of the solutions supplied by common sense, does not reach the bottom of the difficulty. When their lordships sit as a Court of Appeal for England they will, we presume, take judicial notice of Scotch law, but it were mere flattery to suppose that the majority of their lordships can on a question of mere Scotch law compare as experts with the judges of the Court of Session. Meanwhile, historians, if they ever thought it worth while to study law as a portion of history, would do well to note how much the position of the House of Lords as a final Court of Appeal has done to consolidate the union betwixt Scotland and England.

Cooper v. Cooper, in the second place, decides that where a woman before marriage enters into a marriage contract in the country where she is domiciled, her capacity to enter into such ante-nuptial contract must be determined as regards its effects after her marriage by the law of the country, in the particular case Ireland, where the woman is domiciled before marriage, and where the contract is made. The decision, as far as it goes, is, it is submitted, clearly right. The capacity to make an ante-nuptial contract must depend on the capacity of the contractor at the time when the contract is made, and this in its turn must depend either upon the law of the contractor's domicil or upon the law of the country where the contract is made. It clearly cannot depend upon the law of the country where the woman becomes domiciled on her marriage, for the capacity to make the contract must exist, if at all, at the moment when the contract is made. Unfortunately from a theoretical point of view the judgment of the House of Lords in Cooper v. Cooper just glances at, but owing to the facts of the case does not decide the one question of speculative difficulty, namely, whether the capacity to contract depends on the law of the contractor's domicil or on the law of the country where the contract is made. The two laws in the particular instance coincided, and every student of law must regret that the marriage contract was executed in Dublin and not in Scotland.

Howard v. Clarke, 20 Q. B. Div. 558, curiously illustrates a feature of English procedure which has been constantly overlooked by the eulogists of trial by jury. This neglected fact is the inroad made by the Court on the province which in theory belongs exclusively to the jury. The division of function is known to all the world; the judge decides every matter of law, the jury decide every matter of fact. Now suppose a foreigner well imbued with this elementary maxim had attended the argument in Howard v. Clarke, consider what he would have found. He would soon have discovered that two questions called for decision. The first was whether in spite of the verdict that I had arrested 4 without reasonably suspecting' A to be a thief there was any evidence on which the verdict could be rightly found, and that this enquiry would be answered by the Court. This would a good deal stagger our foreigner, say a French lawyer; for he would argue that the question whether there exists any evidence of a circumstance, say the state of a man's belief, is as truly a question of fact as is the enquiry what weight is due to evidence which admittedly exists.

The second question for decision was whether the existence of reasonable suspicion' on A's part was a matter for the determination of the judge or for the determination of the jury. Our French critic would be surprised that the question could arise; he would be astounded that it should be decided in favour of the judge; states of mind are, he would argue, facts; and a question whether X felt reasonable suspicion of A is neither more nor less a question of fact than the question whether I intended to cheat A. Our French critic would be right in logic; if it be true that questions of fact are always left to the jury, it certainly follows that the existence of reasonable suspicion on the part of X is a question for the jury. The conclusion of the argument is false because one of its premises is untrue. It is not true that the jury determine all questions of fact. Judicial innovation has greatly to the benefit of the nation cut down the authority of the jury, and thus preserved trial by judge and jury from destruction.

The increasing wants of the Exchequer, or the increased energy of the Commissioners of Inland Revenue, cause constant additions to cases affecting

the liabilities of tax-payers. Stevens v. Bishop, 20 Q. B. Div. 442, Hesketh v. Bray, ibid. 589, both refer to the mode in which the annual value of real property is to be computed under the Income Tax Acts. The first decides that in estimating the annual value of tithe commutation rent-charge for the purpose of charging the owner thereof he has a right to deduct the amount necessarily expended in the collection of the rent-charge. The matter is in itself of no great importance, but the decision may possibly suggest to landowners, whose rent is got in with difficulty, claims to exemption which neither the Courts nor the Legislature may be prepared to sanction. The second of the cases cited certainly shows that a proprietor of landed property may try to strain the exemptions provided by the Income Tax Acts far beyond the intention of Parliament. It was a bold contention that money expended in reclaiming land from the sea and thus adding to its value is money expended in making or repairing an embankment necessary for the preservation or protection of land,' and therefore was to be deducted from the amount assessable to duty under 16 & 17 Vict. c. 34, Schedule A, s. 37. The Court easily grasped a distinction undiscernible to the party interested.

The Queen v. Commissioners for Special Purposes of Income Tax, 20 Q. B. Div. 549, as reported in the Law Reports, determines a point depending wholly upon the construction of 5 & 6 Vict. c. 35, s. 133, and can hardly be said to raise any question of general interest. As argued, however, the case raised the question whether a mandamus lies of which the aim is in effect to compel the servants of the Crown to repay money received as part of the revenue. Two judges, Justice Field and Justice Grantham, were of opinion that it lies. The soundness of this view is, considering the judgment of the Court of Appeal In re Nathan, 12 Q. B. Div. 461, open to the gravest doubt. In any case, readers of the Law Reports have a right to complain. that all reference to a point of legal interest fully discussed in a reported case should have been omitted in the report.

In re the Institution of Civil Engineers, 20 Q. B. Div. 621, determines that the Institution of Civil Engineers is a body for the promotion of education, literature, science, and the fine arts,' and as such entitled to claim that the annual value or income of property belonging to the body shall be exempted from taxation under 48 & 49 Vict. c. 51, s. II, sub-s. 3. The decision of the Court of Appeal in this case reverses the judgment of the Queen's Bench Division. The Court of Appeal, moreover, are not unanimous. The result therefore is that the opinion of three judges is overruled by that of two. Laymen will take this as showing the absurd. uncertainty of the law. It shows, however, nothing of the kind. No skill in draftsmanship can do away with the difficulty of applying principles to facts. Whether a society such as that of the Civil Engineers is a body for the promotion of education, literature, science, or the fine arts,' is one of those enquiries on which the opinion of equally competent men will always be divided. The true moral of such decisions is twofold: first, that the expediency of having more than one Court of Appeal is doubtful; secondly, that Parliament would act wisely in not increasing exemptions to the general rules which determine liability to taxation.

McGregor v. McGregor, 20 Q. B. Div. 529, determines that a husband and wife may contract, without the intervention of a trustee, to live apart in consideration of their agreeing not to take legal proceedings against one another, and that though the agreement be a verbal one, the wife may recover under it from her husband arrears of maintenance which have come

due under the agreement, and that this right does not in any way depend upon the Married Women's Property Act, 1882. This decision need not be quarrelled with on the grounds of common sense or of justice; but it illustrates two points worth notice. The first is one to which we have incessantly called attention, namely, the urgent necessity there exists for placing the position of married women on a clear and intelligible basis. The only way in which this can be achieved is to abolish the distinction both as to rights and liabilities between the position of married, and the position of unmarried women. A County Court judge need not be a great lawyer, but he must of necessity know more law than ninety-nine out of every hundred laymen; and the County Court judge who first decided McGregor v. McGregor held that the Married Women's Property Act, 1882, determined a question with which it had no real concern. It is, in the second place, open to great doubt whether cases such as Knowlman v. Bluett, L. R. 9 Ex. 307, which are followed in McGregor v. McGregor, and which cut down the natural meaning of the fourth section of the Statute of Frauds, have not done more harm by confusing the law than they have done good by preventing hardship in individual cases. All the judicial attempts to curtail the effect of the fourth and seventeenth sections are arguments for the total repeal of these celebrated enactments. If they were removed from the Statute-book, the law of contract would be relieved from an infinity of complications.

Wennhak v. Morgan, 20 Q. B. Div. 635, decides a matter of considerable interest to the ordinary public, namely that the disclosure of a libel by a man to his wife, and we presume by a wife to her husband, is not such publication as gives ground for an action. The decision itself is clearly right, and nothing but the authority of the House of Lords would convince us that a rule obviously in conformity with common sense was not also sanctioned by common law. The reasons given for the judgment of the Court are less satisfactory than the decision itself. The fiction that husband and wife are one is a rickety foundation on which to base a doctrine not requiring fictitious support. It were far better again to lay down that communications between husband and wife are absolutely privileged than to lay down, as the Court appear to do, that disclosure of a libel is not in a particular case publication. Clearness of language promotes clearness of thought. A does publish a libel about N when he makes the libel known to B, but if B is A's wife A has a right to make a libel against N known to B. This is the true state of the case; the more plain the language in which it is put the better. It is false to say that A and B are one person; it involves confusion to assert that the very same act which is 'publication' in the case of C is not publication in the case of B.

No part of the law ought to be clearer than the rules regulating the time within which actions can be brought for the recovery of ordinary debts. In re Hollingshead, 37 Ch. D. 651, proves that the enquiry when a debt becomes barred by time is, as the law now stands, by no means a simple one. A widow and devisee for life pays interest on a simple contract debt of her testator. To decide whether such payment is a sufficient acknowledgment to keep the right of action alive against all parties interested in remainder, three or four statutes have to be consulted, and it after all turns out that the point in dispute is in reality a new one. With Justice Chitty's decision that such payment of interest keeps the debt alive, we have no quarrel whatever; it is well that simple contract debts should be placed in the

same position in so far as the law allows, as specially debts; as to which see Roddam v. Morley, 1 De G. & J. 1. But every reasonable man has reason to complain that the legislature and the judges between them have introduced subtleties and complications into a branch of the law which should be as simple as the multiplication tables.

Bidder v. Bridges, 37 Ch. Div. 406, belongs to a class of decisions on which any one who studies the law in a scientific spirit must always look with suspicion. It is one of those cases in which the judges have attempted, and perhaps with success, to distinguish cases which seem in substance identical for the sake of cutting down or, if an expressive vulgarism may be allowed, whittling away' the effect of a rule of law too well established to be overridden, and it is thought too unreasonable to be fairly carried out. The doctrine maintained in Pinnel's case, 5 Rep. 117 a, and in Cumber v. Wane, I Strange 426, has, every ordinary person would suppose, been deliberately affirmed to be good law in Foakes v. Beer, 9 App. Cas. 605. The doctrine itself that the payment by a debtor of part of a debt actually due cannot be a good consideration for a contract not to take proceedings for the recovery of the residue may or may not be reasonable. It is however intelligible, and if it be held unreasonable should be set aside by the legislature. But the unreasonableness of the rule goes very little way to determine the reasonableness of the Court in refusing to follow it out to its logical consequences. The plain truth is that the method by which the Court of Appeal has diminished the effect of Foakes v. Beer may promote justice in a particular instance, but strikes at the foundation of that legal certainty which is the only security for legal justice.

Urquhart v. Butterfield, 37 Ch. Div. 357, must in its result have grievously disappointed the plaintiff, or rather the legatees whom he represented, and it also must bitterly disappoint every lawyer interested in legal theory. The legatees must have been disappointed, because after attaining a decision in their favour on questions of considerable intricacy and nicety, they lost a large legacy because they could not make out that their testator was domiciled in Scotland. Theorists must feel deep disappointment because the case nearly raises but does not decide one of the most curious problems connected with the conflict of laws, a problem which has been constantly debated by jurists, and has never been solved by any English Court. D's minority is according to the law of his domicil of origin attained at the age of twenty-one; according to the law of the country where he is residing it is attained at fourteen. Is it at fourteen or at the age of twenty-one that he acquires the capacity for acquiring a domicil of choice in the country where he resides? This is the question that would have been raised if the Court had held in Urquhart v. Butterfield that the testator, Mr. Hoyes, intended to acquire a domicil in Scotland. Unfortunately the Court held, and with good reason, that under no view of the circumstances was he ever domiciled in Scotland. Their decision may put off for a century or more the solution of an enigma which has long harassed everyone occupied in studying the conflict of laws.

A contract made by telegraph is completed at the place whence the telegram accepting an order is despatched. This is the main point decided in Cowan v. O'Connor, 20 Q. B. D. 640. The decision places contracts by telegraph in the same position as contracts made by letter sent through the post.