guarantee the delivery of any of the lots, as
they had only sold such rights as they had.
They further pleaded that the whole quantity of
land that plaintiff bought was there, though lot
16 was not in it. Some proof had been made as
to the effect of such an agreement in Ontario.
The case, however, had to be decided by the law
of this Province, and as to the law here there
was no difficulty. The Court below dismissed
'the action, and the Court here was of opin-
ion that the judgment was right. By the agree-
ment the vendors only sold the rights they had,
and there was no guarantee. The only thing
that the purchaser would be entitled to would
be a deduction of a certain portion of the price,
if it had been paid. Upon this ground the
judgment would be confirmed.

J. C. Hatton for appellant.
Lunn & Davidson for respondents.

COURT OF REVIEW.

Montreal, Oct. 31, 1878. TORRANCE, PAPINEAU, JETTÉ, JJ.

[From S. C., Montreal.

In re HATCHETTE, Insolvent, and HATCHETTE, Petitioner, and ROBERTSON et al., Contestants. Insolvency-Composition-Reconveyance of Estate. Held, that so soon as a deed of composition and discharge has been executed in accordance with the provisions of sec. 52 of the Insolvent Act of 1875, the assignee is bound under section 60 of the Act, to reconvey the estate to the insolvent, without waiting for the confirmation of the deed by the Court or Judge.

Judgment confirmed. Macmaster & Co. for Contestants. Davidson & Co. for the Insolvent.

COLLISIONS ON THE HIGH SEAS. The following paper on the necessity of an International concert to punish criminally the non-observance of the international rules of navigation for the prevention of collisions on the high seas, was read before the recent Frankfort Conference of the Association for the Reform and Codification of the Law of Nations, by Sir Travers Twiss, D.C.L., Q.C., vice-president of the association.

The application of steam-power to sea-going vessels has worked so great a change in the

conditions of ocean navigation as to render it necessary for nations to concert a common system of rules for the navigation of vessels on the high seas, with a view to prevent accidents from collision. It is obvious that the two ancient cardinal rules of navigation, which had hitherto sufficed for the guidance of sailing vessels on the high seas, namely, that vessels going free should give way to vessels on a wind, and that the vessel on the port tack should always give way to the vessel on the starboard tack, are insufficient for the safe guidance of vessels navigated under steampower, and not under sail. Although the same principles of navigation might still be properly maintained in the case of steamers where applicable, it has been found requisite that the rules of navigation should be extended to other cases, seeing that the course of steamers is not governed exclusively by the wind, and that a steam vessel is enabled by a skillful use of her steam power to manœuvre in a manner, which is impracticable for a sailing vessel. Great Britain was amongst the leading states to set the example. She commenced by laying down formal rules for the navigation of steam vessels on her own rivers, and after some experience extended the rules to her own vessels on the high seas, and she included her sailing vessels under a reciprocal system of obligation when approaching steam vessels. British admiralty courts were also authorized by British statute law to regulate their judgments in cases of collision between British vessels on the high seas in accordance with the new rules. In due course of time, after experience had given its sanction to those rules, Great Britain entered into treaty arrangements with foreign powers, that their vessels should be navigated on the high seas under the same system of rules, and she has authorized her admiralty courts to apply the new rules to every vessel, whose flag has been brought, with the consent of its government, within the operation of the new rules. Cases of collision on the high seas have thus been brought by a common international concert under a new system of law, which has been built up on the lines of the ancient customs of the sea as far as possible, the steam vessel being regarded as a vessel going free, and able to get out of the way of a sailing vessel more readily than a sailing vessel can get out of the way of

a steam vessel. I do not propose to discuss the details of the international sailing rules. Modifications have had to be made in them from time to time to meet new difficulties, which experience has discovered, and such modifications have been the result of a common concert between the maritime powers. My object at present is to consider how the observance of the sailing rules on the high seas can be best secured, and how the neglect of them, if it be the result of carelessness or willfulness, may be most effectively punished.

Under the ancient law of the sea, every colli:sion on the high seas may be the subject of a • civil action for damages in any admiralty court; but however culpable may have been the conduct of those in charge of either vessel, British admiralty courts, which exercise their civil jurisdiction indiscriminately between vessels of all nations, carefully abstain from exercising any criminal jurisdiction over the crews of foreign vessels in respect of their neglect to observe the sailing rules, nor has Great Britain been empowered by any treaty arrangement with foreign States to authorize her courts to exercise any such criminal jurisdiction. Yet it would seem to be in accordance with reason that, where States have agreed upon a common system of rules of navigation for the prevention of collisions on the high seas, they should agree upon a common system of penalties for the nonobservance of those rules on the part of the persons, who may have been in charge of the navigation of any vessels which have come into collision on the high seas. This common concert is the more necessary, because the modern theory of a ship being the territory of the nation, under whose flag it sails, would otherwise be in the way of the tribunals of any other nation exercising corrective jurisdiction over those on board of the ship in respect of any misconduct on their part whilst the vessel is on the high seas. The personal responsibility of mariners who navigate the high seas remains, in regard to foreign nations, precisely such as it was before any sailing rules were agreed upon amongst the maritime powers; in fact the mariner had no personal responsibility toward the owner or crew of any foreign vessel with which he may bring his own vessel into collision on the high seas, unless his act should be done with a malicious intention to destroy the other vessel,

which may clothe it with a piratical character. The ancient law of the sea, which is universally received amongst civilized nations, regards ships as chattels, the management of which on the high seas is not so thoroughly under the free control of the owner or his servants, inasmuch as the sea is a treacherous element, that he or they should be held criminally responsible for any damage caused by one ship to another ship in the course of navigation. The owner of the ship, however, in the case of collision, is not allowed by the law of the sea to escape scot-free, if his servants mismanage his vesse! on the high seas, and through their unskillfulness bring about the collision with another vessel. The ship itself in such a case may be arrested by the process of an admiralty court, and if the servants of the owner are found to have mismanaged her navigation, and by such mismanagement to have brought her into collision with the other vessel, the owner may be amerced in the value of his ship, which may be sold by an order of the admiralty court, if the owner is otherwise unable to satisfy the judgment of the court. This result is brought about by what is termed an "actio in rem," a tradition of the ancient Roman law. It is totally opposed to the territorial theory of a ship, which is of modern origin, and has been devised as a convenient fiction to explain the subjection of a ship and its crew to the municipal law of the country under whose flag it is navigated. But this theory, like everything else which rests on a fiction, has its inconvenience. Whilst it is useful for maintaining discipline on board of a ship when it is on the high seas, which are nullius territorium, it is mischievous as securing territorial impunity to the master and crew in the management of their vessel, in its relation to other vessels on the high seas.

The international responsibility of mariners, under which term I include all persons engaged in the navigation of a ship, is thus in fact of a negative character; they are taken to be the agents of the owner or of the charterer of the ship, as the case may be, and their employer is responsible for any mismanagement on their part of the navigation of his vessel. The owner or the charterer, on the other hand, under the modern system of marine insurance, is able to shift his risk, which is strictly pecuniary, on

to the shoulders of the underwriter: and the underwriters are the parties in the present day who institute and defend actions in rem in most causes of collision, which are brought into the admiralty courts. There is thus no direct solidarité, to use a convenient French phrase, between those who are employed in the navigation of a vessel on the high seas and those upon whom the burden of compensation falls, in case the navigation is mismanaged and a collision takes place with another vessel. The question becomes still more complicated where loss of life ensues, of which several painful instances have occurred of late, in which the magnitude of the calamity has been so appalling, as to awaken a general demand for some legislation on the subject, by which the feeling of personal responsibility may be brought home to the mariner, and may stimulate him to greater watchfulness and greater care in avoiding all chances of collision with other vessels.

I beg leave to suggest to the consideration of this conference the important question of criminal jurisdiction in cases of collision, how best it may be exercised, and under what safeguards, where the collision has happened on the high seas. It seems to me, that States which have formally agreed that certain rules of navigation shall be observed by their respective subjects in navigating the high seas, and which have intrusted to their courts of admiralty or to maritime tribunals of equivalent authority within their respective dominions civil jurisdiction, in respect of damage to property resulting from the neglect of those rules, may properly authorize the same courts to punish mariners, who transgress those rules and thereby bring about the damage. The measure of punishment, however, in such cases ought not, in my judgment, to be determinable by the municipal law of the state before whose tribunals the parties happen to be convened, but by a common law concerted by the same states, which have adopted the revised rules of navigation as the common law of the

wide distinction between homicide with a purpose and homicide as a result (ex eventu), and according to this distinction homicide is either felony or a misfortune. Our ancestors seem to have thought that any homicide in former days, which was the result of a collision on the high seas between sailing vessels, where there was no felonious intent on either side, might be properly regarded as a homicide by misfortune (homicidium per infortunium). The question in the present day is whether the application of steam power to ocean navigation has so altered its conditions, as to warrant us in introducing a new category of punishment in cases, where steam vessels have come into collision with one another on the high seas. The collision between the German steam vessel Franconia and the British steam vessel Strathclyde in the open sea within a marine league of Dover pier has been thought by many persons to establish the necessity of some international arrangement for the punishment of those who have transgressed the rules of navigation in cases where the vessels brought into collision are of different nationalities. The degree of culpability, however, will always be a very delicate question to determine; witness the loss of H. M. steamship Vanguard by a collision with a consort steamship in a fog, and the loss of the Imperial German steamship Kurfurst by a collision with a consort steamship in broad daylight. Still such anomalous collisions, although they may bespeak caution, are not dissuasive of all legislation, and the subject is one which is likely to attract every day more attention, if collisions between steamships on the high seas continue to multiply at their present rate.

CURRENT EVENTS.

EUROPE.

CONGRESS OF SCANDINAVIAN JURISTS.-After an interval of three years, says the London Law Times, a congress of Scandinavian jurists, comprising representatives from Denmark, Sweden and Norway, has again been held at Christiana. The principal question brought on the tapis for discussion was that of the advisability of adopting a jury system, somewhat similar to that obtaining in England, in the three countries above referred to. For some considerable

has been represented in the administration of justice; but the tendency is to repress rather than to extend any further development in this direction. A partial adoption of the system, viz., in political and criminal cases, has long been promised by the Danish Rigsdag, but has never been practically fulfilled, and, so far as we can gather from the views expressed by the members of the congress, a complete introduction of the jury system is highly improbable. As to Norway, a practical difficulty-sparseness of population and the consequent impossibility of convening a sufficient quorum-has in spite of the strenuous endeavors in this direction of some of her politicians, proved an insurmountable obstacle to the establishment of the system. These countries seem anxious to incorporate into their respective legal polities a system somewhat analogous to our own English jury system. But they should bear in mind, that the jury system, as it exists in England, is not the creation of a moment, or the creature of positive enactment. In this country trial by jury has been part and parcel of the Constitution, and the system has insensibly adapted itself to the growth and development of the Constitution. We would further remind these countries, that in spite of the cogency of its claim to our consideration on account of its

long-tried merits, and though its excellence has been only lately acknowledged by our Legislature by an express provision in the Judicature Act, 1873 (§72), "that nothing therein contained ... should affect the law as to jurymen or juries," the system is at present being subjected to severe criticism, and may before long be considerably modified. Let these countries, then, bide their time, and watch what further developements trial by jury may undergo in the home of its birth before they adopt a system which is avowedly novel and unknown to themselves.

ENGLAND.

PERISHABLE GOODS.-In Coddington v. Jacksonville, etc. Railroad Co., 39 L. T. Rep. (N. S.) 12, the question as to whether bonds of American railway companies were goods of a perishable nature, came up under an application for an order for their sale pending the litigation. ViceChancellor Hall refused the application, saying

TREATMENT OF JURORS.A committee of English judges, in a report respecting Circuits, make the following suggestion about juries: "The present system of locking up juries in cases of felony might, we think, be usefully amended, as it does in practice tend unnecessarily to lengthen the time consumed in criminal trials on circuits. The fact that a jury cannot separate during a trial for felony led in former days to sitting on to finish a case half through the night and sometimes longer, when the power of attention on the part of the jury had long been exhausted, and in consequence much Public opinion injustice was often done. would not now tolerate such a practice, and quite rightly; but the result is that a judge often will not begin a long case in the afternoon, from the extreine inconvenience of locking up a jury for the night, and so time is lost. As a rule, we think this, with other distinctions between the procedure in felonies and misdemeanors, may safely be abolished; but we are disposed to think that a judge should be intrusted with the power of keeping a jury together, in his discretion, in all criminal cases, misdemeanors as well as felonies, a power not likely to be often exercised, but one which it may be useful to possess."

THE LAW OF LIBEL.-The Law Journal says that, notwithstanding Fox's Act, the English judges constantly take upon themselves to tell juries point blank, not only "this is a libel" but "this is a libelous publication;" that it is a malicious libel, a malicious publication of defamatory matter. Some of them are honest enough to admit that they do this because they do not accept the law as declared in Fox's Act. Thus the Lord Chief Justice, with characteristic frankness, has repeatedly declared that he believes his great predecessor, Lord Mansfield, was right in respect to the law on the subject, and he and most of the judges still follow the old practice in actions or prosecutions for libel, and tell the jury positively that the publication is libelous. This was done in the last case of criminal information in the Queen's Bench for