against the pilot, was confined to the effect of the then recent statute, 24 Vict. c. 10, and throughout the case there seems to have been no suggestion of an original jurisdiction to entertain the action in Admiralty. The decision therefore does not carry the weight it would carry if the question of original jurisdiction had been argued. The cases which follow The Urania add nothing to its authority. The Court of Appeal has, however, treated that case as an authority against the Admiralty jurisdiction, whether original or statutory. Great stress was laid by all three members of the Court of Appeal upon the fact that no precedent of a similar action having been entertained in Admiralty was forthcoming. Perhaps too much was made of this. In the first place there are no reports of Admiralty Instance Court cases of earlier date than the present century. Secondly, until 1840 damage suits were of comparatively rare occurrence. Probably not more than fifty such suits were brought during a century and a half before 1800. It has been stated that the number between 1800 and 1840 was 265. Since 1840 indeed the number of collision actions runs to thousands, but the observation of the Master of the Rolls as to the hundreds and hundreds of instances in which such an action against a pilot might have been entertained' lose much of their force when it is remembered that so late as 1834 (The Girolamo, 3 Hag. 169) the ship was liable in Admiralty, though her fault was that of her compulsory pilot. Since 1861 The Urania, rightly or wrongly, has stood in the way. That the pilot could not in Admiralty succeed upon a plea of contributory negligence in the other ship is scarcely a reason against the existence of the jurisdiction. This perhaps will appear more fully when the decision in The Zeta is given.

If the point of law is discussed hereafter before a higher tribunal a more definite decision will have to be arrived at as to the value of the Assignation Books and other records of the High Court of Admiralty. Lord Esher appears to have disregarded them, whilst Kay L.J. treated them as authoritative. In The Justitia, 12 P. D. 145, they were recently cited and acted upon by Lord Hannen, the late President; and in The Ruckers, 4 Ch. Rob. 73, Lord Stowell recognised them as authoritative in a case involving an important question of jurisdiction. It is to be hoped that The Zeta will not be decided without some reference to the cases of The Warewell and The Susan and Tills v. The Mary (Marsden, Ad. Ca. pp. 243, 284). The records in these cases consist of the original sentences, engrossed upon parchment and signed by the Lords Delegates, of whom one or more were common law judges. They appear to be conclusive upon the point that the Admiralty jurisdiction was not confined to cases where the collision was between the hulls of ships.

As we read the judgment of Lord Esher and the arguments of counsel we are carried back to the times when the rivalry of the common law Courts and the Court of Admiralty formed the most burning legal, we might almost say the most burning political, question of the day. Contests between our different Courts are now happily at an end, and we have no reason to suppose that any living judge will feel aggrieved at the language in which Lord Esher pronounced the claims of the Court of Admiralty to almost unlimited jurisdiction with regard to everything occurring on the high seas to be untenable. We could have wished that Lord Esher's remarks on the decision of the Court of Appeal in The Alina, 5 Ex. D. 227, had not savoured a little too much of the manner of Lord Coke. Sir George Jessel, like other great judges, made mistakes, but the late Master of the Rolls is not a man whose judgments, even if erroneous, can be treated with disrespect. It must be remembered that the decision by which Lord Esher refuses to be bound 'one particle beyond what it actually decides and determines' is the decision not only of Sir George Jessel but also of James L.J. and Cotton L.J., than whom three stronger judges never sat together in an English Court.

It is satisfactory that the decision of the House of Lords in the Mogul Steamship Co.'s case, reported with creditable promptitude in the March number of the Law Reports, '92, A. C. 25, was unanimous. Not only the decision but the reasons of the Court of Appeal were completely approved; the result therefore now admits of summary statement:

1. The Courts will not undertake to regulate the competition of traders.

2. They will not found new heads of 'public policy' on disputed economic propositions.

3. There cannot be an indictable or actionable conspiracy without a distinctly unlawful end or distinctly unlawful means.

4. Acts not otherwise unlawful are not unlawful because done in execution of an agreement which is in restraint of trade.

5. Hence the old high common law doctrine of conspiracy, if we may so call it, is no longer tenable, if it ever was.

6. Specific acts of violence, intimidation, fraud or unlawful molestation, and agreements to commit or procure any such acts, remain as unlawful as ever: see especially Lord Hannen's opinion.

De Sousa v. British South Africa Co., 8 Times L. R. 369, will long be the leading case on the points with which it deals. That it will go before the Court of Appeal and the House of Lords is probable,

but we shall be surprised to find that any material principle laid down by Mr. Justice Wright in his luminous and exhaustive judgment turns out open to question. The principles which that judgment lays down may be thus summed up.

1. English Courts have no jurisdiction to adjudicate upon the title to foreign land.

2. English Courts have in general at any rate no jurisdiction to entertain an action for trespass to foreign land, and their jurisdiction in this matter is not extended by the abolition of local venue (see Rules of Court, 1883, Ord. XXXVI, r. 1).

3. English Courts have jurisdiction to entertain an action for trespass to person or to goods in a foreign country.

4. It is possible that English Courts may have jurisdiction to entertain an action for trespass to foreign land when the question of title is not raised.

All these propositions, except the last, are the fair result of authoritative decisions. Whether the fourth proposition can be maintained is open to grave doubt. There is no decisive authority in its favour; and the plain rule both of common sense and, it is submitted, of English law, is that English Courts ought not to entertain actions which, either directly or indirectly, have to do with rights to foreign land. It must be remembered that the English conception of trespass quare clausum fregit is quite peculiar to our own system.

The great merit, it should be added, of the judgment in De Sousa v. British South Africa Co. is not that it establishes any novel principle, but that it follows and develops principles which have long been more or less distinctly recognised by English Courts. It further emphasises the consideration, which has been often dwelt upon in this REVIEW, that rules of practice, such for instance as the distinction between local and transitory actions, are constantly the expression of fundamental principles.

The Court of Appeal in In re Queensland &c. Co., '92, 1 Ch. 219, have affirmed the judgment of North J. ('91, 1 Ch. 536) and have held that the rights of the parties must be determined in accordance with the law of Scotland. The judgment of the Court of Appeal also determines a point which does not appear to have been clearly raised in the Court below, namely that the law of Scotland includes the rules of so-called private international law which are maintained by the Scotch Courts. On both points the judgment of the Court of Appeal is right. Unfortunately the language used by the Court is not nearly so satisfactory as the conclusion which it is intended to express. Even a judge so eminent as

Lindley L.J. becomes for once obscure, because of the confusion involved in the use of the term 'international law,' as applied to the different topic known as 'private international law.'

The decision of the Court of Appeal in Alcock v. Smith, '92, 1 Ch. 258, affirms the judgment of Romer J. (ibid. 238). It determines that a transfer not only of personal chattels but of a chose in action which is valid by the law of the country where the transfer takes place (lex situs) is to be held valid in England. As we have already pointed out, Alcock v. Smith is the last of a line of cases establishing the principle laid down by Savigny, that the validity of a transfer of individual movables is governed by the lex situs. This view, it must be noted, was opposed to the doctrine apparently at any rate upheld by English Courts that the assignment of a movable was governed by the owner's lex domicilii1.

Huntington v. Attrill, 8 Times L. R. 341, is a case of great interest. From it the following principles with regard to the conflict of laws may, with more or less certainty, be deduced.

1. English Courts will not enforce, either directly or indirectly, the penal laws of another country. This principle is of course well established.

2. When a penal action is brought in a foreign country and a judgment obtained against the wrong-doer for a given sum, an action cannot be maintained in England for the debt due on the judgment. The truth of this proposition is assumed throughout the judgment in Huntington v. Attrill. It is clearly sound, though there might be some difficulty in citing a direct authority in its support.

3. Probably no action can be maintained in England on a foreign judgment given in respect of any matter for which an action would not have been maintainable in England, e. g. an act which though wrongful by the law of the country where it was done, would not have been wrongful if done in England.

4. The rule that the Courts of no country execute the [penal] law of another applies not only to prosecutions and sentences for crimes and misdemeanours, but to all suits in favour of the State, for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.' This is the language of Gray J. in Wisconsin v. The Pelican Co., 127 U. S. 265, and is fully adopted by the Privy Council in Huntington v. Attrill.

5. An action is not penal which, though it may be brought for a

1 See L. Q. R. vii. 308.

penalty incurred by a violation of a statute, is not brought directly or indirectly on behalf of the State or for the vindication of its authority; and if a foreign judgment be obtained in an action which though brought for a penalty is not a penal action, the sum due under the judgment is recoverable in England in an action on the judgment. This is the point directly determined in Huntington v. Attrill.

Tassell v. Hallen, '92, 1 Q. B. 321, is a case which, to use the words of Lord Chief Justice Coleridge, like many others under Order XI, r. 1, is important and by no means easy.' The root of the difficulty lies in the fact that the Courts, when interpreting Order XI, r. 1, are engaged in the effort, new to English judges, to form a consistent doctrine as to the extra-territorial jurisdiction of English Courts. The particular case determines that an action against the assignee of a lease for breach of a covenant to repair contained in the lease is an action in which a contract or liability affecting lands or hereditaments situate within the jurisdiction is sought to be enforced,' and that therefore where the land is in England a writ may be served on a defendant in Scotland, where he ordinarily resides. The decision is reasonable enough and follows Kaye v. Sutherland, 20 Q. B. D. 147: whether it be really consistent with Agnew v. Usher, 14 Q. B. D. 78, is a point on which opinions may differ. The case calls attention to the fact which is often forgotten, that the power of the Court is still (except when extended directly or indirectly by Act of Parliament) limited to the territorial area of its jurisdiction and. . . . cannot in general affect persons who are outside that area. This allimportant principle would be better understood than it is if the Courts would give up the ambiguity involved in the use of the term ‘jurisdiction,' and when 'territorial area of jurisdiction' is meant use the word 'England.'

'More haste less speed' is the only moral of Fletcher v. L. & N. W. Ry. Co., '92, 1 Q. B. (C A.) 122. A very able judge, more anxious than most men to expedite business, hears the opening speech of a plaintiff's counsel, and perceiving that the speech shows no cause of action, nonsuits the plaintiff. The Court of Appeal tell him that he struck too soon, and order a new trial. That the Court are right is clear. The old system of pleading was justly complained of because it allowed a cause to be lost on demurrer, owing to the technical error of a pleader. But if this preference of technicality to justice was found unbearable, it would be monstrous to reintroduce the same system in a worse form, and