Page:Harvard Law Review Volume 2.djvu/158

 140 HARVARD LAW REVIEW.

The case of The Bemina (under the name of Mills v. Armstrong^ 57 L. J. Rep. Q. B. 65) has now been finally settled by a unanimous decis- ion of the House of Lords affirming the decision of the Court of Appeal made last year. The case was originally assigned to Mr. Justice Butt (11 P. D. 31), whose division of the court generally administered ad- miralty law, who, however, held that the case should be decided on common-law principles. The action was to recover under Lord Camp- bell's Act for loss of life in a collision at sea, brought about by the fault of both vessels, whereby an engineer and passenger on one of them, who were not at all responsible for the accident, were drowned. The question was, whether negligence should be imputed to them so as to bar an action by their representatives. On the authority of Thorogood v. Bryan, 8 C. B. 115, Mr. Justice Butt held the action barred. The Court of Ap- peal, 12 P. Div. 58, reversed the decision, thus overruling Thorogood v. Bryan. There was some ciiriosity to see how the House of Lords would treat the case when it came before them, since Lord Bramwell had, as Baron Bramwell, in times gone by, let fall observations in support of Thorogood v. Bryan, He did not shrink, however, from the issue, pro- nouncing an unequivocal judgment against the proposition for which that case is cited, which is, that a passenger has imputed to him the negligence of the driver of the vehicle in which he is. Lord Bramwell remarked, how- ever, that he thought that Thorogood v. Bryan was decided correctly upon the pleadings.

A CASE of much interest {Bond v. Kilvery) was decided last spring in Chicago by Judge Tuley, of the Circuit Court of Cook County, who furnished the *' Chicago Legal News," of May 19, with an abstract of his oral opinion, from which the following selections are made : —

"One James Washington was a slave of Col. Thomas Marshall, in Kentucky. He cohabited with a slave woman on a neighboring planta- tion, whom he called his wife, and they were known as husband and wife, after the custom of slave unions. No marriage ceremony of any kind was ever performed. The result of the cohabitation was one child, the de- ceased testatrix, who died without issue. In 1832 the father escaped from slavery, went to Ohio, where he married another wife, the slave woman being dead. The facts shown raise the single question, whether or not there could be a common-law marriage between slaves by the slavery laws of Kentucky, as they existed prior to 1832.

'*As I understand the law applicable to persons so held in slavery, they could not enter into any legal contract, not even that of marriage. The common law regards marriage as a civil contract. In some of the States the slaves were classed as chattels, and in others as chattels real. Being without legal capacity to contract, there could be no such thing as a common-law marriage between slaves."

Judge Albion W. Tourgee has criticised this view in the " Inter-Ocean," of May 15. He says that "it is not so certain that the law will not hold this relation between slaves, for the purpose of inheritance, to have been the equivalent of a common -law marriage between whites " ; and he doubts whether a State has a right to say that a man shall not marry and have heirs.

A VERY interesting discussion has been running through the late numbers of the " American Law Register," on the relation of law schools