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debtor had carried on the business of a grocer in
Tredegar, and one of his creditors, named Wil-
liams, had recovered two judgments against him
for debts, amounting together to about 261., in the
County Court at Chester, and two writs of fieri
facias had been issued against him, directed to the
bailiff of the County Court of Monmouth. Subse
quently to the issue of the writs, but before levy,
the debtor on the 7th Nov. filed a petition for the

COURT FOR DIVORCE AND MATRIMONIAL liquidation of his affairs by arrangement or com

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Dr. Spinks now moved to set aside the decree, and to have a rehearing of the case, on the ground

that the wife had had no notice that the suit was about to be heard. He read an affidavit to the effect thas it was owing to an oversight that her attorney had not filed an answer on her behalf, alleging her husband's cruelty as a reason for not

returning to cohabitation.

Tatham, for the husband, contra.-The suit was practically undefended, and it was the practice of the court to take undefended suits at any convenient time, on application being made, without notice. Moreover, her affidavits do not disclose a case of legal cruelty.

The COURT.-Though a suit may be undefended, the respondent may be heard on the question of costs. Therefore, she had some rights at the hearing, and ought to have notice. She might now file a petition for judicial separation; and the best plan for both parties will be to reverse the decree, and allow the wife to answer the husband's petition within a fortnight.

SANDERSON v. SANDERSON. Suit for dissolution-Wife pleaded cruelty-Particulars of cruelty ordered to be expunged because they did not correspond with the original charge. THE husband sued for a dissolution of his marriage on the ground of his wife's adultery. The wife in answer charged her husband with adultery, and also made a general charge of cruelty. She was ordered to give particulars, which she did in May 1871, and in Nov. 1871 she filed further particulars which did not correspond either with the original charge or the first particulars.

G. Browne, for the husband, moved to expunge the further particulars, on the ground that they virtually amounted to new charges.

Gould, for the wife, opposed, and asked that the applicatian might stand over to enable her to amend her petition by adding these new charges. The COURT.-These further particulars must be expunged because they clearly do not relate to the original charges. That will not prevent the respondent from applying to amend her answer, though I do not say she will succeed, because cruelty is a charge which, in the nature of things, must always be known to the wife.

Solicitor for the petitioner, R. W. Roberts.
Solicitor for the respondent, D. W. Pearse.

Practice-Application to read affidavits taken in
Chancery as evidence in a suit for divorce
THIS was a husband's suit to obtain a declaration
of nullity of his marriage on the ground that the
respondent at the time of her intermarrying with
him was already married to Alexandre Victor,
who was still alive. The petitioner sued in forma
pauperis, and the court had directed the case to
be tried by a special jury.

position in the County Court of Monmouth, and
on the same day a receiver was appointed, who
at once entered into possession of the debtor's
stock-in-trade, &c. An interim injunction was also
granted restraining the execution creditor from
taking further proceedings. Later on the same
day, however, and whilst the receiver was actually
in possession, the bailiff of the County Court
entered the premises, and claimed the property
under the judgments, declining to admit the
validity of the receiver's possession. On the 27th
Nov. the order now under appeal was made, and
on the 28th the first general meeting of creditors
under the petition was held, at which the appel-
lant Collins was appointed trustee, and a resolu-
tion was passed to pay into court the sum of 451. to
cover the amount of the two debts, and costs to
abide the result of the present appeal.

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India 4 C. Oct. 1888 104 104 1043 India 5 Cent. 1870 India Bonds (1000l.). Do. (under 10001.) authority of Ex parte Duignan, re Bissell (L. Rep. Bagley, for the trustee, contended that on the Ex. Bills, 10001. Do. 5001. 6 Ch. 605; 25 L. T. Rep. N. S. 286) that the trustee Do. 1001. and 2001. 3 c. was clearly entitled to the property in question inasmuch as it had been taken possession of by the Metropolitan Board of Works 33 PC. Stock. 96 receiver before any claim had been made on bea Premium. b228. to 25s. Premium. c x. d. for Account. d 208. to 22s. Premium.

half of the execution creditor.

F. Knight appeared for the execution creditor.He contended that immediately upon the order being pronounced by the judge of the Chester County Court the goods were ipso facto vested in the execution creditor.

The CHIEF JUDGE said that the only new point
in the case was, whether the goods were really so
bound by the order directed to the sheriff as to
preclude the rights of the receiver to take posses-
sion of them. His Lordship expressed his opinion
that the fact of the actual possession by the re-
ceiver being prior to the seizure of the execution
creditor, was sufficient to establish the claim of
the trustee. The order must therefore be dis-
charged, and the appellant would be entitled to
the 451. deposited.

Solicitors for the appellant, Stocken and Jupp,
agents for Williams and Co., Newport.
Solicitors for the respondent, Doyle and Edwards.



PROMOTERS of private Bills have this year been required to lcdge the petitions and copies of the Bills at the Private Bills Office of the House standing orders of Parliament. The date in former of Commons by the 21st, as determined by the deposit of the petitions, copies of the Bills should years has usually been the 23rd. Prior to the be lodged at the office of the Clerk of the Parliaments. This year there have been 303 Bills lodged, against 275 last year. The numbers have been gradually increasing since 1869, but are still far short of the number deposited in 1866, when as many as 633 were given in. In 1869 there were 212; in 1870 there were 240; and last year, for 1871, there were, as stated, 275 Bills. The number of sets of plans lodged up to the 30th Nov. last was 270, which is much in excess of the proportion for earlier years as compared with Bills; there were, for instance, 497 sets of plans and books of reference sent in for the 633 Bills of 1866. This discrepancy is caused through the plans for schemes for which provisioral orders are sought being included, latterly, with the plans lodged in connection with private Bills. Plans and books of reference are only deposited in connection with Bills in cases where works have to be constructed or property acquired. The excess of Bills over sets of plans is made up of amalgamation, extension of time, money arrangements, estate, and works. The most important of the projects for which Gazette and other notices were published are among the Bills deposited. They include the London and North-Western and Lancashire and Yorkshire Railway Companies' Amalgamation Bill; the Midland and Glasgow and South-Western (Before the CHIEF JUDGE.) Railway Companies' Amalgamation Bill; the MidLondon Railway Bill; the South Midland Railway Ex parte COLLINS; Re DAVIS. Bill; the Great Northern Bills, for powers to Title of trustee-Relation back to act of bankruptcy extend their system into Derbyshire and Stafford-Execution creditors-Rights of. shire, and the Midland Bills, in retaliation, for THIS was an appeal by the trustee under a liqui- powers (inter alia) of extension to Doncaster; the dation from an order made by the Registrar of Manchester, Sheffield, and Lincolnshire Company the County Court of Monmouthshire, dissolving also propose to make a line from Worksop to an injunction, and directing the bailiff of the court Doncaster. There are three Severn Bridge Railto sell certain household furniture and stock-in-way Bills, a Severn Tunnel Bill, and Bills for two trade belonging to the debtor, to satisfy two other projects for crossing the Severn by highjudgment debts recovered against him. The level bridges.

Searle now moved, on the ground of saving of expense, that certain affidavits taken in a suit in Chancery, entitled Lumley v. Desborough, might be read as evidence in this cause.

Dr. Tristram, contra, for the respondent.
The COURT.-I have no power to make any such other Bills, not requiring the construction of
order, and the motion must be refused.
Solicitor for petitioner, Daniel.
Solicitor for respondent, Lewis and Lewis.


Monday, Dec. 18.


[NOTE. -The reports of the Estate Exchange are officially supplied in the following list. Auctioneers whose names are registered there will oblige by reports of their own sales.]

Thursday, Dec. 14.

By Messrs. WINSTANLEY and HORWOOD, at the Mart.
Aldersgate-street. Nos. 137 and 138, freehold-sold for 28007.
Bucks, Little Brickhill. Three cottages, freehold-sold for
Two cottages and a plot of land, freehold-sold for 50%.
A plot of freehold land, la. Or. 35p.—sold for sol,

By Messrs. C. C. and T. MoORE.

Stepney. Nos. 1, 2, and 3, Edward-street, term 35 years

sold for 3501.

Mile-end. Nos. 6 and 11, Henry-street, and No. 7, Alfred-
street, term 46 years-sold for 1831.
Commercial-road. No. 1, Hardinge-street, freehold-sold for


No. 3, the Crown and Anchor beerhouse, freehold-sold for

No. 51, Greenfield-street, frechold-sold for 4507.
No. 52, adjoining-sold for 3351.

Nos 44 and 45, St. George's-in-the-East, freehold-sold for
St. Luke's. No. 1, Shrewsbury-court, freehold-sold for 1602
By Mr. H. E. MARSH, at Guildhall Tavern.
Bexley. Halfway-street, Woodbine Cottage and two acres
of land, freehold-sold for 8101.


NOTES OF NEW DECISIONS. ATTACHMENT.-A motion for a rule for an

attachment cannot be made upon the last day of term: (Ex parte Sutton; Re an Attorney (25 L. T. Rep. N. S. 572. Ex.)

PRACTICE-EXAMINATION UNDER SECT. 115 OF THE COMPANIES' ACT 1862-SPECIAL EXAMINER.-A person between whom and the company no proceedings are pending is bound to go before the examiner appointed to take the examination and cross-examination of witnesses in the winding-up, although he may conceive that such examination is required for the purpose of afterwards taking proceedings against him: (Re Contract Corporation (Limited), Hawkins's case, 25 L. T. Rep. N. S. 552. M.R.)

DOMICIL-REAL AND PERSONAL ESTATEELECTION.-In order to establish a change of a person's domicile it must be shown that an intention to settle in a new country as a permanent home actually existed in his mind, or was made reasonably certain that it would have been formed or expressed if the question had arisen in a form requiring a deliberate or solemn determination. If the intention existed, or was sufficiently carried into effect, certain legal consequences follow from it, whether such consequences were intended or not, and, perhaps, even though the person in question may have intended the exact contrary. The widow of a domiciled Scotchman filed a bill asserting her right, by the law of Scotland, to elect between certain benefits given to her by her husband's will on the one hand, and one-third of his movables and her terce in his heritable estate on the other, and praying that the court would give her the means of making such an election by ascertaining the value of the objects between which it was to be made. A devisee of the testator's real estate, who was also one of the executors, had filed a cross bill for the adminis tration of the personalty. Held, that the court had jurisdiction to direct such an inquiry as might

DEC. 23, 1871.]

be necessary to guide the widow in exercising her right of election, and, as far as possible, to give effect to it: (Douglas v. Douglas, 25 L. T. Rep. N. S. 530. V.C. W.) GRANT TO INTESTACY LUNATIC PAUPER GUARDIANS AS CREDITORS-12 & 13 VICT. c. 103, s. 16-PRACTICE.-A pauper lunatic died intestate in the possession of a sum of 4401., leaving a lunatic sister his sole next of kin. The court (having previously refused a similar application), now, on the authority of the 12 & 13 Vict. c. 103, s. 16, granted administration for the use and benefit of the lunatic sister, during her lunacy, to the board of guardians of the union to which the deceased was chargeable, as creditors of the deceased: (In the Goods of Sharland, 25 L. T. Rep. N. S. 574.



attested by three witnesses, of whom two only
signed in the testator's presence. Opposite the
name of the first was written the word "execu-
66 'witness."
The court
tor," opposite the last,
held, that the first witness might have signed not
only as approving his appointment as executor,
but also as attesting the testator's signature, and
granted probate of the will: (Griffiths v. Griffiths,
25 L. T. Rep. N. S. 574. Prob.)

TESTAMENTARY SUIT-AMBIGUIITY IN DESCRIPTION OF EXECUTOR PAROL EVIDENCE ADMITTED.-A testator, whose will was written for him by the vicar of the parish, nominated "my son Forster Charter" as his executor. He had only two sons, "William Forster Charter" and "Charles Charter." The court, confirming a previous decision: Held, that the testator had not described either of his sons with reasonable accuracy, and admitted parol evidence to show which he meant: (Charter v. Charter, 25 L. T. Rep. N. S. 575. Prob.)


ING PROCEEDINGS IN CHANCERY.-Where a rule nisi had been granted to set aside an award involving certain accounts, and before it came on for argument cross bills had been filed in Chancery by each party for the taking of the accounts, this court, with the consent of the parties, enlarged the rule generally until the first term after the chief clerk's certificate had become final: (Stafford v. Stafford, 25 L. T. Rep. Rep. N. S. 572. Ex.)

CLAIMS LUNATIC-PAST MAINTENANCEPRIORITY.-Under the trusts of the will of a testator who died in 1861, C., a person of unsound mind, but not found lunatic by inquisition, was entitled to a reversionary interest which fell into possession in 1870, and which constituted C.'s whole property, and which the testator directed to be paid to C.'s brothers, recommending them to apply the bequest for her benefit, at such times and in such manner as to them might seem most for her interest. From 1838 to 1859, when she was admitted as a pauper patient to Colney Hatch Asylum, C.'s brothers had paid, for her maintenance in a private asylum, a sum ceeding the value of her whole property: Held, that C.'s brothers were entitled to the whole property, on their undertaking to maintain C. during the rest of her life, notwithstanding a claim by the treasurer of the county of Middlesex for her maintenance in Colney Hatch Asylum: (Re Gibson, 25 L. T. Rep. N. S. 551. L. JJ.)


CONSTRUCTION OF WILL-PRECATORY TRUST -SPECIAL CASE-FUTURE RIGHTS.-The court will not, on a special case, make any declaration of future rights. A testator gave, devised, and bequeathed all his real and personal estate and effects whatsoever "unto and to the absolute use of my dear wife H. S., her heirs, executors, administrators, and assigns, in full confidence that she will do what is right as to the absolute disposal thereof between my children, either in her lifetime or by her will after her decease." The construction of this gift was submitted to the court by all the benficiaries, and a declaration was asked as to the respective rights of the testator's widow and children. The widow was in possession of the property which formed the subject of the gift, and all the children were sui juris. The court, under the above circumstances, refused to make any further declaration than that the widow was lawfully in possession, and made no order as to costs: (Smith v. Gibson, 25 L. T. Rep. N. S. 559. V.C. B.) PRINCIPAL AND SURETY-CONSOLIDATION OF MORTGAGES MARSHALLING SECURITIES.-In 1863 A. effected a policy of assurance on his own life for 2000l., which he mortgaged to the assurance company to secure 1000l., and shortly afterwards he effected a second policy for 1000l., which he mortgaged to the company to secure 5001. In 1865 he again mortgaged the first-mentioned policy (together with a further policy which was afterwards forfeited) to the company to secure 1500l., and B. became his surety for the repayment of the last-mentioned advance. In 1865 A. became bankrupt, and the company recovered judgment for 1500, and costs in an action against the surety B. B. had paid 1000l. under this judgment, and A.'s wife had paid to B. 4501. out of her separate


estate to reimburse him for his loss. In 1867 A.
died; and in a suit instituted by B. against the
company and A.'s assignee to recover out of the
balance due to A.'s assignee in respect of the two
subsisting policies the amount which B. had paid
as surety: Held, that B. was entitled to have the
securities marshalled, and to be paid the whole
amount of his loss by the company, before any.
thing was paid to A.'s assignee in respect of either
policy; and further that the payment made by
A.'s wife out of her separate estate did not affect
B.'s rights as against A.'s assignee: (Heyman v.
Dubois, 25 L. T. Rep. N. S. 558. V.C. B.)



The trusts of a term limited previous to an
estate tail, and operative subsequently, are invalid
as tending to a perpetuity. Where, therefore, a
testator devised certain estates to his eldest son
R. for life with remainder to the eldest son of R.,
with remainder to trustees for a term of 500 years
the trusts thereinafter expressed concerning
the same, and from and after the end or sooner
determination of the said term, and in the mean
time subject to the trusts thereof to the first and
other sons successively of the said R., the grand-
son of the testator, in tail male, with remainders
to the second and other sons successively of the said
R., the son of the testator, in tail male, with remain-
der to the testator's son N. for life, with remainders
to the first and other sons successively of the said
N., in tail male, with remainder over, and declared
the trusts of the said term to be that in case any
one or more of his younger sons or their respec-
tive issue should become seised in possession
by virtue of the limitations aforesaid of the said
hereditaments, the trustees should raise a sum
of 50001., and pay the same to such of the testa
tor's sons (except such son as should be seised in
possession) as should be then living, or their
issue if dead: Held, upon a demurrer to a bill
filed by persons interested in the above charge,
against the great grandson of N., who had become
seised in possession under the above limitation,
and praying that the trusts of the term might be
carried into execution, that the charge was void
for remoteness. Ouse v. Drosier, 2 Keen, 764; on
appeal, 5 Myl. & Cr. 246, followed: (Sykes v.
Sykes, 25 L. T. Rep. N. S. 560. V.C. W.)`


(From The Irish Law Times.)
Nor without inducement the most coercive, should
a restraint be imposed upon the common law
right of redress for an actionable grievance.
Such a restraint, yet with an adequate raison
d'etre, was prescribed by the enactment that
enables a defendant to preclude a plaintiff, resi-
dent out of the jurisdiction, from enforcing his
claims, unless upon the condition of giving security
for costs. The alternative is one not always
feasibly complied with, and, in many instances,
the rule operates as a practical denial of justice.
It is, indeed, notorious that bona fide actions for
limited demands are frequently relinquished, that
the transactions of trade are contracted, and that
the credit-dealings of English and Scotch mer-
chants and manufacturers with shopkeepers in
this country are restricted, by reason of the ob-
struction so occasioned. Nevertheless, in the
words of Lord Loughborough, "if there is a
general hardship affecting a general class of cases,
it is a consideration for the Legislature, not for a
court of justice;" and, accordingly, our judges
have been constrained to administer, however
reluctantly, the law in its allotted scope, whilst,
recognising its objectionable tendency, they have
been astute in establishing exceptions and in
defining special requirements. The Court of Ex-
chequer, indeed, by exacting affidavits of merits
indicative in detail of the nature of the
alleged defence, has compassed as much as could
be accomplished by but a single court to
mitigate the obstructiveness of the rule. Re-
cently, in the Queen's Bench, the Lord Chief
Justice observed that the Legislature appa-
fently thought the forcing a man to give secu-
rity for costs a considerable nuisance, because
they carefully guarded it with the proviso that the
defendant, before obtaining an order to that
effect, should be put to make a satisfactory
affidavit of merits. This proviso is, notwithstand-
ing, practically nullified by the use of the stereo-
typed forms that still suffice to satisfy the Courts
of Queen's Bench and Common Pleas. We would
respectfully submit that a uniformity of practice
in this behalf, adopting that of the Exchequer,
which best accords with the spirit of the Act,
would be eminently expedient, and, at this junc-
ture, peculiarly opportune. Indeed, in Ashworth
v. White (5 Ir. L. T. Rep. 189), in which case
testimony is borne to the authority and accuracy
of our reports). Fitzgerald, J. incidently de-
clared that the time would appear to have
arrived when the practice of obliging a party
resident abroad to give security for costs, should

even be swept away altogether. But, to this
can only
proposition (which being extra-judicial it was
deemed unnecessary to report), we
assent, sub modo. As the learned judge assigned
no reasons for the view he advanced, we shall
define the more at large those which actuate the
opinion that we entertain.

The mischief that the Legislature contemplated to counteract, was the bringing of not frivolous, but prima facie unfounded actions, by persons were beyond the reach of the process of parties resident without the jurisdiction, whose arrest for costs. For our contention, it imports us to impress that it would, therefore, be no that the plaintiff was possessed of answer to say,

Forde, 8 Ir. Jur. N. S. 133; Nagle v. Power, 1 Jones property within the jurisdiction: (Hickman v. 420. It was competent to him, notwithstanding the statute 10th Car. 1, 2, 3, to defeat the execugoods (Byrne on Bills of Sale, 2nd edit., 57); tion creditor by an intermediate disposition of his bankruptcy or insolvency might supervene, or the intervention of an adverse creditor might despoil In default, the suitor of the fruition of success. therefore, of the remedy by imprisonment, security for costs became a necessary protection. Now we concede that, in the words of Willes, C. J., "when the nature of things changes, the rules of but is there anything, law must change also; to affect the principle on which the requirement of in the tenor of current legislation or otherwise, so c. 109, conduces to no such conclusion. It is consecurity for costs is bottomed? The 33 & 34 Vict. versant, not with unfounded, but with frivolous and speculative actions, and its operation is cirCommenting, in connexion with our subject, on the analogous cumscribed in other particulars. provisions of the English statute, Bovill, C. J. observes: " In many cases, no doubt, the inability of an unsuccessful litigant to pay costs to his successful adversary works hardships; but it is for the Legislature to provide a remedy, not for us. Indeed the attention of the Legislature was called to the subject at the time of the passing of the last County Court Act (30 & 31 Vict. c. 142.) The clude the plaintiff from enforcing his remedy if he 10th section of that Act, however, does not prefails to give security; it merely changes the tribunal" (Sykes v. Sykes, L. Rep. 4 C. P. 647.) No equivalent is substituted for the rule absolute for security; and, in remitted actions, there is also the disadvantage, in respect of the recovery of costs, arising by reason of the Judgments' Extension Act, 1868, not applying to the adjudications of the Courts of Quarter Sessions. Moreover, defendants in actions, by plaintiff's out of the jurisdiction, would find considerable difficulty in availing themselves of the statute, since it has been decided that, where remitting such an action to a remote civil bill district would be productive of inconvenience to a plaintiff residing abroad, the action will not be remitted: (Hall v. Millar, 5 Ir. L. T. Rep. 28.) For these considerations we submit, that the 33 & 34 Vict. c. 109, presents no reason why a defendant should be debarred from obtaining security for costs in the Superior Courts. There remains then the 31 & 32 Vict. c. 54, a statute to which our judges, notwithstanding the example of the English Bench, have hitherto remissly omitted to give practical effect, by framing the requisite rules. By virtue of this Act, Ireland, are rendered respectively judgments, whether obtained in England, Scoteffectual in each country; so that execution may land, or be levied for costs on an Irish judgment, either in England or Scotland. It is not generally known that the English practice is, now, not to require security from Scotch or Irish plaintiffs, that practice having been settled by the case of Bell v. Tennant (circa, July 19, 1871), unappealed from, in which Master Gordon so decided, holding that, by force of this statute, all necessity for security had ceased. As that case is not reported, we shall merely discuss the given ratio decidendi. We submit that the exigency of security for costs, with esreason of this statute, for the considerations folpecial regard to this country, has not abated, by lowing: That the statute cannot affect the caso England or Scotland. That it has been considered of plaintiffs resident abroad, elsewhere than in (whether rightly or otherwise) only to apply to judgments formally marked, and not to interlocutory orders for payments of costs (Gurod v. Halliday, 4 Ir. L. T. 551; vide passim, Tupper v. Dawson, 7 Ir. Jur., N. S., 325), and that as it only regards judgments for "debt, damages, or costs,' it may be deemed inapplicable to judgments in detinue, ejectment, &c., though this may only affect plaintiffs. That the Act does not in terms repeal the previous enactment, although expressly providing that security shall not be necessary. unless on special grounds otherwise ordered, in any proceeding on the certificate; so, by tacit implication, reserving the power of ordering security in the original action. That the power of arrest for debt still subsists in Ireland, while since it is not co-extensive in England, a defendant is yet uuable to enforce a process there, which he might exert against a plaintiff resident here-this being,

as we have evinced, the very rationale of the rule for security; and, as it would be no answer to show that the plaintiff is possessed of property here, so neither, for similar reasons, does it suffice to say that his property abroad is now available. Therefore it is, that we but accede to the position of Fitzgerald, J., sub modo. With Lord Kenyon, we confess that we "do not think that the courts ought to change the law, so as to adapt it to the fashion of the times; if an alteration in the law be necessary, recourse must be had to the Legislature for it." Imprimis, there needs such recourse, and the occasion for it has arrived, in respect of the modifications suggested by these remarks. Already on the promised eve of emancipation from the law of imprisonment from debt, it may be said, "locks, bolts, and bars now fly asunder." The consummation remains. But not until these changes shall have come to pass can we hold that the period will have indeed have accrued when the power to enforce security for costs, in restraint though it be of the plaintiff's common law right of procedure, should be superseded, cessante ratione legis cessat ipsa lex.


A CORRESPONDENT of the Times writes: "I entered into a deed of covenant to take a clerk into my service at a yearly salary, with power to either party to determine the engagement on giving three months' notice. It was stamped with 10s. for duty, being the sum payable on deeds in general. On presenting it with the duplicate for a denoting stamp on the latter, to show the higher duty had been paid on the original, I was informed by the authorities that the principal instrument required a stamp equal to 2s. 6d. for every 51. of the yearly salary-fractions counting as 51. It appears the authority for this is the following clause in the Stamp Act:

"Covenant or instrument of any kind whatso

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"I will put a case. If I engage a person to manage my business at a yearly salary of 4001., I or he must pay for stamping the deed creating the service 101. If he should not be equal to my expectation (which I could not ascertain until after trial), and the service were determined, I must submit to a similar charge on taking his successor, and so from time to time.


"In large establishments, if such instruments as a rule, stamped, the yearly payment would amount to a very considerable sum, and although a house of large business might be its own insurer against penalties by omitting to stamp any agreement until it be actually tendered in evidence, and then paying the duty and penalty, a clerk or head of a small establishment must submit to pay the impost at once, or run the risk of having to pay, in addition to the duty, the penalty of 101. or 11., as the case may be, in the event of proceedings being necessary to enforce the terms of the agreement.

"This seems a great hardship, and I submit that the Legislature did not intend to treat the salary of a clerk or servant as an annuity granted for some pecuniary or special consideration."

THE CUSTODY OF CHILDREN. THE following summary of cases is by Judge Gwynne, of Ontario :

In Re Tayor (11 Sim. 178), which was one of the first cases that arose under the English Act (2 & 3 Vict. c. 54), it appeared that on Oct. 20, 1837, Mrs. Taylor left her husband's house, alleging, in justification of that step, a charge of adultery, which she then preferred against him, upon grounds of which she afterwards admitted the entire insufficiency, and which were, in fact, wholly without foundation. Overtures for a reconciliation were immediately made by Mr. Taylor, and various negotiations followed; but Mrs. Taylor, by the advice of her friends, refused to return home. Circumstances occurred which convinced Mr. Taylor that his wife's affections were alienated, and that no bonâ fide reconciliation could be expected; and he went to reside in France. Afterwards, in July 1838, Mrs. Taylor instituted a suit in the Consistory Court of London for restitution of conjugal rights. To this suit Mr. Taylor put in an allegation in bar, stating the circumstances


under which his wife had left his house, and the charge she had made against him; and adding, that although she well knew the charge to be entirely devoid of foundation, she persisted in refusing to retract it. On the 5th Feb. 1839, the allegation was rejected by the court. Mr. Taylor appealed to the Arches Court, where the judgment of the Consistory Court, was affirmed on the 20th June 1839. He then appealed to the Judicial Committee of the Privy Council, pending which appeal the petition came on to be heard. At the time of the presentation of the petition, there were living five children of the marriage, two of whom were more than seven years old, but the other three were under that age, the youngest having been born on the 23rd May 1837. The prayer of the petition appears to have been, that Mrs. Taylor might have access to her children. For the petitioner, Mrs. Taylor, it was contended that the intention of the Act was to create a right in the mother to which the court should give effect in all cases of separation between husband and wife where the wife had not been guilty of criminal conduct that the clause in the Act pointing out the criminality of the mother as the only cause which should exclude her from the benefit of the Act, distinctly recognised her general right in cases where no criminality could be imputed; that the Act created a positive right of access in the mother, which the court could not deprive her of; that the court was merely the instrument appointed by the Legislature to put her in possession of her right; that it was the right of every innocent mother living in a state of separation from her husband; and that the discretion of the court was to determine the manner only in which the right was to be enjoyed, not to take it away; that the interest of the children was the only consideration which could be allowed to interfere with the mother's right The Vice-Chancellor of England, however, was in that case of opinion that the jurisdiction given by the Act was to be exercised solely in the discretion of the court; and that pending the question in the Ecclesiastical Court, it would not be right for the court to say that Mrs. Taylor was entitled to have access to her children. Moreover, he was of opinion that the fact of her having, without cause, removed herself from her husband, was a sufficient reason why the court should not exercise the jurisdiction of ordering any access. Accordingly, no order was made on the petition.

Re Bartlett (2 Col. 661), was an application under the Act, praying the delivery to the mother of two of her children, a boy and a girl under seven years of age, the girl being only two years of age; and that she might have access to


He says

her other children, four in number. It appeared that the wife's family had brought about an unhappy state of existence between the husband and wife; that on one occasion he had separated himself form her, and on returning to his house struck her; that he had been bound over to keep the peace towards her; and that he had, both in words and in writing, expressed himself towards her in a very violent and offensive manner. giving judgment, the Vice-Chancellor held that the statute did not, as a condition of the interference of the court, require that the wife should have obtained, or should be entitled to obtain, a divorce a mensâ et thoro. "This," he said, "is a case in which the husband and wife are living apart from each other" (her brothers having removed her from his house)," her husband appearing to wish, and the wife objecting to, a reunion." also, "That she is clearly legally justified in living apart from him, it would be imprudent for me, upon the evidence before me at present, to say but if she is not so, that she is not without excuse, not without apology, may, I think, be safely stated." He accordingly made an order for the delivery to the mother of her youngest child (two years of age), Mrs. Bartlett's two brothers undertaking for the proper care, maintenance and education of the child while in her custody. The order also made provision for her having access to the other children, and for access for the father to the youngest child so removed into the custody of the mother; and it was ordered that this child should not be removed from the house of Mrs. Bartlett's brothers without the leave of the court. Re Fynn (2 De G. & Sm. 457) was not a petition under the Act, and no order was made upon the petition for the want of a sufficient provision being made for the care, maintenance, and education of the child, if the father should be deprived of his common law right of possession and control of his children. In that case, however, the facts were such as seemed to justify the wife in living apart from her husband, for Knight Bruce, V.C. says: "I am not persuaded, however, that she has not a good defence to the pending suit, if there is one pending, or to any suit against her for restitution of conjugal rights."

In Re Tomlinson (3 De G. & Sm. 371), no order was made, for a reconciliation took place while the petition stood over to enable the wife (the petitioner) to answer the affidavit filed by the husband.

Knight Bruce, V.C., in this case also, seemed to regard the mother's right as dependent upon her being justified in living apart from her husband; for he says there: "I should have thought it right now to make an order relating to the custody of the infant, without directing the petition again to stand over, had there appeared to me to be a probability of the mother's success in the ecclesiastical suit, that is to say, in establishing that she is justified in living apart from her husband." The husband had instituted a suit for the restitu. tion of conjugal rights, and the case had stood over for the purpose of enabling counsel from the Ecclesiastical Court to argue the case upon the validity of the mother's defence to that suit; at the close of which argument the learned Vice Chancellor made the observations above quoted.

In Warde v. Warde (2 Phill. 786), the wife obtained a decree a mensa et thoro, and the order was made on her petition. Lord Cottenham has there enunciated his opinion of the object of the Act. He says: "I must say something with regard to the position of the children under the late Act of Parliament, as to the construction of which, and the object with which it was introduced, some very erroneous notions appear to exist. The object of the Act, and of the promoters of it, and that which I think appears upon the face of the Act itself, was to protect mothers from the tyranny of those husbands who ill-used them. Unfortunately, as the law stood before, however much a woman might have been injured, she was precluded from seeking justice from her husband, by the terror of that power which the law gave to him, of taking her children from her. That was felt to be so great a hardship and injustice, that Parliament thought the mother ought to have the protection of the law with respect to her children up to a certain age, and that she should be at liberty to assert her rights as a wife without the risk of any injury being done to her feelings as a mother. That was the object with which the Act was introduced, and that is the construction to be put upon it. It gives the court the power of interfering; and when the court sees that the material feelings are tortured for the pur pose of obtaining anything like an unjust advan tage over the mother, that is precisely the case in which it would be called upon and ought to



In rela

Re Halliday, Ex parte Woodward (17 Jur. 56), came before Turner, V.C., 1852. That was the case of a petition under the Act, presented by the mother, praying for the custody of her infant child, four years of age. husband and wife had lived happily enough It appeared that the together until about a year previously, when a legacy of 5401. had been left to the wife, which, it was alleged the husband had since squandered in dissipation. The money being all gone, and his wife becoming chargeable to the parish, he was taken up for deserting his wife, convicted, and sentenced to six months' imprisonment. Shortly after coming out of prison, he made his way, the absence of his wife, to the lodgings where she was living and maintaining herself by going out as a laundress, and took away their child. He refused to state what had become of it, except that it was at board in Essex. By the affidavits filed in the matter, each accused the other of habitual drunkenness, fand in addition the wife accused the husband of adultery. tion to the Act and its object, the ViceChancellor says: "It will necessarily be important, in the first place, to look at the principles came into operation, it was the undoubted law of upon which the Act proceeds. When this Act the country that the father is entitled to the sole custody of his infant children, controllable only by this court (the Court of Chancery) in cases of gross misconduct. With this right the Act does not, as I understand it, interfere, so far as to have destroyed the right; but it introduces new elements and considerations under which that right is to be exercised. The Act proceeds upon three grounds: First, it assumes and proceeds upon the existence of the paternal right; secondly, it connects the paternal right with the marital duty, and imposes the marital duty as the condi tion of recognising the paternal right; thirdly, the Act regards the interest of the child. These three grounds, then the paternal right, the marital duty, and the interest of the child-are to be kept in mind in deciding any case under this statute." He then cites Warde v. Warde in confirmation of his view, and says: "I think there is a very great difficulty in calling on the court to restrain a man in the exercise of his legal right.

There are, however, two grounds on which the court has jurisdiction under the Act-viz., breach of marital duty, and the interest of the child. That the husband did desert his wife previously to May 1851, he does not deny; but he justifies the desertion as necessary. It is, therefore, incumbent upon me to look into the conduct of the wife. The charge against her is that of habitual drunkenness." The Vice-Chancellor, upon the evidence, came to the conclusion that this charge was not proved; and, referring to the

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conduct of her husband taking away her child from his wife's lodgings, and to the fact that he did not even inform the court where the child was, except that it was at board in Essex, he proceeds: "Is it, or is it not, in contravention of the marital duty, which the Act has placed in competition with the paternal right, that the husband should thus take away his children and keep them, without any communication with the mother as to the mode, or place, or circumstances of their maintenance? The natural right must be held to have been modified by the Act, and the same opportunities must now be given to the mother as to the father, of communicating with the offspring. Then there is to be considered the question of access only, or of custody of the child; and that depends upon what is most for the interest of the child in the position

of the parties." And finally, he says: "But I shall decide, if possible, rather in favour of the paternal right than against it; and I therefore give now an option to the father to place his child to be taken care of where the mother can have access to it, and see that it is properly attended to, so that she may have the benefit intended by the Act. Unless it be shown by affidavit on the next seal day that this has been done, I shall direct the child to be delivered over

to the mother."

In Shillito v. Collett (8 W. R. 683) the application was made by the mother against the testamentary guardians of the children, appointed by her husband's will, for the custody of three children, all under seven years of age. The observations of Kindersley, V. C., in that case, are to be taken as applying to the particular cir. cumstances of that case, which from its nature raised no question arising out of the fact of a husband and wife living apart. The stress which he lays upon the interest of the children being the point to decide the case, must be limited to the case before him. This sufficiently appears to be the intent of the learned Vice-Chancellor, from the context of his judgment; and it is therefore by no means an authority for the position, that in the case of separation between husband and wife, the cause of separation is to be overlooked, and that the sole point for consideration is the benefit of the children. He says, there, " Beyond all doubt, if it had not been for Mr. Justice Talfourd's Act, the guardians could have assumed the conduct themselves of the education and maintenance of the children; but, under the statute, the court has the discretion, either against the father or the testamentary guardians, as in this case, where any of the chil. dren are under seven years of age, if it sees fit, to decide that the custody shall be given to the mother, although she was not appointed guardian. With respect to the age of the children, the Legislature considered that as between the guardian and the mother, the very young chil dren required a mother's nurture; and, notwithstanding the legal rights of a father, they should be entrusted to her. But it still enabled the court to do that which it thought best for the interest of the children. It did not consider that, as between the father and mother, the father had an equal interest with her, but that in the majority of cases the custody should be given to the mother; but, under ordinary circumstances, it was most desirable that it should be entirely discretionary in the court." In the exercise of that discretion, the Vice-Chancellor was of opinion that he must look at the interest of the children, which might be just as well preserved by giving the custody either to the father or the mother, the tendency being to lean towards the mother when the children were of very tender age; but still the material question was, what was for the children's benefit ?" He then proceeds to show why, in that case, he thought the discretion of the court would be best exercised by leaving the children in the custody of the testamentary guardians. There is nothing in this case which countenances the idea that the learned Vice-Chancellor intended to cast any doubt on the propriety of the observations of Lord Cottenham in Warde v. Warde; of Turner, V.C., in Re Halliday; or of the Vice-Chancellor of England in Re Taylor, in a case where husband and wife were living apart.

In Re Winscom (11 Jur. N. S. 297) the application was by the mother for access to her female child eight and a half years old; but the principle upon which the right of access and custody depends is the same. In that case the husband had petitioned the Divorce Court for a divorce upon two allegations of adultery, one of which was condoned and the second not established, and so the petition for divorce was dismissed, but the husband and wife lived apart. Wood, V. C., in that case, rests upon Lord Cottenham's decision in Warde v. Warde, as establishing the intention of the Act, and the course of the court in relation to it; and applying these observations to the case before him, after stating the circumstances under which the husband and wife were living separate, he says, p. 299: "The con

sequence is, that they are not separated from the matrimonial tie; but it could not, as I apprehend, be with any great hope of success suggested, that the lady is in a position to institute any suit for restitution of conjugal rights. Nothing of the kind is suggested, and they must for the present remain apart." And again: "But further, I have had to consider most seriously how far it would help her for me to interfere at all with the father's directions in a case circumstanced like the present. In the first place it is not clearly a case in which, according to Lord Cottenham's view, the court is called upon for any interference whatever. It is not a case in which, to use Lord Cottenham's expression, the mother requires protection from the tyranny of her husband.'

Our Act, Con. Stat. U. C. c. 74, s. 8, is identical with the Imperial Statute, 2 & 3 Vict. c. 54, with the exception that in our Act the age of twelve years is substituted for seven years, and that the jurisdiction which the English Act confers on the Lord Chancellor and Master of the Rolls is by our Act conferred upon the Superior Courts of law and equity, or any judge of any of such courts. From all of the above cases (the learned judge said) the true principle to be collected, I think, is, that the court or a judge, in the exercise of the discretion conferred by the Act, is bound to recognise the common law right of the father, and should not assume to impair or interfere with that right, so long as the father fails not in the due discharge of his marital duties. In order to induce the court to interfere on behalf of the wife, she should satisfy the court that the separation, if the act of the husband, is in disregard of his marital duties, that is, without sufficient cause being given by the wife; or, if the act of the wife, that, although she may not have cause sufficient to entitle her to a decree for judicial separation, she has reasonable excuse for leaving her husband and living apart from him: and further, that it should not appear that it is not the interest of the children that she should have access to them, or the custody of those under the age mentioned in the Act in that behalf. The object of the Act being to protect wives "against the tyranny of husbands, who ill-use them," a wife can have no right under the Act, who should capriciously or without some reasonable excuse, desert her husband, absent herself from his home, and abandon her duties as a wife and mother. In view of these principles, it will now be necessary to inquire whether the petitioner in this case brings herself within them, so as to entitle her to the interposition of the jurisdiction conferred by the Act.

COURT OF COMMON PLEAS. Wednesday, Dec. 20. TICHBORNE v. LUSHINGTON. Admissibility of evidence Identity — Loss of memory-Whether analagous cases can be proved. IN the course of this case to-day, Rosalind Landsberg, who was sworn on the Old Testament, and though a foreigner showed a thorough mastery of English, was next called. In answer to Giffard, she said,-I am a native of Poland. I left that country at the age of twenty, twenty-four years ago. Until I left Poland I spoke two languages.

The Attorney-General, interposing, said he understood from his learned friend that the witness was to prove the loss of memory in her own case. This evidence was clearly not admissible.

Giffard.-She has lost her original language. The Attorney-General.-This is not receivable upon this issue. I can understand, though even that would not be admissible, its being plausibly put that the memory, like any other part of the mind or body, can be treated as a matter of scientific investigation, and scientific people being called, if such can be found, to speak as to the characteristics of the memory of languages. It would then be my duty to ask, if I chose, for particular in. stances of it. This witness is to prove the probability of an assertion in one case by showing the existence of a similar state of things in another.

BOVILL, C. J.-And under another state of circumstances; I presume it is not stated that the witness has led the same kind of life or has lived in Australia.

Giffard.-Certainly not. I do not suggest that she was engaged in stock-driving or has been in Australia, but as to entire removal from the use of the language familiar to her in early child

hood the circumstances are similar.

The Attorney-General urged that this evidence would embark the court in collateral issues as to all the possible circumstances in each particular case which might resemble or differ from the plaintiff's statement. A man might come forward and offer a general proposition, but, unless particular questions were asked in cross-examination, counsel had no right to say, "This has happened in the case of A, B, C, D," or the jury would be embarked in a separate and wholly irrelevant inquiry.

BOVILL, C. J.-If persons are called to prove loss of memory, as many might be called on the other side to prove the contrary.

The Attorney-General.-It would involve an inquiry into the whole life, antecedents, and physical and moral health of all such witnesses. BOVILL, C.J.-500 or 5,000,000 persons might be called.

Giffard maintained that evidence proving the retention of memory would be wholly irrelevant. The proposition he was combating was that a person could not have entirely lost his language during the period spoken of by the plaintiff. The answer was, "I will show it has happened to A. B." He was not contending that this was the ordinary state of things, but simply that it was possible.

BOVILL, C.J.-It is possible, of course. It is a well known fact that the memory, like everything else, may be lost.


Giffard.-I mean possible with regard to the subject matter we are discussing, possible to have lost a language and yet to have remembered other circumstances and facts with which he familiar. If there was any eminent writer whom I could call, luce clarius, his evidence would be receivable; but the science not having yet advanced to this extent, we are entitled to prove facts from which the jury may infer the possibility for which we contend. Suppose, before astronomy had reached its present state, a person had said he had see the sun on one occasion eclipsed at noon, and suppose it was urged that he was saying what was untrue because such a thing could not have happened, would it not have been reasonable and cogent evidence to call other persons who had witnessed the same phenomenon on other occasions? This, it is true, is a collateral issue, but every collateral issue is not ipso facto excluded. If it is relevant to the matter in hand it may be investigated, and all the inconvenience referred to by your Lordship and my learned friend would apply in the case of every collateral issue. If collateral issues are relevant to the truthfulness of the narrative which the plaintiff has given, they are issues upon which evidence may be given on both sides. It having been raised in cross-examination that the plaintiff had forgotten his French, and it having been broadly put that he cannot therefore be the person he represents himself to be, I propose to show that the same phenomenon occurs with regard to other persons, and that it cannot consequently be alleged that it could not have happened to the plaintiff.

BOVILL, C. J. Evidence is offered for the purpose of corroborating the plaintiff's statement as to the condition of his mind and memory. Whatever information was given us by other persons as to their own memory would not assist the jury in coming to a conclusion as to the state of the plaintiff's memory. If, therefore, evidence is objected to, I shall not receive it. The question is whether the defendants press their objection.

The Attorney-General had not the least doubt on this point, and must persist in his objection. To deal satisfactorily with Mrs. Landsberg's evidence he should have to inquire into her antecedents and all the circumstances, and so in every case. If evidence was put in with regard to loss of memory, fifty people, assuming the plaintiff had forgotten the person with whom he had a long correspondence, or the name of his dogs, might be called to say that they had also forgotten such things. There would be no end to such evidence. BOVILL, C. J.-I am entirely with you.

The Attorney-General did not wish to offer captious objections or to exclude a feather's weight draw his objection, he should be embarked in of evidence fairly receivable, but were he to withan endless inquiry which he really could not face.


being captious, I consider it legitimate and proBOVILL, C.J.-So far from the objection per, and in law perfectly well founded. inconvenience. I don't know, indeed, where we evidence would lead to the greatest possible should stop. It would be contrary to every principle upon which evidence in matters of science is received. I think the objection valid and sustainable; but when I consider that, if any single portion of evidence is objected to and received or rejected, any court might afterwards hold that it was improperly received or excluded, I think it right to ask the defendants whether, with that before them, they persist in their objection.

The Attorney-General remarked that in the case of a mere matter of law, as to the admission of a document or not, the fearful peril of any mistake would lead him to waive the objection. This, however, was a practical question, and it involved such length and expense that the alternative was too serious, and he must therefore persist.

BOVILL, C. J.-If you and your brother counsel had any serious doubt it would be unwise to persist, but I think the objection valid, and if called upon to receive the evidence I must decline to do so.

Giffard wished for an opportunity of objecting or excepting to his Lordship's ruling. The LORD CHIEF JUSTICE assented.

Wednesday, Dec. 13.

(Before Mr. OSBORNE, Q.C., Judge).


IN this case Smith (Smith and Boyer, solicitors) appeared for the plaintiff;

Woodard (barrister) for the defendant.
On the case being called on,

Woodard, raised an objection that the attorney who was about to conduct the case had been instructed by another attorney, and that he was not the attorney acting generally in the action, another attorney's name appearing on the writ of summons and particulars of demand, and that, Such being the case, he could not be heard as an advocate.

His HONOUR.-Surely he can. It is no uncommon thing for one barrister to hand over his brief to another to hold for him.

Woodard. The two cases are entirely distinct but I will not argue the point, as I prefer to rely upon the statute, which, while it gives attorneys a locus standi in the County Courts, yet enacts that one attorney cannot retain another as an advo


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Woodard then asked that the action might proceed, and that the plaintiff should conduct his He had no objection to Mr. Smith acting as the plaintiff's friend.

own case.

This Smith declined, and alleged that there had

been a communication between himself and the defendant's solicitors, who were aware that he was going to act as advocate in the case.

His HONOUR.-I order that the case stand over to next court day, and I give no order as to costs. Woodard said it was very hard that the defendant's costs should not be allowed, on the unsupported allegation that there was an understanding between the respective solicitors in the action to evade the provisions of the Act of Parliament.

CROSS-ACTIONS.-At Guildhall, on Tuesday, a cause was opened which promised to last for some days. There was also a cross action, and Mr. Justice Brett protested in strong terms against the custom of trying actions involving the same

facts separately, taking, as his Lordship said, the chance of another shot at another jury if unsuccessful.

ATTORNEYS' FEES.-In a recent case in Wisconsin (U.S.), it was said: "A question of costs has been made, or attempted to be made on this appeal. It is whether the party recovering costs in an equitable action is limited to 25 dollars in respect of those costs which are given by sect. 41 c. 133 of the Revised Statutes, and which are usually denominated attorney's fees.' This section of the statutes contained no limitation of the amount of costs which might have been taxed by virtue of it, in any action. By the laws of 1859, c. 200, the following proviso was added to the sec. tion: Provided the fees shall not in any one case exceed 25 dollars, and in actions on contract, where the amount recovered is less than 200 dollars, shall not exceed 15 dollars.' By this enactment the recovery of costs by the prevailing party, under sect. 41, c. 133. R. S., was limited to 25 dollars in all cases, whether the action was at law or in equity, and in a class of actions the recovery was limited to 15 dollars. The Legislature in 1864 again amended sect. 41 aforesaid, by adding thereto the following proviso: Provided that in actions at law on contract the fees shall not in any case exceed 25 dollars, and when the sum recovered is less than 200 dollars, the same shall not exceed 15 dollars.' Laws 1864, c. 402, s. 2 of this Act repeals the law of 1859, although by its title it purports only to amend sect. 41. The only limitations prescribed by the law of 1864 relate to actions at law upon contracts.' Equitable actions are subject to no limitations, and the parties recovering costs therein may lawfully recover full costs, without reference to the amount of the judgment. In the view which we have taken of this case, it was not absolutely necessary to decide this question of costs, and we have not in quired whether the question could be properly raised on this appeal, or, if so, whether the defendant has saved his right to have the taxation reviewed. But we have decided the question because it is one of general interest to the Profession, and because we know that it is desirable that it should be definitely settled by an adjudication of this


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ASSIZE INTELLIGENCE. MIDLAND CIRCUIT. WARWICK, Dec. 19.-Mr. Justice Lush, on arriving here yesterday evening from Derby, opened the commission. There are eight prisoners for trial from Birmingham and sixteen from the county. There is one very serious case of murder for trial. Besides the fact that five out of the twenty-two prisoners are charged with arson, there is nothing to call for any particular remark in the calendar.

OXFORD CIRCUIT. WORCESTER, Dec. 18.-Mr. Justice Keating opened the commission here on Saturday. The calendar for the county contains the names of fifteen prisoners, and that for the city four prisoners. Two cases of night poaching and a prosecution by the post office authorities against a telegraph clerk for stealing a post letter containing money were the only cases of importance.


WALES.-At a special parliament of the Middle Temple, held on Tuesday the 19th Dec., the followTreasurer and Masters of the Bench of the Hon. ing resolutions were passed unanimously: "The Society of the Middle Temple beg humbly to express to Her Majesty the Queen the deep concern with which they have been filled by the alarming illness of his Royal Highness the Prince of Wales, the senior master of their bench. The Treasurer and Masters of the Bench offer the tribute of their Majesty, with her Royal Highness the Princess of earnest and most respectful sympathy with Her Wales, and with the other members of the roval family, in their great grief and anxiety. The fervent hope that the favourable change in the Treasurer and Masters of the Bench express their condition of his Royal Highness recently announced may issue in his speedy and entire restoration to health.”



VALUE-EXCEPTIONAL PRINCIPLE-VALUATION. -By sect. 45 of the Valuation Metropolis Act 1869 (32 & 33 Vict. c. 67), the valuation made in pursuance of that Act is to be conclusive evidence of the gross value and of the rateable value of the several hereditaments included therein for the purpose of certain rates and taxes; but by sect. 54 nothing contained in the Act is to affect "any exemption or deduction from or allowance out of any rate or tax whatever, or any privilege of or provision for being rated or taxed on any excep. tional principle of valuation." The assessment committee of St. Pancras having entered in the valuation list prepared by them in pursuance of the above Act, the true gross value and the true rateable value of lands belonging to the Foundling Hospital, notwithstanding that the Foundling Hospital Act (13 Geo. 2, c. xxix.) provided that such lands were not to be rated at any higher value than that at which they were rated in 1739. Held, that the true gross and true rateable value had been rightly inserted on the valuation list; and that it was not for the assessment committee to take into account the exceptional principles of valuation saved by sect. 54 of the Valuation Metropolis Act 1869 (Reg. v. The Governors of the Foundling Hospital, 25 L. T. Rep. N. S. 562. Q. B.)

ARSON-UNFINISHED HOUSE-24 & 25 VICT. C. 97, s. 6.—An unfinished dwelling house of which the external and internal walls were built, and the roof covered in, and a considerable part of the flooring laid, and the walls and ceilings prepared for plastering, is a building within 24 & 25 Vict. c. 97, s. 6, the unlawfully and maliciously setting fire to which is a felony. Semble, that it is a question for the jury, whether the structure in question is a building: (Reg. v. Manning, 25 L. T. Rep. N. S. 573. Cr. Cas. Res.)

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himself liable to a penalty not exceeding such a sum as, with the costs, would amount to 5s." The chairman of the school board (Mr. Christopher Bushell, Mr. Alderman Hubback, and Mr. J. J. Stitt (members of the board) occupied seats at the solicitors' table.

Bremner (solicitor) said he had the honour to appear on behalf of the Liverpool School Board to support a summons taken out by their clerk under the Education Act 1870, which charged the defendant with the offence set forth in the summons. He was afraid he should have to trouble his worship at some greater length than was usual in the cases generally brought before him; but as it was essential that the Act of Parliament should be known, as well as the powers the board had under it to compel parents to send their children letting the public know what those powers were, to school, he thought he should be excused for The first thing to show was the constitution of the so that they might not plead ignorance of them. board. By the 31st section of the Act, a school board could be appointed by the requisition of the inhabitants, consisting of not fewer than five or more than fifteen members; and he would show that under the mayor's precept fifteen gentlemen, forming the school board, were duly elected. Mr.

the Act conferring powers upon the clerk of the Bremner then proceeded to refer to the sections of board to prosecute; the admissibility of minutes of which he read to show the powers the board as evidence; the passing of the bye-laws, several possessed under them to compel parents to send their children to school; and the mode of procedure to enforce the bye-laws. The school board, therefore, having made the neces sary inquiries to ascertain what children, not coming within the provisions of exemption, ought to be sent to school, proceeded to issue a number school, and amongst those summonses was one of summonses to parents to send their children to against the defendant, John Hodgson. They ordered a minute to be sent to him, and a notice was made out according to the schedule of the Act, signed by the clerk, requiring that the child should be sent to an elementary school. That notice was served upon the defendant on the 31st Oct., and it was read over and explained to him by Churchill, the officer appointed by the board to serve such notices. If his worship would look at the last paragraph of the notice he would see that if the defendant did not comply with the notice, and wished to give any explanation, he must attend a meeting of the school board on the 8th Nov. The board did hold a meeting pursuant to the notice, but the defendant did not attend; and not having attended to that notice, and not having sent his child to school, he had neglected to comply with the provisions of the bye-laws under the Act of Parliament. All the preliminaries had worship to put the law into force against the been complied with, and he (Bremner) asked his


The 11th bye-law enacted that any person for a breach of the bye-laws should forfeit 2s. 6d. ; therefore, the cost of the summons being 2s. 6d., the penalty would be 5s. Before sitting down, he would make one observation. This was the first proceeding of the sort taken in England, and he was desirous that his worship should give the authority of his adjudication in the case. It was most desirable and essential that the public should know that a school board had the undoubted power to compel parents to send their children to school unless they had a lawful excuse, and that it was not merely the half-crown and half-crown, but that the penalty of 5s. could be enforced weekly if they continued to offend.

Evidence having been given of the formation of the school board and the passing of the bye-laws,

Martin Churchill, notice server to the board, proved that he served the defendant with a notice, which he read over, and explained to him the effect of it.

The defendant said that at the bottom of the notice it was stated that any explanation he had to make was to be made to the officer. He was ignorant about attending the board meeting, and that had led him astray.

Joseph Hodgson, a little boy not quite ten years of age, said that he went to school when his mother was living, but she died about two years ago. He had been to school since, but not after his sister got married, about seven months ago, until last Monday.

A visitor of the school board stated that he saw the child at home on the 14th of November.

Bremner submitted, and Mr. RAFFLES Concurred, that it rested with the defendant to show that the boy came within the exceptions set forth in the Act-that the child was under efficient instruction; that he was prevented by sickness, or some unavoidable cause from sending the child to school; or that there was no elementary school

within a mile of his residence.

Mr. RAFFLES told the defendant that he thought the case had been clearly made out against him, but, being the first brought before him, he would impose only a nominal penalty. If, however, he

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