« EelmineJätka »
239 921 92!
sold for 3501.
speaking of something to take place after his debtor had carried on the business of a grocer in ESTATE AND INVESTMENT death, and that he intended this document to Tredegar, and one of his creditors, named Wil. operate as a will. liams, had recovered two judgments against him
JOURNAL. The COURT held that the words “I have given,” for debts, amounting together to about 261., in the were intended to refer to something which was to County Court at Chester, and two writs of fieri STOCK AND SHARE MARKETS. happen after the testator's death, and made the facias had been issued against him, directed to the grant. bailiff of the County Court of Monmouth. Subse.
The following are the fluctuations of the week. Solicitor: Penfold.
quently to the issue of the writs, but before levy, ENGLISH Funds. Fri. Sat. Mon, Tues Wed. Thu
the debtor' on the 7th Nov. filed a petition for the COURT FOR DIVORCE AND MATRIMONIAL liquidation of his affairs by arrangement or com- Bank of England Stock 240
239), 240 240
92 929 on the same day a receiver was appointed, who New 24 2 Cent. Ann...
3 7 Cent. Cons. Aan 92 92 921 92 923 Tuesday, Dec. 19. at once entered into possession of the debtor's
Do. do. Jan. 1894. (Before Lord PENZANCE, J.O.)
stock-in-trade, &c. An interim injunction was also New 3 Cent. Ann. 921 92 92 92 924 KEANE V. KEANE.
granted restraining the execution creditor from 5 Cent. Annuities Suit for restitution-No answer-Hearing without taking further proceedings. Later on the same 5 2 Cents. ¥ Jan. 1873 notice--Rehearing. day, however, and whilst the receiver was actually Ann. . 30 years
April 5, 1885 This was a husband's suit for restitution of con- in possession, the bailiff of the County Court
Do. exp. Jan, 5, 1880 jugal rights. The wife appeared, but put in no entered the premises, and claimed the property
Do. exp. July 1880 answer, and, there being no opposition at the under the judgments, declining to admit the Rad Sea Tele. Ann. 1908
923 924 921 92 927 92e hearing, the court made an order on her to return validity of the receiver's possession. On the 27th Consols, for Acc.. to cohabitation.
India 5 Cent. for Acc.
1104 1104 110 Dr. Spinks now moved to set aside the decree, on the 28th the first general meeting of creditors Do.5 7 Cent. July 1890 1103 1108
India Stock, July 1880 and to have a rehearing of the case, on the ground under the petition was held, at which the appel. India Stock, 1874
shut shut shut shut shut that the wife had had no notice that the suit was
lant Collins was appointed trustee, and a resolu- India 5 H Cent. about to be heard. He read an affidavit to the tion was passed to pay into court the sum of 451. to India 4 PC. Oct. 1888 1047 1043 1043 105 105
India 5 # Cent. 1870 effect thas it was owing to an oversight that her cover the amount of the two debts, and costs to
India Bonds (10001.)... attorney had not filed an answer on her behalf, abide the result of the present appeal.
Do. (under 10001.)
218.a alleging her husband's cruelty as a reason for not authority of Ex parte Duignan, re Bissell (L. Rep. Bagley, for the trustee, contended that on the
Ex. Bills, 10001. returning to cohabitation.
23.a 25.4 Tathom, for the husband, contra.—The suit was 6 Ch. 605 ; 25 L. T. Rep. N. S. 286) that the trustee
Do. 1001. and 2001. practically undefended, and it was the practice of was clearly entitled to the property in question
2s.al 28.6 the court to take undefended suits at any conveni inasmuch as it had been taken possession of by the Metropolitan Board of
Works 3: PC. Stock.' 967 963 ent time, on application being made, without receiver before any claim had been made on benotice. Moreover, her affidavits do not disclose a half of the execution creditor.
1 Premium. 228. to 258. Premium. cx. d. for Account. case of legal cruelty. F. Knight appeared for the execution creditor.
d 208. to 228. Premium. The Court.—Though a suit may be unde- He contended that immediately upon the order fended, the respondent may be heard on the ques being pronounced by the judge of the Chester
REPORTS OF SALES. tion of costs. Therefore, she had some rights at County Court the goods were ipso facto vested in (Nore. -The reports of the Estate Exchange are officially the hearing, and ought to have notice. She might the execution creditor.
supplied in the following list. Auctioneers whose names now file a petition for judicial separation; and the
The CHIEF JUDGE said that the only new point are registered there will oblige by reports of their own
Bales.) best plan for both parties will be to reverse the in the case was, whether the goods were really so decree, and allow the wife to answer the husband's bound by the order directed to the sheriff as to
Thursday, Dec. 14. petition within a fortnight.
preclude the rights of the receiver to take posses. By Messrs. WINSTANLEY and HORWOOD, at the Mart.
sion of them. His Lordship expressed his opinion Aldersgate-street. Nos. 137 and 138, freehold--sold for 28001. SANDERSON V. SANDERSON. that the fact of the actual possession by the re
Bucks, Little Brickhill. Three cottages, freehold-sold for Suit for dissolution-Wife pleaded cruelty-Par- creditor, was sufficient to establish the claim of A plot of freehold land, la. Or. 8jp.-sold for soul.
ceiver being prior to the seizure of the execution Two cottages and a plot of land, freehold -sold for 501. ticulars of cruelty ordered to be expunged because the trustee. The order must therefore be dis
By Messrs. C. C. and T. MOORE. they did not correspond with the original charge. charged, and the appellant would be entitled to Stepney. Nos. 1, 2, and 3, Edward-street, term 35 years The husband sued for a dissolution of his mar
the 451. deposited. riage on the ground of his wife's adultery. The
Mile-end. Nos. 6 and 11, Henry-street, and No. 7, Alfredwife in answer charged her husband with adultery, agents for Williams and Co., Newport.
Solicitors for the appellant, Stocken and Jupp, street, term 16 years--sold for 18.
Commercial-road. No. 1, Hardinge-street, freehold-sold for and also made a general charge of cruelty. She Solicitors for the respondent, Doyle and Edwards. No.3, the Crown and Anchor beerhonse, freehold-sold for was ordered to give particulars, which she did in May 1871, and in Nov. 1871 she filed further par.
No. 51, Greenfield-street, frechold-sold for 4501. ticulars which did not correspond either with the
No. 52, adjoining-sold for 3331. original charge or the first particulars.
LEGISLATION AND JURIS- Nos 14 and 45, St. George's-in-the-East, freehold-sold for 6. Browne, for the husband, moved to expunge
St. Luke's. No.1, Shrewsbury-court, freehold-sold for 160Z the further particulars, on the ground that they
By Mr. H. E. MARSH, at Guildhall Tavern. virtually amounted to new charges.
PRIVATE BILLS FOR SESSION 1871-72. Bexley. Halfway-street, Woodbine Cottage and two acres Gould, for the wife, opposed, and asked that PROMOTERS of private Bills have this year been
of land, freehold--sold for 8101. the applicatian might stand over to enable her to required to lcdge the petitions and copies of amend her petition by adding these new charges.
The COURT.— These further particulars must be the Bills at the Private Bills Office of the House expụnged because they clearly do not relate to the of Commons by the 21st, as determined by the SOLICITORS' JOURNAL. original charges. That will not prevent the re
standing orders of Parliament. The date in former spondent from applying to amend her answer, deposit of the petitions, copies of the Bills should years has usually been the 23rd. Prior to the
NOTES OF NEW DECISIONS. though I do not say she will succeed, because
ATTACHMENT.-A motion for a rule for an cruelty is a charge which, in the nature of things, be lodged
at the office of the Clerk of the Parlia-attachment
cannot be made upon the last
day of ments. This year there have been
303 Bills lodged, term : (Ex parte Sutton ; Re an Attorney (25 L. T. must always be known to the wife. Solicitor for the petitioner, R. W. Roberts.
against 275 last year. The numbers have been Solicitor for the respondent, D: W. Pearse.
gradually increasing since 1869, but are still far Rep. N. S. 572. Ex.)
PRACTICE-EXAMINATION UNDER SECT. 115
OF THE COMPANIES' ACT 1862--SPECIAL Ex212; in 1870 there were 240 ; and last year, for AMINER.-A person between whom and the comPractice--Application to read affidavits taken in 1871, there were, as stated, 275 Bills. The number pany no proceedings are pending is bound to go
Chancery as evidence in a suit for divorce of sets of plans lodged up to the 30th Nov. last before the examiner appointed to take the exami. refused.
was 270, which is much in excess of the propor. nation and cross-examination of witnesses in the This was a husband's suit to obtain a declaration tion for earlier years as compared with Bills; winding-up, although he may conceive that such of nullity of his marriage on the ground that the there were, for instance, 497 sets of plans and examination is required for the purpose of afterrespondent at the time of her intermarrying with books of reference sent in for the 633 Bills of 1866. wards taking proceedings against him : (Re Conhim was already married to Alexandre Victor, This discrepancy is caused through the plans for tract Corporation (Limited), Hawkins's case, 25 who was still alive. The petitioner sued in formá schemes for
which provisioral orders are sought L. T. Rep. N. S. 552. M.R.) pauperis, and the court had directed the case to being included, latterly, with the plans lodged in
DOMICIL- REAL AND PERSONAL ESTATEbe tried by a special jury.
connection with private Bills. Plans and books of ELECTION.-In order to establish a change of a Searle now moved, on the ground of saving of reference are only deposited in connection with person's domicile it must be shown that an inexpense, that certain affidavits taken in a suit in Bills in cases where works have to be constructed tention to settle in a new country as a permanent Chancery, entitled Lumley v. Desborough, might or property acquired. The excess of Bills over home actually existed in his mind, or was made be read as evidence in this cause.
sets of plans is made up of amalgamation, exten- reasonably certain that it would have been formed Dr. Tristram, contra, for the respondent.
sion of time, money arrangements, estate, and or expressed if the question had arisen in a form The Court.-I have no power to make any such other Bills, not requiring the construction of requiring a deliberate or solemn determination. If order, and the motion must be refused.
works. The most important of the projects for the intention existed, or was sufficiently carried Solicitor for petitioner, Daniel.
which Gazeite and other notices were pnblished into effect, certain legal consequences follow from Solicitor for respondent, Lewis and Lewis.
are among the Bills deposited. They include the it, whether such consequences were intended or
London and North-Western and Lancashire and not, and, perhaps, even though the person in quesCOURT OF BANKRUPTCY.
Yorkshire Railway Companies' Amalgamation Bill; tion may have intended the exact contrary. The Monday, Dec. 18.
the Midland and Glasgow and South-Western widow of a domiciled Scotchman filed a bill assert(Before the CHIEF JUDGE.)
Railway Companies' Amalgamation Bill; the Mid. ing her right, by the law of Scotland, to elect
London Railway Bill; the South Midland Railway between certain benefits given to her by her husEx parte COLLINS; Re Davis.
Bill; the Great Northern Bills, for powers to band's will on the one hand, and one-third of his Title of trustee—Relation back to act of bankruptcy extend their system into Derbyshire and Stafford- movables and her terce in his heritable estate on -Execution creditors-Rights of.
shire, and the Midland Bills, in retaliation, for the other, and praying that the court would give This was an appeal by the trustee ander a liqui. powers (inter
alia) of extension to Doncaster; the her the means of making such an election by dation from an order made by the Registrar of Manchester, Sheffield, and Lincolnshire Company ascertaining the value of the objects between the County Court of Monmouthshire, dissolving also propose to make a line from Worksop to which it was to be made. A devisee of the tusan injunction, and directing the bailiff of the court Doncaster. There are three Severn Bridge Rail. tator's real estate, who was also one of the to sell certain household furniture and stock.in. way Bills, a Severn Tunnel Bill, and Bills for two executors, ha ed a cross bill for the administrade belonging to the debtor, to satisfy two other projects for crossing the Severn by high. tration of the personalty. Held, that the court judgment debts recorered against him. The level bridges.
had jurisdiction to direct such an inqniry as might
THE LAW TIMES.
Dec. 23, 1871.)
be necessary to guide the widow in exercising her estate to reimburse him for his loss. In 1867 A.
even be swept away altogether. But, to this right of election, and, as far as possible, to give died; and in a suit instituted by B. against the proposition (which being extra-judicial it was effect to it: (Douglas v. Douglas, 25 L. T. Rep. company and A.'s assignee to recover out of the deemed unnecessary to report), we can only N. S. 530. V.C. W.)
balance due to A.'s assignee in respect of the two assent, sub modo. As the learned judge assigned INTESTACY LUNATIC PAUPER GRANT TO subsisting policies the amount which B. had paid no reasons for the view he advanced, we shall GUARDIANS AS CREDITORS-12 & 13 VICT. C. 103, as sarety : Held, that B. was entitled to have the define the more at large those which actoate the s. 16–PRACTICE.-A pauper lunatic died intes securities marshalled, and to be paid the whole opinion that we entertain. tate in the possession of a sum of 4401., leaving a amount of his loss by the company, before any. The mischief that the Legislature contemlunatic sister his sole next of kin. The court (having thing was paid to A.'s assignee in respect of either plated to counteract, was the bringing of not previously refused a similar application), now, on policy; and further that the payment made by frivolous, but primâ focie unfounded actions, by the authority of the 12 & 13 Vict. c. 103, s. 16, A.'s wife out of her separate estate did not affect parties resident without the jurisdiction, whose granted administration for the use and benefit of B.'s rights as against A.'s assignee: (Heyman v. persons were beyond the reach of the process of the lunatic sister, during her lunacy, to the board Dubois, 25 L. T. Rep. N. S. 558. V.C. B.)
arrest for costs. For our contention, it imports of guardians of the union to which the deceased
WILL ESTATES TAIL was chargeable, as creditors of the deceased : (In Trusts For Issue-REMOTENESS-DEMURRER, property within the jurisdiction : (Hickman v.
CHARGE — TERM us to impress that it would, therefore, be no
answer to say, that the plaintiff was possessed of the Goods of Sharland, 25 L. T. Rep. N. S. 574. --The trusts of a term limited previous to an Prob.) TESTAMENTARY SUIT-ATTESTATION-SIGNAestate tail, and operative subsequently, are invalid Forde,
8 Ir. Jur. N. S. 133; Nagle v. Power, 1 Jones
420. It was competent to him, notwithstanding as tending to a perpetuity. Where, therefore, a TURE AS WITNESS OR EXECUTOR.-A will was testator devised certain estates to his eldest son
the statute 10th Car. 1, 2, 3, to defeat the execusigned in the testator's presence. Opposite the with remainder to trustees for a term of 500 years bankruptcy or insolvency might supervene, or the attested by, three witnesses, of whom two only R. for life with remainder to the eldest son of R., tion creditor by an intermediate disposition of his
goods (Byrne on Bills of Sale, 2nd edit., 57); name of the first was written the word " execn.
upon the trusts thereinafter expressed concerning intervention of an adverse creditor might despoil tor,” opposite the last, "witness." The court the same, and from and after the end or sooner held, that the first witness might have signed not determination of the said term, and in the mean
the suitor of the fruition of success. In defaalt, but also as attesting the testator's signature, and other sons successively of the said R., the grandonly as approving his appointment as executor, time subject to the trusts thereof
to the first and therefore, of the
remedy by imprisonment, security
for costs became a necessary protection. Now granted probate of the will : (Griffiths v. Griffiths, son of the testator, in tail male, with remainders
we concede that, in the words of Willes, C.J., 25 L. T. Rep. N. S. 574. Prob.) to the second and other sons successively of the said
“when the nature of things charges, the rules of TESTAMENTARY SUIT – AMBIGUIITY. IN DE- R., the son of the testator, in tail male, with remain-law, must change also ;” but is there, anything, SCRIPTION OF EXECUTOR
Parol EVIDENCE der to the testator's son N. for life, with remainders in the tenor of current legislation or otherwise, so ADMITTED: A testator, whose will was written to the first and other sons successively of the said to affect the principle
on which the requirement
of for him by the vicar of the parish, nominated N., in tail male, with remainder over, and declared security for costs is bottomed? The 33 & 34 Vict. • my son Forster Charter" as his executor. He the trusts of the said term to be that in case any versant, not with unfounded, but with frivolous
c. 109, conduces to no such conclusion. It is conhad only two sons, “William Forster Charter"
one or more of his younger sons or their respecprevious decision : Held, that the testator had by virtue of the limitations aforesaid of the said in connexion with our
subject, on the analogous and Charles Charter", The court, confirming a tive issue should become seised in possession and speculative actions, and its operation is cir.
cumscribed in other particulars. Commenting, not described either of his sons with reasonable hereditaments, the trustees should raise a sum accuracy, and admitted parol evidence to show of 50001., and pay the same to such of the testa provisions of the English statute, Bovill. C. J. which he meant: (Charter v. Charter, 25 L. T. tor's
sons (except such son as should be seised in observes : “ In many cases, no doubt, the inability Rep. N. S. 575. Prob.) ING PROCEEDINGS IN CHANCERY.—Where a rule filed by persons interested in the above charge, Indeed the attention of the Legislature was called RULE NISI – ENLARGING GENERALLY PEND. possession) as should be then living, or their of an unsuccossful litigant to pay costs to his issue if dead: Held, upon a demurrer' to a bill successful adversary works hardships; but it is for
the Legislature to provide a remedy, not for us. nisi had been granted to set aside an award involv. against the great grandson of N., who had become to the subject at the time of the passing of the last ing certain accounts, and before it came on for seised in possession under the above limitation, argument cross bills had been filed in Chancery by and praying that the trusts of the term might be County Court Act (30 & 31 Vict. c. 142.). The each party for the taking of the accounts, this court, carried into execution, that the
charge was void 10th section of that Act, however, does not prewith the consent of the parties, enlarged the rule for remoteness. Ouse v. Drosier, 2 Keen, 764; on
clude the plaintiff from enforcing his remedy if he generally until the first term after the chief clerk's appeal, 5 Myl. & Cr. 246, followed: (Sykes v.
fails to give security; it merely changes the certificate had become final: (Stafford v. Stafford, Sykes, 25 L. I. Rep. N. S. 560. V.C. W.)
tribunal :” (Sykes v. Sykes, L. Rep. 4 C. P. 647.) 25 L. T. Rep. Rep. N. S. 572. Ex.)
No equivalent is substituted for the rule absolute LUNATIC PAST MAINTENANCE CLAIMS
for security; and, in remitted actions, there is PRIORITY.-Under the trusts of the will of a testa. SECURITY FOR COSTS BY PLAINTIFFS also the disadvantage, in respect of the recovery of tor who died in 1861, C., a person of unsound WITHOUT THE JURISDICTION.
costs, arising by reason of the Judgments’ Extenmind, but not found lunatic by inquisition, was
sion Act, 1868, not applying to the adjudications entitled to a reversionary interest which fell into
(From The Irish Law Times.)
of the Courts of Quarter Sessions. Moreover, possession in 1870, and which constituted C.'s Not without inducement the most coercive, should defendants in actions, by plaintiff's out of the whole property, and which the testator directed a restraint be imposed upon the common law jurisdiction, would find considerable difficulty in to be paid to C.'s brothers, recommending them to right of redress for an actionable griovance. availing themselves of the statute, since it has apply the bequest for her benefit, at such times Such a restraint, yet with an adequate raison been decided that, where remitting such an action and in such manner as to them might seem most d'etre, was prescribed by the enactment that to a remote civil bill district would be productive for her interest. From 1838 to 1859, when she enables a defendant to preclude a plaintiff, resi. of inconvenience to a plaintiff residing abroad, the was admitted as a pauper patient to Colney dent out of the jurisdiction, from enforcing his action will not be remitted : (Hall v. Millar, Hatch Asylum, C.'s brothers had paid, for her claims, unless upon the condition of giving security 5 Ir. L. T. Rep. 28.) For these considerations we maintenance in a private asylum, a sum ex. for costs. The alternative is one not always submit, that the 33 & 34 Vict. c. 109, presents no ceeding the value of her whole property : Held, feasibly complied with, and, in many instances, reason why a defendant should be debarred from that c.'s brothers were entitled to the whole pro- the rule operates as a practical denial of justice. obtaining security for costs in the Superior Courts. perty, on their undertaking to maintain C. during It is, indeed, notorious that bona fide actions for There remains then the 31 & 32 Vict. c. 54, a the rest of her life, notwithstanding a claim by limited demands are frequently relinquished, that statute to which our judges, notwithstanding the the treasurer of the county of Middlesex for her the transactions of trade are contracted, and that example of the English Bench, have hitherto maintenance in Colney Hatch Asylum : (Re Gibs the credit dealings of English and Scotch mer remissly omitted to give practical effect, by sont, 25 L. T. Rep. N. S. 551. L. JJ.)
chants and manufacturers with shopkeepers in framing the requisite rules. By virtue of this Act, CONSTRUCTION OF WILL-PRECATORY TRUST this country are restricted, by reason of the ob- judgments, whether obtained in England, Scot-SPECIAL CASE-FUTURE RIGHTS.–The court struction so occasioned. Nevertheless, in the land, or Ireland, are rendered respectively will not, on a special case, make any declaration words of Lord Loughborough, “if there is a effectual in each country ; so that execution may of future rights. A testator gave, devised, and general hardship affecting a general class of cases, be levied for costs on an Irish judgment, either in bequeathed all his real and personal estate and it is a consideration for the Legislature, not for á England or Scotland. It is not generally known effects whatsoever • unto and to the absolute use court of justice ;” and, accordingly, our judges that the English practice is, now, not to require of my dear wife H. S., her heirs, executors, have been constrained to administer, however security from Scotch or Irish plaintiffs, that pracadministrators, and assigns, in full confidence reluctantly, the law in its allotted scope, whilst, tice having been settled by the case of Bell v. Tenthat she will do what is right as to the absolute recognising its objectionable tendency, they have nant (circa, July 19, 1871), unappealed from, in disposal thereof between my children, either in her been astute in establishing exceptions and in which Master Gordon so decided, holding that, by lifetime or by her will after her decease.” The defining special requirements. The Court of Ex- force of this statute, all necessity for security had construction of this gift was submitted to the chequer, indeed, by exacting affidavits of merits ceased. As that case is not reported, we shall merely court by all the benficiaries, and a declaration was indicative in detail of the nature of the discuss the given ratio deciilendi. We submit asked as to the respective rights of the testator's alleged defence, has compassed as much as conld that the exigency of security for costs, with eswidow and children. The widow was in possession be accomplished by but a single court to pecial regard to this country, has not abated, by of the property which formed the subject of the mitigate the obstructiveness of the rule. Re. reason of this statute, for the considerations fol. gift, and all the children were sui juris. The cently, in the Queen's Bench, the Lord Chief lowing : That the statute cannot affect the caso court, under the above circumstances, refused to Justice observed that the Legislature appa- of plaintiffs resident abroad, elsewhere than in make any further declaration than that the widow fently thought the forcing a man to give secu- England or Scotland. That it has been considered was lawfully in possession, and made no order as rity for costs a considerable nuisance, because (whether rightly or otherwise) only to apply to to costs : (Smith v. Gibson, 25 L. T. Rep. N. S. they carefully guarded it with the proviso that the judgments formally marked, and not to interlo559. V.C. B.)
defendant, before obtaining an order to that cutory orders for payments of costs (Gurod v. PRINCIPAL AND SURETY-CONSOLIDATION OF effect, should be put to make a satisfactory Halliday, 4 Ir. L. T. 551 ; vide passim, Tupper v. MORTGAGES MARSHALLING SECURITIES.-In affidavit of merits. This proviso is, notwithstand. Dawson, 7 Ir. Jur., N.S., 325), and that as it only 1863 A. effected a policy of assurance on his own ing, practically nullified by the use of the stereo- regards judgments for “debt, damages, or costs, life for 2000., which he mortgaged to the assu- typed forms that still suffice to satisfy the Courts it may be deemed inapplicable to judgments in rance company to secure 10001., and shortly after- of Queen's Bench and Common Pleas. We would detinue, ejectment, &c., though this may only wards he effected a second policy for 10001., which respectfully submit that a uniformity of practice affect plaintiffs. That the Act does not in terms he mortgaged to the company to secure 5001. In in this behalf, adopting that of the Exchequer, repeal the previous enactment, although expressly 1865 he again mortgaged the first-mentioned policy which best accords with the spirit of the Act, providing that security shall not be necessary (together with a further policy which was after would be eminently expedient, and, at this junc- unless on special grounds otherwise ordered, in wards forfeited) to the company to secure 15001., ture, peculiarly opportune. Indeed, in Ashuorth any proceeding on the certificate ; Bo, by tacit imand B. became his gurety for the repayment of v. White (5 Ir. L. T. Rep. 189), in which case plication, reserving the power of ordering security the last-mentioned advance. In 1865 A. became testimony is borne to the authority and accuracy in the original action. That the power of arrest bankrupt, and the company recovered judgment of our reports). Fitzgerald, J. incidently de- for debt still subsists in Ireland, while since it is for 15001, and costs in an action against the surety clared that the time would appear to have not co-extensive in England, a defendant is yet B. B. had paid 10001. under this judgment, and arrived when the practice of obliging a party unable to enforce a process there, which he might A.'s wife had paid to B. 4501. out of her separate resident abroad to give security for costs, should'exert against a plaintiff resident here-this being,
as we have evinced, the very rationale of the rule under which his wife had left his house, and the Knight Bruce, V.C., in this case also, seemed to for security; and, as it would be go answer to charge she had made against him; and adding, regard the mother's right
as dependent upon her show that the plaintiff is possessed of property that although she well know the charge to be en being justified in living apart from her husband; here, so neither, for similar reasons, does it tirely, devoid of foundation, she persisted in for he says there : "I should have thought it right suffice to say that his property abroad is now refusing to retract it. On the 5th Feb.
1839, the now to make an order relating
to the custody of available. Therefore it is, that we but accede to allegation was rejected by the
court. Mr. Taylor the infant, without directing the petition again to the position of Fitzgerald, J., sub modo. With appealed to the Arches Court, where the judg. stand over, had there appeared to me to be a proLord Kenyon, we confess that we “do not think ment of the Consistory Court, was affirmed on the bability of the mother's success in the ecclethat the courts ought to change the law, so as to 20th June 1839. He then appealed to the Judicial siastical suit, that is to say, in establishing that adapt it to the fashion of the times; if an alteration Committee of the Privy Council, pending which she is justified in living apart from her husband." in the law be necessary, recourse must be had to appeal the petition came on to be heard. At the The husband had instituted a suit for the restitu. the Legislature for it." Imprimis, there needs time of the presentation of the petition, there tion of conjugal rights, and the case had stood such recourse, and the occasion for it has were living five children of the marriage, two of over for the purpose of enabling counsel from the arrived, in respect of the modifications sug. whom were more than seven years old, but the Ecclesiastical Court to argue the case upon the gested by these remarks. Already on the other three were under that age, the youngest validity of the mother's defence to that suit: at promised eve of emancipation from the law of having been born on the 23rd May 1837. The the close of which argument the learned Vice. imprisonment from debt, it may be said, “locks, prayer of the petition appears to have been, that Chancellor made the observations above quoted. bolts, and bars now fly asunder.” The consumma- Mrs. Taylor might have access to her children.
In Warde v. Warde (2 Phill. 786), the wife ob. tion remains. But not until these changes shall For the petitioner, Mrs. Taylor, it was contended tained a decree a mensa et thoro, and the order have come to pass can we hold that the period will that the intention of the Act was to create a right was made on her petition. Lord Cottenham have indeed have accrued when the power to en. in the mother to which the court should give has there enunciated his opinion of the object of force security for costs, in restraint though it be effect in all cases of separation between husband the Act. He says: “I must say something with of the plaintiff's common law right of procedure, and wife where the wife had not been guilty of regard to the position of the children under the should be superseded, cessante ratione legis cessat criminal conduct : that the clanse in the Act late Act of Parliament, as to the construction of ipsa lex.
pointing out the criminality of the mother as the which, and the object with which it was introonly cause which should exclude her from the duced, some very erroneous notions appear to
benefit of the Act, distinctly recognised her exist. 'The object of the Act, and of the promoters THE STAMP ACT.
general right in cases where no criminality, could of it, and that which I think appears upon the A CORRESPONDENT of the Times writes: -“I be imputed; that the Act created a positive right of face of the Act itself, was to protect mothers entered into a deed of covenant to take a clerk access in the mother, which the court could not from the tyranny of those husbands who ill-used into my service at a yearly salary, with power to deprive her of ; that the court was merely the them.
Unfortunately, as the law stood before, either party to determine the engagement on giving instrument appointed by the Legislature to put however much a woman might have been injured, three months' notice. It was stamped with 108. her in possession of her right that it was the she was precluded from seeking justice from her for duty, being the sum payable
on deeds in gene- right of every innocent mother living in a state of husband, by the terror of that power which the ral. On presenting it with the duplicate for a separation from her husband ; and that the dis- law gave to him, of taking her children from her. denoting stamp on the latter, to show the higher cretion of the court was to determine the manner That was felt to be so great a hardship and in. duty had been paid on the original, I was informed only in which the right was to be enjoyed, not to justice, that Parliament thought the mother ought by the authorities that the principal ins ent take it away; that the interest of the children to have the protection of the law with respect to required a stamp equal to 23. 6d. for every 51. of
was the only consideration which could be her children up to a certain age, and that she the yearly salary-fractions counting as 5l.
It allowed to interfere with the mother's right should be at liberty to assert her rights as a wife appears the authority for this is the following The Vice-Chancellor of England, however, was
without the risk of any injury being done to her clause in the Stamp Act:
in that case of opinion that the jurisdiction given feelings as a mother. That was the object with " Covenant or instrument of any kind whatso- by the Act was to be exercised solely in the dis- / which the Act was introduced,
and that is the cretion of the court; and that pending the ques. construction to be put upon it. It gives the court "1. Being the only, or principal, or primary tion in the Ecclesiastical Court, it would not be the power of interfering, and when the court sees security for any annuity (except upon the original right for the court to say that Mrs. Taylor was that the material feelings are tortured for the pur. creation thereof by way of sale or security), or of entitled to have access to her children. More pose of obtaining anything like an unjust advan. any sum or sums of money at stated periods not over, he was of opinion that the fact of her tage over the mother, that is precisely the case being interest for any principal sum secured by a having, without cause, removed herself from her in which it would be called upon and onght to duly stamped instrument, nor rent reserved by a husband, was a sufficient reason why the court
interfere." lease or tack. should not exercise the jurisdiction of ordering
Re Halliday, Ex parte Woodward (17 Jur. 56), “For a definite period, so that the total amount any access. Accordingly, no order was made on
came before Turner, V.C., 1852. That was the to be ultimately payable can be ascertained—the the petition.
case of a petition under the Act, presented by the same ad valorem duty as a bond or covenant for Re Bartlett (2 Col. 661), was an application mother, praying for the custody of her infant such total amount.
under the Act, praying the delivery to the child, four years of age. “For the term of life or any other indefinite mother of two of her children, a boy and a girl husband and wife had lived happily enough
It appeared that the period,- for every 51., and also for any fractional under seven years of age, the girl being only two together until about a year previously, when a part of 51.
, of the annuity or sum periodically pay- years of age, and that she might have access to legacy of 5401. had been left to the wife, which, it able, 2s.6d."
her other children, four in number. It appeared "I will put a case. If I engage a person to that the wife's family had brought about an dissipation. The money being all gone, and his
was alleged the husband had since squandered in manage my business at a yearly salary of 1001., I unhappy state of existence between the husband wife becoming chargeable to the parish, he was or he must pay for stamping the deed creating and wife ; that on one occasion he had separated taken up for deserting his wife, convicted, and the service 101. If he should not be equal to my himself form her, and on returning to his house sentenced to six months' imprisonment. Shortly expectation (which I could not ascertain until struck her ; that he had been bound over to keep after coming out
of prison, he made his way, in after trial), and the service were determined, I the peace towards her; and that he had, both in the absence of his wife, to the lodgings where she must submit to a similar charge on taking his words and in writing, expressed himself towards successor, and so from time to time. her in a very violent and offensive manner. In
was living and maintaining herself by going out as " In large establishments, if such instruments giving judgment, the Vice-Chancellor held that fused to state what had become of it, except
a laundress, and took away their child. He rewere, as a rule, stamped, the yearly payment the statute did not, as a condition of the interfer. that it was at board in Essex. By the affidavits would amount to a very considerable sum, and ence of the court, require that the wife should have filed in the matter, each accused the other of although a house of large business might be its obtained, or should be entitled to obtain, a divorce habitual drunkenness, fand in addition the wife own insurer against penalties by omitting to a mensâ et thoro. "This,” he said, “is a case in accused the husband of adultery. In relastamp any agreement until it be actually tendered which the husband and wife are living apart from tion to the Act and its object, the Vicein evidence, and then paying the duty and penalty, each other” (her brothers having removed her Chancellor says: “It will necessarily be impora clerk or head of a small establishment must from his house), her husband appearing to wish, tant, in the first place, to look at the principles submit to pay the impost at once, or run the risk and the wife objecting to, a reunion.” He says upon which the Act proceeds. When this Act of having to pay, in addition to the duty, the also, “That she is clearly legally justified in living
came into operation, it was the undoubted law of penalty of 101. or 111., as the case may be, in the apart from him, it would be imprudent for me, the country that the father is entitled to the sole event of proceedings being necessary to enforce upon the evidence before me at present, to say: custody of his infant children, controllable only the terms of the agreement.
but if she is not so, that she is not without excuse, by this court (the Court of Chancery) in cases of “This seems a great hardship, and I submit that not without apology, may, I think, be safely gross misconduct. With this right the Act does the Legislature did not intend to treat the salary stated.” He accordingly made an order for the not, as I understand it, interfere, so far as to have of a clerk or servant as an annuity granted for delivery to the mother of her youngest child (two destroyed the right; but it introduces new elesome pecuniary or special consideration."
years of age), Mrs. Bartlett's two brothers under ments and considerations under which that right taking for the proper care, maintenance and is to be exercised. The Act proceeds upon three
education of the child while in her custody. The THE CUSTODY OF CHILDREN.
grounds : First, it assumes and proceeds upon order also made provision for her having access The following summary of cases is by Judge to the other children, and for access for the father connects the paternal right with the marital
the existence of the paternal right ; secondly, it Gwynne, of Ontario :
to the youngest child so removed into the custody duty, and imposes the marital duty as the condi. In Re Tayor (11 Sim. 178), which was one of the of the mother; and it was ordered that this child tion of recognising the paternal right; thirdly, first cases that arose under the English Act (2 & 3 should not be removed from the house of Mrs. the Act regards the interest of the child. These Vict. c. 54), it appeared that on Oct. 20, 1837, Mrs. Bartlett's brothers without the leave of the court. three grounds, then-the paternal right, the Taylor left her husband's house, alleging, in justi.
Re Fynn (2 De G. & Sm. 457) was not a petition marital duty, and the interest of the child—are to fication of that step, a charge of adultery, which under the Act, and no order was made upon be kept in mind in deciding any case under this she then preferred against him, upon grounds of the petition for the want of a sufficient pro- statute." He then cites Warde v. Warde in conwhich she afterwards admitted the entire insuffi- vision being made for the care, maintenance, and firmation of his view, and says: "I think there is ciency, and which were, in fact, wholly without education of the child, if the father should be
a very great difficulty in calling on the court to foundation. Overtures for a reconciliation were deprived of his common law right of possession restrain a man in the exercise of his legal right. immediately made by Mr. Taylor, and various and control of his children. In that case, however,
There are, however, two grounds on which negotiations followed; but Mrs. Taylor, by the the facts were such as seemed to justify the wife the court has jurisdiction under the Act-viz., advice of her friends, refused to return home. in living apart from her husband, for Knight breach of marital duty, and the interest of the Circumstances occurred which convinced Mr. Bruce, V.C. says: “I am not persuaded, however, child. That the husband did desert his wife preTaylor that his wife's affections were alienated, that she has not a good defence to the pending viously to May 1851, he does not deny ; but he and that no bona fide reconciliation could be ex.
suit, if there is one pending, or to any suit against justifies the desertion as necessary. It is, there: pected ; and he went to reside in France. After her for restitution of conjugal rights.”
fore, incumbent upon me to look into the conduct wards, in July 1838, Mrs. Taylor instituted a suit In Re Tomlinson (3 De G. & Sm. 371), no order of the wife. The charge against her is that of in the Consistory Court of London for restitution was made, for a reconciliation took place while the habitual drunkenness." The Vice-Chancellor, upon of conjugal rights. To this suit Mr. Taylor put petition stood over to enable the wife (the peti. the evidence, came to the conclusion that this in an allegation in bar, stating the circumstances' tioner) to answer the affidavit filed by the husband.' charge was not proved; and, referring to the
conduct of her husband taking away her sequence is, that they are not separated from the BOVILL, C. J.-If persons are called to prove child from his wife's lodgings, and to the matrimonial tie; but it could not, as I appre loss of memory, as many might be called on the fact that he did not even inform the court where hend, be with any great hope of success sug. other side to prove the contrary. the child was, except that it was at board gested, that the lady is in a position to institute
The Attorney-General.-It would involve an in Essex, he proceeds: "Is it, or is it not, in any suit for restitution of conjugal rights. inquiry into the whole life, antecedents, and contravention of the marital duty, which the Act Nothing of the kind is suggested, and they must physical and moral health of all such witnesses. has placed in competition with the paternal right, for the present remain apart.' And again : BOVILL, C.J.-500 or 5,000,000 persons might that the husband should thus take away his “But further, I have had to consider most be called. children and keep them, without any communica- seriously how far it would help her for me to
Giffard maintained that evidence proving the tion with the mother as to the mode, or place, or interfere at all with the father's directions in a circumstances of their maintenance ? The natural case circumstanced like the present.. In the The proposition he was combating was that a
retention of memory would be wholly irrelevant. right must be held to have been modified by the first place it is not clearly a case in which,
person could not have entirely lost his language Act, and the same opportunities must now be according to Lord Cottenham's view, the court during the period spoken of by the plaintiff. The given to the mother as to the father, of communi. is called upon for any interference whatever.
I will show it has happened to cating with the offspring. Then there is to be It is not a case in which, to use Lord Cotten. A. B." He was not contending that this was the considered the question of access only, or of ham's
expression, the mother requires protection ordinary state of things, but simply that it was custody of the child; and that depends upon what from the tyranny of her husband.
possible. is most for the interest of the child in the position Our Act, Con. Stat. U. C. c. 74, s. 8, is identical
BoviLL, C.J.-It is possible, of course. It is a of the parties.” And finally, he says: “But I with the Imperial Statute, 2 & 3 Vict. c. 54, with well known fact that the memory, like everything shall decide, if possible, rather in favour of the the exception that in our Act the age of twelve else, may be lost. paternal right than against it; and I therefore years is substituted for seven years, and that the Giffard.— I mean possible with regard to the give now an option to the father to place his jurisdiction which the English Act confers on the subject matter we are discussing, possible to have child to be taken care of where the mother can Lord Chancellor and Master of the Rolls is by lost a language and yet to have remembered other have access to it, and soe that it is properly at- our Act conferred upon the Superior Courts of circumstances and facts with which he was tended to, so that she may have the benefit in law and equity, or any judge of any of such courts. familiar. If there was any eminent writer whom tended by the Act. Unless it be shown by From all of the above cases (the learned judge I could call, luce clarius, his evidence would be affidavit on the next seal day that this has been said) the true principle to be collected, I think, receivable ; but the science not having yet ad. done, I shall direct the child to be delivered over is, that the court or a judge, in the exercise of the vanced to this extent, we are entitled to prove to the mother."
discretion conferred by the Act, is bound to re- facts from which the jury may infer the possibility In Shillito v. Collett (8 W. R. 683) the appli- cognise the commun law right of the father, and for which we contend. Suppose, before astronomy cation was made by the mother against the should not assume to impair or interfere with had reached its present state, a person had said he testamentary guardians of the children, ap. that rigặt, so long as the father fails not in the had see the sun on one occasion eclipsed at noon, pointed by her husband's will, for the custody of due discharge of his marital duties. In order to and suppose it was urged that he was saying what three children, all under seven years of age. The induce the court to interfere on behalf of the wife, was untrue because such a thing could not have observations of Kindersley, V. C., in that case, she should satisfy the court that the separation, happened, would it not have been reasonable are to be taken as applying to the particular cir? if the act of the husband, is in disregard of his and cogent evidence to call other persons who cumstances of that case, which from its nature marital duties, that is, without sufficient cause had witnessed the same phenomenon on other occaraised no question
arising out of the fact of a hus. being given by the wife ; or, if the act of the wife, sions ? This, it is true, is a collateral issue, but band and trife living apart. The stress which he that, although she may not have cause sufficient every collateral issue is not ipso facto excluded. lays upon the interest of the children being the to entitle her to a decree for judicial separation, If it is relevant to the matter in hand it may be point to decide the case, must be limited to the she has reasonable excuse for leaving her husband investigated, and all the inconvenience referred to case before him. This sufficiently appears to be and living apart from him: and further, that it by your Lordship
and my learned friend would the intent of the learned Vice-Chancellor, from the should not appear that it is not the interest of the apply in the case of every collateral issue. If colcontext of his judgment; and it is therefore by children that she should have access to them, lateral issues are relevant to the truthfulness of no means an authority for the position, that in or the custody of those under the age mentioned the narrative which the plaintiff has given, they the case of separation between husband and wife, in the Act in that behalf. The object of the Act
are issues upon which evidence may be given on the cause of separation is to be overlooked, and being to protect wives. “ against the tyranny of both sides. It having been raised in cross-examithat the sole point for consideration is the bene- husbands, who ill-use them," a wife can have no
nation that the plaintiff had forgotten bis French, fit of the children, He says, there, " Beyond right under the Act, who should capriciously or and it having been broadly put that he cannot all doubt, if it had not been for ur. Justice without some reasonable excuse, desert her hus. therefore be the person he represents himself to Talfourd's Act, the guardians could have as band, absent herself from his home, and abandon be, I propose to show that the same phenomenon
I sumed the conduct themselves of the educa her duties as a wife and mother. In view
occurs with regard to other persons, and that it tion and maintenance of the children ; but, of these principles, it will now be necessary to in. cannot consequently be alleged that it could not ander the statute, the court has the discretion, quire whether the petitioner in this case brings have happened to the plaintiff. either against the father or the testamentary herself within them, so as to entitle her to the in.
BoviLL, C. J.- Evidence is offered for the guardians, as in this case, where any of the chil. terposition of the jurisdiction conferred by the
purpose of corroborating the plaintiff's statedren are under seven years of age, if it sees fit, Act.
ment as to the condition of his mind and to decide that the custody shall be given to the
memory. Whatever information was given us by mother, although she was not appointed guar.
COURT OF COMMON PLEAS.
other persons as to their own memory would not dian. With respect to the age of the children,
Wednesday, Dec. 20.
assist the jury in coming to a conclusion as to the the Legislature considered that as between the
TICHBORNE v. LUSHINGTON.
state of the plaintiff's memory. If, therefore, guardian and the mother, the very young chil.
evidence is objected to, I shall not receive it. The dren required a mother's nurture ; and, notwith. Admissibility of evidence Identity - Loss of question is whether the defendants press their standing the legal rights of a father, they should memory-Whether analagous cases can be proved.
objection. be entrusted to her. But it still enabled the 'In the course of this case to-day, Rosalind Lands. The Attorney-General had not the least doubt court to do that which it thought best for the berg, who was sworn on the Old Testament, and on this point, and must persist in his objection, interest of the children. It did not consider that, though a foreigner showed a thorough mastery of To deal satisfactorily with Mrs. Landsberg's evias between the father and mother, the father had English, was next called. In answer to Giffard, dence he should have to inquire into her antece. an equal interest with her, but that in the majo she said, -I am a native of Poland. ľ left dents and all the circumstances, and so in every rity of cases the custody should be given to the that country at the age of twenty, twenty-four case. If evidence was put in with regard to loss mother ; but, under ordinary circumstances, it was most desirable that it should be entirely dis years ago. Until I left Poland I spoke two lan- of memory, fifty people, assuming the plaintiff had guages.
forgotten the person with whom he had a long cretionary in the court.” In the exercise of that
The Attorney-General, interposing, said he correspondence, or the name of his dogs, might be discretion, the Vice-Chancellor was of opinion understood from his learned friend that the wit- called to say that they had also forgotten such that he “must look at the interest of the chil. dren, which might be just as well preserved by ness was to prove the loss of memory in her own things. There would be no end to such evidence.
This evidence was clearly not admissible. giving the custody either to the father or the
BOVILL, C.J.-I am entirely with you.
The Attorney-General did not wish to offer mother when the children were of very tender upon this issue. I can understand, though even
captions objections or to exclude a feather's weight age ; but still the material question was, what that would not be admissible, its being plausibly draw his objection, he should be embarked in
of evidence fairly receivable, but were he to with. was for the children's benefit ?" He then
an endless inquiry which he really could not ceeds to show why, in that case, he thought the put
that the memory, like any other part of the mind discretion of the court would be best exercised vestigation, and scientific people being called, if or body, can be treated as a matter of scientific in.
face. by leaving the children in the custody of the such can be found, to speak as to the characteris. being captious, I consider it legitimate and pro
Bovill, C.J. - So far from the objection testamentary guardians. There is nothing in this tics of the memory of languages. It would then
The case which countenances the idea that the learned be my duty to ask, if I chose, for particular in. per, and in law perfectly well founded. Vice-Chancellor intended to cast any doubt on the stances of it. This witness is to prove the proba. inconvenience. I don't know, indeed, where we
evidence would lead to the greatest possible propriety of the observations of Lord Cottenham bility of an assertion in one case by showing the should stop. It would be contrary to every prin. in Worde v. Warde ; of Turner, V.C., in Re Halli. existence of a similar state of things in another. day; or of the Vice-Chancellor of England in Re Taylor, in a case where husband and wife were
Bovill, C. J.–And under another state of cir. ciple upon which evidence in matters of science is living apart. cumstances; I presume it is not stated that the received. I think the objection valid and sustain
able; but when I consider that, if any single witness has led the same kind of life or has lived portion of evidence is objected to and received or In Re Winscom (11 Jur. N. S. 297) the ap. in Australia. plication was by the mother for access to her Giffard. --Certainly not. I do not suggest that rejected, any court might afterwards hold that it female child eight and a half years old; but the she was engaged in stock-driving or has been
was improperly received or excluded, I think it principle upon which the right of access and in Australia, but as to entire removal from the right to ask the defendants whether, with that custody depends is the same. In that case the use of the language familiar to her in early child. before them, they persist in their objection. husband had petitioned the Divorce Court for a hood the circumstances are similar.
The Attorney-General remarked that in the case divorce upon two allegations of adultery, one of The Attorney-General urged that this evidence of a mere matter of law, as to the admission of a which was condoned and the second not estab.! would embark the court in collateral issues as to
document or not, the fearful peril of any mistake lished, and so the petition for divorce was dis. all the possible circumstances in each particular would lead him to waive the objection. This, misged, but the husband and wife lived apart. case which might resemble or differ from the however, was a practical question, and it involved Wood, V. C., in that case, rests upon Lord Cotten- plaintiff's statement. A man might come forward such length and expense that the alternative was bam's decision in Warde v. Warde, as establish- and offer a general proposition, but, unless par. too serious, and he must therefore persist. ing the intention of the Act, and the course of the ticular questions were asked in cross-examination, BOVILL, C. J.-If you and your brother counsel court in relation to it; and applying these obser- counsel had no right to say, “This has happened had any serious doubt it would be unwise to rations to the case before him, after stating the in the case of A, B, C, D," or the jury would be persist, but I think the objection valid, and if circumstances under which the husband and wife lembarked in a separate and wholly irrelevant called upon to receive the evidence I must decline were living separate, he says, p. 299 : “ The con- inquiry.
to do so.
Gifard wished for an opportunity of objecting THE BENCH AND THE BAR. himself liable to a penalty not exceeding such a or excepting to his Lordship's ruling.
sum as, with the costs, would amount to 58." The The LORD CHIEF JUSTICE assented.
chairman of the school board (Mr. Christopher MIDLAND CIRCUIT.
Bushell, Mr. Alderman Hubback, and Mr. J. J.
Stitt (members of the board) occupied seats at the
arriving here yesterday evening from Derhy, (Before Mr. OSBORNE, Q.C., Judge). opened the commission. There are eight prisoners
Bremner (solicitor) said he had the honour to for trial from Birmingham and sixteen from the appear on behalf of the Liverpool School Board to HAMER V. SALKELD. In this case Smith (Smith and Boyer, solicitors) for trial. Besides the fact that five ont of the dant with the offence set forth in the summons. county. There is one very serious case of murder support a summons taken out by their clerk under
the Education Act 1870, which charged the defen. appeared for the plaintiff ;
twenty-two prisoners are charged with arson, Woodard (barrister) for the defendant.
there is nothing to call for any particular remark' He was afraid he should have to trouble his On the case being called on, in the calendar.
worship at some greater length than was asual in Woodaril, raised an objection that the attor.
the cases generally brought before him ; but as it ney who was about to conduct the case had been WORCESTER, Dec. 18.–Mr. Justice Keating be known, as well as the powers the board had
was essential that the Act of Parliament ahould instructed by another attorney, and that he was opened the commission here on Saturday. The under it to compel parents to send thǝir children not the attorney acting generally in the action, calendar for the county contains the names of another attorney's name appearing on the writ of fifteen prisoners, and that for the city four pri- letting the public know what those powers were,
to school, he thought he shoald be excused for summons and particulars of demand, and that,
Two cases of night poaching and a prose. such being the case, he could not be heard as an cution by the post office authorities against a tele. The first thing to show was the constitution of the
so that they might not plead ignorance of them. advocate.
graph clerk for stealing a post letter containing board. By the 31st section of the Act, a school His Honour.-Surely he can. It is no uncom. money were the only cases of importance.
board co mon thing for one barrister to hand over his brief
be appointed by the requisition of the to another to hold for him.
inhabitants, consisting of not fewer than five or
THE MIDDLE TEMPLE AND THE PRINCE OF Woodard. The two cases are entirely distinct: Wales.-At a special parliament of the Middle that under the mayor's precept fifteen gentlemen,
more than fifteen members ; and he would show but I will not argue the point, as I prefer to rely Temple, held on Tuesday the 19th Dec., the follow- forming the school board, were duly elected: Mr. upon the statute, which, while it gives attorneys a ing resolutions were passed unanimously: "The locus standi in the County Courts, yet enacts that Treasurer and Masters of the Bench of the Hon. the Act conferring powers upon the clerk of the
Bremner then proceeded to refer to the sections of one attorney cannot retain another as an advo- Society of the Middle Temple beg humbly to express board to prosecute ; the admissibility of minutes cate. His Honour then referred to 15 & 16 Vict., c. 54, which they have been filled by the alarming illness of which he read to show the powers the board
to Her Majesty the Queen the deep concern with as evidence; the passing of the bye-laws, several s. 10, and read that part of it which enacts “It of his Royal Highness the Prince of Wales, the possessed under them to compel parents to shall be lawful for an attorney of one of Her senior master of their bench. The Treasurer and send their children to school; and the mode Majesty's Superior Courts of Record, being an attorney acting generally in the action for such
Masters of the Bench offer the tribute of their of procedure to enforce the bye-laws. The party, but not an attorney retained as an advo- Majesty, with her Royal Highness the Princess of sary inquiries to ascertain what children, not
earnest and most respectful sympathy with Her school board, therefore, having made the necescate by such first-mentioned attorney, to address the court.” He then decided that Mr. Smith could Wales, and with the other members of the royal coming within the provisions of exemption, onght not conduct the case.
family, in their great grief and anxiety. The to be sent to school, proceeded to issue a number Woodard then asked that the action might fervent hope that the favourable change in the school, and amongst those summonses was one
Treasurer and Masters of the Bench express their of summonses to parents to send their children to proceed, and that the plaintiff should conduct his condition of his Royal Highness recently an- against the defendant, John Hodgson. They
He had no objection to Mr. Smith nounced may issue in his speedy and entire ordered a minute to be sent to him, and a notice acting as the plaintiff's friend. This Smith declined, and alleged that there had restoration to health.”
was made out according to the schedule of the been a communication between himself and the
Act, signed by the clerk, requiring that the child defendant's solicitors, who were aware that he
should be sent to an elementary school. That was going to act as advocate in the case.
notice was served upon the defendant on the 31st His HONOUR.-I order that the case stand over
Oct., and it was read over and explained to him by to next court day, and I give no order as to costs.
NOTES OF NEW DECISIONS.
Churchill, the officer appointed by the board to Woodard said it was very hard that the defen- POOR RATE - ENTRY OF Gross RATEABLE
serve such notices. If his worship would look at dant's costs should not te allowed, on the unsup | Value-EXCEPTIONAL PRINCIPLE-VALUATION. the last paragraph of the notice he would see that ported allegation that there was an understanding i-By sect. 45 of the Valuation Metropolis Act if the defendant did not comply with the notice, between the respective solicitors in the action to 1869 (32 & 33 Vict. c. 67), the valuation maile in
and wished to give any explanation, he must evade the provisions of the Act of Parliament. pursuance of that Act is to be conclusive evidence attend a meeting of the school board on the 8th
of the gross value and of the rateable value of the Nov. The board did hold a meeting pursuant to CROSS-ACTIONS.—At Guildhall, on Tuesday, a
several hereditaments included therein for the the notice, but the defendant did not attend; and cause was opened which promised to last for some purpose of certain rates and taxes ; but by sect. not having attended to that notice, and not having
sent his child to school, he had neglected to days. There was also a cross action, and Mr. 54 nothing contained in the Act is to affect " Justice Brett protested in strong terms against exemption or deduction from or allowance out of comply with the provisions of the bye-laws under the custom of trying actions involving the same any rate or tax whatever, or any privilege of or
the Act of Parliament. All the preliminaries had facts separately, taking, as his Lordship said, the provision for being rated for taxed on any excep; worship to put the law into force against the
been complied with, and he (Bremner) asked his chance of another shot at another jury if unsuc
The 11th bye-law enacted that any ATTORNEYS! Fees.-In a recent case in Wis- valuation list prepared by them in pursuance of person for a breach of the bye-laws should forfeit
23. 60.; therefore, the cost of the summons being consin (U.S.), it was said: “A question of costs the above Act, the true gross value and the
23. 60., the penalty would be 5s. Before sitting has been made, or attempted to be made on this true rateable value of lands belonging to the appeal. It is whether the party recovering costs Foundling Hospital, notwithstanding that the down, he would make one observation. This was
the first proceeding of the sort taken in England, in an equitable action is limited to 25 dollars in Fonndling Hospital Act (13 Geo. 2, c. xxix.) pro
and he was desirous that his worship should give respect of those costs which are given by sect. 41 vided that such lands were not to be rated at any c. 133 of the Revised Statutes, and which are higher value than that at which they were rated in
the authority of his adjudication in the case. It usually denominated ' attorney's fees. This sec. 1739. Held, that the true gross and true rateable
was most desirable and essential that the public tion of the statutes contained no limitation of the value had been rightly inserted on the valuation should know that a school board had the undoubted
list; and that it was not for the assessment com. power to compel parents to send their children to amount of costs which might have been taxed by Imittee to take into account the exceptional prin school unless they had a lawful excuse, and that virtue of it, in any action. By the laws of 1859, ciples of valuation saved by sect. 51 of the Valu- it was not merely the half-crown and half-crown. c. 200, the following proviso was added to the section: Provided the fees shall not in any one ca ze
ation Metropolis Act 1869 (Reg. v. The Governors but that the penalty of 5s. could be enforced exceed 25 dollars, and in actions on contract, of the Foundling Hospital, 25 L. T. Rep. N. S. weekly if they continued to offend.
Evidence having been given of the formation of where the amount recovered is less than 200 562. Q. B.) dollars, shall not exceed 15 dollars.' By this
ARSON-UNFINISHED HOUSE-24 & 25 Vict. the school board and the passing of the bye-laws,
Martin Churchill, notice server to the board, enactment the recovery of costs by the prevailing c. 97, s. 6.- An unfinished dwelling house of which party, under sect. 41, c. 133. R. S., was limited to the external and internal walls were built, and the proved that he served the defendant with a notice, 25 dollars in all cases, whether the action was at roof covered in, and a considerable part of the which he read over, and explained to him the law or in equity, and in a class of actions the reflooring laid, and the walls and ceilings prepared effect of it.
The defendant said that at the bottom of the covery was limited to 15 dollars. The Legislature for plastering, is a building within 24 & 25 Vict. in 1864 again amended sect. 41 aforesaid, by c. 97, s. 6, the unlawfully and maliciously setting notice it was stated that any explanation he had adding thereto the following proviso: . Provided fire to which is a felony, Semble, that it is a to make was to be made to the officer. He was that in actions at law on contract the fees shall question for the jury, whether the structure in ignorant about attending the board meeting, and not in any case exceed 25 dollars, and when the question is a building : (Reg. v. Manning, 25 L. T. that had led him astray. sum recovered is less than 200 dollars, the same Rep. N. S. 573. Cr. Cas. Res.)
Joseph Hodgson, a little boy not quite ten years shall not exceed 15 dollars.' Laws 1864, c. 402,
of age, said that he went to school when his s. 2 of this Act repeals the law of 1859, although
mother was living, but she died about two years
LIVERPOOL POLICE COURT. by its title it purports only to amend sect. 41.
ago. He had been to school since, but not after The only limitations prescribed by the law of 1864
Thursday, Dec. 14.
his sister got married, about seven months ago, relate to 'actions at law upon contracts.' Equit.
(Before Mr. RAFFLES.)
until last Monday. able actions are subject to no limitations, and the The Education Act-Failure to send child to
A visitor of the school board stated that he saw parties recovering costs therein may lawfully re
the child at home on the 14th of November.
school. cover full costs, without reference to the amount A LABOURING man named John Hodgson, who
Bremner submitted, and Mr. RAFFLES conof the judgment. In the view which we have taken resides in York-buildings, Wolstenholme-square, curred, that it rested with the defendant to show of this case, it was not absolutely necessary to was the defendant, and he had been summoned at
that the boy came within the exceptions set forth decide this question of costs, and we have not in the instance of the Liverpool School Board for in the Act-that the child was under efficient inquired whether the question could be properly having "unlawfully, willfully, and without
struction; that he was prevented by sickness, or raised on this appeal, or, if so, whether the defen- reasonable excuse neglected, omitted, and re
some unavoidable cause from sending the child to dant has saved his right to have the
taxation re- fused to cause his child, Joseph Hodgson, who school: or that there was no elementary school viewed. But we have decided the question because was not less than five years of age, and not more
within a mile of his residence. it is one of general interest to the Profession, and than thirteen, to attend school within fourteen Mr. Raffles told the defendant that he thought because we know that it is desirable that it should days after service upon him of a notice under the the case had been clearly made out against him, be definitely settled by an adjudication of this hand of the clerk to the school board requiring but, being the first brought before him, he would court.”
him so to do, for which offence he had rendered' impose only a nominal penalty. If, however, he