« EelmineJätka »
should hear, or the particular religious books to be placed in Religion of their hands. He is quite as likely to judge rightly as we are to judge for him. At all events, the law has made him, and not us, the judge, and we cannot interfere with him in his honest exercise of the jurisdiction which the law has confided to him."
"The father, although not unfitted to discharge the duties of a father, may have acted in such a way as to preclude himself in a particular instance from insisting on rights he would otherwise have; as where a father has allowed, in consequence of money being left to a child, the child to live with a relative, and be brought up in a way not suited to its former station in life or to the means of the father. There the Court says you have allowed that to be done, and to alter that would be such an injury to the child that you have precluded yourself from exercising your power as a father in that particular respect, and then the Court interferes to prevent the father from having the custody of the child, not because he is immoral or has forfeited all his rights, but because in that particular instance he has so acted as to preclude himself from insisting on what otherwise would be his right."
"The father has the natural authority. Except in cases of immorality, or where he is clearly not exercising a discretion at all, but a wicked or cruel caprice, or where he is endeavouring to withdraw from the protection of the Court, which is entrusted with such protection by law, the custody of the infant, as a rule this Court does not and cannot interfere, because it cannot do so successfully, or rather because it cannot do so with the certainty that its doing so would not be attended with far greater injury both to the infant itself and also to general social life" (1).
The term "Ward of Court," Mr. Simpson tells us (2), properly Ward of means a person under the care of a guardian appointed by the Court. Court of Chancery; but the term has been extended to infants who are brought under the authority of the Court by an application to it on their behalf, though no guardian is appointed by the Court. As a general rule the Court considers it for the benefit of the infant to be made a ward of Court (3).
"In one sense all British subjects who are infants are wards of Court, because they are subject to that sort of
(1) In re Scanlan, Infants, L. R. 40 Ch. D. 200.
(3) See Simpson on Infants, p. 223,
(3) Clayton v Clarke, 7 Jur. (N.S.)
parental jurisdiction which is entrusted to the Court in this country, and which has been administered continually by the Courts of the Chancery Division. It may be exercised as it has been in many cases as In re Flynn (1) and In re Spence (2) whether they have property or not, although, of course, where the infant has no property it makes it extremely difficult to exercise the jurisdiction at all; but supposing a case to arise respecting the custody of the infant, it has been declared again and again, and especially in those two cases, that it is not the fact of their being properly under the control of the Court of Chancery which gives the jurisdiction. The jurisdiction exists from the fact that the infant is a British subject, and the Chancery Division has always exercised that parental jurisdiction over British subjects who are infants" (3).
It has been held that an infant is made a ward of Court where an order for maintenance is made (4), or where a fund, belonging to the infant is paid into Court under the Trustee Relief Act (5), but not by the carrying over of a sum to the separate account of the infant in a suit to which the infant is not a party (6), nor by an order under the Divorce Act, s. 35 (7).
An Act was passed in the year 1855, known as the Infants' Settlement Marriage Settlement Act (8), which enables any infant, with the sanction of the Court of Chancery (now Chancery Division) to make a valid and binding settlement upon or in contemplation of his or her marriage. This power may be exercised by a male infant not under the age of twenty years, and by a female infant not under seventeen years. The settlement may be of all or any part of his or her property, or of property over which he or she has any power of appointment, unless it be expressly declared that it shall not be exercised by an infant; but it is provided that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail (9) under the Act, and such infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become absolutely void.
The provisions of this Act have been made the subject of consideration in several recent cases. It has been decided that
(1) 2 De G. & Sm. 457.
(2) 2 Ph. 247.
(3) Per Kay, J., in Brown v. Collins, 25 Ch. D. 60, where De Pereda v. De Mancha, 19 Ch. D. 451, is commented
() Re Graham, 10 Eq. 530.
(5) Re Benand, 16 W. R. 538.
(*) Brown v. Collins, 25 Ch. D. 56. () Hyde v. Hyde, 13 P. D. 166. (8) 18 & 19 Vict. c. 43, and see R. S. C., 1883, O. LV., r. 26.
(2) See Re Scott (1891), 1 Ch. 298.
the Act applies to settlements made after the marriage has taken place (1). In another case it was laid down that the Court has no jurisdiction to compel an infant ward of Court to make a settlement of his own property because he has been guilty of contempt in marrying without leave (2).
The reader who desires further information of the law as to Reference infants, is referred to Simpson on Infants; Seton on Decrees, p. 705, et seq. See, as to exercise of powers by infants D'Angibau, 15 Ch. D. 228; and as to partition actions: Rimington v. Hartley, 14 Ch. D. 630. As to apprenticeship articles: see De Francesco v. Barnum, 43 Ch. D. 165; and as to settlements being voidable and not void: Duncan v. Dixon, 44 Ch. D. 211; as to habeas corpus, Reg. v. Barnardo, 23 Q. B. D. 305; The Queen v. Barnardo, 24 Q. B. D. 283.
(1) Re Sampson and Wall, 25 Ch. D. 482.
() Re Leigh, 40 Ch. D. 290, and see Seaton v. Seaton, 13 App. Cas. 61, where it was decided that the Act removes the disability of infants, leaving unaffected the disability of
coverture. This case, however, has
The Law of Partnership has been to a great extent codified by the Act to declare and amend the law of partnership, which is to be cited as "The Partnership Act, 1890" (53 & 54 Vict. c. 39), which came into effect 1st January, 1891. It is however expressly provided by the Act "that the rules of equity and of common law applicable to partnership shall continue in force except so far as they are inconsistent with the express provisions of the Act" (2). The subject of partnership is treated in the Act under the following heads:
1. Nature of Partnership.
2. Relation of Partners to persons dealing with them.
3. Relations of Partners to one another.
4. Dissolution of Partnership and its consequences (3).
Nature of Partnership.
Partnership is now defined by the first section of that Act (4) as
of partner-"the relation which subsists between persons carrying on a ship. business in common with a view of profit" (5).
() All causes and matters for the dissolution of partnerships, or the taking of partnership or other accounts, are assigned to the Chancery Division of the High Court of Justice by the 34th sect. of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66).
(2) This Act repeals sect. 7 of 19 & 20 Vict. c. 60, The Mercantile Law Amendment (Scotland) Act, 1856; Sect. 4 of 19 & 20 Vict. c. 97, the Mercantile Amendment Act, 1856, and the whole of the Act, 28 & 29 Vict. c. 86 (an Act to amend the law of partnership) which is generally known as Bovill's Act.
(*) See as to the previous definition of Partnership Tudor's Leading Cases in Mercantile Law, 3rd ed. p. 519. See also Lindley on Partnership, 5th ed. p. 24, where a great number of definitions of partnership are collected : Pooley v. Driver, 5 Ch. D. 458. In this case Sir George Jessel approved of the definition given in the Civil Code of New York, that a partnership is the "association of two or more persons for the purpose of carrying on business together and dividing its profits between them," with the addition supplied by Pothier "that the business must be an honest one"; and see Brett's Leading Cases in Modern Equity, p. 74, et seq.
(5) The expression "business" is defined by sect. 45 of the Partnership Act, 1890, to include " every trade, occupation, or profession."
The Act then goes on to declare that the relation between members of any company or association which is—
(a) "Registered as a company under the Companies Act, 1862
(25 & 26 Vict. c. 89), or any other Act of Parliament
(b) "Formed or incorporated by or in pursuance of any other
-is not a partnership within the meaning of the Act."
Here the legislature has supplied us with materials for an answer. Sect. 2 provides that in determining whether partnership does or does not exist, regard shall be had to the following rules:
(1) Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof.
(2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived.
(3) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business; and in particular—
(a) The receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable as such:
(b) A contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such:
(c) A person being the widow or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such:
determining existence of partnership.