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sects. 4 and 5 of the Act of 1895 being substituted for the remedies for the husband's misconduct which the Act of 1878 gave in the case of cruelty, and "the provision was taken by the draftsman bodily from sect. 4 of the Act of 1878." That shows that sect. 4 of the Act of 1878, on which Haddon v. Haddon (ubi sup.) was decided, was in substance the same as sects. 4 and 5 of the Act of 1895, under which this order was made. That case therefore is a clear authority that the resumed cohabitation put an end to the order. Then

sect. 7 says that if any married woman who has obtained an order under the Act" shall voluntarily resume cohabitation with her husband, or shall commit an act of adultery, such order shall upon proof thereof be discharged." In Ruther v. Kuther (1903) 2 K. B. 270), where an order for a weekly payment had been made under this Act and it was proved that the wife had committed adultery, it was held that the husband was entitled on proof of the adultery to have the order discharged, and that he was not liable to make any further payments to his wife under it. By sect. 7 voluntary resumption of cohabitation is put in the same category as adultery, and therefore on proof thereof the order must be discharged, and here it was proved and found as a fact that cohabitation had been resumed. [AVORY, J. referred to Williams v. Williams (90 L. T. Rep. 174; (1904) P. 145).] That case also supports the contention that the resumed cohabitation annulled the order. If these words as to the voluntary resumption of cohabitation had not been put in sect. 7 of the Act of 1895, there would have been no power to discharge an order for maintenance only on the ground of the resumption of cohabitation. This Act is of a quasi-criminal character and must be construed strictly, and the words "while in force" in sect. 5 (a) ought not to be construed as being equivalent to "shall remain in force until discharged by a court of summary jurisdiction under sect. 7," as those words are qualified by this, that the order is to have the effect of a decree of judicial separation on the ground of cruelty. The power of making orders under this Act is the same as the power of the Divorce Court to make such orders, and if the wife had gone to the Divorce Court and got a decree for a judicial separation on the ground of cruelty, the resumed cohabitation would have put an end to the decree: (Haddon v. Haddon, ubi sup.). [He also referred to Crouch v. Waller (33 L. T. Rep. O. S. 215; 4 De G. & J. 302) and Nicol v. Nicol (54 L. T. Rep. 470; 31 Ch. Div. 524.] There is another ground on which the order to commit the appellant to prison is bad. By sect. 11 of the Summary Jurisdiction Act 1848 a complaint must be made within six months from the time when the matter of the complaint arose. As soon as each weekly payment remained unpaid, the matter of complaint in respect of that payment arose within sect. 11, and each weekly payment unpaid gave rise to a new matter of complaint, and proceedings to recover it could only be brought within six months, and therefore proceedings could not be taken to recover payments which had become due more than six months previous to the complaint. The Summary Jurisdiction Acts apply. Sect. 8 of the Act of 1895 says that all applications under the Act and this was an application under the Act -shall be made in accordance with the Summary

[K.B. DIY.

Jurisdiction Acts, and sect. 9 says that the payment of any sum directed to be paid by any order under the Act may be enforced in the same manner as the payment of money is enforced under an order of affiliation. That refers back to sect. 4 of the Bastardy Laws Amendment Act 1872, where orders for the payment of sums due under an affiliation order may be made by two justices. Then sect. 54 of the Summary Jurisdiction Act 1879 carries the matter one step further, by providing that the Act is to apply to the levying of sums adjudged to be paid by an order in bastardy, or by an order which is enforce. able as an order of affiliation, and to the imprisonment for nonpayment of such sums. That in terms brings in orders made under this Act of 1895 by virtue of sect. 9. The six months' limitation may not apply to an application to discharge an order, but it applies to the cause of complaint:

Weightman v. Weightman, 94 L. T. Rep. 620. There is no time limited by this statute, and unless a limited time is imposed by the statute, sect 11 of the Act of 1848 applies, and not more than six months' arrears were recoverable:

Reg. v. Slade, 73 L. T. Rep. 343.

The order is therefore bad on that ground.

H. J. Wallington for the respondent. The order when once made under the Act of 1895 is a valid and existing order until it is properly discharged, and there is machinery provided for obtaining the discharge of the order, but until it is so discharged it remains in force. Williams v.

Williams (ubi sup.) does not support the appellant's contention. All that case decides is that when the justices made the order there was no cause of complaint on which they could make the order; but it does not decide that where an order has been properly made the subsequent cohabitation puts an end to the order, and, moreover, there was no argument there on behalf of the wife. Under sect. 7 the only justices who have power to discharge the order are the justices of the district in which it was made, and the section differs materially from sect. 4 of the Act of 1878 under which Haddon v. Haddon (ubi sup.) was decided. Sect. 4 was passed to provide for the case of an aggravated assault upon the wife, and to deal with the case where the wife was in peril. The order when made under that section was given not only the force but also the effect of a decree for judicial separation on the ground of cruelty, and the only event in which it could be discharged was adultery on the part of the wife. The next Act dealing with the matter was the Married Women (Mainten. ance in Case of Desertion) Act 1886, s. 1, but both these sections were repealed by the Act of 1895, which was very much in favour of the wife, giving the justices power to make an order only on the application of the wife, and it was passed for the purpose of getting rid of such cases as Haddon v. Haddon (ubi sup.) and Nicol v. Nicol (ubi sup.), as to the effect of resumption of cohabitation in putting an end to an order of separation or maintenance. The effect of these sections was considered by Gorell Barnes, P. in Dodd v. Dodd (94 L. T. Rep. 709, at p. 712; (1906) P. 189, at pp. 198-199), and the views there expressed are in favour of the respondent. In

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Ruther v. Ruther (ubi sup.) the husband had applied under sect. 7 to have the order discharged, and the case proves two things-that arrears up to the time of the discharge of the order are recoverable, and that when the justices are applied to by the husband to discharge it, and do not discharge it when they ought to do so, the order is treated as discharged as from that time. The Act of 1895 carefully refrains from saying that the order shall have the force and effect of a decree of judicial separation-as sect. 4 of the Act of 1878 did; it simply says in sect. 5 (a) that the order" while in force" shall have the effect of a decree of judicial separation, and it contains an express provision as to the discharge of the order. In every case under this Act there has been an application by the husband to discharge the order before it has been treated as discharged; and if the order is properly made it remains in force until the husband has applied to the court and the court has discharged it. If the order were ipso facto discharged by the resumption of cohabitation, the provision at the end of sect. 7 would have been wholly unnecessary. As there has been no application to discharge the order it remains in force as an order. Then as to the question of the six months' limitation. By sect. 9 of this Act the payment may be enforced under the order in the same manner as the payment of money under an order of affiliation; and under sect. 4 of the Bastardy Laws Amendment Act 1872 there is a limit of time fixed for the recovery of sums payable under an order of affiliation; as the proceedings may be taken for the recovery of the money "at any time." The respondent relies upon that section. If no time is limited by the particular statute, then the time prescribed by sect. 11 of the Act of 1848-namely, the six months' limitation-would apply: (Stone's Justices' Manual, edit. 1912, p. 933). Here there is a time prescribed by the statute, as under sect. 4 the proceedings may be taken "at any time" for "any sum that is due. Neither sect. 54 of the Act of 1879, which is nothing more than mere machinery for applying the Summary Jurisdiction Acts, nor sect. 11 of the Act of 1848 applies to this case at all. If sect. 54 were to make sect. 11 of the Act of 1848 applicable to this case, the offence, if any, would be a continuing offence; and the limitation in sect. 11 does not apply to continuing offences :

Douglas, 9th edit., p. 57;

Earl of Harrington v. Derby Corporation, 92 L. T.
Rep. 153; (1905) 1 Ch.205.

Sect. 11 of the Act of 1848 and sect. 54 of the Act of 1879 cannot override or repeal sect. 4 of the Act of 1872, which they would do if the six months' limitation applies, and, that being so, sect. 4 of the Act of 1872 applies and enables the arrears to be recovered to any extent. No authority has been cited, and none can be cited, to the effect that six months' arrears only can be recovered.

Lord ALVERSTONE, C.J.-In my opinion this order cannot be enforced on the ground that it covers too long a time. The 977. 4s. is made up of so many weekly sums of 12s., and therefore extends over a period of three years, and I do not think that it can be disputed that the appellant could have been summoned at the expiration of each weekly period for nonpayment of an

(K.B. DIV. instalment; therefore it seems to me that the matter of the complaint in respect of the nonpayment arose as soon as the appellant failed to make the weekly payments as each fell due.

The question is whether, as this is an order for payment of money due in respect of the matters referred to in the Summary Jurisdiction (Married Women) Act 1895, the rule that the complaint must be made within six months from the time when the matter of complaint arose applies.

It seems to me to be pretty plain that that six months' limitation does apply. Sect. 54 of the Summary Jurisdiction Act 1879 provides that the Act is to apply to the levying of sums adjudged to be paid by an order in any matter of bastardy, or by an order which is enforceable as an order of affiliation, and to the imprisonment of a defendant for nonpayment of such sums, in like manner as if an order in any such matter or so enforceable were a conviction on information. That section, therefore, refers not merely to the levying of sums adjudged to be paid-that is, to the issuing of a distress warrant-but it also contemplates proceedings which would lead up to the imprisonment of the defendant for nonpayment of such sums. It therefore clearly points to the fact that the rule as to the time limit under the Summary Jurisdiction Acts would apply to proceedings for the imprisonment of the defendant for nonpayment of the sums adjudged to be paid in this case.

We have to deal with two sections-sects. 8 and 9 of the Summary Jurisdiction (Married Women) Act 1895-and by sect. 8 all applications under the Act are to be made in accordance with the Summary Jurisdiction Acts, and by sect. 9 the payment of any sum of money directed to be paid by an order under the Act may be enforced in the same manner as the payment of money is enforced under an order of affiliation. Then when we look at sect. 4 of the Bastardy Laws Amendment Act 1872, all that Act says is that a man may be summoned and an order made for the payment of money due at any time, and there is a general statement that he may be brought up on a warrant. That general statement is within the words in sect. 54 of the Summary Jurisdiction Act 1879, that the Act shall apply "to the imprisonment of a defendant for nonpayment of such sums."

There is no period of time provided by the Act of 1872, and therefore looking at sect. 11 of the Summary Jurisdiction Act 1848, which provided that the complaint must be made "within six calendar months," and taking that with sect. 54 of the Act of 1879, as to the Act applying to the imprisonment of a defendant in like manner as if the order were a conviction on information, I have come to the conclusion that this order was bad.

As to the other point, we do not usually allow points to be taken in this court which were not taken before the magistrates, unless they manifestly appear on the case as stated, but I think that this point does so appear, and, having regard to the argument, we ought to express our opinion upon it.

In my opinion the respondent's contention in this case is right on the other point. My opinion is based upon the language of sect. 7 of the Act, which seems to me to be a re-enactment, not

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perhaps in the same language, of the earlier legislation, which was wanted for the purpose of enabling the court of summary jurisdiction to deal with orders made under the Act. I adopt the view contended for by counsel for the respondent, and, having regard to the words in sect. 5 (a), "which provision while in force shall have the effect in all respects of a decree of judicial separation on the ground of cruelty," it seems to me that the order is in force until it is dicharged by the tribunal which has the power to discharge it under sect. 7; and the order being in force the court would have power to make an order for the payment of arrears to the extent of six months.

On the other ground, however, I think the appeal must be allowed.

PICKFORD, J.-The appellant was brought before the magistrates upon a warrant for disobedience to an order for the payment of a sum of money under the Summary Jurisdiction (Married Women) Act 1895, and the magistrates committed him to prison in default of distress.

Two objections were taken to that order: (1) That the wife having been found by the magistrates to have resumed cohabitation before the arrears began, the order had from that date ceased ipso facto to have any validity, and that therefore no sums were payable under it after the date of the resumption of cohabitation; and (2) that the appellant was committed for arrears for more than six months, whereas he could only be committed for six months' arrears.

The first point arises under the order made by Mr. Hopkins, the metropolitan police magistrate, by which the appellant was ordered to pay 12s. a week. That is the only part of the order stated in the case, but on looking at a copy of the order it appears that it also dealt with the separation of the parties and ordered that the wife be no longer bound to cohabit with ber husband. It was a separation order as well as an order for the payment of money, the order for the payment of the money being accessory to the order for separation. That order was made under the provisions of sect. 5 of the Summary Juris. diction (Married Women) Act 1895.

It is said that as the wife has been found by the magistrates to have resumed cohabitation, the order at that time ipso facto came to an end, and on that point the cases of Haddon v. Haddon (ubi sup.) and Williams v. Williams (ubi sup.) and other cases were cited, but Haddon v. Haddon (ubi sup.) was said to be the case that was decisive of this point, and if this case had arisen under the earlier Act it would have been so. case of Haddon v. Haddon (ubi sup.) arose under sect. 4 of the Matrimonial Causes Act 1878, and is an authority that a separation order made under that Act did come to an end on cohabitation being resumed, and if this legislation had been substantially the same, that case would continue to be an authority to the same effect.

The

But in my opinion the legislation is not substantially the same. There were two things which were specially relied upon by Hawkins, J. in that case as showing that the order automatically came to an end on the resumption of cohabitation-namely, (1) the words of the Act of 1878 that the order should have the force and effect of a decree of judicial separation, and (2) that no power was given under sect. 4 of the Act to discharge or vary the order of separation, and

[K.B. DIV.

that the order for payment of money was only accessory to the order for separation, and that therefore the order for separation was left in the same position as an order for judicial separation in the Divorce Court, and as an order of that sort in the Divorce Court came to an end on the resumption of cohabitation, so did an order made under the Act of 1878, and the order for the payment of money being accessory fell with it.

Both these points seem to have been met by the alteration made in the law by the Act of 1895. The provision in sect. 4 of the Act of 1878 that the order shall have force and effect as a decree of judicial separation has been replaced in sect. 5 (a) of the Act of 1895 by the enactment "which provision while in force shall have the effect in all respects of a decree of judicial separation on the ground of cruelty," and, moreover, by sect. 7 express power is given to a court of summary jurisdiction acting within the district in which the original order was made to "alter, vary, or discharge any such order." Sect. 7 then goes on to say "If any married woman upon whose application an order shall have been made under this Act, or the Acts mentioned in the schedule hereto, or either of them, shall voluntarily resume cohabitation with her husband, or shall commit an act of adultery, such order shall upon proof thereof be discharged.

Therefore it seems to me that in framing the legislation in that Act care was taken to provide for the second point also on which the decision in Haddon v. Haddon (ubi sup.) was founded, and the intention of the Act was that the order should remain in force until it is discharged by a court sitting in the district in which the order was made.

I therefore think on the first point that this order did not automatically come to an end on the resumption of cohabitation, and that as an application was not made to the proper court to discharge it, it remains in force, and the magistrates at Brentford had no power to treat it as discharged.

But we all think that the order is bad on other grounds. I do not wish to express any very decided opinion as to whether, if the order were discharged, the discharge would operate from the date of the resumption of cohabitation or from the date of the order of discharge. The case of Ruther v. Ruther (ubi sup) would seem to show that it would operate only from the date of the discharge, but the point was not specifically before the court in that case.

With regard to the second point as to the arrears I have considerable doubt, but upon the whole I agree with the other members of the court that the order could not be made in respect of more than six months' arrears previous to the making of the order.

AVORY, J.-I agree with my Lord as to the limitation of time imposed by the combined effect of the two sections, sect. 51 of the Summary Jurisdiction Act 1879 and sect 11 of the Sum

mary Jurisdiction Act 1848. The application was for the imprisonment of a defendant for non-payment of money, which by the Summary Jurisdiction (Married Women) Act 1895 is to be enforced in the same manner as the payment of money is enforced under an order of affiliation.

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I think that the limitation contained in sect. 11 of the Act of 1848 applies so as to prevent the order being made upon the defendant for more than six months' arrears before the date when the application was made, and that consequently the order for his imprisonment in default of payment cannot be supported and is bad.

Upon the other point, if it had been necessary to decide the case upon it, I should have differed from my Lord and my brother Pickford. I do not differ from the view that sect. 7 of the Act of 1895 contemplates an application for the discharge of the order. That, however, does not appear to me to conclude the question.

66

The last paragraph of sect. 7, as I read it, means that if it shall appear in any such proceedings as there were in this case that the wife has voluntarily resumed cohabitation, the order which has been made for maintenance or separation shall on proof of the fact of cohabitation be discharged. I think that means discharged as from the date of the resumption of cohabitation. The magistrates were here asked to enforce an order for payment of arrears. There is nothing in the Act which says that they are bound to enforce the order, and I think on proof of the fact of the resumption of cohabitation it was the duty of the magistrates to apply the law as laid down in Williams v. Williams (ubi sup.) by the Divorce Court, which had before it this very provision of this Act. Jeune, P. there said (1904) P., at p. 147): "The effect of the condonation was to put an end to the cause of complaint-not by virtue of the Act, but by force of law. The principle acted on by judges of this court, and, in the Ecclesiastical Courts, by our predecessors, that the moment you find a resumption of cohabitation there is an end of any previous desertion, is founded on or has been recognised by the courts of common law." Gorell Barnes, J., referring to the last clause of sect. 7 of the Act of 1895, said: "That provision is really based on the principle that by resuming cohabitation the married woman condones and puts an end to the cause of complaint. Therefore, if it is shown that the parties have voluntarily resumed cohabitation, that puts an end to any cause of complaint which the one party had or may have had against the other."

My view would have been that the magistrates in this case ought to have applied that law to this state of the facts, and should have refused to make the order; but I express no opinion upon the point having regard to the fact that it is not necessary to do so. Appeal allowed.

Solicitors for the appellant, Hepsley C. Duckworth and Co., Brentford.

Solicitor for the respondent, Wilfrid Firth, Brentford.

Friday, May 10, 1912.

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(Before Lord ALVERSTONE, C.J., PICKFORD and AVORY, JJ.)

EAST LONDON RAILWAY JOINT COMMITTEE (apps.) v. GREENWICH UNION ASSESSMENT COMMITTEE (resps.). (a)

Rating-Railway-Link line - Annual loss in working-Extraneous circumstances-Position, connections, and accommodation of line-Right to take into consideration-Rateable value. The appellants, a joint committee under a Railway Act, were lessees under a lease in perpetuity, at a certain rent, of the East London Railway. The railway had no terminal stations, and formed a link between the systems north and south of the Thames belonging to the railway companies concerned. In each year since 1884 the tenancy and working of the line had resulted in a loss, and as compared with 1904 the receipts in 1909 fell off by 28 per cent., while the working expenses had been reduced by only 8 per cent. The quarter sessions in confirming an assessment of the line in the quinquennial valuation list made in 1905 took into account the position of the line and the fact that it was a link between other systems. Upon an appeal to quarter sessions against the assessment in the quinquen• nial valuation list for 1910, evidence was given for the appellants that the line was being worked at a loss, and that if it were to let none of the railway companies concerned would give any rent for it. No evidence was given for the assessment committee.

The quarter sessions were of opinion that in arriving at the rateable value they were still justified in taking into account the extraneous circumstances as to the position, connections, and accommodation of the line, and, having regard to the lack of evidence, they took the figures of 1905 as the basis of their calculations, and owing to the loss in the working of the line they reduced the 1905 assessment by about 40 per cent.

Held, that the quarter sessions had not gone wrong on any principle of law, either in taking into account the extraneous circumstances in question, or in adopting in the circumstances of the case the basis of the valuation made in 1905, and that their decision ought to be affirmed. SPECIAL CASE stated by the Court of Quarter Sessions for the County of London.

1. An appeal was brought by the appellants (the East London Railway Joint Committee) to the Court of Quarter Sessions for the County of London against the quinquennial valuation list for the parish of St. Paul, Deptford, in the Greenwich Union, made in 1910. The appellants were assessed in the said list as occupiers of certain lines of railway, being part of the East London Railway, at gross value 46241., rateable value 23261.

2. The appellants are a joint committee under the East London Railway Act 1882 (45 & 46 Vict. c. clxxxi.) and represent the following railway companies-namely, the London, Brighton, and South Coast, the South-Eastern, the London, Chatham, and Dover, the Metropolitan, the Metropolitan District, and the Great Eastern-as lessees of the East London Railway, a portion of which (a) Reported by W. W. ORR, Esq., Barrister-ai-Law.