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damages for any mischief which they refused to purchase was 1,0001., and that have, for their own interest, allowed to it was clear that the coal could not fall on the plaintiffs. But further, the case be gotten without some damage, what shews that the defendants had the means compensation could then be assessed ? of preventing the mischief; for it ap- Plainly not the 1,0001.; for that would be pears from the case (paragraphs 20 & 21) to make the defendants pay by way of that although the defendants refused to compensation the price of that which they draw off the water of the canal in order to had, in the exercise of their right, refused to enable the plaintiffs to get their coal, they purchase ; and if anything less than 1,0001. did, for their own purposes, draw off the should be given, why should it be assessed water for a time, and altogether stopped prospectively, while the true amount must the through navigation of the canal while be matter of speculation, rather than the mines were being worked; and I after the extent of damage had been ascerthink they were justified in doing so. tained by experience of the facts ? I think, Under ordinary circumstances, it was the therefore, that the defendants, by the duty of the canal company to keep the mere refusal to purchase, gave no ground navigation open, but they might lawfully of claim to the plaintiffs ; but the defend. stop it, if such a course was necessary in ants were bound, in determining whether order to do any repairs required for the they would purchase or not, to exercise safety of the canal, or to effect any other their judgment as to what the probable necessary purpose; and if they could not effect of getting the coals would be; the otherwise avoid doing mischief to neigh. responsibility of forming an opinion as to bouring property, they might stop the the danger of the water escaping and the navigation for a reasonable time while means of preventing it, was cast entirely on they provided the necessary safeguards. them, and not on the mine owners, who This would be clear, if they could not were left, by the refusal to purchase, in otherwise prevent the water of the canal full possession of the undiminished right flooding a neighbouring house; and I to get their coal as they could, doing no think they ought to have stopped the unnecessary damage to the canal and navigation to prevent the drowning of the working in the usual way. plaintiffs' mines, if they could not prevent I am of opinion, therefore, that the it by other means; and the fact that they plaintiffs may maintain this action against did so leads me to the conclusion that they the defendants for retaining the water in could practically have kept the water the canal under circumstances which they drawn off from the whole 150 yards over knew would render it incapable of holdthe mines, if their sole object had been to ing the water, and which they had the protect themselves and not prejudice to means of preventing. the plaintiffs.

The difficulty which I felt, on the arguBut it is suggested that, when the de- ment, in deciding that the plaintiffs were fendants refused to stop the working and entitled to recover arose from the fact, to give compensation for the mines, a that the damage of which they complain right at once accrued to the plaintiffs to was the direct result of their own acts, demand compensation for this inability to done with a knowledge of the probable work the mines without letting in the consequences; but this difficulty has been water. I do not think that this is the removed from my mind by the considerameaning of the legislature. It would be tion that the plaintiffs' acts were done a singular mode of dealing with the sub- strictly within the limits of their own ject to allow the company the option rights, and solely for the purpose of enjoy. whether they would purchase the coals or ing their property in a lawful and usual not, and yet to make the exercise of that manner, and were necessary for that puroption give rise to a claim to compensation pose, and after the defendants, with notice for the coals which they had refused to of the facts, had refused to take steps purchase. This would render the option within their power to prevent what has practically useless to them. Suppose that happened. This brings the case within the value of the coal which the defendants the principle of the decision of the House of Lords in Fletcher v. Rylands (5) as thing to the place, and in the manner expressed in the passage quoted by the authorised ; and to the extent to which then Lord Chancellor (Lord Cairns) from oozing of water through the banks of the the judgment delivered by Blackburn, J., canal is the necessary consequence of in the Exchequer Chamber (13): “We maintaining the water in it, the remedy think that the true rule of law is that the for the mischief thereby done must be person, who, for his own purposes, brings sought under the provisions of the Act; on his land and collects and keeps there but for anything not authorised by the anything likely to do mischief if it escapes, Act, nor the necessary consequence of the must keep it in at his peril, and if he does exercise of its powers, the person or com. not do so is prima facie answerable for all pany bringing the noxious thing on to his the damage which is the natural conse- land is equally responsible whether the quence of its escape.” It is added : “He right to bring it there was obtained by can excuse himself by shewing that the Act of Parliament or by any other means. escape was owing to the plaintiffs' default." In the present case I have endeavoured But, for the reasons which I have given to shew that, though the right to bring I think the defendants in this case cannot the water of the canal over the plaintiffs’ set up such excuse, for the plaintiffs have mines was given by Parliament, the right been guilty of no default; they have to flood the mines under the circumstances merely sought to enjoy their own property occurring in this case was not given, and in an ordinary manner. If a water com. therefore for injury resulting therefrom pany were to carry their pipes or store the defendants were responsible. For their water over the Metropolitan Rail- these reasons, I am of opinion that our way, and the vibration of the trains were judgment should be for the plaintiffs. to loosen the pipes or reservoir and cause the water to flow down and do injury to

Judgment for the plaintiffs. the railway, the water company would not be entitled to defend themselves against a claim for damages by saying Attorneys - G. S. Warmington, for plaintiffs ; that the railway company ought not to

Tucker & Lake, for defendants. have run their trains; the answer would be that the railway company in running the trains did no more than they were allowed to do in the exercise of their legal rights ; and that the water company knowing those rights, ought to have taken care, at their peril, that the water should not BAIL COURT. escape in consequence of acts which the 1872. Re AN ARTICLED CLERK. railway company had a right to do. This Jan. 30, 31. illustration may be open to the objection

Attorney-Articles of Service of Clerkthat it is idem per idem ; but it will never

Enrolment-Binding to a Firm. theless assist in shewing the relation in which, as it seems to me, the plaintiffs

A clerk entered into articles of clerkship and defendants stand to one another. by which he bound himself to serve a firm

It may be suggested that the principle of attorneys consisting of two partners :laid down in Fletcher v. Rylands (5) is Held, that the binding was valid, and the not applicable to the case of a company articles must be enrolled. empowered by an Act of Parliament to collect and keep on its land anything

F. C. Holland entered into articles on likely to do mischief—and to this I assent,

the 7th of December, 1871, to serve if the escape be the necessary conse

Messrs. Blagden & Upton, attorneys, as quence of bringing the liquid or other

their clerk for five years.

The articles were duly stamped and (13) 35 Law J. Rep. (n.s.) Exch. 155; and Law

executed, and left with the usual affidavit Rep. í Exch. 279.

of execution for enrolment at the Master's office. Enrolment, however, was refused mium which he had paid, and which had on the ground that the articles were in- gone to the partnership account. Lord formal, inasmuch as a clerk could not be Tenterden there said that though the articled to serve two masters.

clerk was bound to one only in name, in Lumley Smith moved for a rule direct- reality and conscience he was bound to ing the Master of the Court to enrol the the two. The binding therefore to two articles of Mr. Holland. The 6 & 7 Vict. was sanctioned. c. 73. s. 3, requires an attorney before There may arise a possible inconveni. admission to have been bound by contract ence to the clerk from a binding to the in writing to serve as clerk for five years firm, which he would do well to avoid, to a practising attorney in England or namely, that if the firm should be disWales, and to have duly served under solved, inasmuch as he is bound to serve such contract for that term. By sec- both masters, I do not see how he can carry tion 4, “No attorney or solicitor shall out that contract of service. The binding have more than two clerks at one and the to two of a firm is undoubtedly a binding same time, who shall be bound by such to each. The clerk must, however, take contract in writing, as aforesaid, to serve that peril and risk, if he elect to be so him as clerks.” The question is whether a bound, but inasmuch as there is nothing to binding to a firm of two attorneys is a render the binding invalid, these articles binding to two distinct masters, and should be enrolled. whether such a binding is invalid. In QUAIN, J., concurred. Chitt. Arch. Prac. vol. i. p. 31, 11th edit., it is said, “ Where there are two attorneys

Rule absolute to enrol. in partnership, each may have two articled clerks. But there must be a separate binding to each ; and if the binding were Attorneys-Senior, Attree & Johnson. to the two (as it might be) the clerk would be deemed the clerk of each, and neither could have more than one other clerk bound to him.” Ex parte Bayley (1) is there referred to, and supports the view that this binding is legal. Cur. adv. vult.


ex parte ANN TURNER. BLACKBURN, J.-It has been customary to bind a clerk to one partner of a firm,

Ilabeas Corpus-Child under Fourteen and not to the firm collectively. Pro

Years of Age-Guardianship for Nurturebably the reason of that practice is

Death of Father-Rights of Mother. that each attorney can by statute only The mother of a child, between ten and take two clerks, and by binding to the

eleven years of age, although a Roman individual members of the firm each

Catholic, had consented to the child being partner might take two clerks, whereas

placed in a Protestant school for destitute by binding to the firm the number of children. Being ill from consumption in a clerks capable of being articled was

workhouse infirmary, she became, as she reduced. In Ex parte Bayley (1), the alleged, anxious that the child should be reclerk was articled to one of the part- moved, and placed in a home for poor ners of the firm in name, which part- children, so that she might be brought up in ner died, and as the surviving partner the mother's own faith, and in that in which had the full number of two clerks articled

the child had been baptized. She had, at the time to him, he was not able to

before being in the infirmary, lived in lodgretain the clerk of the deceased partner ing-houses, had neglected the child, and had in his service, and he was accordingly lived a drunken and immoral life. The ordered to refund a proportion of the pre- father of the child was dead, and the child

herself desired to remain in the school :(1) 9 B. & C. 691.

Held, that under these circumstances the

Jan. 27.}

Court would not grant a Habeas Corpus to school, and to place her at a home for remove the child.

poor children, conducted by Sisters of

Charity, so that she might be brought up This was an application made on behalf in the mother's own faith, and in that in of the mother of Mary Ann Turner, a which the child was baptized. It was on child under the age of fourteen years, for the other hand sworn by the superinten. a writ of habeas corpus to bring up the dent of the school that the child was body of the child. The matter had been most anxious to remain there. He debefore Bramwell, B., at chambers, but 'clined to allow her to be taken away that learned judge declined to make any from the school, whereupon an application order.

was made to Bramwell, B., at chambers, It appeared from the affidavits used at

for a writ of habeas corpus, but that chambers in support of and against the learned judge, after an examination of application, that the mother of the child,

the child in private, declined to make a Roman Catholic, was in the infirmary of any

order. the Marylebone Workhouse, and that she was suffering from consumption. Her Day moved for the writ. The father husband had died in the month of April, being dead, the mother is entitled to have 1861, leaving her with three children, one the child delivered up to her, in order of them being Mary Ann Turner, who that it may be brought up according to was born in April, 1859, and was baptized the religion which she professes. It seems at the Roman Catholic Church at Ham- that the difficulty has arisen in consemersmith. The mother had been living quence of the mother's wish to remove in different lodging-houses, and had on the child from a Protestant institution to several occasions left the child without one where she will be educated as a food for two or three days together ; it Roman Catholic. The father was a Pro. was alleged that if it had not been for the testant. lodging-house keeper and some of the [BLACKBURN, J.-I shall not be at all lodgers the child would have been left to influenced by any such question, but it starve; it was also alleged that the mother lies on the mother to shew that we ought had come home drunk, and had been to lend our aid to her obtaining possession gaining her living by immoral practices. of a child whom she has ill-treated and In the month of June last, the mother con- almost starved, and who, with her consent, sented to the child being placed by a lady has been placed in the institution from in a school at Ealing, which was carried which she now wishes to remove her. on as a home for destitute girls, who are The mother seems to have been a person there supported and trained for domestic of drunken, dissipated habits.] service. The education provided for the The father being dead, the mother is girls at the school was in accordance with entitled to ask the Court to order that the the principles of the Protestant religion. child should be restored to her, as she is The lady who had so placed the child in now guardian for nurture, with all the the school was told by the mother that a rights belonging to a mother as surviving Catholic lady had been visiting the ward parent, and a habeas corpus is the proper in the infirmary, and finding that she had remedy. a girl in a Protestant school, expressed her [BLACKBURN, J.—The mother does not sorrow thereat, and said that if the mother wish that she herself should have the would remove her from the school, she custody of the child. She only wishes would send her to a school in France, that it should be handed over to other where she would receive a superior edu- persons.] cation. The mother in her affidavit swore The course to be adopted by the Court that one of the sorrows which pressed on in such a case as the present is set forth her in her present condition was from her in The Queen v. Maria Clarke (1). having allowed the child to be sent to the school, and that it was her earnest wish

(1) 7 E. & B. 186; s. c. nom. In re Alicia Race, and desire to remove the child from that 26 Law J. Rep. (N.s.) Q.B. 169,

BLACKBURN, J.-I am of opinion that, corpus. The general law is clearly so, as the case stands, we ought to refuse the and even after the age of fourteen ; rule. There is no doubt that in general whereas this boy was only twelve. The when the father of a child under ten years right may indeed be forfeited by misconof

age is dead, the mother is entitled to duct of a very gross nature, but nothing the custody of the child, and that the of that kind appears to have been brought right mode of proceeding to obtain such forward. It may have been an act of im. custody is by obtaining a writ of habeas prudence originally in the father to place corpus. But when an application is made his boys with persons who were likely to for a writ of habeas corpus, this Court ought bring them up in religious opinions and to see whether, under the circumstances of faith contrary to their father. I suppose the case, it would be injurious to the child he made some stipulation for avoiding to order that it should be returned to the this; but whether he did or not, I do not mother. The question of the mother's think that the law would be affected religion, whether she be a Protestant or a thereby. Even if he had changed his Roman Catholic, does not make the mind upon that subject, as well as on the slightest difference, nor ought it to in- education of his boys in other respects, I fluence the Court in any way. But it know of no law which forbids him to do appears in the present case that the so, or binds him to the arrangement which mother, on whose behalf the application he had at first made." is made, is a pauper, dying in a work. MELLOR, J.--I am of the same opinion. house, that she has been an habitual I think that the case of Alicia Race (1) and drunkard, and that when the child was the judgment of this Court, as delivered by in her custody it was almost starved. It Lord Campbell, shew that although prima appears that a lady kindly took charge of facie when the father is dead the mother the child, and that as she was herself a is entitled to have her child given up to Protestant, she placed it in an asylum or her, yet the conduct of the mother must institution where the children of Protes- always be taken into consideration. In tants are taken care of. The inother is the present case it appears that the mother now on her deathbed, and is said to be allowed the child to be taken to the institu. auxious that the child should be taken tion, where it has been brought up and away from the institution. The applica- educated, it having been before in a state tion is made by her, and the point is of semi-starvation. It is impossible not to raised whether, when the mother herself see that this is not a bona fide application. is such a kind of person as that we The mother does not ask that her child should not be justified in restoring the should be restored to herself, but, being child to her, we are bound to order that it on her deathbed, she now wishes that the should be given up to persons whom the custody of the child should be changed, mother now names as those to whom she and that it should be removed from the wishes the child to be given up.

care of those persons who, from laudable did so, we should act in a manner contrary motives, have taken charge of it. We to the cases which shew that a child is not should not regard the interests of the to be handed over as if it were a load of child if we acceded to this application. corn or a bale of goods., The law upon Lush, J.-I am of the same opinion. this subject is fully and correctly ex- It would be an abuse of the power to plained in The Queen v. Clarke (1). In grant a writ of habeas corpus if we granted the judgment delivered by Lord Camp- it in this case, bell, C.J., in that case, the opinion

Application refused. given by Patteson, J., upon a question submitted to him by Sir Erskine Perry, is mentioned with approval.

Attorneys–Tucker, New & Langdale, for applias follows—“I cannot doubt that

cant; W. A. Boyle, for defendant,

you were quite right in holding that the father was entitled to the custody of his child, and enforcing it by writ of habeas

If we

It was

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