Surman (1) have no application, for in each of these the testator had devised to his wife for life, with a power of appointment to her among the children. This power accrued immediately *on the death of the testator; and under such a limitation it might well be supposed that by implication the children took the remainder as tenants in common in fee, subject to be devested by an exercise of the power of appointment. But in the case at Bar there was no power of appointment till the death of the wife, and in her lifetime all the children died. The re mainder in fee, therefore, remained in James the son, and passed by his will; so that, although the plaintiff is now the heir-at-law of the testator, he has no right to any part of the lands for which the ejectments are brought.

Judgment for the defendants.

EX PARTE SMITH (2).

(1 El. & El. 928-930; S. C. 28 L. J. Q. B. 263; 5 Jur. N. S. 515; 32 L. T. O. S. 135; 7 W. R. 451.)

H. S. served, under articles, as clerk to an attorney and solicitor, for four years, six months and twenty-four days. He then, with the consent of his master, was absent for about three years, during part of that time serving as ensign in a militia regiment, and, during the residue, being employed as a surveyor of taxes in the Inland Revenue Office. He then returned to his original master, and served him as clerk, but not under articles, for a period of five months and six days: Held, that the latter period of service, as clerk, could not be computed with the former period of such service, so as to make the requisite period of five years' service. But leave was granted to H. S. to enter into fresh articles, to be stamped with the same duty as was payable on the original articles, and to serve under such fresh articles to complete the period of five years.

FIELD moved that the examiner might be at liberty to examine Henry Smith, and that he might be admitted an attorney in the same way as if he had served the whole period of five years under his articles; or for leave to him to enter into fresh articles, and serve the remainder of the time necessary to complete the five years.

It appeared from the joint affidavit of H. T. Smith, an attorney and solicitor practising at Devonport, and of his son Henry Smith, the applicant, that articles of clerkship, dated 22nd July, 1850, had been entered into, and that the applicant had served his father, under them, *for a period of four years, six months and twenty-four days from their date. That, on 16th February, 1855, Henry Smith, with the consent of his father, received a commission as ensign in the South Devon militia, and that he joined that regiment and served with it until 1st April, 1855. That, on 1st April, 1855, Henry Smith B. & S. 993, 34 L. J. Q. B. 136, 11 L. T. 625.

(1) 1 Taunt. 289.

(2) See Ex parte Keddle (1865) 4

received an appointment as supernumerary surveyor of taxes in the Inland Revenue Office, and thereupon resigned his commission as ensign in the said militia. That he was engaged and employed in such capacity in London and Chester from 1st April, 1855, until August, 1857, when he resigned the appointment and returned to Devonport. That on his return he was occasionally employed in his father's office as clerk, in the practice of attorney and solicitor, until November in the same year. That, in November, 1857, the South Devon militia was embodied, and that he, with his father's consent, received a new commission as ensign in the said regiment, and that he served as such ensign until May, 1858. That from 1st July, 1858, to 7th December, 1858, being a period of five months and six days, he actually and really served, and was employed by his father as his clerk in the practice of an attorney and solicitor; and that the said period of five months and six days, together with the previous period of four years, six months and twenty-four days, make a period of five years; and that the applicant was then still in the employment of his father as such clerk.

Field, in support of the application:

The affidavit shows that the applicant has actually served for a complete period of five years, though the service was not continuous.

(CROMPTON, J.: For a portion of the time during which he served, he was not under any articles *at all.)

* * *

(LORD CAMPBELL, Ch. J.: Your application can be supported only on the ground that there was a virtual five years' continuous service.)

It must be conceded that the service was not continuous. But, at all events, leave should be granted to the applicant, under the circumstances, to enter into fresh articles and serve under them for the remainder of the time necessary to complete the five years.

(CROMPTON, J.: Is there any authority for such an application ?)

In Chitty's Archbold's Practice, Vol. I., p. 33 (9th ed., by
Prentice), it is said, "The Court have power ""to discharge

the articles and enable the clerk to enter into fresh articles sa
as to complete the five years' service:" and, at p. 34, "the
period of service under the fresh articles must be for the residue.
of the term of five years, so as to make up a full five years'
actual service."

R.R. VOL. CXVII.

34

Ex parte

SMITH.

[ *930 ]

Fx parte
SMITH.

The

(CROMPTON, J.: If leave be granted, it is to be understood that the applicant must get the fresh contract stamped with the same duty as was payable on the original articles. stamp on the first articles will be allowed, on his delivering them up to the Commissioners of Stamps within six months of the execution of the new articles.)

Per CURIAM (1):

On that understanding, the applicant may have leave to enter into fresh articles.

Leave accordingly.

1859. May 11.

1859. May 11.

[ 935 ]

[ *936 ]

EX PARTE BIRD.

(1 El. & El. 931–935; S. C. 28 L. J. Q. B. 223; 5 Jur. N. S. 1009.) [Construction of Local Government Act, 1858 (21 & 22 Vict. c. 98), ss. 18, 81, repealed 38 & 39 Vict. c. 55, s. 343.]

REG. v. FINNIS.

(1 El. & El. 935-939; S. C. 28 L. J. M. C. 201; 5 Jur. N. S. 791.) Where guardians of a poor law union are surcharged by the auditor of an audit district, and application is made to a justice to issue a distress warrant to levy the sum surcharged, if the statutable proof of the surcharge required by the Poor Law Audit Act, 1848 (11 & 12 Vict. c. 91), s. 9, be complete, the justice has no power to inquire into the validity of the grounds for the surcharge, but must issue the warrant. If he refuses to issue it, the Court will compel him, by a rule, to do so.

RULE, calling upon Thomas Finnis, Esq., one of the aldermen and justices of the peace for the city of London, Henry Potter, Samuel Long and William Alliston Lamprell, three of the guardians of the poor of the West London Poor Law Union, to show cause why the said Thomas Finnis should not issue a distress warrant, *to levy, upon the goods and chattels of the said Henry Potter, Samuel Long and William Alliston Lamprell, the sum of 41. 9s., disallowed by the auditor of the London audit district in the accounts of the said union, and certified by the same auditor to be due from the said three guardians.

It appeared from the affidavit of the auditor, upon which the rule was granted, that, in June, 1858, he held an audit of the accounts of the union; that he then saw cause to surcharge the three guardians named in the rule, in respect of a certain payment, or aggregate of payments, amounting to 61., which were debited in the account for common charges in the general ledger of the said union, which payments he considered had been illegally made and had been authorized by them. That he thereupon gave them, respectively, notice that he would be ready to hear them, at a time and place appointed, if they (1) Lord CAMPBELL, Ch. J., ERLE, CROMPTON and HILL, JJ.

were desirous of showing cause against being so surcharged. That Potter attended the appointment, and showed cause, but Long and Lamprell did not attend. That the auditor, after hearing Potter, determined that the sum of 4l. 9s., being part of the said sum of 6l., was an illegal payment, not chargeable on the poor rates, and that it had been authorized by the said three guardians; that, consequently, he surcharged them with' the said amount, and, on the same day, entered his certificate in the general ledger that he had disallowed the said sum of 41. 9s.; that he had surcharged the three guardians with the the same; and that the same was due from them. That he also entered at the foot of the certificate his reasons for making the said surcharge, as follows: "My reason for this disallow ance is, that the sum disallowed and surcharged was paid for *a dinner and refreshments at an hotel at Hanwell, on a visit made by the guardians of the West London Union to inspect the school and arrangements connected therewith at that place; it not being proved to me that such expenses were necessary, or properly chargeable on the poor rates." That, on 3rd March, 1859, as the said guardians had neither paid the amount so surcharged and certified to be due nor appealed to the Poor Law Board against the decision of the auditor, the auditor laid an information before one of the aldermen and justices. of the peace for the city of London, charging the said guardians with not having paid the said amount, upon which a summons was issued; and that, on 5th March, the said guardians appealed, in pursuance thereof, before the said Thomas Finnis, and the auditor also attended. That the auditor then proved

all that he is required, by stat. 11 & 12 Vict. c. 91, s. 9, to prove at the hearing of such a summons; whereupon the said guardians contended that the auditor's decision was wrong in law. That the auditor then objected that the said Thomas Finnis had no jurisdiction to determine whether the auditor's decision was right or wrong; that the guardians had no right of appeal to the said Thomas Finnis; that their only right of appeal was to the Court of Queen's Bench or to the Poor Law Board; and that the said Thomas Finnis was bound to issue distress warrants to levy the amount certified by the auditor to be due from the said guardians. That, at the suggestion of the said Thomas Finnis, the further hearing of the information was adjourned till the said guardians should have appealed to the Poor Law Board. That, on 1st April, 1859, however, the said guardians not having so appealed, the summons was again. heard, at Guildhall, before the said Thomas Finnis, both the auditor and the *said guardians then appearing; and the

REG.

v.

FINNIS.

[ *937 ]

[ *938 ]

said Thomas Finnis then permitted the said guardians to dispute the right of the auditor to surcharge them in respect of the said payment, and decided that the said payment was not contrary to the statutes relating to the poor, or to the rules and orders of the Poor Law Board; he thereupon dismissed the summons and refused to grant a distress warrant to enforce the surcharge.

The attorney who attended, on behalf of the said three guardians, at the hearing of the summons by the said Thomas. Finnis, made affidavit, in opposition to the rule, that, at the first hearing of the summons, he contended before the said Thomas Finnis that the auditor was bound to prove that he had given notice, in some newspaper circulating within the West London Union, of the holding of his audit, as required by stat. 11 & 12 Vict. c. 91, s. 7, and that he had complied with all the other provisions in the different statutes having reference to the audit of accounts: that, at the second hearing, the deponent further objected that the auditor had not shown that the payment made by the said guardians was contrary to the statutes, or to any order or regulation of the Poor Law, Board: that the auditor had no right to object to parts of items, but ought to have disallowed the whole item; and that he had no right to proceed against the said three guardians only, the payment having been made by them by the direction of the entire board of guardians.

Hawkins now showed cause:

The decision of the aldermen was right. The payment made. by the guardians was properly chargeable on the poor rates, and ought to have been allowed by the auditor.

(CROMPTON, J.: You would make the alderman a Judge of appeal from the decision of the auditor. But the alderman had no jurisdiction of *that kind. This Court alone has power to reverse the auditor's decision. While it remained unreversed, the alderman was bound to issue the warrant to enforce it.) It was incumbent on the auditor to prove to the alderman that the audit at which the order was made was properly held. Stat. 11 & 12 Vict. c. 91, s. 7, requires the auditor to give notice of the audit, in some newspaper circulating within the union, a reasonable time prior to the holding of his audit. And, by stat. 7 & 8 Vict. c. 101, s. 33, he is to give to the overseers or other officers fourteen days' notice of the audit. He did not prove before the alderman that he had complied with these statutory provisions, or either of them.

(LORD CAMPBELL, Ch. J.: Can it be said that an omission to