damages for any mischief which they have, for their own interest, allowed to fall on the plaintiffs. But further, the case shews that the defendants had the means of preventing the mischief; for it ap pears from the case (paragraphs 20 & 21) that although the defendants refused to draw off the water of the canal in order to enable the plaintiffs to get their coal, they did, for their own purposes, draw off the water for a time, and altogether stopped the through navigation of the canal while the mines were being worked; and I think they were justified in doing so. Under ordinary circumstances, it was the duty of the canal company to keep the navigation open, but they might lawfully stop it, if such a course was necessary in order to do any repairs required for the safety of the canal, or to effect any other necessary purpose; and if they could not otherwise avoid doing mischief to neigh bouring property, they might stop the navigation for a reasonable time while they provided the necessary safeguards. This would be clear, if they could not otherwise prevent the water of the canal flooding a neighbouring house; and I think they ought to have stopped the navigation to prevent the drowning of the plaintiffs' mines, if they could not prevent it by other means; and the fact that they did so leads me to the conclusion that they could practically have kept the water drawn off from the whole 150 yards over the mines, if their sole object had been to protect themselves and not prejudice to the plaintiffs.

But it is suggested that, when the defendants refused to stop the working and to give compensation for the mines, a right at once accrued to the plaintiffs to demand compensation for this inability to work the mines without letting in the water. I do not think that this is the meaning of the legislature. It would be a singular mode of dealing with the subject to allow the company the option whether they would purchase the coals or not, and yet to make the exercise of that option give rise to a claim to compensation for the coals which they had refused to purchase. This would render the option practically useless to them. Suppose that the value of the coal which the defendants

refused to purchase was 1,000l., and that it was clear that the coal could not be gotten without some damage, what compensation could then be assessed ? Plainly not the 1,000l.; for that would be to make the defendants pay by way of compensation the price of that which they had, in the exercise of their right, refused to purchase; and if anything less than 1,0007. should be given, why should it be assessed prospectively, while the true amount must be matter of speculation, rather than after the extent of damage had been ascertained by experience of the facts? I think, therefore, that the defendants, by the mere refusal to purchase, gave no ground of claim to the plaintiffs; but the defendants were bound, in determining whether they would purchase or not, to exercise their judgment as to what the probable effect of getting the coals would be; the responsibility of forming an opinion as to the danger of the water escaping and the means of preventing it, was cast entirely on them, and not on the mine owners, who were left, by the refusal to purchase, in full possession of the undiminished right to get their coal as they could, doing no unnecessary damage to the canal and working in the usual way.

I am of opinion, therefore, that the plaintiffs may maintain this action against the defendants for retaining the water in the canal under circumstances which they knew would render it incapable of holding the water, and which they had the means of preventing.

The difficulty which I felt, on the argument, in deciding that the plaintiffs were entitled to recover arose from the fact, that the damage of which they complain was the direct result of their own acts, done with a knowledge of the probable consequences; but this difficulty has been removed from my mind by the consideration that the plaintiffs' acts were done strictly within the limits of their own rights, and solely for the purpose of enjoying their property in a lawful and usual manner, and were necessary for that purpose, and after the defendants, with notice of the facts, had refused to take steps within their power to prevent what has happened. This brings the case within the principle of the decision of the House

of Lords in Fletcher v. Rylands (5) as expressed in the passage quoted by the then Lord Chancellor (Lord Cairns) from the judgment delivered by Blackburn, J., in the Exchequer Chamber (13): "We think that the true rule of law is that the person, who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape." It is added: "He can excuse himself by shewing that the escape was owing to the plaintiffs' default." But, for the reasons which I have given, I think the defendants in this case cannot set up such excuse, for the plaintiffs have been guilty of no default; they have merely sought to enjoy their own property in an ordinary manner. If a water company were to carry their pipes or store their water over the Metropolitan Railway, and the vibration of the trains were to loosen the pipes or reservoir and cause the water to flow down and do injury to the railway, the water company would not be entitled to defend themselves against a claim for damages by saying that the railway company ought not to 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 escape in consequence of acts which the railway company had a right to do. This illustration may be open to the objection that it is idem per idem; but it will nevertheless assist in shewing the relation in which, as it seems to me, the plaintiffs and defendants stand to one another.

It may be suggested that the principle laid down in Fletcher v. Rylands (5) is not applicable to the case of a company empowered by an Act of Parliament to collect and keep on its land anything likely to do mischief-and to this I assent, if the escape be the necessary consequence of bringing the liquid or other

(13) 35 Law J. Rep. (N.s.) Exch. 155; and Law Rep. 1 Exch. 279.

thing to the place, and in the manner authorised; and to the extent to which oozing of water through the banks of the canal is the necessary consequence of maintaining the water in it, the remedy for the mischief thereby done must be sought under the provisions of the Act; but for anything not authorised by the Act, nor the necessary consequence of the exercise of its powers, the person or company bringing the noxious thing on to his land is equally responsible whether the right to bring it there was obtained by Act of Parliament or by any other means.

In the present case I have endeavoured to shew that, though the right to bring the water of the canal over the plaintiffs' mines was given by Parliament, the right to flood the mines under the circumstances occurring in this case was not given, and therefore for injury resulting therefrom the defendants were responsible. these reasons, I am of opinion that our judgment should be for the plaintiffs.

For

office. Enrolment, however, was refused on the ground that the articles were informal, inasmuch as a clerk could not be articled to serve two masters.

Lumley Smith moved for a rule directing the Master of the Court to enrol the articles of Mr. Holland. The 6 & 7 Vict. c. 73. s. 3, requires an attorney before admission to have been bound by contract in writing to serve as clerk for five years to a practising attorney in England or Wales, and to have duly served under such contract for that term. By section 4, "No attorney or solicitor shall have more than two clerks at one and the same time, who shall be bound by such contract in writing, as aforesaid, to serve him as clerks." The question is whether a binding to a firm of two attorneys is a binding to two distinct masters, and whether such a binding is invalid. In Chitt. Arch. Prac. vol. i. p. 31, 11th edit., it is said, "Where there are two attorneys in partnership, each may have two articled clerks. But there must be a separate binding to each; and if the binding were to the two (as it might be) the clerk would be deemed the clerk of each, and neither I 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.

BLACKBURN, J.-It has been customary to bind a clerk to one partner of a firm, and not to the firm collectively. Probably the reason of that practice is that each attorney can by statute only take two clerks, and by binding to the individual members of the firm each partner might take two clerks, whereas by binding to the firm the number of clerks capable of being articled was reduced. In Ex parte Bayley (1), the clerk was articled to one of the partners of the firm in name, which partner died, and as the surviving partner had the full number of two clerks articled

at the time to him, he was not able to retain the clerk of the deceased partner in his service, and he was accordingly ordered to refund a proportion of the pre

(1) 9 B. & C. 691.

mium which he had paid, and which had gone to the partnership account. Lord Tenterden there said that though the clerk was bound to one only in name, in reality and conscience he was bound to the two. The binding therefore to two was sanctioned.

There may arise a possible inconvenience to the clerk from a binding to the firm, which he would do well to avoid, namely, that if the firm should be dissolved, inasmuch as he is bound to serve both masters, I do not see how he can carry out that contract of service. The binding to two of a firm is undoubtedly a binding to each. The clerk must, however, take that peril and risk, if he elect to be so bound, but inasmuch as there is nothing to render the binding invalid, these articles should be enrolled. QUAIN, J., concurred.

Rule absolute to enrol.

Attorneys-Senior, Attree & Johnson.

1872. 1 Jan. 27. (

In re MARY ANN TURNER,
ex parte ANN TURNER.

Habeas Corpus-Child under Fourteen Years of Age-Guardianship for Nurture— Death of Father-Rights of Mother.

The mother of a child, between ten and eleven years of age, although a Roman Catholic, had consented to the child being placed in a Protestant school for destitute children. Being ill from consumption in a workhouse infirmary, she became, as she alleged, anxious that the child should be removed, and placed in a home for poor children, so that she might be brought up in the mother's own faith, and in that in which the child had been baptized. She had, before being in the infirmary, lived in lodg ing-houses, had neglected the child, and had lived a drunken and immoral life. The father of the child was dead, and the child herself desired to remain in the school :— Held, that under these circumstances the

Court would not grant a Habeas Corpus to remove the child.

This was an application made on behalf of the mother of Mary Ann Turner, a child under the age of fourteen years, for a writ of habeas corpus to bring up the body of the child. The matter had been before Bramwell, B., at chambers, but that learned judge declined to make any order.

It appeared from the affidavits used at chambers in support of and against the application, that the mother of the child, a Roman Catholic, was in the infirmary of the Marylebone Workhouse, and that she was suffering from consumption. Her husband had died in the month of April, 1861, leaving her with three children, one of them being Mary Ann Turner, who was born in April, 1859, and was baptized at the Roman Catholic Church at Hammersmith. The mother had been living in different lodging-houses, and had on several occasions left the child without food for two or three days together; it was alleged that if it had not been for the lodging-house keeper and some of the lodgers the child would have been left to starve; it was also alleged that the mother had come home drunk, and had been gaining her living by immoral practices. In the month of June last, the mother consented to the child being placed by a lady in a school at Ealing, which was carried on as a home for destitute girls, who are there supported and trained for domestic service. The education provided for the girls at the school was in accordance with the principles of the Protestant religion. The lady who had so placed the child in the school was told by the mother that a Catholic lady had been visiting the ward in the infirmary, and finding that she had a girl in a Protestant school, expressed her sorrow thereat, and said that if the mother would remove her from the school, she would send her to a school in France, where she would receive a superior education. The mother in her affidavit swore that one of the sorrows which pressed on her in her present condition was from her having allowed the child to be sent to the school, and that it was her earnest wish and desire to remove the child from that

school, and to place her at a home for poor children, conducted by Sisters of Charity, so that she might be brought up in the mother's own faith, and in that in which the child was baptized. It was on the other hand sworn by the superintenIdent of the school that the child was most anxious to remain there. He declined to allow her to be taken away from the school, whereupon an application was made to Bramwell, B., at chambers, for a writ of habeas corpus, but that learned judge, after an examination of the child in private, declined to make any order.

Day moved for the writ. The father being dead, the mother is entitled to have the child delivered up to her, in order that it may be brought up according to the religion which she professes. It seems that the difficulty has arisen in consequence of the mother's wish to remove the child from a Protestant institution to one where she will be educated as a Roman Catholic. The father was a Protestant.

[BLACKBURN, J.-I shall not be at all influenced by any such question, but it lies on the mother to shew that we ought to lend our aid to her obtaining possession of a child whom she has ill-treated and almost starved, and who, with her consent, has been placed in the institution from which she now wishes to remove her. The mother seems to have been a person of drunken, dissipated habits.]

The father being dead, the mother is entitled to ask the Court to order that the child should be restored to her, as she is now guardian for nurture, with all the rights belonging to a mother as surviving parent, and a habeas corpus is the proper remedy.

[BLACKBURN, J.-The mother does not wish that she herself should have the custody of the child. She only wishes that it should be handed over to other persons.]

The course to be adopted by the Court in such a case as the present is set forth in The Queen v. Maria Clarke (1).

(1) 7 E. & B. 186; s. c. nom. In re Alicia Race, 26 Law J. Rep. (N.S.) Q.B. 169.

BLACKBURN, J.-I am of opinion that, as the case stands, we ought to refuse the rule. There is no doubt that in general when the father of a child under ten years of age is dead, the mother is entitled to the custody of the child, and that the right mode of proceeding to obtain such custody is by obtaining a writ of habeas corpus. But when an application is made for a writ of habeas corpus, this Court ought to see whether, under the circumstances of the case, it would be injurious to the child to order that it should be returned to the mother. The question of the mother's religion, whether she be a Protestant or a Roman Catholic, does not make the slightest difference, nor ought it to influence the Court in any way. But it appears in the present case that the mother, on whose behalf the application is made, is a pauper, dying in a workhouse, that she has been an habitual drunkard, and that when the child was in her custody it was almost starved. It appears that a lady kindly took charge of the child, and that as she was herself a Protestant, she placed it in an asylum or institution where the children of Protestants are taken care of. The mother is now on her deathbed, and is said to be anxious that the child should be taken away from the institution. The application is made by her, and the point is raised whether, when the mother herself is such a kind of person as that we should not be justified in restoring the child to her, we are bound to order that it should be given up to persons whom the mother now names as those to whom she wishes the child to be given up. If we did so, we should act in a manner contrary to the cases which shew that a child is not to be handed over as if it were a load of corn or a bale of goods. The law upon this subject is fully and correctly explained in The Queen v. Clarke (1). In the judgment delivered by Lord Campbell, C.J., in that case, the opinion given by Patteson, J., upon a question submitted to him by Sir Erskine Perry, is mentioned with approval.

It was

as follows-"I cannot doubt that you were quite right in holding that the father was entitled to the custody of his child, and enforcing it by writ of habeas

corpus. The general law is clearly so, and even after the age of fourteen; whereas this boy was only twelve. The right may indeed be forfeited by misconduct of a very gross nature, but nothing of that kind appears to have been brought forward. It may have been an act of imprudence originally in the father to place his boys with persons who were likely to bring them up in religious opinions and faith contrary to their father. I suppose he made some stipulation for avoiding this; but whether he did or not, I do not think that the law would be affected thereby. Even if he had changed his mind upon that subject, as well as on the education of his boys in other respects, I know of no law which forbids him to do so, or binds him to the arrangement which he had at first made."

MELLOR, J.-I am of the same opinion. I think that the case of Alicia Race (1) and the judgment of this Court, as delivered by Lord Campbell, shew that although prima facie when the father is dead the mother is entitled to have her child given up to her, yet the conduct of the mother must always be taken into consideration. In the present case it appears that the mother allowed the child to be taken to the institution, where it has been brought up and educated, it having been before in a state of semi-starvation. It is impossible not to see that this is not a bona fide application. The mother does not ask that her child should be restored to herself, but, being on her deathbed, she now wishes that the custody of the child should be changed, and that it should be removed from the care of those persons who, from laudable motives, have taken charge of it. We should not regard the interests of the child if we acceded to this application.

LUSH, J.-I am of the same opinion. It would be an abuse of the power to grant a writ of habeas corpus if we granted it in this case.

Application refused.

Attorneys-Tucker, New & Langdale, for applicant; W. A. Boyle, for defendant.