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, Nov. 6, 1886. THE SOLICITORS’ JOURNAL. ,3

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We considered at some length last week the power of the father
to appoint guardians, and the rights and duties of guardians
appointed by him, because the operation and effect of many of the
new provisions as to the appointment of guardians depend, to a
considerable extent, on the old law. We come now to the recent
legislation on this subject.

Power of the mother Io appoint and nominate _quardian.v.—
The new Act (49 & 50 Vict. e. 27), in the first place, confers on
the mother an absolute power of appointing guardians. Section 3
(l) provides that

" The mother of any infant may by deed or will appoint any person or

persons to be guardian or guardians of such infant after the death of her-
self and the father of such infant (if such infant be then uumarried)."

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the necessary confirmation after the mothers death is nowhere provided: probably it is left to be determined by the rules to be made under the Act, but it may be supposed that the guardian provisionally nominated would be the proper person.

It should be noticed that while the mother is left unfettered in her absolute appointment of a guardian to act after the death of the surviving parent, she is required to nominate “ some fit person ” to act during the father’s lifetime. Upon an application for confirmation, therefore, two grounds of opposition will be open to the father—viz., either that he is fit to be the sole guardian, or that the mother’s nominee is unfit to be joint guardian. It would seem to be some evidence of unfitness for the ofiice of joint guardian that the nominee is on bad terms with the father, and unlikely to act amicably with him in the joint guardianship. The mother is, however, enabled to nominate any number of persons she likes to act as joint guardians with the father, and probably, considering that the question of “fitness” may be raised, and that the persons nominated will be very likely to disclaim an oflice which is certain to give rise to annoyance and dispute, it would be wise to nominate several persons. It is assumed that, under the general words at the end of the sub-section, the court would be able to appoint any one or more of the persons nominated, but the previous part of the section apparently only enables the court to confirm the mother’s nomination sn bloc.

As the guardians nominated by the mother and confirmed by the court are only authorized “so to act as aforesaid ”—that is, “ jointly with tlisfalher ”—it is presumed that on his death their authority will cease. The instrument executed by the mother nominating guardians during the father's lifetime should, therefore (if such be the intention), also appoint guardians after his death.

It should be observed in this connection that, although the latter part of section 2 expressly provides for the appointment by the court of guardians to act jointly with the mother in case of the death or refusal to act of the guardians appointed by the father, there is no direct provision for the appointment by the court of guardians to act jointly with the father iu case of the death of the guardians nominated by the mother and confirmed by the court.

Powers of guardians under the new Act.—Section 3 (4) of the Act provides that

“ Every guardian in England under this Act shall have all such powers over the estate and the erson, or over the estate (as the case may be), of an infant as any guardian up inted by will or otherwise now has in England under the Act twelve dliarles the Second, chapter twenty-four."

The powers of a testamentary guardian under 12 Car. 2, c. 24, will be found briefly stated in our last issue (ante, p. 3). It is certainly a cni-ious illustration of our inveterate habit of legislation by reference that, in order to ascertain the powers of a guardian appointed under an Act of 49 8: 50 Vict., recourse must be had to an Act of 12 Car. 2, and since that Act also legislated by reference to the then existing powers of a guardian in socage, search among the oldest authorities is necessary in order to understand the powers intended to be conferred by a statute passed a few months ago. A doubt may, perhaps, arise whether, under the provisions of the sub-section last above quoted, the guardians under the recent Act will succeed to the special powers given to testamentary guardians by various statutes, such, for instance, as the Settled Land Act, 1882.

Although the singularly-worded sub-section last above quoted provides, by reference, for the powers of guardians appointed under the Act, it altogether omits directly to prescnbe their_ duties. These are left to be gathered incidentally from the provisions of other sections, or to be implied by law from the office of guardian. ‘1‘he general nature of the duties of a testamentary guardian has been stated in our former article, and, from the repeated references in the Act to the guardians appointed under it acting “jointly ’ with the testamentary guardians, it may no doubt be assumed that their duties, as well as their powers, are to be the same as those of the guardians with whom they are to act. _ _ _

The general scheme of the Act_may be described as joint guardianship. It is true that section 2 expressly enables the mother to act alone as guardian on the death of the father when no guardian has been appointed by him, but it also provides that

H - ‘ her, or if the

When no guardian has been appointed by the fag d "fuses

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think fit, from time to time appoint a guardian or guardians to act jointly with the mother."

Section 3 (1) also provides that, “ where guardians are appointed by both parents, they shall act jointly.” It becomes, t erefore, important to ascertain the rights and position of joint testamentary guardians before the recent Act. In point of authority they were all on an equality, and if the mother was one of several joint testamentary guardians, though every attention ought to be paid to her wishes, she had no greater authority than the other guardians (Campbell v lllackay, 2 My. & Cr., at p. 37). _As regarded the custody of the person of tho ward, the pleasing rule at law was that any guardian who could manage to

get hold of the ward might keep him. Where there were two guardians " if the one taketh the infant out of the possession of the Other, the other hath no remedy by an action by the law, but to take the infant out of the possession of the other when he sees his time ” (Litt., s. 323), unless the infant were in the service of one guardian, or in the service of another person with his consent (Gilbert v. Sclswenck, 14 M. & W. 488). But courts of equity early assumed jurisdiction to decide differences between jomt testamentary guardians as to the education and residence of the ward (Beaufort v. Barty, l P. Wms. 703. As regards the property of the ward, it is conceived that the position of joint testamentary guardians was, generally speaking, similar to that of joint trustees. Section 3 (3) of the recent Act provides that

“In the event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the court [including a county court] for its direction, and the court may make such

order or orders regarding the matters in difference as it shall think proper.”

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se o a e charge of the infant. The discussion of this weighty distinction is now set at rest by section 6 of the recent Act, which enacts that

In England the High Court of Justice [the power is not given to county courts] in any d vision thereof, may, in their discretion, on being satisfied that it is for the welfare of the infant, remove from his ofllce any tesimnmtary yuardian, or any guardian appointed or acting by virtue of this Act, may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed."

Under the Divorce Acts the court, in any suit or proceeding for judicial separation, nullity or dissolution of marriage, is enabled to make interim orders, and to make provision in the final decree for the custody, maintenance, and education of the children of the marriage (20 & 21 Vict. c. 85, s. 35), and also to make such orders on petition after a final decree (22 & 23 Vict. e. 61, s. 4). An important addition to these powers is made l-y section 7 of the recent Act, which provides that

_‘f In any case whero_a decree for judicial separation, or a decree either um or absolute for a divorce, shall be pronounced, the court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to be a person unfit to have the custody of the children (if any) of the marriage ; and, in such case, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children.”

_ The disqualification, it will be observed, does not extend to the right to appoint guardians; hence, under the Act, a mother, divorced on the ground of her misconduct, will still be entitled to appoint guardians to act after the death of herself and the father; also to “nominate” guardians to act after her death jointly with the father. Can this have been intended ?

Orders as to custody of z'nfa.nts.—-Th A t 36 & 37 V' t enabled the Court of Chancery, upon getition, by her ne:t.fiien1cl2 of the mother of any infant under sixteen years of age to ordei aceess by the petitioner to such infant, or that such infant be delivered to the mother and remain in her custody until such age, not exceeding sixteen, as the court should direct, subject to such regulations as to access by the father or otherwise as the court should deem proper. Section 5 of the recent Act sweeps away the limit of age and provides generally that

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the mother of any infant (who may apply without next friend), make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to _the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in everycase may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just."

The cuurls luwing jurisdiction under the Act.—-Ono of the most important changes made by the Act is the jurisdiction conferred on the county courts. Section 9 defines the words “the court,” as used in the Act, as the High Court and “the county court of the district in which the respondent or respondents or any of them may reside.” Applications to the Chancery Division to the High Court are to be made “ in such manner as may be prescribed by Rules of Court”; which are also to prescribe the practice and rocedure in any proceedings in that division under the Act; and like rules are to be made by the committee of county court judges for regulating the practice and procedure on applications to the county court. No rules under t e A_ct have yet appeared. Applications to the county court may (section 10) be removed, by order of the High Court, to the High Court, at the instance of any party, “on such terms as to costs as it may think proper ” ; and (subject to Rules of Court?) an appeal will lie to the Ch . . .

ancery Division from any order made y a county court under the Act.

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Nov. 6, 1886. THE SOLICIT



Hurst, 10 Ha. 30, 43; see 3 My. & Cr. 416)-a._r/., by allowing the creditor to redeem a legal mortgajge, because he could not at law extend the equity of redemption ( mzafall v. Trap es, 3 Sim. 300) ; by restraining the setting up of an outstanding fdgal estate in bar of his execution at law (5 Jarm. Conv. 40, 2 Spence Eq. Jlur. 799). And in such cases equity would interpose to protect the property and keep it available in the meantime by appointing a receiver, subject to the rights of prior incumbrancers (AnybItnlian Bank v. Davies, 27 W. R. 3, 9 Ch. D. 275, 285). Before the Judicature Act the mode of obtaining equitable execution was by issuing a writ of ale;/if, and, without obtaining a return, filings bill in equity alleging that the plaintiff had issued his elegil, and that, owing to legal impediments, it could not be enforced at law, and asking for payment of the judgment debt by means of a receiver. The application for a receiver was made by interlocutory application befom the hearing (per Jessel, M.R., 9 Ch. D., at p. 283, 285). Equity, in general, followed the law in not allowing the creditor to take more than the moiety which (before 1 & 2 Vict. c. 110) he could have taken at law (Lewin Tr. 800; Slileman v. Ashdawn, 2 Atk. 610). An exception was admitted when ii judgment creditor was allowed to redeem a mortgage, in which case, inasmuch as he was obliged to redeem the whole of the lands comprised in it, he was entitled to a sale of the whole and satisfaction of his judgment debt out of the whole of the proceeds (Stemehewer v. Thompson, 2 Atk. 477).

Purchaser withoul n01ice.—It appears, therefore, that, as against a judgment creditor claiming the assistance of a court of equity, the question of notice or no notice might be very material—e._q., if a mortgagee having the legal estate purchased the equity of redemption, his liability in respect of judgments entered up against his mortgagor subsequent to the mortgage depended upon whether h_e had notice of them; for, as we have seen, an equity of redemption was not subject to execution at law (1 Pow. Mort. 281, 3 Sim. 286), and equity would help the creditor only on its own terms and subject to its rules as to the effect of notice on priorities. So if A. was seised in fee in trust for 13., a judgment would not at law bind B.’s equitable fee until execution; but in equity a purchaser from B. would be bound if he had notice before the purchase, and he could not afterwards protect himself by getting a conveyance of the legal estate from A. before


The protection given by equitg to ll purchaser without notice (ante, p. 4) extended only to ju gments entered up against the vendor after contract, and at law all judgments bound the lands, even in the hands of a purchaser for value without notice (3 Prest. Abst. 327, 2 Cru. Dig. 49).

_Tlie Docket Act.—The hardship of the law as against purchasers without notice was to some extent mitigated by the “Act for the better discovery of judgments in the courts of King’s Bench, Common Pleas, and Exchequer in Yllestminster ” (4 6: 5 W. & M. c. 20; made perpetual by 7 & 8 Will. 3, c. 36; and repealed by the _Statute Law Revision Act, 1867), whereby judgments were {cquired to be docketed in the names of defendants, and undocketed J11_gments were not to affect purchasers and mortgagees. The object was to enable purchasers to flnd out judgments (2 Cr. & Jerv. 322); and, if a udgment was duly docketed, a purchaser was b°_‘"1d» though he had not searched the dockets and had no notice aliimde (1 Pow. Mort. 276).

The docket was conclusive at law, and the question of notice could not, it should seem, arise so long as the creditor was enforcing at law the legal rights which the statutes gave him. It became material only in equity when the aid of the Court of Chancery was sought, either by a judgment creditor to obtain execution of property against which he had at law no right to enforce execution, or by a purchaser to restrain a judgment creditor from enforcing a right of execution which he had at law— ‘-9- (411118, p. 4), after contract and before conveyance (Coventry Conv. Ev. 227; 3 Prest. Abst. 327). Dockets were not actual or constructive notice (3 Prest. Abst. 327).

Purchaser with notice of imdoclceied jmi_qment.—Conversely it was held in equity (though not at law: see 1 Pow. Mort. 277; D08 J. Robinson v. Alsop, 5 B. & Ald. 142) that purchasers were bound by actual notice (to themselves or their agents) of ““d°°ll@t8<l judgments, as from the time of such notice: Davis v. Stmihpiore, 16 Ves. 419; Willis v. Browne, 10 Sim. 148). At law ° Judsmellt l>911;1d the defendant from the tiuioit was recorded,

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and docketing was required by the Act only as against purchasers, in order to inform them of the existence of the judgment. As soon as they had acquired this information by other means, they had the same benefit which the Docket Act intended to give them, and, though not bound at law, it was held in equity that they could not be in a better position than their vendors (1 Prest. Abst. 191, 193, 3 Ibid. 337; per Turner, L.J., Bmham v. Keane, 10 W. R. 97, 3 D. F. & J. 332).

Practice as to searches for fiulgmenls under the old Iaw.—-It is observed in 1 Jarm. Conv., ed. 1839, p. 105, that the search, “if pushed to the point at which complete safety is to be obtained, would be enormously expensive, for such search ought to extend to judgments against all the persons to whom the property has successively devolved for a long series of years (say twenty or thirty), commencing, not from the time at which they severally acquired the property, but from the remotest period at which judgments might have been entered up against them, for a judgment affects after-acquired property. The search should be carried back to the birth, or at all events to the childhood, of the debtor. . . . How much the practice falls short of this rule is obvious. The search is generally confined to the last purchaser and persons deriving title from him, it being assumed that every prior purchaser has done his duty by searching for incumbrances against his vendor, and the search rarely goes back further than the time when the person against whom the search is made acquired the property " (see also Mr. ’l‘yrrell’s Communication in Appendix to 1st Rep. of R. P. Commrs., p. 517 ; 2 Dixon, Title Deeds, 408). Under the old law the period for which the search was made rarely extended beyond twenty years, because the lapse of that time raised a presumption that the 'udgment had been satisfied, by analogy to the limitation

J under 21 Jac. 1, c. 16, for making entry into land, though, until t t t r limitation as

the 3 & 4 Will. 4, c. 27, s. 40, there was no s a u o y to judgments (see 1 Hayes Conv. 331).

It seems that the practice adopted for convenience was to search for a period of ten years, and to carry back the search ten years from any judgment which might from time to time be found,

stopping in all cases at the period when the owner became adult, unless there was reason to suspect that there were judgments ' ' ' ' - ‘ . Ab t.

against him while a minor (see 1 Prest. Abst. 191 , .3 Prest s

336; Coventry Conv. Evid. 232). If the search was against a deceased owner it was necessary to carry it on two terms or more from his decease on account of the provisions of 17 Car. 2. 0- 3, and 1 J c. 2 c. 17 (see 2 Wms. Saund. 72 k, 1.), epabling judgments to

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McG'owrun, 13 L. J. Ex. 12).

Though legal terms of years were not bound (St. of Frauds, s. 16) until a writ of execution was delivered to the sheriff, and equitable interests (Ibid. s. 10) not until execution sued, yet it was necessary to search the dockets in order to discover whether it was probable that execution had issued.


The decision in this case, to the effect that appeals by special case from county courts to the Queen’s Bench Division cannot now be brought, inasmuch as such appeals were abolished by the R. S. C. of December 1885, ord 59, rr. 9, 10, is in accordance with the view maintained by us before this case was decided, when discussing the point as to whether the appeal clause of the _Couiity Courts Cousolidation Bill, which did not incorporate section 10 of the County Courts Act, 1850 (the section providing for appeal by special _case), was purely consolidatory, or whether it effected an alteration in the law. We then maintained that the clause in question was merely consolidatory, inasmuch as appeals by special case _had been abolished by the R. S. C. of December, 188.2. Our view of this question was acce ted by the Divisional Court in Reg. v. Ii'<'tti'e. It is_ still suggested) that, though the decision of the Divisional Court was right. R was based upon the wrong ground, and that therc_ciin_ now be no appeal by special case because thc Queens Bench Division gigs no jurisdiction over sucli appeal! and "?t b°°““5° ord" " ' rt‘ 9, 10, has abolished them. The contention seems to be based on a iiiisconstruction of section 45 of the Judicature Act 1873. hTIjiiis_ sectign did not give power to hand over to the Queens Benc vision y rules of court the jurisdiction over appeals from ¢0l"\tY ‘§°‘“'_l' by special case. The “ handing over” was effected by the section itsellqf. which further provided that judges should from time to time c


assigned for the purpose of forming divisional courts to hear and determine (inter aliu) county court appeals. It is the judges who were to be assigned, not the county court appeals. No doubt ord. 59, r. 1 (which, by the way, does not “assign” to the Queen’s Bench Division “appeals under section 6 of the County Courts Act, 1875,” but provides that such appeals “ shall continue to be heard and determined before divisional courts”), mentions appeals by motion, whilst it does not mention appeals by special case, but bot forms of appeal are clearly covered by rule ~l of the same order.


PRINCIPLES or rim CRIMINAL Law. By SEYMOUR F. Hsimis, Barrister-at-Law. Fonarii EDITION. By Avinr AG1mEG| Barristerat Law. Stevens & Haynes.

Less overburdened with technicrlities and details than Russell on Crimes or Archb0ld’s Criminal Pleading, though at the same time equally accurate, Mr. Harris's book has for some time enjoyed a high reputation and has well fulfilled its aim, as explained in the preface to the first edition, of being “ calculated to meet the requirements" of the young practitioner, the student, and the general reader. The present edition is published only two years since the last one. “ the legislation and cases belonging to this short period having,” it is stated, “been incorporated, and the whole work having been carefully revised.” We are sorry we cannot concur in this statement. We find no notice of the Crown Oflice Rules issued in April last or of the important Regulations as to Government Prosecutions, which were first laid before Parliament in 1885, or even of the Prosecutions of Ofibnces Act, 1884. the principal Act of 1879 being still described as “ recently passed." The Criminal Law Amendment Act, 1885, is noticed in its proper places, but with no special merits of statement or explanation. As for revision, we still read (p. 370 note) of an “ Exchequer Division ; ” we find (p. 371) a form speaking of the “ Court of our Lady the Queen at Westminster,” and (p. 154) we read of drunkards being compellable to find sureties upon a second conviction under 4 Jac. 1, c. 5, and 21 Jac. 1, c. 7, s. 3, though the last shred of these venerable enactments was torn out of the Statute Book in 1872 by the Licensing Act of that year.


Tun PUBLIC HEALTH Acrs, 1885. By A. MACMORRAN, Barristerat-Law. Shaw & Sons.

No less than five statutes affecting public health were passed in 1885, the Housing of the Working Classes Act being the best known and the most important. Mr. Macmorrau has edited these in the form of a supplement to Mr. Lumley’s well-known edition of the principal Act, and has added a digest “ of all the cases decided on public health and local government" during the year 1885. The new Acts are carefully annotated section by section, and the effect of the new cases very fully stated with references to all the current reports. The marginal notes (see e.g., p. 25) reproduce from the Queen's printers’ copies of the Acts the “year of the Queen” of the statute referred to in such particular section in a manner rather tiresome to the eyes and useless.

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Sir,—Some good time before the recent Long Vacation Mr Bartley asked the then Attorney-General whether, having regdrd to the additional powers and responsibility conferred on, and vested in the eight chancery taxing masters by R. S. C., 1883 LXV l and the Rules of December, 1685, and to the fact that ,the fees earned by them amounted, on an average, to £32,215 per annum showing an annual profit, after payment of their salaries and thé salaries of their clerks, of between £9,000 and £10,000 per ammm the Government would take under their consideration the propriet , of appointin an additional taxing master, makin the ' th y

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ic 0. . The Attor e -G 1 d 1; care that this_ point was 8ul)mltt:dylZ0 iligralloi-dl Cliil1:gl(ll)1i‘f1 patently, nothing has been done in the matter; although the suitors must necessarily suffer so long as the work of the taxing masters is so hwy that it isamattei of course this H10 imm, of 005,, in I


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many cases, must every year go _over the Dong Vacation. They go over, not because of any delay in the taxing-masters ofiices, but because eight masters cannot be expected to perform U16 Work Whwll would fair y occupy the time of ten. _

There is only power to appoint mne under H16 A015 Tefened 5° above, and there are at present sight. _

It will be remembered that, by the_report of the committee appointed by the Lord Chancellor to inquire into the subject of the existing rules as to the distribution of busmess in the co_urt and chambers of the Chancery Division. 35°-i B T°°°_mm°“d5t1°n ‘F35 made that by degrees the separate offices of registrar and titxfng master should be abolished, clerks of equal qualifications being assigned to each judge to perform their duties. _

This recommendation may have had the effect of staying the hands of the Government with reference_to the appointment_of an additional chancery taxing master; but it is to be hoped that it will not be adopted; but that, on the contrary, effect will be given _to the views of the late lamented and learned judge, Mr. Justice Pearson. _ _

On si ing the report the judge referred_to added this rider—

(2) “ill to the taxing masters. It is, 1n_ my judgment. B great advantage that the taxing masters are entirely separated from all matters in respect of wliic they have to tax ills of_costs _in their earlier stages. They are thus kept independent and impartial, and no solicitor need fear their being prejudiced by any opuuon they have formed in the progress of the litigation.” _

I most reijpectfully and thoroughly indoi-se the views of the learned judge. If e contrary recommendation were acted o_n, then, _m addition to the cases adjourned by chief clerks to their respective judges every week, there would be the additional absorption of time and the additional labour cast on the judges consequent on the adjoiirnments by eight chancery taxing masters of points arising during the progress of the taxation of bills of costs before them; this would be the fruitful source of delay to suitors, not only of those whose bills were being taxed. but of those also whose cases were ready to come for hearing in court, and then the masters’ _minds would be distracted in the mi dle of various taxations by having to make out, perhaps, a hundred notes of the rival contentions of the parties and their own views of the subject. And, whereas they are now quite independent, and can perform their duties with minds charged with a sense of personal l‘€i,£0llSlblll.ty, they would then cease to be masters in every sense of e word; and this would be highly detrimental to their efliciency. I am certain that these views on the subject will commend themselves to the judgment of every ohancery practitioner who is acquainted with the working of the oflices of the chancery taxing masters, and, therefore, hope that the appointment of the ninth taxmg master may be made.

Upper Holloway, N., Nov. 3. Jmss RAWLINSON.

In sentencing a letter stnmper to five years‘ penal servitude at th? Manchester Assizes, Mr. Justice Cave said the judges had ct late years endeavoured to_mitigate the severity of sentences for Post Otllce robberies; but it appeared from a communication made by the Postmaster-Q-eneral to the Home Secretary, and by him to the judges, that this leniency had had bad results. The judges would again try the det/errent effect of long sentences.

In the course of the trial by Baron Huddleston, at the Bristol Assizes, of some cases under the Orit_nlnal Law Amendment Act, 1885, he said he wished to call pubhc attention to two difficulties that existed in the Act as at present framed, which he hoped the Legislature might remedy. The first was under section 4. Where a child of tender years is tendered as a witness, it is enacted that the accused shall not be convicted

unless the testiinony admitted by virtue of this section and given on behalf of the prosecution shall be corroborated by some other material evldenu "1 5“Pl>Q\'t thereof implicating the accused." His lordship said that the words iniplicating the accused " might be construed as refer. ring mei-ely_tothe identity of the accused, and not to corroboration in some material particular and that it would be fa b tte it tl

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_ p ra puuis ment. Where an offender's age does not exceed sixteen the section enacts that the court may, instead of septencmg the offender to any term of imprisonment, order him to be W ippcd, as prescribed by the 2-: & 26 Vict. c. 18, and, if expedient, may in addition order him to be sent to a reformatory for not less than §W°6Y<‘;!§Pf 01' more than 't1ve_ years. _His lordship said that, under the 25 2 l 1°5- °- 13. Q18 Whipping was limited to twelve strokes with a birch rod, and he considered _that the court should have power to order an offenderto be whipped in addition to imprisonment, for the practical result of the Act iii its present form was that, in the case of an offender, say_cf fifteen, who was Ill. reality too old for a retormatory, the court was 95118611 $0 Bend him to prison, as otherwise the whipping alone would be inadequate. His lordship, in charging the grand jufly, also expressed a sttroqlg desire that the Legislature shou empower ju ges to order those, K :7 °-i41' "89. W_l1° were guilty of otlences against children under this ° I t° be flogged in addition to any punishment that may now be given.

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This was an appeal from a decision of a divisional court of the Queen’s Bench Division (Field and Wills, JJ.) refusing to set aside an award. The question arose out of a sale of real estate, under which the timber on such estate had to be taken at a valuation, to be made in the following manner. Each party was to appoint a valuer. and to give notice thereof by writing to tho other party within a specified time. The valuers thus appointed were, before proceeding to act, to a point, by writing, an umpire; and the two valuers, or, i they disagreed}: their umpire, were to make the valuation. Two valuers were duly appointed by the parties, and they in turn duly appointed an umpire, who ultimately made the valuation. It was now contended that the umpire so appointed was an arbitrator, and that the court had jurisdiction to set aside the valuation so made by him as being an award. Tris Coon-r or Arrnar. (Lorin Esnrn, M.R., and LINDLBY and Lorrs, L.JJ.), in upholding the decision of the Divisional Court, and refusing to interfere with the valuation, said that the testto be adopted as to whether the appointment constituted a valuar oran arbitrator was whether the object of his appointment was to settle disputes which might arise between the parties or to preclude such disputes from arising. They considered that in this case the object of the appointment of the umpire was to preclude disputes from arising, and that he was therefore a valuer and not an arbitrator.-Coimsai., Bur/.'m'll, Q-C., and R. V. William; H. D. Greene, Q.C., and J. D. S. Sim. Soucrroiis, Lawless g Co. ,' Lake, Beaumont, Q Lake.

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This was an appeal from the d€‘ClBiOl1 of Grantham, J .. at the Liverpool Assizes. The action was brought by the shipowners against the charterers for balance of freight and general average contribution, and the defendants counter-claimed for damage to the cargo. The ship Garstim had been injured on December 22. 1884, by coming into collision with the steamer Crerldon in the port of Cardifi. It was admitted that the collision was entirely due to the negligent navigation of the latter vessel. The charterparty contained a clause of exceptions in the following terms: “The act of God, the Queen’s enemies, restraint of rinces and rulers, fire, and all and every other dangers and accidents of ii... seas, rivers, and navigation always mutually excepted." The plaintifis contended that, as the damage to the cargo was sustained in consequence of the collision, they were protected under this clause from liability. It was urged for the defendants thatthe words “ dangers and accidents of navigation " should only be taken to have reference to accidents happening on board the ship, and that since, by the decision in Waodley v. illiu-lid! (31 W. R. 651, 11 Q. B. D. 47), a collision to which negligence had conduced was not within the exception “ perils of the sea,’ a similar construction should be given to the words “ dan ers of navigation.” Tun Coon-r or Ari-rm. (Loan ESHIR, M.R., and LINDLIY and Loi-as, L.JJ.) upheld the decision of Grantham, J ., and pointed out that there was a distinction between penis of the sea and perils of navigation, since the sea was beyond human control, while navigation was entirely a matter of human control, and, therefore, though collisions which had been caused by ncgligenoa were not perils of the sea, they mi ht well be perils of navigation. If, howoyer, the collision was causeddiy the n ligencc of the carrying shi , they did not think that the shipowners would be entitled to be protectedp under the exception of “perils of navigation,” for they would need to be very exphoit words to protect the owner of a. carrying ship from the consequences of his own negligence or that of his servants.—Coi'xsxr., (/'arn'r,' Ff'"¢7', Q-C., and 15’;/miott. Sonrcirons, Treader»; Q Runner; Greyory, Rowdtlea, 4- 00., for Hill, Dickinson, Lightbound, Q Dit-kins-on, Liverpool.

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In 1862 the defendant granted a lease of two houses to John Archer for the term of 14 years expiring at Midsummer, 1876. The lease contained a covenant by Archer to repair and deliver up in repair the premises. On the termination of the lease in 1876, Archer verba y igreed to continue on as tenant from year to year on the same terms as ose contained in $119 0t1ginal lease, including the covenantto repair. In July, 1884, Archer died intestate, and the defendants, his daughters, entered into possession of the premises, and paid the rent. The plaintiff gave notice to determine the tenancy at Midsummer, 1885, and claimed damages from the defendBnbs personally for breach of the agreement to repair, alleging that tho premises were out of repair at the end of the term in 1876, and also at the time of tho death of John Archer, and were still out of repair. Bowen, L.J., before whom the case was tried without a jury, found that the defendants were executors dc son tort but they did not know of tho holding over in 1876, nor of the terms of the tenancy, and that the defendants were not assiguees, but tenants from year toyear, subjectto the ordinary liabilities of such tenants. They were, therefore, only liable to the extent of the assets. On appeal, it was contended for the plaintiff that the defendants, having entered into possession, must, as a matter of law, be taken to be assi ear. of the tenanc , and personally subject to all the obligations of their testator, within {lib decisions in Trmiecrs v. illarinm


(1 Bing. N. O. 89), liiukworth v. Simpson (l C. M. & R. B34), and Williams v.

Heales (22 W. R. 317, L. R. 9 C. P. 177). In the alternative it was contended that the only proper implication of fact was that the defendants held on the same terms as the intestate. Tn: Conn-r, having taken time to consider, dismissed the appeal. Lord Esnnii, hI.R., said that an executor entering into possession would, prim/i fin-ie, hold on the same terms as his testator. If those terms were known tn him, the only conclusion in fact would be that he held on those terms. If the lease were in writing and had come into the executor's possession, that fact would be strong to shew that he held on the same terms. But hers the judge found that tho defendants did not know of the holding over or of the terms of the yearly tenancy, which wasa verbal arrangement. Could it be said to be the necessary inference that the defendants, by taking possession, a reed to hold as assignees on the same terms as the intestate? As ataact, the defendants did not agree to hold on those terms, because they knew nothing about them. The proper inference was that they hcld on the ordinary terms of a yearly tenancy, and so were not sulzjloct to the covenant to repair. Lr.\'', L.J., in coizcurring, said that a learned judge havinsuiame to the conclusion, as an inference from the facts, that the defon ts did not become assignees, but became new tenants from year to year on the terms of payment of rent, the Court saw no reason to differ from him. Lorna, L.J., 00IJCl1l'l'€d.—COUKSEL, R. ill. Bray ; R. A. Hac('/III. Soucrrons, Balsa, Trwtrum, 4- Co. ; G. It. Dodd.

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A gpestion arose in this case as to the rights of the continuing partners in a m of accountants in regard to t-he rofits, arising after a dissolution of the partnership as regarded one of theaartners, of an oflice of trust held by him. The outgoing partner held e appointment of auditor to a joint stock company, in respect of_which ha received an annual salary or gratuity. He had not been appointed in the character of a member of the firm. The appointment was made by the company annually, but it was the practice to re-appoint the same dperson year after year. The partnership deed contained a clause prcvi ing that the ‘partners should, during the partnership, devote their whole time to, an diligently and faithfully employ themselves about, the business of the partnership, and carry on and conduct the same for the greatest advantage of the partnership, and should not, either alone or in conjunction with any other

rson, either directly or indirectly, engage in any trade or business. Bearing the continuance of the partnership the outgoing partner had paid over to the firm the profits derived from the auditors ip. and on the dissolution he accoulpted to the firm fir tlhcinpgofilts osd the otllcifin aespec; of that portion of t e current year w ic e a s up to e me o the dissolution, and he insisted that he was not liable to pay anything more to the firm. The continuin partners contended that a was bound to account to them for the profits of the ofilce so long as he should continue to hold it, or, at any rate, that the goodwill of the office should be valued, and that he should pay ovcr the amount of the valuation to them. Kay, J ., acceded to this view, holding that the outgoing partner was a trustee of the profits of the oifica for the firm. Smith v. Mules (9 Hare, 556) was relied upon in support of this decision. Tar. Counror APPEAL (Conan, Bownn, and Fin’, .JJ.) reversed the decision, holding that the ofilce was, under the circumstances, in no sense part of the assets of the firm, and that the outgoing partner was not a trustee for the firm after the dissolution, and was not accountable to them for any profits arising after that date. They said that Smith v. Jlfules was dilatinguiahable, because in that case the partnership articles contains a provision that a partner (who had retired) should use his best endeavours to secure to the continuing partners or partner all ofllces and appointments, as well of the partnership as of himself, and he had committed a breach of this stipulation. Under these circumstances, Turner, \.C., held that the defendant must be charged in the partnership accounts with the valuehogdtheocgflice whi;h,hin of l6'is0coven;nt;._ lie 211:8 continuing to o .— rxser, ra am as rugs, - ., an a a v ; Russell Roberts. Sotlcirons, Joli» Vemon §~ Ca. ; Deronahirs 4- Foley.

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PATl§N'l'——Plll0ll PUIiLlCAT1ON—GllU|AN Si-sciricnions riarosirxo IN PATENT Orrics LIBRARY.

This was a special case in an action for infringement of a patent, raising the question as to whether the deposit of foreign specifications in a foreign language in the Patent Office Libffli °°“1d °°n'flmt° Pfl°' Pb1'°“d°n in England. The plaintiffs were the assignees of a patent for improvements in knitting machines obtained in 1880. It appeared that in 187'! and 187‘) certain specifications and drawings of German patents for knittin machines were received by the Commissioners for Patents and degosited in the London Patent Ofiice for public inspection. The speclli: cations were in the Germaii language, and for thehpufi-poses of slip“; case it was assumed that, if in English, t-heyb;iro£i_ t ave giviito meme information to a competent workman to ena e ]iniupbcarriy‘ent pEnmes the invention which was the subject of the p ain W ti - mo" were published in the {blasts J.mwaI of the German sppéa is ona EM those in the list of foreign patents, and they were refe ho Ian mun fied as knitting machines. A foot-note was appengzg to t o_ 1:14. bi mud that the ‘Ed muonsas yen as the 1is;°io1i?lO% wit ‘$5 submitted sultsd at e free public library of the a 09

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