« PreviousContinue »
ation , to rhen 'ords Dears nder
the The stice ther ol," nich Mr. the the blic ; to rto of
the necessary confirmation after the mother's death is nowhere THE GUARDIANSHIP OF INFANTS.
provided : probably it is left to be determined by the rules to be II.
made under the Act, but it may be supposed that the guardian
provisionally nominated would be the proper person. We considered at some length last week the power of the father It should be noticed that while the mother is left unfettered in to appoint guardians, and the rights and duties of guardians her absolute appointment of a guardian to act after the death of appointed by him, because the operation and effect of many of the the surviving parent, she is required to nominate “ new provisions as to the appointment of guardians depend, to a person” to act during the father's lifetime.
some fit considerable extent, on the old law. We come now to the recent for confirmation, therefore, two grounds of opposition will be open
Upon an application legislation on this subject.
to the father-viz., either that he is fit to be the sole guardian, or Power of the mother to appoint and nominate guardians.
that the mother's nominee is unfit to be joint guardian. It would The new Act (49 & 50 Vict. c. 27), in the first place, confers on the mother an absolute power of appointing guardians. Section 3 guardian that the nominee is on bad terms with the father, and
seem to be some evidence of unfitness for the office of joint (1) provides that
unlikely to act amicably with bim in the joint guardianship. “The mother of any infant may by deed or will appoint any person or The mother is, however, enabled to nominate any number of persons to be guardian or guardians of such infant after the death of her persons she likes to act as joint guardians with the father, and self and the father of such infant (if such infant be then unmarried).”
probably, considering that the question of “fitness" Now, the first observation which occurs on this enactment is, raised, and that the persons nominated will be very likely to that the words “the mother of any infant” seem to include the disclaim an office which is certain to give rise to annoyance and mother of an illegitimate child. The words of the Act of 12 dispute, it would be wise to nominate several persons. It is Car. 2, c. 24 s. 8, enable a father to dispose of the “custody assumed that, under the general words at the end of the sub-section, and tuition" of his “child or children," and these last words are the court would be able to appoint any one or more of the persons construed as meaning “Jegitimate child or children” (Sleeman v. nominated, but the previous part of the section apparently only Wilson, 13 Eq. 36); so that a father is unable to appoint a testa- enables the court to confirm the mother's nomination en bloc. mentary guardian of his illegitimate child. But it does not seem As the guardians nominated by the mother and confirmed by the easy to limit in a similar manner the explicit words of the new court are only authorized "so to act as aforesaid "—that is, provision, notwithstanding that the general scope of section 3 is “jointly with the father”—it is presumed that on his death their incongruous with its application to the case of illegitimate chil. authority will cease. The instrument executed by the mother dren.
nominating guardians during the father's lifetime should, therefore The appointment by the mother is to take effect " after the if such be the intention), also appoint guardians after his death. death of herself and the father of such infant,” or, in more precise
It should be observed in this connection that, although the language, after the death of the survivor of herself and the latter part of section 2 expressly provides for the appointment by father. But as the Act merely authorizes the mother to appoint a the court of guardians to act jointly with the mother in case of person or persons as guardian or guardians, and does not follow the death or refusal to act of the guardians appointed by the the words of the statute of Car. 2, which enables the father “in father, there is no direct provision for the appointment by the court such manner and from time to time as he shall respectively think of guardians to act jointly with the father iu case of the death fit, to dispose of the custody and tuition of such child or children of the guardians nominated by the mother and confirmed by the during such time as he or they shall respectively remain uuder court. the age of twenty-one years, or any lesser time, to any person or Powers of guardians under the new Act.-Section 3 (4) of the persons in possession or remainder,” it is conceived that the mother Act provides that is not enabled to appoint guardians in succession, or to confer on the
“Every guardian in England under this Act shall have all such powers guardians appointed by her, or on the survivor of them, power to over the estate and the person, or over the estate as the case may be), of nominate other persons as guardians in the place of any of the an infant as any guardian appointed by will or otherwise now has in appointed guardians who may die (see the judgment of Lord England under the Act twelve Charles the Second, chapter twenty-four.” Penzance in In the goods of Parnell, 2 P. & D., at p. 381);
The powers of a testamentary guardian under 12 Car. 2, c. 24, The provision that the mother of any infant may appoint persons will be found briefly stated in our last issue (ante, p. 3). It is to be guardians of such infant after the death of herself and the father certainly a curious illustration of our inveterate habit of legislation " if such infant be then unmarried” is likely to lead to a question by reference that, in order to ascertain the powers of a guardian as to the effect of the marriage of the infant subsequentlý to the appointed under an Act of 49 & 50 Vict., recourse must be had to death of the surviving parent.
We saw last week that, according an Act of 12 Car. 2, and since that Act also legislated by reference to the better opinion, the marriage of a child, whether male or to the then existing powers of a guardian in socage, search among female, who was unmarried at the death of the father, does not the oldest authorities is necessary in order to understand the determine the guardianship of a testamentary guardian appointed powers intended to be conferred by a statute passed a few months by the father. But the recent Act apparently only enables the ago. A doubt may, perhaps, arise whether, under the provisions mother to appoint persons to be guardians of the infant if of the sub-section last above quoted, the guardians under the recent unmarried “after” the death of the surviving parent—not if Act will succeed to the special powers given to testamentary unmarried at such death; and it would seem that the marriage of guardians by various statutes, such, for instance, as the Settled the infant subsequently to the death of the surviving parent will Land Act, 1882. determine the guardianship of the guardians appointed by the Although the singularly-worded sub-section last above quoted mother.
provides, by reference, for the powers of guardians appointed under Section 3 (2) gives the mother a further power to " provisionally the Act, it altogether omits directly to prescribe their duties. nominate” guardians to act with the father after her death. It These are left to be gathered incidentally from the provisions of provides that
other sections, or to be implied by law from the office of guardian. The mother of any infant may by deed or will provisionally nominate The general nature of the duties of a testamentary guardian has after her death jointly with the father of such infant, and the court in the Act to the guardians appointed under it acting “jointly.” of the fit person or persons to act as guardian or guardians of such infant been stated in our former article, and, from the repeated references
including the county court, section 9), after her death, if it be shewn to with the testamentary guardians, it may no doubt be assumed that
The general scheme of the Act may be described as joint
guardianship. It is true that section 2 expressly enables the The nomination or appointment, it will be observed, is absolutely mother to act alone as guardian on the death of the father when inoperative until it has been confirmed” by the court after the no guardian has been appointed by him, but it also provides that mother's death ; and the court has no power to confirm it unless it is satisfied that the father is for any reason unfitted to be the guardian or guardians appointed by the father is or are dead, iterno di
“When no guardian has been appointed by the father, or if the sole guardian of his children.” Who is to apply to the court for) or refuse to act, the court (including a county court] may, if it shall
think fit, from time to time appoint a guardian or guardians to act jointly the mother of any infant (who may apply without next friend), make such with the mother."
order as it may think fit regarding the custody of such infant and the Section 3 (1) also provides that, "where guardians are appointed right of access thereto. of either parent, having regard to the welfare by both parents, they shall act jointly." It becomes, therefore, of the mother as of the father, and may alter, vary, or discharge such important to ascertain the rights and position of joint testamentary order on the application of either parent, or, after the death of either guardians before the recent Act. In point of authority they were parent, of any guardian under this Act, and in every case may make such all on an equality, and if the mother was one of several joint order respecting the costs of the mother and the liability of the father for testamentary guardians, though every attention ought to be paid the same or otherwise as to costs as it may think just.” to her wishes, she had no greater authority than the other
The courts having jurisdiction under the Act.-One of the most guardians (Campbell v Mackay, 2 My. & Cr., at p. 37). As important changes made by the Act is the jurisdiction conferred regarded the custody of the person of the ward, the pleasing on the county courts. Section 9 defines the words " the court," rule at law was that any guardian who could manage to as used in the Act, as the High Court and “the courty get hold of the ward might keep him. Where there were two court of the district in which the respondent or respondents
or any of them may reside.” Applications to the Chancery Divi. 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 sion to the High Court are to be made in such manner as may be take the infant out of the possession of the other when he sees his prescribed by Rules of Court”; which are also to prescribe the
practice and procedure in any proceedings in that division under time” (Litt., s. 323), unless the infant were in the service of one (Gilbert v. Schwenck, 14 M. & W. 488) But courts of equity applications to the county court. No rules under the Act have guardian, or in the service of another person with his consent the Act; and like zules are to be made by the committee of
county court judges for regulating the practice and procedure on early assumed jurisdiction to decide differences between testamentary guardians as to the education and residence of the be removed, by order of the High Court, to the High Court, at the
yet appeared. Applications to the county court may (section 10) ward (Beaufort v. Barty, 1 P. Wms. 703. As regards the property instance of any party, "on such terms as to costs as it may think of the ward, it is conceived that the position of joint testamentary guardians was, generally speaking, similar to that of joint proper"; and (subject to Rules of Court) an appeal will lie to the trustees. Section 3 (3) of the recent Act provides that
Chancery Division from any order made by a county court under
the Act. “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
(XIII.) JUDGMENTS. Shaftesbury (2 P. Wms on of Chardian. --It was said in Eyre
a writ may issue out of
JUDGMENTS BEFORE 1 & 2 Vict. c. 110 (eontinued). this court [of Chancery] to remove the guardian of an infant Remedies of judgment creditor in equity. The creditor [meaning a testamentary guardian], and to put another guardian came into equity, not to obtain a greater benefit than the lawin his stead”; but this has been questioned (see Foster v. Denny that is, the Act of Parliament (St. Westm. 2)—had given him, 2 Ch. Cas. 237 ; Ingham v. Bickerdike, 6 Mad. 275), and the rule, but to have the same benefit by the process of the Court of as generally laid down, is that the court may only "supersede Chancery which he would have had at law if no legal impediment the testamentary guardian by appointing someone else to take bad intervened. The Court of Chancery lent its aid to the legal charge of the infant. The discussion of this weighty distinction right, and gave the creditor neither more nor less than what the is now set at rest by section 6 of the recent Act, which enacts that Act of Parliament and an ejectment would, under other circum
“In England the High Court of Justice [the power is not given to stances, have given him at law (Neate v. Duke of Marlborough, 3 satisfied that it is for the welfare of the
infant, remove from his office any equity was invoked, not for the purpose of enforcing such a right county courts? in any division thereof, may, in their discretion, on being My. & Cr., at p. 417). Before 1 & 2 Vict. c. 110, the aid of this Act, and may also, if they shall deem it to be for the welfare of the by way of charge as is given by section 13 of that Act, but only infant, appoint another guardian in place of the guardian so removed." to obtain equitable execution-i.e., to have the lands delivered in
Under the Divorce Acts the court, in any suit or proceeding for execution to the creditor when he would have got them at law in judicial separation, nullity or dissolution of marriage, is enabled to
the ordinary process but for certain difficulties existing (see per make interim orders, and to make provision in the final decree for Cotton, L.J., Anglo-Italian Bank v. Davies, 27 W. Ř. 3, 9 Ch. the custody, maintenance, and education of the children of the D. 290). Equity follows, and does not enlarge, the law; and marriage (20 & 21 Vict. c. 85, s. 35), and also to make such orders therefore a judgment creditor could not have relief against an on petition after a final decree (22 & 23 Vict. c. 61, s. 4). An equitable interest in property where the legal estate would not be important addition to these powers is made by section 7 of the liable to execution (Lewin Tr., 8th ed., 796). And it seems to have reeent Act, which provides that
been on this ground that the Court of Chancery refused its aid unless “In any case where a decree for judicial separation, or a decree either (In re Cowbridge Railway Co., 5 Eq., at p. 416, 417) ; so that it was
the creditor had already done his utmost to enforce his right at law nisi or absolute for a divorce, shall be pronounced, the court pronouncing such decree may thereby declare the parent by reason of whose misconduct held to be necessary that he should have issued an elegit before such decree is made to be a person unfit to have the custody of the he filed his bill in equity; for, as the Court of Equity was lending children (if any) of the marriage ; and, in such case, the parent so declared its aid to the legal right, the party must have previously armed to be unfit shall not, upon the death of the other parent, be entitled as of himself with that which constitutes his legal right-viz., the writ. right to the custody or guardianship of such children." The disqualification, it will be observed, does not extend to the which the writ of elegit confers, the creditor cannot come without
The sole reason for coming into equity being founded on a right right to appoint guardians; hence, under the Act, a mother, having obtained that right (3 My. & Cr. 416). divorced on the ground of her misconduct, will still be entitled to appoint guardians to act after the death of herself and the father; man v. Ashdown, 2 Atk. 610) that equity would accelerate the
Sale in equity. - Although it was sometimes said (as in Stilealso to " nominate”. guardians to act after her death jointly with creditor's remedy by directing a sale instead of making him wait the father. Can this have been intended ? Orders as to custody of infants.—The Act 36 & 37 Vict. c. 12 remark is true only of cases in which a sale became necessary in the
till he had repaid himself out of the rents and profits, yet this enabled the Court of Chancery, upon petition, by her next friend, administration of a deceased debtor's estate, or otherwise in the of the mother of any infant under sixteen years of age, to order general exercise of the equitable jurisdiction ; for then the court, aceess by the petitioner to such infant, or that such infant be being obliged to sell the estate, would sell it free from the charge delivered to the mother and remain in her custody until such (5 Jarm. Conv. 39 ; see per Wood, V.C., Doswell v. Reece, 11 Jur. age, not exceeding sixteen, as the court should direct, subject to N. S. 764). But this was not done on the ground of any right in such regulations as to access by the father or otherwise as the the judgment creditor to a sale. Subject to such exceptions, the procourt should doem proper. Section 5 of the recent Act sweeps vince of the Court of Chancery was not to extend the legal right, away the limit of age and provides generally that “The court (including a county court) may, upon the application of the exercise by judgment creditors of their legal rights (Smith v.
but to aid it by removing any impediment which might exist to
Hurst, 10 Ha. 30, 43; see 3 My. & Cr. 416)—0.g., by allowing and docketing was required by the Act only as against purchasers, the creditor to redeer. a legal mortgage, because he could not at in order to inform them of the existence of the judgment. As soon law extend the equity of redemption (Tunstall v. Trappes, 3 Sim. as they had acquired this information by other means, they had 300); by restraining the setting up of an outstanding legal estate the same benefit wbich the Docket Act intended to give them, and, in bar of his execution at law (5 Jarm. Conv. 40, 2 Spence Eq. though not bound at law, it was held in equity that they could Jur. 799). And in such cases equity would interpose to protect not be is a better position than their vendors (1 Prest. Abst. 191, the property and keep it available in the meantime by appointing 193, 3 Ibid. 337 ; per Turner, L.J., Benham v. Keane, 10 W. R. a receiver, subject to the rights of prior incumbrancers (Anglo- 97, 3 D. F. & J. 332). Italian Bank v. Davies, 27 W. R. 3, 9 Ch. D. 275, 285). Before Practice as to searches for judgments under the old law. - It is the Judicature Act the mode of obtaining equitable execution was observed in 1 Jarm. Conv., ed. 1839, p. 105, that the search, "jf by issuing a writ of elegit, and, without obtaining a return, filing a pushe, to the point at which complete safety is to be obtained, bill in equity alleging that the plaintiff had issued his elegit, and would be enormously expensive, for such search ought to extend to that, owing to legal impediments, it could not be enforced at law, judgments against all the persons to whom the property has sucand asking for payment of the judgment debt by means of a cessively devolved for a long series of years (say twenty or thirty), receiver. The application for a receiver was made by interlocu- commencing, not from the time at which they severally acquired tory application before the hearing (per Jessel, M.R., 9 Ch. D., at the property, but from the remotest period at which judgments p. 283, 285). Equity, in general, followed the law in not might have been entered up against them, for a judgment affects allowing the creditor to take more than the moiety which (before after-acquired property. The search should be carried back to the 1 & 2 Vict. c. 110) he could have taken at law (Lewin Tr. 800; birth, or at all events to the childhood, of the debtor. How Stileman v. Ashdown, 2 Atk. 610). An exception was admitted much the practice falls short of this rule is obvious. The search is when a judgment creditor was allowed to redeem a mortgage, generally confined to the last purchaser and persons deriving title in which case, inasmuch as he was obliged to redeem the whole of from him, it being assumed that every prior purchaser has done his the lands comprised in it, he was entitled to a sale of the whole duty by searching for incumbrances against his vendor, and the and satisfaction of his judgment debt out of the whole of the search rarely goes back further than the time when the person proceeds (Stonehewer v. Thompson, 2 Atk. 477).
against whom the search is made acquired the property” (see also Purchaser without notice. It appears, therefore, that, as against Mr. Tyrrell's Communication in Appendix to 1st Rep. of R. P. a judgment creditor claiming the assistance of a court of equity, Commrs., p. 517; 2 Dixon, Title Deeds, 408). Under the old law the question of notice or no notice might be very material—e.9., the period for which the search was made rarely extended beyond if a mortgagee having the legal estate purchased the equity of twenty years, because the lapse of that time raised a presumption redemption, his liability in respect of judgments entered up against that the judgment had been satisfied, by analogy to the limitation his mortgagor subsequent to the mortgage depended upon whether under 21 Jac. 1, c. 16, for making entry into land, though, until he had notice of them; for, as we have seen, an equity of redemp- the 3 & 4 Will. 4, c. 27, 8. 40, there was no statutory limitation as tion was not subject to execution at law (1 Pow. Mort. 281, 3 to judgments (see 1 Hayes Conv. 331). Sim. 286), and equity would help the creditor only on its own It seems that the practice adopted for convenience was to search terms and subject to its rules as to the effect of notice on for a period of ten years, and to carry back the search ten years priorities. So if A. was seised in fee in trust for B., a judgment from any judgment which might from time to time be found, would not at law bind B.'s equitable fee until execution; but in stopping in all cases at the period when the owner became equity a purchaser from B. would be bound if he had notice adult, unless there was reason to suspect that there were judgments before the purchase, and he could not afterwards protect himself against him while a minor (see 1 Prest. Abst. 191 ; 3 Prest. Abst. by getting a conveyance of the legal estate from A. before 336; Coventry Conv. Evid. 232). If the search was against a execution.
deceased owner it was necessary to carry it on two terms or more The protection given by equity to a purchaser without notice from his decease on account of the provisions of 17 Car. 2, c. 8, and i (ante, p. 4) extended only to judgments entered up against the Jac. 2, c. 17 (see 2 Wms. Saund. 72 k, 1.), enabling judgments to vendor after contract, and at law all judgments bound the lands, be entered up against a defendant after his death (Saunders v. even in the hands of a purchaser for value without notice (3 Prest. McGowran, 13 L. J. Ex. 12). Abst. 327, 2 Cru. Dig. 49).
Though legal terms of years were not bound (St. of Frauds, The Docket Act.—The hardship of the law as against purchasers s. 16) until a writ of execution was delivered to the sheriff, and without notice was to some extent mitigated by the “Act for equitable interests (Ibid. s. 10) not until execution sued, yet it the better discovery of judgments in the courts of King's Bench, was necessary to search the dockets in order to discover whether it Common Pleas, and Exchequer in Westminster" (4 & 5 W. & M. was probable that execution had issued. c. 20; made perpetual by 7 & 8 Will. 3, c. 36; and repealed by the Statute Law Revision Act, 1867), whereby judgments were required to be docketed in the names of defendants, and undocketed judgments were not to affect purchasers and mortgagees. The
APPEALS FROM COUNTY COURTS BY SPECIAL CASE. object was to enable purchasers to find out judgments (2 Cr. & Jerv. 322); and, if a judgment was duly docketed, a purchaser was
(Reg. v. Kettle, 55 L. J. Q. B. 470.) bound, though he had not searched the dockets and had no notice from county courts to the Queen's Bench Division cannot now, be
The decision in this case, to the effect that appeals by special case aliunde (1 Pow. Mort. 276). The docket was conclusive at law, and the question of notice R. s. C. of December 1885, ord 59, rr. 9, 10, is in accordance with the
brought, inasmuch such appeals were could not, it should seem, arise so long as the creditor was enforc-view maintained by us before this case was decided, when discussing the ing at law the legal rights which the statutes gave him. It point as to whether the appeal clause of the County Courts Conbecame material only in equity when the aid of the Court of solidation Bill, which did not incorporate section 15 of the County Chancery was sought, either by a judgment creditor to obtain Courts Act, 1850 (the section providing for appeal by special case), execution of property against which he had at law no right to was purely consolidatory, or whether it effected an alteration in the enforce execution, or by a purchaser to restrain a judgment credo law. We then maintained that the clause in question was merely
as appeals by special case had been itor from enforcing a right of execution which he had at law, abolished by the R. S. C. of December, 1883. Our view of this question e.g. (ante, p. 4), after contract and before conveyance (Coventry Conv. Ev. 227 ; 3. Prest. Abst. 327).
Dockets were not actual suggested that, though the decision of the Divisional Court was right, or constructive notice (3 Prest. Abst. 327).. Purchaser with notice of undocketed' judgment.— Conversely it appeal by special case
because the Queen's Bench Division has no was held in equity (though not at law? see 1 Pow. Mort. 277; jurisdiction over such appeals, and not because ord. 29, rr. bound by, actual notice (to themselves or their agents) of misconstruction of section 45 of the Judicature Act 1873. This section Strathmore, 16 Yes. 419; Willis v. Browne, 10-sim. 1489. **At rules of court the jurisdiction over appeals
from county courts by law a judgment bound the defendant from the time it was recorded, which further provided that judges should from time to time be
assigned for the purpose of forming divisional courts to hear and many cases, must every year go over the Long Vacation. They go determine (inter alia) county court appeals. It is the judges who over, not because of any delay in the taxing- master's offices, but were to be assigned, not the county court appeals. No doubt ord. because eight masters cannot be expected to perform the work which 59, r. 1 (which, by the way, does not
" to the Queen's would fairly occupy the time of ten. Bench Division “appeals under section 6 of the County Courts Act, There is only power to appoint nine under the Act referred to 1875," but provides that such appeals “shall continue to be heard above, and there are at present eight. and determined before divisional courts"), mentions appeals by It will be remembered that, by the report of the committee motion, whilst it does not mention appeals by special case, but both appointed by the Lord Chancellor to inquire into the subject of the forms of appeal are clearly covered by rule 4 of the same order. existing rules as to the distribution of business in the court and
chambers of the Chancery Division, &c., & recommendation was made that by degrees the separate offices of registrar and taxing master should be abolished, clerks of equal qualifications being
assigned to each judge to perform their duties. REVIEWS.
This recommendation may have had the effect of staying the
hands of the Government with reference to the appointment of an CRIMINAL LAW.
additional chancery taxing master; but it is to be hoped that it will PRINCIPLES OF THE CRIMINAL LAW. By SEYMOUR F. HARRIS, not be adopted; but that, on the contrary, effect will be given to
Barrister-at-Law. FOURTH EDITION. By AVIET AGABEG, Barrister the views of the late lamented and learned judge, Mr. Justice at Law. Stevens & Haynes.
On signing the report the judge referred to added this riderLess overburdened with technice lities and details than Russell on Crimes or Archbold's Criminal Pleading, though at the same time advantage that the taxing masters are entirely separated from all
(2) “ As to the taxing masters. It is, in my judgment, a great high reputation and has well fulfilled its aim, as explained in the matters in respect of which they have to tax bills of costs in their preface to the first edition, of being “ calculated to meet
the require- earlier stages.
They are thus kept independent and impartial, and ments” of the young practitioner, the student, and the general formed in the progress of the litigation.”
no solicitor need fear their being prejudiced by any opinion they have reader. The present edition is published ouly two years since the last one, the legislation and cases belonging to this short period judge. If the contrary recommendation were acted on, then, in
respectfully and thoroughly indorse the views of the learned having," it is stated, “ been incorporated, and the whole work addition to the cases adjourned by chief clerks to their respective having been carefully revised." We are sorry we cannot concur in this statement. We find no notice of the Crown Office and the additional labour cast on the judges consequent on the
judges every week, there would be the additional absorption of time Rules issued in April last or of the important Regulations as to Government Prosecutions, which were first laid before Parliament during the progress of the taxation of bills of costs before them;
adjournments by eight chancery taxing masters of points arising in 1885, or even of the Prosecutions of Offences Act, 1884, the this would be the fruitful source of delay to suitors, not only of principal Act of 1879 being still described as." recently passed.” The those whose bills were being taxed, but of those also whose cases Criminal Law Amendment Act, 1885, is noticed in its proper places, but with no special merits of statement or explanation. As for revi; would be distracted in the middle of various taxations by having to
were ready to come for hearing in court, and then the masters' minds sion, 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 make out, perhaps, a hundred notes of the rival contentions of the Westminster,” and (p. 154) we read of drunkards being compellable now quite independent, and can perform their duties with minds
parties and their own views of the subject. And, whereas they are to find sureties upon a second conviction under 4 Jac. 1, c. 5, and charged with a sense of personal responsibility, they would then 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 highly detrimental to their efficiency. I am certain that these
cease to be masters in every sense of the word; and this would be Act of that year.
views on the subject will commend themselves to the judgment of
every chancery practitioner who is acquainted with the working of PUBLIC HEALTH ACTS.
the offices of the chancery taxing masters, and, therefore, hope that THE PUBLIC HEALTH Acts, 1885. By A. MACMORRAN, Barrister- the appointment of the ninth taxing master may be made.
Upper Holloway, N., Nov. 3.
JAMES RAWLINSON. at-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. Macmorran has edited these in the form of a supplement to Mr. Lumley's well-known edition of the In sentencing a letter stamper to five years' penal servitude at the principal Act, and has added a digest “of all the cases decided on Manchester Assizes, Mr. Justice Cave said the judges had of late years public health and local government during the year 1885. The endeavoured to mitigate the severity of sentences for Post Office new Acts are carefully annotated section by section, and the effect of robberies; but it appeared from a communication made by the Postthe new cases very fully stated with references to all the current master-General to the Home Secretary, and by him to the judges, that reports. The marginal notes (see e.g., p. 25) reproduce from the this leniency had had bad results. The judges would again try the
deterrent effect of long sentences. Queen's printers' copies of the Acts the “ year of the Queen” of the statute referred to in each particular section in a manner rather Assizes, of some cases under the Criminal Law Amendment Act, 1885, he
In the course of the trial by Mr. Baron Huddleston, at the Bristol tiresome to the eyes and useless.
said he wished to call public 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 CORRESPONDENCE.
“ unless the testimony admitted by virtue of this section and given on be.
half of the prosecution shall be corroborated by some other material THE CHANCERY TAXING MASTERS.
evidence in support thereof implicating the accused." His lordship said
that the words implicating the accused” might be construed as refer[To the Editor of the Solicitors' Journal.]
ring merely to the identity of the accused, and not to corroboration in Sir,—Some good time before the recent Long Vacation, Mr. omitted. Earlier in the same section another difficulty arose, as to the
some material particular, and that it would be far better if they were Bartley asked the then Attorney-General whether, having regard to administration of corporal punishment. Where an offender's age does the additional powers and responsibility conferred on, and vested in, not exceed sixteen the section enacts that the court may, instead of the eight chancery_taxing masters by, R. S. C., 1883, LXV., sentencing the offender to avy term of imprisonment, order him to be and the Rules of December, 1885, and to the fact that the fees whipped, as prescribed by the 25 & 26 Vict. c. 18, and, if expedient, earned by them amounted, on an average, to £32,215 per annum, may in addition order him to be sent to a reformatory for not less than showing an annual profit, after payment of their salaries and the two years or more than five years. salaries of their clerks, of between £9,000 and £10,000 per annum,
His lordship said that, under the 25
& 26 Vict. c. 18, the whipping was limited to twelve strokes with a birch the Government would take under their consideration the propriety rod, and he considered that the court should have power to order an cf appointing an additional taxing master, making the ninth, thus offender to be whipped in addition to imprisonment, for the practical completing the number contemplated, and provided for by section 5
result of the Act in its present form was that, in the case of an offender, of 5 & 6 Vict. c. 103 ? The Attorney-General suid he should take say of fifteen, who was in reality too old for a reformatory, the court was care that this point was submitted to the Lord Chancellor. Ap- inadequate. His lordship, in charging the grand jury, also expressed a
obliged to send him to prison, as otherwise the whipping alone would be parently, nothing has been done in the matter; although the suitors strong desire that the Legislature should empower judges to order those, must necessarily suffer so long as the work of the taxing masters is of whatever age, who were guilty of offences against children under this so heavy that it is a matter of course that the taxation of costs, in Act, to be fogged in addition to any punishment that may now be given.
(1 Bing. N. C. 89), Buckworth v. Simpson (1 C. M. & R. 834), and Williams v. CASES OF THE WEEK.
Heales (22 W. R. 317, L. R. 9 C. P. 177). In the alternative it was con
tended that the only proper implication of fact was that the defendants held Re WILSON AND GREENE-C.A. No. 1, 27th and 28th October, on the same terms as the intestate. The Court, having taken time to UMPIRE APPOINTED IN CASE OF DISAGREEMENT OF VALUERS-ARBITRATOR. consider, dismissed the appeal. Lord Esher, M.R., said that an executor This was an appeal from a decision of a divisional court of the Queen's entering into possession would, primâ facie, hold on the same terms as his
If those terms were known to him, the only conclusion in fact Bench Division (Field and Wills, JJ.) refusing to set aside an award. I would be that he held on those terms. If the lease were in writing and The question arose out of a cale of real estate, under which the timber on had come into the executor's possession, that fact would be strong to shew such estate had to be taken at a valuation, to be made in the following that he held on the same terms. But here the judge found that the mapper. Each party was to appoint a valuer, and to give notice thereof defendants did not know of the holding over or of the terms of the yearly by writing to tho other party within a specified time. The valuers thus tenancy, which was a verbal arrangement. Could it be said to be the appointed were, before proceeding to act, to appoint, by writing, an pecessary inference that the defendants, by taking possession, agreed to umpire ; and the two valuers, or, if they disagreed, their umpire, were to hold as assignees on the same terms as the intestate? As a fact, the make the valuation. Two valuers were duly appointed by the parties, defendants did not agree to hold on those terms, because they knew and they in turn duly appointed an umpire, who ultimately made the nothing about them. The proper inference was that they held on the valuation. It was now contended that the umpire so appointed was an ordinary terms of a yearly tenancy, and so were not subject to the covenarbitrator, and that the court had jurisdiction to set aside the valua- ant to repair. LINDLEY, L.J., in concurring, said that the learned judge tion so made by him as being an award. The Court of APPEAL (LORD having come to the conclusion, as an inference from the facts, that the ESHER, M.R., and LINDLEY and LOPES, L.JJ.), in upholding the decision defendants did not become assignees, but became new tenants from year of the Divisional Court, and refusing to interfere with the valuation, said to year on the terms of payment of rent, the Court saw no reason to differ that the test to be adopted as to whether the appointment constituted a from him. LOPES, L.J., concurred.-COUNSEL, R. M. Bray; R. A. MacCall. valuer or an arbitrator was whether the object of his appointment was to SOLICITORS, Halse, Trustram, & Co.; G. R. Dodd. 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
COLLIER ^. CHADWICK—C. A. No. 2, 28th October. appointment of the umpire was to preclude disputes from arising, and that he was therefore a valuer and not an arbitrator. - Counsel, Bucknill, PARTNERSHIP -- DISSOLUTION-OFFICE or Trust HELD BY OUTGOING PARTNER Q.C., and R. V. Williams ; H. D. Greene, Q.C., and J. D. S. Sim. Soli
-RIGHTS CONTINUING PARTNERS PROFITS OF OFFICE AFTER CITORS, Lowless & Co.; Lake, Beaumont, g Lake.
A question arose in this case as to the rights of the continuing partners SAILING SHIP GARSTON CO. v. HICKIE, BORMAN, 00.-C. A. in a firm of accountants in regard to the profits, arising after a dissolution No. 1, 29th October.
of the partnership as regarded one of the partners, of an office of trust CHARTER-PARTY-CLAUSE OF EXCEPTIONS-DANGERS AND ACCIDENTS OF
held by him. The outgoing partner held the appointment of auditor to NAVIGATION.
a joint stock company, in respect of which he received an annual salary
or gratuity. He had not been appointed in the character of a member of This was an appeal from the decision of Grantham, J., at the Liverpool the firm. The appointment was made
by the company annually, but it Assizes. The action was brought by the shipowners against the charterers was the practice to re-appoint the same person year after year. The for balance of freight and general average contribution, and the defendants partnership deed contained a clause providing that the partners should, counter-claimed for damage to the cargo. The ship Garston had been during the partnership, devote their whole time to, and diligently and injured on December 22, 1884, by coming into collision with the steamer faithfully employ themselves about, the business of the partnership, aud Creadon in the port of Cardiff. It was admitted that the collision was carry on and conduct the same for the greatest advantage of the partner. entirely due to the negligent navigation of the latter vessel. The charter ship, and should not, either alone or in conjunction with any other party contained a clause of exceptions in the following terms: "The act person, either directly or indirectly, engage in any trade or business, of God, the Queen's enemies, restraint of princes and rulers, fire, and all | During the continuance of the partnership the outgoing partner had paid and every other dangers and accidents of the seas, rivers, and navigation over to the firm the profits derived from the auditorship, and on the always mutually excepted." The plaintiffs contended that, as the dissolution he accounted to the firm for the profits of the office in respect damage to the cargo was sustained in consequence of the collision, they of that portion of the current year which had elapsed up to the time of were protected under this clause from liability. It was urged for the de- the dissolution, and he insisted that he was not liable to pay anything fendants that the words “ dangers and accidents of navigation" should only more to the firm. The continuing partners contended that he was bound be taken to have reference to accidents happening on board the ship, and to account to them for the profits of the office so long as he should that since, by the decision in Woodley v. Mitchell (31 W. R. 651, 11 Q. B. D. continue to hold it, or, at any rate, that the goodwill of the office should 47), a collision to which negligence had conduced was not within the be valued, and that he should pay over the amount of the valuation to exception “perils of the sea, a similar construction should be given to them. Kay, J., acceded to this view, holding that the outgoing partner the words “ dangers of navigation.” The Court of APPEAL (LORD was a trustee of the profits of the office for the firm. Smith v. Mules (9 ESHER, M.R., and LINDLEY and Lopes, L.JJ.) upheld the decision of Hare, 556) was relied upon in support of this decision. The Court of Grantham, J., and pointed out that there was a distinction between APPEAL (Cotton, Bowen, and Fry, L.JJ.) reversed the decision, holding perils of the sea and perils of navigation, since the sea was beyond human that the office was, under the circumstances, in no sense part of the control, while navigation was entirely a matter of human control, and, assets of the firm, and that the outgoing partner was not a trustee for therefore, though collisions which had been caused by negligence were the firm after the dissolution, and was not accountable to them for any not perils of the sea, they might well be perils of navigation. If
, how- profits arising after that date. They said that Smith • Mules was disever, the collision was caused by the negligence of the carrying ship, they tinguishable, because in that case the partnership articles contained a did not think that the shipowners would be entitled to be protected under provision that a partner (who had retired) should use his best endeavours the exception of "perils of navigation,” for they would need to be very to secure to the continuing partners or partner all offices and appointexplicit
words to protect the owner of a carrying ship from the conse- ments, as well of the partnership as of himself, and he had committed a quences of his own negligence or that of his servants. - Counsel, Carcer; breach of this stipulation. Under these circumstances, Turner, V.C., French, Q.C., and Synnott. SOLICITORS, Trenders & Romer; Gregory, Row- held that the defendent must be charged in the partnership accounts cliffes, g Co., for Hiủ, Dickinson, Lightbound, $ Dickinson, Liverpool. with the value of the office which, in breach of his covenant. he was
continuing to hold.-Counsel, Graham Hastings, Q.C., and Yate Lee; HUNT 4. ARCHER-C. A. No. 1, 27th October and 3rd November. Russell Roberts. Solicitors, John Vernon f. Co. ; Deronshire & Foley. EXECUTOR DE SON TORT-TENANCY FROM YEAR TO YEAR-LIABILITY OF
EXECUTOR ON COVEXANTS. 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
HARRIS v. ROTHWELL-Chitty, J., 29th and 30th October. A covenant by Archer to repair and deliver up in repair the premises... On
PATENT-Prior PUBLICATION— GERMAN SPECIFICATIONS DEPOSITED IN the termination of the lease in 1876, Archer verbally agreed to continue
PATENT OFFICE LIBRARY. on as tenant from year to year on the eame terms as those contained in This was a special case in an action for infringement of a patent, raising the original lease, including the covenant to repair. In July, 1884, Archer the question as to whether the deposit of foreigu
specifications in a foreign died intestate, and the defendants, his daughters, entered into
possession language in the Patent
Office Library could constitute
prior publication of the premises, and paid the rent. The plaintiff gave notice to determine in England. The plaintiffs were the assignees of a patent for improve the tenancy at Midsummer, 1885, and claimed damages from the defend. ments in knitting machines obtained in 1880. It appeared that in 1877 ants personally for breach of the agreement to repair, alleging that the and 1879 certain specifications and drawings of German patents for knit. premises were out of repair at the
end of the
were received by the Commissioners for Patents and the time of the death of John Archer, and were still out
of repair. deposited in the London Patent office for public ivspection. The specifiBowen, L.J., before whom the case was tried without a jury, found that cutions were in the German language, and for the purposes of the speciai the defendants were executors de son tort but they did not know of the case it was assumed that, if in English, they would have given sufficient holding over in 1876, nor of the terms of the tenancy, and that the defend- information to a competent workman to enable him to carry into practice ants were not assignees, but tenants from year to year, subject to the ordinary the invention which was the subject of the plaintiffs'
patent. Entries liabilities of such tenants. They were, therefore, only liable to the extent were published in the Patents Journal of the German specifications among of the assets. On appeal, it was contended for the plaintiff that the those in the list of foreign patents, and they were referred to and classi. defendants, having entered into possession, must, as a matter of law, be fied as knitting machines. “A foot-note was appended to the list, stating taken to be assigneer of the tenancy, and personally subject to all the that the specifications, as well as the list of applications, might be con obligations of their testator, within the decisions in Tremcere to Morison | suited at the free public library of the
Patent ofice. It was submitted