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prayed for a dissolution of marriage, on the grounds of his adultery and desertion. It appeared, however, that the marriage was by banns, and that there was no due publication, false names having been used with the knowledge and consent of both parties. The marriage was, therefore, invalid. The petition for dissolution was consequently dismissed. (Anthony v. Anthony). In one case a husband sued for a restitution of conjugal rights not with a view to enforce cohabitation, but to vindicate his character from supposed aspersions by his wife, which were withdrawn. (Steel v. Steel).
Another case was one of great doubt and difficulty on account of the attesting witnesses denying the execution, as in the Matlock will case, which went to the Lords and was tried three times. The learned judge on account of the difficulty of the case would have preferred that it would have been tried by a jury, and it very well illustrates the class of cases which require such a mode of trial; but as the result he pronounced against the will, as he was not satisfied of it. (Gibbins v. Long.)
In another case, although a will had been destroyed under peculiar circumstances, yet as there was no doubt as to the facts, there appeared no necessity for a jury, and the judge, being satisfied with the evidence, pronounced for the draught of the will, which was propounded. (Harvey v. Peek.)
Towards the end of Term the judge sat in Divorce cases, with juries, and in one case the Queen's Proctor intervened, and alleged adultery against a wife who had obtained a decree Nisi for the dissolution of her marriage, on the ground of cruelty and adultery. The evidence was contradictory, and required a jury. The Judge Ordinary, in summing up, said it was obviously the duty of the Queen's Proctor to have the case thoroughly investigated when the statements of the witnesses who had been called were laid before him, and he was very glad, in a case where the evidence was so conflicting, to have the assistance of a jury. The jury found that the petitioner was not guilty of any of the acts of adultery charged. She will, therefore, be entitled to her decree absolute. (Cooper v. Cooper.)
In another of these cases damages were sued for the adultery, and £500 were given. (Long v. Long).
In the course of the Term an application was made in the long litigated case of Mrs. Godrich, with reference to the custody of a child. Dr. Swabey, on behalf of Mr. Godrich's father, moved for leave to intervene in this suit for the purpose of applying for an order for the custody of one child, who is at present, under an order of the Court, in Mrs. Godrich's custody. Mrs. Godrich in person opposed the motion. The Court took time to consider whether it had power to allow an intervention for such a purpose, after a decree of judicial separation, but ultimately granted the application for leave to intervene.
One day during the Term, the full Court for Divorce and Matrimontal causes sat for the hearing of appeals, constituted of the Judge Ordinary, Mr. Justice Grove, and Mr. Baron Pollock. In two cases there were applications for rehearing or for a new trial. The applicants not having presented themselves in the witness box at the trials, and at both cases the applications were refused, and in both cases the decision of the Judge Ordinary was upheld. In one case the co-respondent had been examined at the trial, but the respondent had not, and though they were not, it was stated, acting in concert, her explanation of her absence not being sufficient, and the judge being satisfied with the evidence, the Court refused the co-respondent a new trial, and quasi if they would have granted it even if had he not been satisfied. (Chaldcott v. Chaldcott.)
In the other case, in which the decree was against the husband, and he had not offered to be examined at the trial, and had not applied for an adjournment of the trial, and now only said that from illness and other causes he had not been prepared with his defence. It was not deemed sufficient explanation. (Eyre v. Eyre.)
In another case, the question was one of alimony; the wife had been living with an allowance, under a deed of separation, and now a suit being instituted against her, she
applied for an increase of alimony, on the ground of this increase in her husband's income, but the application was refused. (Powell v. Powell).
In one case it was announced that Mr. Justice Grove and Baron Pollock were unable to attend in consequence of the pressure of business in the Common Law Courts; and the argument was adjourned until arrangements could be made for the attendance of two other Judges.
In the course of the Term there was a case under the Legitimacy Declaration Act. The petitioner prays for a declaration that the marriage of his mother was valid, notwithstanding a prior de facto marriage with another person, still living, on the ground that that former marriage was invalid—the person she was married to having himself a wife living It appeared, however, that the petitioner's domicile was Australian, and that there was no property in England which would be affected by the decree the Court had no jurisdiction to entertain the suit under the Legitimacy Act. It was then prayed to declare the nullity of the former marriage of the petitioner's mother, and as to this the Court took evidence, and reserved the question whether it could declare the nullity.
11.—THE REGULATION OF RAILWAYS ACT, 1873.
(36 and 37 Vict., cap. 48.)
VERY important Act of Parliament came into force
upon the ist of September last, and very few people know anything about it. That Act created a new tribunal in our midst, constituted in a way that no other English tribunal has up to the present time been constituted, and gave that new Court very large powers with the view of protecting the interests of the public; and yet the public seem to care very little about the whole matter.
as most lawyers know, an immense mass of Railway Legislation. Act after Act has been passed, and still there is necessity for further legislation in Railway matters. It may scarcely be remembered now that when railways were first sanctioned by Parliament, and constructed under that sanction, the idea was that the Railway Company would be owner of the way, and receive payment from those who used it. Such was actually the relation of Canal Companies, at that time, to the canals of which they were the owners. Soon, however, it was discovered that such a use of railways would be inconsistent with safety or convenience, and hence, although railway companies were, and still are, bound to admit the carriages and engines of other persons on their lines, they were authorised to use their own engines and carriages. Here, then, we had companies who had, through the assistance of legislation, been enabled to construct a line of railway on which they became carriers of goods and passengers, at least to long distances, at such a rate and with such convenience that they distanced all competitionfrom which too they they were protected by the legislature which in granting permission to make a railway from a certain place to a certain place would have hesitated, and rightly, if informed that there was already a line of communication between them, and who consequently to all intents and purposes became monopolists.
Very few people, now-a-days, cling to the belief that monopolies are good things for the public generally, but most political economists have held that they were possibly justified, when a ruler or government was convinced that a country was well-suited for a certain industry, and when, but for the protection afforded by a monopoly, such industry would not take root. Now, the fact that a Railway Company in order to prosecute its design must obtain the sanction of Parliament, and that to carry it out it required an immense aggregation of capital, and further that it thereby became the exclusive carrier of the traffic of a certain district, put very great powers in the hands of the
company, and as the interest of the company and the interests of the public were not the same, it became necessary to counteract the effect of this practical monopoly, which was calculated to be highly prejudicial to the community, and might be made tyrannously oppressive to individuals. It is the policy of the law to protect the weak, and hence the attempts which have been made to limit the railway monopoly.
From about the year 1842 it became the usual practice to insert in the several Railway Acts certain clauses, which provided that the same tolls should be charged to all persons equally under the same circumstances. These clauses were called “equality clauses," and there is one instance in the reports in which, under the 7 and 8 Vict. c. 85-which was the Act that provided for the future purchase of railways by the State-(by which the Board of Trade was authorized, when of opinion that it was for the public advantage, to proceed against Railway Companies contravening the provisions of any Act relative to railways,) proceedings were taken against a Company for an alleged infringement of one of the clauses.*
In 1845 the equality clause was made applicable to all Railways by the Railway Clauses Consolidation Act,+ and in the same year two important Acts of Parliament were passed with reference to Canal Companies. It has always been a theory of the legislature that the monopoly of Railway Companies might be most advantageously checked by the encouragement of competition upon the part of canals. For the conveyance of heavy goods canals are in many ways better suited than railways, and it seemed probable to the law makers that a little encouragement of canal companies might bring about competition which would be for the advantage of the public. But self-interest had keener eyes than the Argus-eyed legislative assembly, and the Railway
Attornoy-General v. Birmingham and Derby Junction Railway Company. 2,
Ra. Cas. 124.