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THE GUARDIANSHIP OF INFANTS.

II.

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 to appoint and nominate guardians. The new Act (49 & 50 Vict. c. 27), in the first place, confers on the mother an absolute power of appointing guardians. Section 3 (1) 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 herelf and the father of such infant (if such infant be then unmarried)." Now, the first observation which occurs on this enactment is, that the words "the mother of any infant' seem to include the mother of an illegitimate child. The words of the Act of 12 Car. 2, c. 24 s. 8, enable a father to dispose of the "custody and tuition" of his "child or children," and these last words are construed as meaning "legitimate child or children" (Sleeman v. Wilson, 13 Eq. 36); so that a father is unable to appoint a testamentary guardian of his illegitimate child. But it does not seem easy to limit in a similar manner the explicit words of the new provision, notwithstanding that the general scope of section 3 is incongruous with its application to the case of illegitimate children.

The appointment by the mother is to take effect "after the death of herself and the father of such infant," or, in more precise language, after the death of the survivor of herself and the father. But as the Act merely authorizes the mother to appoint a person or persons as guardian or guardians, and does not follow the words of the statute of Car. 2, which enables the father in such manner and from time to time as he shall respectively think fit, to dispose of the custody and tuition of such child or children during such time as he or they shall respectively remain under the age of twenty-one years, or any lesser time, to any person or persons in possession or remainder," it is conceived that the mother is not enabled to appoint guardians in succession, or to confer on the guardians appointed by her, or on the survivor of them, power to nominate other persons as guardians in the place of any of the appointed guardians who may die (see the judgment of Lord Penzance in In the goods of Parnell, 2 P. & D., at p. 381).

The provision that the mother of any infant may appoint persons to be guardians of such infant after the death of herself and the father "if such infant be then unmarried" is likely to lead to a question as to the effect of the marriage of the infant subsequently to the death of the surviving parent. We saw last week that, according to the better opinion, the marriage of a child, whether male or female, who was unmarried at the death of the father, does not determine the guardianship of a testamentary guardian appointed by the father. But the recent Act apparently only enables the mother to appoint persons to be guardians of the infant if unmarried "after" the death of the surviving parent-not if unmarried at such death; and it would seem that the marriage of the infant subsequently to the death of the surviving parent will determine the guardianship of the guardians appointed by the mother.

Section 3 (2) gives the mother a further power to "provisionally nominate" guardians to act with the father after her death. It provides that

"The mother of any infant may by deed or will provisionally nominate some fit person or persons to act as guardian or guardians of such infant after her death jointly with the father of such infant, and the court [including the county court, section 9], after her death, if it be shewn to the satisfaction of the court that the father is for any reason unfitted to be the sole guardian of his children, may confirm the appointment of such guardian or guardians, who shall thereupon be authorized and empowered so to act as aforesaid, or make such other order in respect of the guardianship as the court shall think right."

The nomination or appointment, it will be observed, is absolutely inoperative until it has been "confirmed" by the court after the 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 sole guardian of his children." Who is to apply to the court for

the necessary confirmation after the mother's 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 office 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 office 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 en 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 the father"-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 in 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 person, or over the estate (as the case may be), of an infant as any guardian appointed by will or otherwise now has in England under the Act twelve Charles 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 curious 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 & 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 prescribe 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. The 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

"When no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses 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 with the mother." Section 3 (1) also provides that, "where guardians are appointed by both parents, they shall act jointly." It becomes, therefore, 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 Mackay, 2 My. & Cr., at p. 37). As regarded the custody of the person of the 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. Schwenck, 14 M. & W. 488). But courts of equity early assumed jurisdiction to decide differences between joint testamentary guardians as to the education and residence of the ward (Beaufort v. Barty, 1 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."

Removal or disqualification of guardian.-It was said in Eyre v. Shaftesbury (2 P. Wms. 119) that "a writ may issue out of this court of Chancery] to remove the guardian of an infant [meaning a testamentary guardian], and to put another guardian in his stead"; but this has been questioned (see Foster v. Denny 2 Ch. Cas. 237; Ingham v. Bickerdike, 6 Mad. 275), and the rule, as generally laid down, is that the court may only "supersede" the testamentary guardian by appointing someone else to take 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 division thereof, may, in their discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and 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. c. 61, s. 4). An important addition to these powers is made by section 7 of the reeent Act, which provides that

"In any case where a decree for judicial separation, or a decree either nisi 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 infants.-The Act 36 & 37 Vict. c. 12 enabled the Court of Chancery, upon petition, by her next friend, of the mother of any infant under sixteen years of age, to order access 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

"The court [including a county court] may, upon the application of

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 of the infant, and to the conduct of the parents, and to the wishes as well right of access thereto of either parent, having regard to the welfare 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 every case 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 courts having jurisdiction under the Act.-One of the most important changes made by the Act is the jurisdiction conferred Section 9 defines the words "the court," on the county courts. as used in the Act, as the High Court and "the county court of the district in which the respondent or respondents sion to the High Court are to be made "in such manner as may be or any of them may reside." Applications to the Chancery Diviprescribed by Rules of Court"; which are also to prescribe the the Act; and like rules are to be made by the committee of practice and procedure in any proceedings in that division under county court judges for regulating the practice and procedure on applications to the county court. No rules under the Act 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 Chancery Division from any order made by a county court under

the Act.

CONCERNING SEARCHES. (XIII) JUDGMENTS.

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JUDGMENTS BEFORE 1 & 2 VICT. c. 110 (continued). Remedies of judgment creditor in equity. The creditor came into equity, not to obtain a greater benefit than the lawthat is, the Act of Parliament (St. Westm. 2)—had given him, but to have the same benefit by the process of the Court of Chancery which he would have had at law if no legal impediment had intervened. The Court of Chancery lent its aid to the legal right, and gave the creditor neither more nor less than what the Act of Parliament and an ejectment would, under other circumstances, have given him at law (Neate v. Duke of Marlborough, 3 My. & Cr., at p. 417). Before 1 & 2 Vict. c. 110, the aid of equity was invoked, not for the purpose of enforcing such a right by way of charge as is given by section 13 of that Act, but only to obtain equitable execution-i.e., to have the lands delivered in execution to the creditor when he would have got them at law in the ordinary process but for certain difficulties existing (see per Cotton, L.J., Anglo-Italian Bank v. Davies, 27 W. R. 3, 9 Ch. D. 290). Equity follows, and does not enlarge, the law; therefore a judgment creditor could not have relief against an equitable interest in property where the legal estate would not be liable to execution (Lewin Tr., 8th ed., 796). And it seems to have been on this ground that the Court of Chancery refused its aid unless the creditor had already done his utmost to enforce his right at law (In re Cowbridge Railway Co., 5 Eq., at p. 416, 417); so that it was held to be necessary that he should have issued an elegit before he filed his bill in equity; for, as the Court of Equity was lending its aid to the legal right, the party must have previously armed himself with that which constitutes his legal right-viz., the writ. The sole reason for coming into equity being founded on a right which the writ of elegit confers, the creditor cannot come without having obtained that right (3 My. & Cr. 416).

and

Sale in equity. Although it was sometimes said (as in Stileman v. Ashdown, 2 Atk. 610) that equity would accelerate the creditor's remedy by directing a sale instead of making him wait till he had repaid himself out of the rents and profits, yet this remark is true only of cases in which a sale became necessary in the administration of a deceased debtor's estate, or otherwise in the general exercise of the equitable jurisdiction; for then the court, being obliged to sell the estate, would sell it free from the charge (5 Jarm. Conv. 39; see per Wood, V.C., Doswell v. Reece, 11 Jur. N. S. 764). But this was not done on the ground of any right in the judgment creditor to a sale. Subject to such exceptions, the province of the Court of Chancery was not to extend the legal right, but to aid it by removing any impediment which might exist to the exercise by judgment creditors of their legal rights (Smith v.

Hurst, 10 Ha. 30, 43; see 3 My. & Cr. 416)-e.g., by allowing the creditor to redeem. a legal mortgage, because he could not at law extend the equity of redemption (Tunstall v. Trappes, 3 Sim. 300); by restraining the setting up of an outstanding legal estate in bar of his execution at law (5 Jarm. Conv. 40, 2 Spence Eq. Jur. 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 (AngloItalian 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 elegit, and, without obtaining a return, filing a bill in equity alleging that the plaintiff had issued his elegit, 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 before 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; Stileman v. Ashdown, 2 Atk. 610). An exception was admitted when a 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 (Stonehewer v. Thompson, 2 Atk. 477).

Purchaser without notice. 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.g., 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 he 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 B., 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 execution.

The protection given by equity to a purchaser without notice (ante, p. 4) extended only to judgments 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).

The 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 Westminster" (4 & 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 required to be docketed in the names of defendants, and undocketed judgments were not to affect purchasers and mortgagees. The object was to enable purchasers to find out judgments (2 Cr. & Jerv. 322); and, if a judgment was duly docketed, a purchaser was bound, though he had not searched the dockets and had no notice aliunde (1 Pow. Mort. 276).

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., Benham v. Keane, 10 W. R. 97, 3 D. F. & J. 332).

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Practice as to searches for judgments under the old law. 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. Tyrrell'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 judgment had been satisfied, by analogy to the limitation under 21 Jac. 1, c. 16, for making entry into land, though, until the 3 & 4 Will. 4, c. 27, s. 40, there was no statutory limitation as 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 against him while a minor (see 1 Prest. Abst. 191; 3 Prest. Abst. 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, c. 8, and 1 Jac. 2, c. 17 (see 2 Wms. Saund. 72 k, 1.), enabling judgments to be entered up against a defendant after his death (Saunders v. McGowran, 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.

APPEALS FROM COUNTY COURTS BY SPECIAL CASE. (Reg. v. Kettle, 55 L. J. Q. B. 470.)

as

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
brought, inasmuch such appeals were
R. S. C. of December 1885, ord 59, rr. 9, 10, is in accordance with the
abolished by the
view maintained by us before this case was decided, when discussing the
point as to whether the appeal clause of the County Courts Con-
solidation Bill, which did not incorporate section 15 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

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-abolished by the R. S. C. of December, 1885. 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 or constructive notice (3 Prest. Abst. 327).

Purchaser with notice of undocketed judgment.-Conversely it was held in equity (though not at law: see 1 Pow. Mort. 277; Doe d. Robinson v. Alsop, 5 B. & Ald. 142) that purchasers were bound by actual notice (to themselves or their agents) of undocketed judgments, as from the time of such notice: Davis v. Strathmore, 16 Ves. 419; Willis v. Browne, 10 Sim. 148). At law a judgment bound the defendant from the time it was recorded,

was accepted by the Divisicnal Court in Reg. v. Kettle. It is still
suggested that, though the decision of the Divisional Court was right,
it was based upon the wrong ground, and that there can now be no
appeal by special case because the Queen's Bench Division has no
jurisdiction over such appeals, and not because ord. 29, rr.
The contention seems to be based on a
9, 10, has abolished them.
misconstruction of section 45 of the Judicature Act 1873. This section
did not give power to hand over to the Queen's Bench Division by
rules of court the jurisdiction over appeals from county courts by
special case. The "handing over" was effected by the section itself,
which further provided that judges should from time to time be

assigned for the purpose of forming divisional courts to hear and determine (inter alia) 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 both forms of appeal are clearly covered by rule 4 of the same order.

REVIEWS.

CRIMINAL LAW.

PRINCIPLES OF THE CRIMINAL LAW. By SEYMOUR F. HARRIS, Barrister-at-Law. FOURTH EDITION. BY AVIET AGABEG, Barrister at Law. Stevens & Haynes.

Less overburdened with technicalities and details than Russell on

Crimes or Archbold'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 require-
ments" 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 con-
cur in this statement. We find no notice of the Crown Office
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 Offences 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 revi-
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
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 enact-
ments was torn out of the Statute Book in 1872 by the Licensing
Act of that year.

PUBLIC HEALTH ACTS.

many cases, must every year go over the Long Vacation. They go over, not because of any delay in the taxing master's offices, but because eight masters cannot be expected to perform the work which would fairly occupy the time of ten.

There is only power to appoint nine under the Act referred to above, and there are at present eight.

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 business in the court and chambers of the Chancery Division, &c., a 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.

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 signing the report the judge referred to added this rideradvantage that the taxing masters are entirely separated from all (2) "As to the taxing masters. It is, in my judgment, a great matters in respect of which they have to tax bills of costs in their earlier stages. They are thus kept independent and impartial, and formed in the progress of the litigation.' no solicitor need fear their being prejudiced by any opinion they have

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judge. If the contrary recommendation were acted on, then, in
I most respectfully and thoroughly indorse the views of the learned
addition to the cases adjourned by chief clerks to their respective
and the additional labour cast on the judges consequent on the
judges every week, there would be the additional absorption of time
during the progress of the taxation of bills of costs before them;
adjournments by eight chancery taxing masters of points arising
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
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
parties and their own views of the subject. And, whereas they are
make out, perhaps, a hundred notes of the rival contentions of the
now quite independent, and can perform their duties with minds
charged with a sense of personal responsibility, they would then
highly detrimental to their efficiency.
cease to be masters in every sense of the word; and this would be
I am certain that these
views on the subject will commend themselves to the judgment of
every chancery practitioner who is acquainted with the working of
the offices of the chancery taxing masters, and, therefore, hope that
Upper Holloway, N., Nov. 3.
JAMES RAWLINSON.

THE PUBLIC HEALTH ACTS, 1885. By A. MACMORRAN, Barrister- the appointment of the ninth taxing master may be made.

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 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 each particular section in a manner rather tiresome to the eyes and useless.

CORRESPONDENCE.

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THE CHANCERY TAXING MASTERS. [To the Editor of the Solicitors' Journal.] Sir,-Some good time before the recent Long Vacation, Mr. Bartley asked the then Attorney-General whether, having regard to the additional powers and responsibility conferred on, and vested in, the eight chancery taxing masters by R. S. C., 1883, LXV., and the Rules of December, 1885, 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 the salaries of their clerks, of between £9,000 and £10,000 per annum, the Government would take under their consideration the propriety of appointing an additional taxing master, making the ninth, thus completing the number contemplated, and provided for by section 5 of 5 & 6 Vict. c. 103? The Attorney-General said he should take care that this point was submitted to the Lord Chancellor. Apparently, nothing has been done in the matter; although the suitors must necessarily suffer so long as the work of the taxing masters is so heavy that it is a matter of course that the taxation of costs, in

In sentencing a letter stamper to five years' penal servitude at the Manchester Assizes, Mr. Justice Cave said the judges had of late years endeavoured to mitigate the severity of sentences for Post Office robberies; but it appeared from a communication made by the Postmaster-General to the Home Secretary, and by him to the judges, that deterrent effect of long sentences. this leniency had had bad results. The judges would again try the

In the course of the trial by Mr. Baron Huddleston, at the Bristol Assizes, of some cases under the Criminal Law Amendment Act, 1885, he 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 "unless the testimony admitted by virtue of this section and given on behalf of the prosecution shall be corroborated by some other material evidence in support thereof implicating the accused." His lordship said that the words "implicating the accused" might be construed as referring merely to the identity of the accused, and not to corroboration in some material particular, and that it would be far better if they were administration of corporal punishment. Where an offender's age does omitted. Earlier in the same section another difficulty arose, as to the not exceed sixteen the section enacts that the court may, instead of sentencing the offender to any term of imprisonment, order him to be whipped, as prescribed by the 25 & 26 Vict. c. 18, and, if expedient, may in addition order him to be sent to a reformatory for not less than two years or more than five years. His lordship said that, under the 25 & 26 Vict. c. 18, the whipping was limited to twelve strokes with a birch rod, and he considered that the court should have power to order an offender to be whipped in addition to imprisonment, for the practical result of the Act in its present form was that, in the case of an offender, obliged to send him to prison, as otherwise the whipping alone would be say of fifteen, who was in reality too old for a reformatory, the court was inadequate. His lordship, in charging the grand jury, also expressed a strong desire that the Legislature should empower judges to order those, of whatever age, who were guilty of offences against children under this Act, to be flogged in addition to any punishment that may now be given.

CASES OF THE WEEK.

Re WILSON AND GREENE-C.A. No. 1, 27th and 28th October. UMPIRE APPOINTED IN CASE OF DISAGREEMENT OF VALUERS-ARBITRATOR. 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 the other party within a specified time. The valuers thus appointed were, before proceeding to act, to appoint, by writing, an umpire; and the two valuers, or, if 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. THE COURT OF APPEAL (LORD ESHER, M.R., and LINDLEY and LOPES, L.JJ.), in upholding the decision of the Divisional Court, and refusing to interfere with the valuation, said that the test to be adopted as to whether the appointment constituted a valuer or an 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.-COUNSEL, Bucknill, Q.C., and R. V. Williams; H. D. Greene, Q.C., and J. D. S. Sim. SOLICITORS, Lowless & Co.; Lake, Beaumont, & Lake.

(1 Bing. N. C. 89), Buckworth v. Simpson (1 C. M. & R. 834), 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. THE COURT, having taken time to entering into possession would, prima facie, hold on the same terms as his consider, dismissed the appeal. Lord ESHER, M.R., said that an executor testator. If those terms were known to 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 here the judge found that the defendants did not know of the holding over or of the terms of the yearly tenancy, which was a verbal arrangement. Could it be said to be the necessary inference that the defendants, by taking possession, agreed to hold as assignees on the same terms as the intestate? As a fact, the defendants did not agree to hold on those terms, because they knew nothing about them. The proper inference was that they held on the ordinary terms of a yearly tenancy, and so were not subject to the covenant to repair. LINDLEY, L.J., in concurring, said that the learned judge having come to the conclusion, as an inference from the facts, that the defendants 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. LOPES, L.J., concurred.-COUNSEL, R. M. Bray; R. A. MacCall. SOLICITORS, Halse, Trustram, & Co.; G. R. Dodd.

COLLIER. CHADWICK-C. A. No. 2, 28th October.

PARTNERSHIP --DISSOLUTION-OFFICE OF TRUST HELD BY OUTGOING PARTNER -RIGHTS OF CONTINUING PARTNERS TO PROFITS OF OFFICE AFTER DISSOLUTION.

SAILING SHIP GARSTON CO. v. HICKIE, BORMAN, & CO.-C. A. in a firm of accountants in regard to the profits, arising after a dissolution

No. 1, 29th October.

CHARTER-PARTY-CLAUSE OF EXCEPTIONS-DANGERS AND ACCIDENTS OF NAVIGATION.

This was an appeal from the decision 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 Garston had been injured on December 22, 1884, by coming into collision with the steamer Creadon in the port of Cardiff. 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 princes and rulers, fire, and all and every other dangers and accidents of the seas, rivers, and navigation always mutually excepted." The plaintiffs 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 that the 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 Woodley v. Mitchell (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 66 dangers of navigation." THE COURT OF APPEAL (LORD ESHER, M.R., and LINDLEY and LOPES, L.JJ.) upheld the decision of Grantham, J., and pointed out that there was a distinction between perils 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 negligence were not perils of the sea, they might well be perils of navigation. If, however, the collision was caused by the negligence of the carrying ship, they did not think that the shipowners would be entitled to be protected under the exception of "perils of navigation," for they would need to be very explicit words to protect the owner of a carrying ship from the consequences of his own negligence or that of his servants.-COUNSEL, Carver; French, Q.C., and Synnott. SOLICITORS, Trenders & Romer; Gregory, Rowcliffes, & Co., for Hill, Dickinson, Lightbound, & Dickinson, Liverpool.

HUNT v. ARCHER-C. A. No. 1, 27th October and 3rd November. EXECUTOR DE SON TORT-TENANCY FROM YEAR TO YEAR-LIABILITY OF EXECUTOR ON COVENANTS.

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 verbally agreed to continue on as tenant from year to year on the same terms as those contained in the original lease, including the covenant to 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 defendants personally for breach of the agreement to repair, alleging that the premises were out of repair at the end of the term in 1876, and also at the time of the 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 de son tort but they did not know of the holding over in 1876, nor of the terms of the tenancy, and that the defendants were not assignees, but tenants from year to year, subject to 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 assignees of the tenancy, and personally subject to all the obligations of their testator, within the decisions in Tremeere v. Morison

A question arose in this case as to the rights of the continuing partners of the partnership as regarded one of the partners, of an office of trust held by him. The outgoing partner held the appointment of auditor to 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 the firm. The appointment was made by the company annually, but it was the practice to re-appoint the same person year after year. The partnership deed contained a clause providing that the partners should, during the partnership, devote their whole time to, and 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 person, either directly or indirectly, engage in any trade or business. During the continuance of the partnership the outgoing partner had paid over to the firm the profits derived from the auditorship, and on the dissolution he accounted to the firm for the profits of the office in respect of that portion of the current year which had elapsed up to the time of the dissolution, and he insisted that he was not liable to pay anything more to the firm. The continuing partners contended that he was bound to account to them for the profits of the office 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 over 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 office for the firm. Smith v. Mules (9 Hare, 556) was relied upon in support of this decision. THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) reversed the decision, holding that the office 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. Mules was distinguishable, because in that case the partnership articles contained a provision that a partner (who had retired) should use his best endeavours to secure to the continuing partners or partner all offices and appointments, as well of the partnership as of himself, and he had_committed a breach of this stipulation. Under these circumstances, Turner, V.C., held that the defendant must be charged in the partnership accounts 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; Russell Roberts. SOLICITORS, John Vernon & Co.; Devonshire & Foley.

HARRIS v. ROTHWELL-Chitty, J., 29th and 30th October. PATENT-PRIOR PUBLICATION-GERMAN SPECIFICATIONS DEPOSITED IN PATENT OFFICE 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 Library could constitute prior publication in England. The plaintiffs were the assignees of a patent for improvements in knitting machines obtained in 1880. It appeared that in 1877 and 1879 certain specifications and drawings of German patents for knitting machines were received by the Commissioners for Patents and deposited in the London Patent Office for public inspection. The specifications were in the German language, and for the purposes of the special case it was assumed that, if in English, they would have given sufficient information to a competent workman to enable him to carry into practice the invention which was the subject of the plaintiffs' patent. Entries were published in the Patents Journal of the German specifications among those in the list of foreign patents, and they were referred to and classified as knitting machines. A foot-note was appended to the list, stating that the specifications, as well as the list of applications, might be consulted at the free public library of the Patent Office. It was submitted

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