of other testimony; and their testimony, which would have been admissible had they been called first, cannot on principle be excluded by the circumstance of being called in a different order:" (Starkie, 4th ed., p. 254.) "Contradict him by other evidence," i. e., evidence of material facts re levant to the issue, not mere proof of the falseness of the witnesses' statements in certain particulars not relevant to the issue, offered with a view of showing him to be unworthy of belief. "It is clear that a party may contradict his own witness if he speaks to a material fact in the case against the interest of those who called him. On collateral fact he cannot be contradicted, not only because such evidence goes to the credit of the witness, but because a multiplicity of issues ought not to be introduced": (See Parke, J. Friedlander v. The London Assurance Company, 4 B. & Ad. p. 198.) the witness might be asked whether she had not on a particular occasion made a contrary statement, and that the judge might leave the question and anwer to the jury, with the other evidence, cautioning them not to infer merely from the question that the fact suggested by it was true; and Patteson, J. observed: "There is a distinction between asking questions of a witness in the box as to statements he may have formerly made, and calling other witnesses to say, in contradiction to him, that he made such statements. That distinction accords with what Parke, B. laid down in Holdsworth v. The Mayor of Dartmouth, 2 M. & R. 153. In Wright v. Beckett, 1 M. & R. 414, there was a difference of opinion as to contradicting the witness by other evidence. In Winter v. Butt, 2 M. & R. 357, the objection was taken when counsel was putting the question to the witness himself; and Erskine, J., in deciding against the question, referred to the decision of Parke, B., which related to offering point in Winter v. Butt was taken too early, and that the learned judge should have allowed the question, but stopped the inquiry when evidence was called to contradict the witness." "Or, by leave of the judge, prove that he has made at other times a statement inconsistent with his the evidence in contradiction. But I think that the present testimony." This is not confirmatory of any recognised rule of the law of evidence, but rather, perhaps, calculated to defer the settlement of a conflict of no ordinary character, on the point whether such proof as that last mentioned is by law admissible, without the aid of statute. In any case where the judge refuses under this section to admit such proof, notwithstanding the witness is adverse, the point may still be taken, and, on a bill of exceptions, carried, if necessary, before the highest court of judicature. The topic is discussed at length by nearly every text-writer on the law of evidence, both English and American; various judges have propounded opposite views of the question, and the learned commissioners, in their second report, have also entered into the controversy. But unless the argument for the exclusion of such evidence derives aid from the fact of the Legislature having provided for its admissibility by leave of the judge, the question remains as doubtful as it was before the Act. It would be difficult to find a better description of the conflict of authority on the point above referred to than that which is contained in the following passage, taken from a modern work on the law of evidence: "Such being the arguments on both sides of this vexed question, it appears that at present the weight of authority in this country is decidedly in favour of rejecting such proof. Lord Denman, indeed, has admitted it on several occasions (Wright v. Beckett, 1 M. & R. 414; Bernasconi v. Farebrother, cited id. 427; Dunn v. Aslett, 2 M. & Rob. 122 in 1838), and, having formed his opinion after much consideration, will certainly adhere to this practice, till a higher court shall declare that he is wrong. Mr. Phillips, too, and Mr. Starkie, both support his lordship's view with much ability (2 Ph. Ev. 450, 463; 1 Stark. Ev. 217, 220); and there are several American authorities to the like effect (see Smith v. Price, 8 Watts, 447; Brown v. Bellow, 4 Pich. 179; The State v. Norris, 1 Hay, 437-8; Rice v. New Eng. Mar. Ins. Co. 4 Pich. 439; Bank of Northern Liberties v. Daris, 6 Watts & Serg. 285.) Moreover, the correctness of this opinion is further confirmed by the case of Ewer v. Ambrose, in the second trial of which cause (4 B. & C. 25) such evidence was admitted. And, by the cases of Rex v. Holroyd and Rex v. Boyle, in the former of which Lord Ellenborough and Sir James Mansfield (R. & R. 90), intimated that a prosecutor might contradict a witness for the Crown, by proving his deposition before the committing magistrate; and, in the latter, such evidence was actually admitted by Bayley, B., with the concurrence of Holroyd, J.: (cited by Lord Denman, in Wright v. Beckett, 1 M. & R. 422.) On the other hand, Lord Denman admits that Bayley, B. subsequently changed his opinion (1 M. & R. 423); and the obiter dicta of Lord Ellenborough and Sir James Mansfield are entitled to less weight, as ten Irish judges have since unanimously decided that a prosecutor has no right to discredit a witness for the Crown by producing his depositions which contain statements contradictory of the testimony given at the trial: (R. v. Moran, Jebb, C. C. 91; see Ir. Cor. Rep. 506, n. a.) In addition to this last case, a formidable array of English judges may be cited in opposition to Lord Denman's view. Thus, the late Bolland, B. (Wright v. Beckett, 1 M. & Rob. 428), Parke, B. (Holdsworth v. The Mayor of Dartmouth, 2 M. & R. 153), Patteson, J. (R. v. Farr, 8 C. & P. 768; R. v. Ball, Id. 746), Erskine, J. (R. v. Ball, Id. 746; 2 M. & R. 357), and Wightman, J. (Alley. v. Hutchings, 2 M. & R. 358, n.), have expressly rejected such evidence; and from the late case of Winter v. Butt, there is reason to believe that several other judges entertain similar views (2 M. & R. 357; decided March 1841). It would even seem, from this case, that a party calling a witness cannot so much as ask him whether he has not, on some former occasion, given a different account, though, in Holdsworth v. The Mayor of Dartmouth, 2 M. & R. 153, Parke, B. allowed this question to be put. It further appears to mony which is sought to be discredited has been given on examination-in-chief or on cross-examination: (Taylor on Evidence, pp. 951, 952.) make no difference whether the unfavourable testi It would seem that it may now be taken to be law, independently of the provision of the above enactment, that the question may be put. In Melluish v. Collier, 15 Q. B. 878, where a witness for the plaintiff unexpectedly gave adverse evidence, it was held that The preliminaries required by the words of the section to be gone through before a party is entitled to contradict his own witness, are substantially the same as have been always required in practice before a party could adduce evidence to contradict an adverse witness. The change effected by the statute being to enable a party, in certain specified cases, to treat his own witness the other side. in the same manner as if he had been called by (To be continued.) MONTHLY COMMENTARY. their talents. Upon which Mr. Justice Cresswell is reported to have observed, that he did not know how far those remarks were meant for him, and he should express no opinion until the matter had been settled by a majority of the judges; but he would tell them fairly that he thought it was a point on which the Bar themselves should establish a rule; that it would be convenient to come to some understanding in order to prevent collision; and that hitherto different customs had prevailed on different circuits as to the relative functions and duties of senior and junior counsel. On another occasion Mr. Watson said, that the junior should no longer open the pleadings, but that the leader ought at once to open the case; but the old rule in this respect has universally prevailed; and an instance happened under our own eyes, where the junior not only opened the pleadings, but also stated the case to the jury, notwithstanding that his leader was We believe, however, that such inpresent. stances as the above are rare and exceptional, and that the practice now universally recognised is for the junior to open the pleadings, and all the speeches be made by the leading counsel. 186 What is meant by summing up the evidence" is a question not so easily determined. It was probably intended to be strictly a comment upon the evidence adduced by the party summing up, but in practice it is a general. reply, and such it must necessarily be to some WHEN the County Courts were first esta- extent at least. Counsel cannot effectively blished, the method of proceeding at the hear-point out the strength of his own evidence, ing of a cause was left to the discretion of the judges. They were to proceed in a summary way, and neither counsel or attorney could be heard to argue any point except by leave of the court. No provisions were made as to the statement of the case, the speeches to the judge or jury, nor the mode in which witnesses for each judge to adopt whatever course of were to be examined. It was, therefore, open practice he thought best. With an extraordinary unanimity, however, the method of conducting cases at Nisi Prius has been universally adopted in all cases where counsel or attorney appears. How far the changes recently introduced into that practice have also been adopted in the County Courts we have no means of judging. That the adoption of these changes is discretionary with the judges we have no doubt, since the New Common Law Procedure Act is silent on the subject. Sections 19 to 32 are expressly declared to be applicable to every land; but, as to the 18th section, there is no Court of Civil Judicature in England and Iresuch provision, and that section, therefore, is in terms applicable only to proceedings in the Superior Courts of Common Law. On the other hand it has been expressly enacted, "that in any case not expressly provided for in the County Court Acts, or by the Rules of Practice, the general principles of practice in the Superior Courts of Common Law may be adopted and applied, at the discretion of the judges, to actions and proceedings in their several courts." The introduction of the new practice into the Superior Courts was not unattended with practical difficulties; doubts were entertained as to the meaning of certain provisions in the act, and a contest was threatened between the senior and junior bar. What was meant by summing up the evidence"? and was it the province of the leading or junior counsel to do it? were questions more than once raised, and questions which are not even yet, perhaps, finally decided. In one case Mr. Montague Chambers remarked, that it was his own decided opinion that, under the new Act, it was the part of the junior, and not the senior counsel to sum up the evidence; and that the utility of having two counsel in a case was that each might act; and until he should be told by the Bench that he was wrong, he would not deprive his juniors of their privileges, but would do all in his power to give them occasions of displaying unless he at the same time contrasts the weakness of that of his opponent; all evidence is relative. A fact proved by one witness is sufficiently proved if there be no evidence the other way; but if two witnesses disprove the same fact, the preponderance of proof is on their side. Without comparing and contrasting cannot be of much avail. the evidence on both sides, the summing up The provisions of the 18th section on this subject are as follows:-"The party who begins, or his counsel, shall be allowed, in the event of his opponent not announcing at the close of the case of the party who begins, his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case, and also to sum up the evidence (if any); and the right to reply shall be the same as at present." Our present number contains the report of Queen's Bench for a criminal information an application recently made to the Court of against the Judge of the Wakefield County Court, and we regret that scenes such as the one therein described should have taken place in any County Court. Unseemly contests between the judges and the practitioners before them tend to lower the tribunals in public estimation and to bring the office of both judge and advocate into contempt. How far the case made out by Mr. Shaw may be answered or explained away by Mr. Marshall time will show; but, even though every allowance be made for Mr. Shaw's bias in his own favour, it is hardly possible, without absolutely discrediting Mr. Shaw's statement altogether, to exonerate Mr. Marshall from blame. Mr. Shaw appeared in Mr. Marshall's court as counsel for a party to a cause there pending, and was refused audience by the judge on the ground of a personal pique against Mr. Shaw himself. Such an interference with the privileges of the Bar and the rights of suitors no amount of provocation can justify. Suppose that the report furnished by Shaw to the newspaper was erroneous, and even a libel upon the judge, Mr. Marshall had his remedy like any other subject of the Queen; but he had no right whatever to redress himself by the undue exercise of the powers with which he has been entrusted for the due administration of justice. The privileges and independence of the Bar must be respected; and the interest of justice demands that no judge should, under any pre tence whatever, be allowed to trench upon them with impunity. By the original County Court Act, the anomalous discretion to grant or refuse leave for counsel or attorney to argue any question as counsel in their court was entrusted to the County Court judges, but that provision was by the 10th section of 15 & 16 Vict. c. 54 repealed, and judges and counsel must now be governed by the rules of the common law, and a barrister has the same right to appear and plead in the County Court as he has in the courts at Westminster. We trust therefore that Mr. Marshall will not, whatever annoyance he may meet with, again have recourse to a method of retaliation which will array against him the entire sympathies of the Profession. A question of some importance was lately raised in a case before Mr. Justice Crompton at chambers. A creditor sued his debtor in the Court of Queen's Bench and obtained judgment, and the debtor on his part sued a person who was indebted to him in the Liverpool County Court, whereupon the plaintiff in the Queen's Bench applied to Mr. Justice Crompton for an order attaching the judgment recovered in the County Court, but the learned judge refused the application, on the ground that it was a case not within the statute. In the case of Wyatt y. Lord St. Leonards, reported in our last number, the Judge of the Kingston County Court, after having taken time to consider, gave judgment in favour of the defendant, with costs of suit. The learned judge was of opinion that the defendant had a right to impound the plaintiff's ducks, since they were at the time, trespassing upon his lands. a right, if it existed, was a hereditament, and that a question of title therefore arose over which the Court had no jurisdiction. But the Court held that a right to fish was a profit-àprendre and could not therefore be claimed by custom. In Bland v. Lipscombe (24 L. T. Rep. 92, the question was again raised and decided in the same way. The law is clearly and succintly stated in Lord Campbell's judgment, where the following observations occur: "The law makes a salutary distinction between a mere easement and a profit-à-prendre; and, though it is a good custom for the inhabitants of a parish to dance upon a particular close once a year or oftener, the law will not support a custom that the inhabitants of a parish may take away the property of another, which would certainly be very injurious to the owner, and of little benefit to the inhabitants. The question therefore is, whether the custom set up in this case claims for the inhabitants of Leatherhead an easement only, or a profit-à-prendre. It is, in fact, a claim to angle, catch, and carry away fish; but even if it stopped short of a claim to carry away, I think it would make no difference. The right of catching fish claimed by all the inhabitants would soon destroy the fishery altogether, and is clearly not a mere easement but a profit-à-prendre. In Thompson v. Sheppard, 24 L. T. Rep. 70, to a declaration in trespass for a battery and false imprisonment, the defendant pleaded a simple plea of payment into court without any qualification or explanation, and the Court held the plea good. The action was brought for unlawfully giving the plaintiff into custody for an alleged malicious injury to the defendant's property, under the 7 & 8 Geo. 4, c. 30, and the money was paid into Court under the 41st section of the Act, which provides that, for the protection of persons acting in the execution of this Act, the plaintiff shall not recover if sufficient amends are tendered before action, or if a sufficient sum of money shall have be paid into court after action brought. AND WIFE. (a) NOTES OF IMPORTANT DECISIONS. WHO is a contributory under the Joint-Stock Companies Winding-up Act is a question, is frequently a complicated question, and yet it is one in which every holder of shares is more or less interested. A shareholder continues such until he has sold and transferred his shares; and it has been recently held, that the transfer is not complete until the formalities required THE LAW RELATING TO HUSBAND by the deed of settlement of the company have been complied with. In the case of Re the Newcastle Marine Insurance Company, ex parte Henderson, 24 L. T. Rep. 86, the Master of the Rolls made the following observations on this subject :—“When a shareholder sells his shares bonâ fide in the market, and gives notice of the sale to the proper officer of the company, and is told that the proper formalities have been complied with, and the proper entry of the sale made, he has done everything in his power, and he is not affected by any actual informality, the existence of which he had no reason to suspect, nor any means of knowing. But if he takes no steps to ascertain whether the prescribed formalities have been observed, he remains liable, notwithstanding the transfer." In Williams and Wife v. Smith, 24 L. T. Rep. 90, the question arose whether an infant could, during his infancy, make a written acknowledgment to take a case out of the Statute of Limitations. It was contended that, as he could not state an account, or give a cognovit actionem in respect of a debt due for necessaries, he could not by a mere promise, though in writing, take the case out of the statute. But the Court of Queen's Bench held that the incapacity of infants to contract does not extend to neces saries, and that they may therefore make binding promises in respect of the same, as well after as at the time of the original con tract. One of the questions raised in Lloyd v. Jones, 17 L. J. 206, C. B., has again been mooted in a recent case. In Lloyd v. Jones, the plaintiff sued the defendant in the County Court for an alleged trespass in entering on his land to fish; to which the defendant set up, as a defence, that he, as one of the inhabitants of a township, had a right, by ancient custom, to enter upon the plaintiff's land, for the purpose of fishing in a river which flowed through the land; and it was further contended that such 1. Privileges of the Wife. IN considering the general principles of the law, and the leading cases which elucidate those principles, on the very important subject which we have selected for discussion, it is our intention to examine more especially the rights and privileges possessed and acquired by married persons, particularly as regards the property held by either, and the contracts and liabilities into which each may enter for the other. On all these topics various questions have been raised in and have been determined by the Superior Courts, to which we shall call the reader's attention; and it has not unfrequently happened that very important and the law have been raised in the County Courts, difficult questions connected with this head of to the practitioners in which, more particularly, it is our aim to render the present series useful. It will not, therefore, be necessary to enter here into that part of the subject which is embraced by the criminal law, further than is essential to illustrate the particular points under discussion. of them acquire by the marriage. For this reason a man cannot grant anything to his wife, or enter into covenant with her: (Co. Litt. 112.) For the grant would be to suppose her separate existence; and to covenant with her would be only to covenant with himself. And, therefore, it is also generally true that all compacts made between husband and wife, when single, are voided by intermarriage: (Cro. Car. 112.) A woman may, however, be attorney for her husband, for that implies no separation from, but is rather a representation of, her lord: ( Black. Com. 442.) As regards the general principle of the liability of the husband for the wife, it may be observed that a husband is bound by law to provide his wife with necessaries as much as himself; and that, if she contracts debts for them, he is obliged to pay them: (Salk. 118.) But for anything for the wife besides necessaries the husband is not chargeable: (1 Sid. 120.) If, however, a wife elopes and lives with another man, the husband is not chargeable even for necessaries (Stra. 647); at least, if the person who furnishes them is sufficiently apprised of her elopement (1 Lev. 5). It has recently been held that a husband, though a lunatic and confined in an asylum, is liable for necessary supplied to his wife during his confinement: (Read v. Legard, 17 L. T. Rep. 145, Ex.) If the wife be indebted before marriage, the husband is bound afterwards to pay the debt: (3 Mod. 186.) And the reason given by Sir William Blackstone in his Commentaries is, that the husband has adopted the wife and her circumstances together. With respect to the remedies for injuries to the wife, if the wife be injured in her person or her property, she can bring no action of redress without her husband's concurrence, and in his name as well as her own: (1 Roll. Abr. 349.) Neither can she be sued without making the husband a defendant : (1 Leon. 312). There is, indeed, one case where the wife shall sue and be sued as a feme sole, and that is, where the husband has abjured the realm, or is banished (Co. Lit. 133); for then he is dead in law; and the husband being thus disabled to sue or to defend the wife, it would be most unreasonable if she had no remedy or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately (1 Hawk. P.C. 3); for the union is only a civil union. But in trials of any sort they were not until lately, when this disability was abolished by statute, allowed to be evidence for or against each other, partly because it was considered impossible that their testimony should be indifferent, but principally because of the union of person; and, therefore, it was contended that if they were admitted to be witnesses for each other, they would contradict one maxim of law, if against each other, they would contradict nemo in propriâ causá testis esse debet. And another maxim, nemo tenetur seipsum accusare. But where the offence is directly against the person of the wife, the rule has been always dispensed with: (State Trials, vol. 1, Lord Audley's case.) And by stat. 3, Hen. 7, c. 2, in case a woman be forcibly taken away and married, she may be a witness against By marriage the husband and wife are one such her husband, in order to convict him of person in law: (Cowel, tit. "Alimony.") The felony. For in this case she can with no provery being or legal existence of the woman is priety be reckoned his wife; because a main suspended during the marriage, or at least is ingredient, her consent, was wanting to the husband, under whose wing, protection, and that no man shall take advantage of his own incorporated and consolidated into that of the contract. There is also another maxim of law, cover she performs everything; and is, there- wrong; which the ravisher here would do, if, fore, called in our law-French a feme covert, by forcibly marrying a woman, he could prevent fæmina viro co-operta. She is also said to be her from being a witness who is perhaps the covert baron, or under the protection or in- only witness to the fact. her condition during her marriage is called her fluence of her husband, her baron or lord; and The husband and wife are considered in the coverture. Upon this principle of a union of person in husband and wife depend almost all the legal rights, duties, and disabilities that either (a) BY GEORGE HARRIS, Esq., Barrister-at-Law. civil law as two distinct persons, and may have In our Ecclesiastical Courts, therefore, a separate estates, contracts, debts, and injuries. woman may sue and be sued without her hus band: (2 Roll. Abr. 298.) Although by the law of England man and wife are considered as but one person, yet there are some instances in which she is separately considered as inferior to him, and acting by his compulsion; and therefore all deeds executed and acts done by her during her coverture are void. In the case of any disposition by her, under the "Fines and Recoveries Act," in lieu of a fine, she must be privately examined by a competent authority to ascertain if her act be voluntary. She cannot, by will, devise lands to her husband, for at the time of making it she is supposed to be under his coercion. If, however, power be reserved to her in the settlement of her property, executed prior to her marriage, and to which her intended husband was a party, of making a will as though she were single, or of executing certain deeds, such instruments are valid notwithstanding her coverture. appearance, on the ground of her coverture, although the plaintiff appeared to have been acquainted with it: (De Gallion v. L'Aigle, 1 B. & P. 8.) On an application to discharge a defendant out of custody on the ground that she is a married woman, it is necessary that the fact should be positively stated in the affidavit. Therefore, where it was sworn that she was a married woman, as by the certificate annexed will ap pear, it was held insufficient: (Harvey v. Cooke, 5 B. & A. 747.) An affidavit in support of a rule for discharging a married woman ou of custody upon an arrest is sufficiently posi tive if it appear that she is a married woman although it be subsequently qualified by adding that she was married at, &c., as appears by a certificate annexed: (Gervat v. Botting, 1 Price's P. C. 117.) Where a woman was arrested as the drawer of a bill of exchange at the suit of an indorsee, the court refused to discharge her on the affidavit of a third person that she was a married woman : (Jones v. Lewis, 2 Marsh, 385.) cancelled on affidavits that the drawer and intestate knew, at the time the bill was drawn, accepted, and transferred, that the defendant was a married woman: (Holloway v. Lee, 2 Moore, 211.) If it appear that the plaintiff' by whom a married woinan has been arrested knew her to be covert at the time of contracting the debt, the court will discharge her: (Waters v. Smith, 6 T. R. 451.) But not if she mistakingly informed him that her husband was dead: (Pitt v. Thompson, 1 East, 16.) If a plaintiff knowingly arrests a married woman, the court will make him pay the costs of the motion for her discharge (Wilson v. Serres, 3 Taunt. 307.) A married woman who has put her name to a bill of exchange as drawer, and is arrested upon it, will not be discharged on motion: (Walsh v. Gibbs, 4 Dowl. P. C. 683). The court will discharge a feme covert By the ancient law, cited in Hawk. P. C. defendant upon a common appearance, though 130, a man might give his wife moderate cor- she contracted the debt as a feme sole, and was rection. For, as he is to answer for her mis- trusted by the plaintiff as such, unless she behaviour, the law thought it reasonable to represented herself to be single: (Collins v. entrust him with this power of restraining her Rowed, 1 N. R. 54.) If a married woman reby domestic chastisement, in the same mo- presents herself as single, and by that means A feme covert was discharged out of custody deration that a man is allowed to correct his obtains credit, if arrested she is not entitled to because she was arrested without her husband, apprentices or children, for whom the master her discharge on motion: (Simon v. Winning- though the writ was sued out against both, on or parent is also liable in some cases to answer. ton, 1 Dowl. P. C. 16.) She is not in such which non est inventus was returned as to the But this power of correction was confined cases entitled to summary relief, but will be husband: (Edwards v. Rourke, 1 T. R. 486.) within reasonable bounds: (Moore, 874.) And left to her plea of coverture: (Ex parte Where husband and wife were arrested, the the husband was prohibited from using any Watson, 16 Ves. jun. 266.) A married woman latter was discharged out of custody on filing violence to his wife otherwise than as a husband, will be discharged from arrest upon entering common bail: (Cattarns v. Player, 3 D. & R. and for the sake of correcting and reclaiming a common appearance, unless the plaintiff 247.) When husband and wife are sued, and her. The civil law gave the husband the same swears that when he gave her credit she re- the husbend alone has been arrested, bail may or a larger authority over his wife, allowing presented herself to be a feme sole: (Holling-justify for him only on his filing cominon bail him, for some misdemeanors, flagellis et fus-dale v. Lloyd, 3 Mee. & W. 416.) A married tibus acriter verberare, uxorem; for others, only woman will be discharged from arrest on filing modicum castigationem adhibere: (Nev. 117, common bail, or the bail-bond will be delivered c. 14.) But with us, observes Sir W. Black-up to be cancelled, if her coverture is not disstone, in the politer reign of Charles II., this puted, and she has used no deceit before or at power of correction began to be doubted; and the time of obtaining the credit; nor will her a wife may now have the security of the peace subsequently giving a bill of exchange to the against her husband; or, in return, a husband plaintiff in part payment vary the rule against his wife. Yet the lower rank of people, (Freame v. Mitford, 3 Tyr. 139.) Even alobserves the same distinguished writer, who though her husband has absconded, and the were always fond of the old common law, still debt has been incurred by her while a feme claim and exert their ancient privileges. And sole: (Crookes v. Fry, 1 B. & A. 165.) But the courts of law will still permit a husband to the court will not discharge a feme covert on restrain a wife of her liberty in case of any common appearance, unless the coverture is gross misbehavour: (Stra. 478, 875). open and notorious: (Pearson v. Meadow, 2 W. Black. 903.) Where a married woman was arrested as the drawer of a bill of exchange, and had given a bail-bond, the court ordered it to be delivered up to be cancelled: (Samuell v. Jenkins, 6 Moore, 500.) The court refused to discharge a married woman arrested, because there was no evidence of cohabitation, and they suspected pretence or collusion (Anon. Lofft, 395.) As regards the privileges granted in some cases by our law to married women, in certain felonies and other inferior crimes committed by her through constraint of her husband, the law excuses her: (Moore, 874.) This, however, does not extend to the case of treason or murder. So also as regards civil proceedings; a feme covert in custody on mesne process was entitled to be discharged on common bail: (2 W. Black. 720.) So also it was held in Wardell v. Gooch, 7 East. 582, that the court will discharge a married woman on filing common bail, who was sued for goods sold and delivered to her by the plaintiff, knowing at the time that she was a married woman, though living apart from her husband with a separate maintenance. Where a plaintiff knows that a defendant is married at the time of arresting her, although she may have represented herself as possessing separate property, the court will discharge her on motion: (Slater v. Mills, 5 M. & P. 603.) In this case the defendant, a married woman, was arrested upon a bill of exchange, which she had given for the education of children by a former husband. The plaintiff having been apprised of the second marriage, the court discharged the defendant upon a summary application, though she had given out that she had property of her own, and that the bill should be duly paid. Where a married woman had been arrested as acceptor of a bill of exchange, at the suit of an indorsee, the Court of Common Pleas will not order the bail-bond to be cancelled on an affidavit that the drawer, when he drew the bill, knew the defendant to be a married woman: (Pritchard v. Cowlam, 2 Marsh. 40.) Where a married woman has been arrested as acceptor of a bill of exchange, at the suit of an administratrix, to whose intestate the bill was indorsed, the Court of Common Pleas will order the bail-bond to be for his wife: (Coulson v. Scott, 1 Chitt. 75.) The wife of an attorney is not entitled to be discharged out of custody on mesne process, if arrested with her husband: (Roberts v. Mason, 1 Taunt. 254.) In an action of trespass by husband and wife, if a nonsuit take place, the wife may be taken in execution for the costs, if she has separate property: (Hood v. Matthews, 2 Dowl. P. C. 149.) In an action for an assault by the wife, husband and wife may both be taken in execution: (Longstaff v. Rain, 1 Wils. 149.) Where a husband and wife were rendered after judgment in discharge of the bail, the court discharged the wife on motion: (Anon. 3 Wils. 124.) If a feme covert be taken in execution under a warrant of attorney given by her as a feme sole, the court will not discharge her on a summary application: (Wilkins. Wetherhill, 3 B. & P. 220.) Where a wife is taken in execution she shall be discharged if it appears that she has no separate property out of which the demand can be satisfied: (Chalk v. Deacon, 6 Moore, 128.) It seems that, if a married woman be Where, in an action of assumpsit against a taken in execution for a debt contracted by her feme covert, a considerable part of the debt for before marriage, she cannot be discharged, alwhich she was sued, viz., the board and educa- though the husband be in custody on mesne protion of a child, was contracted before the plain- cess in the same suit. At all events, the applicatiff was acquainted with her coverture, and tion for granting or refusing such discharge is she had acted with duplicity in eluding pay- in the discretion of the court: (Ib.) A feme sole, ment, and resided out of the jurisdiction of the after she had been served with process, but Court of Common Pleas, that court refused to before declaration, married. The plaintiff proto cancel the bail-bond, and permit the defen-ceeded against her to final judgment, and took dant to file a common appearance: (Luden v. Justice, 1 Bing. 344.) A feme covert, on being arrested, was discharged on filing common bail, though separated from a husband by a divorce à mensa et thoro, she having appealed against the sentence of divorce, which appeal was pending at the time she was arrested: (Hookham v. Chambers, 6 Moore, 265.) The Court of Common Pleas refused to discharge a defendant on the ground of coverture, she being a foreigner, and her husband abroad, though she was not separated from him by deed, had no separate maintenance, nor had ever represented herself as a single woman: (Barfield v. De Pienne, Duchess, 2 N.R. 380.) A French woman and her husband came over to England. The husband gave her a power of attorney to transact his business, and went to Hamburgh. She cohabited with another man, and traded on her own account with the plaintiff, by whom she was arrested. Under these circumstances, the Court of Common Pleas refused to discharge her on a common her in execution under a ca. sa. A rule for her discharge, upon an affidavit stating the foregoing facts, and also alleging that no settlement was made on her at her marriage, but not stating that she had no separate property, was discharged: (Evans v. Chester, 2 Mee. & W. 847.) A married woman taken in execution, together with her husband, for a debt due from her before marriage, is not entitled to be discharged unless it appears that she has no separate property, even although the husband has been discharged under the Insolvent Act: (Sparkes v. Bell, 8 B. & C. 1.) A married woman being sued as a feme sole, suffered judgment to go by default, and had been taken in execution. The court refused to discharge her out of custody, as she ought not to have suffered the plaintiff to incur the expense of executing a writ of inquiry: (Moses v. Richardson, 8 B. & C. 421.) In the following case it was laid down that the practice of discharging a married woman taken in execution is not founded upon any the school, with the advice and sanction of the Bishop of England, for the purpose of obtaining the opinion Held, that the founder contemplated the establishment of Held, also, that this was a question relating to the in-appear doubtful, then the subsequent documents and ternal management of the school, and was therefore a subject of visitorial jurisdiction exclusively. proceedings, which might assist in elucidating such obscurity, are to be examined and considered. The school was founded by letters patent of Edward the Sixth, in the year 1550. This document professes to have been executed upon the petition of the inhabitants of the town of Sherborne, and the subjects of the whole neighbouring country, without distinction. It ordains that there shall be "a grammar-school in This was an information filed at the relation of Mr. the town of Sherborne, to be called the Free Grammar The Attorney-General will not be permitted to argue in legal principle, and that the precedents will only be followed in exactly similar cases. Therefore, where after judgment against husband and wife in an action for an assault committed by the wife, the wife only was taken on a ca. sa., the court refused to discharge her, although she had no separate property, and her husband had obtained his certificate from a Court of Bankruptcy: (Larkin v. Marshall et Uxor, 19 L. J. 161, Ex.) Parke, B. in this case observed, while delivering his opinion, that by law the plaintiff has a right to take the wife in execution on a judgment against her; but in some instances the court, by a recentlyadopted exercise of jurisdiction, will release her. I concur in the statement in the judgment in Benyon v. Jones, 15 L. J. 566, that it is impossible to reconcile the practice with any sound principle; for what right has the court to take from a subject the benefit of a remedy given him by the law? He has a right to judgment and execution against both; and what Chandler, a Protestant Dissenter, residing at Sher-school of Edward the Sixth, for the education and pretence has the court for saying that it will borne, against the Governors of the Grammar School at instruction of boys and young men in grammar," exercise a discretion and release the wife? However, as in Chalk v. Deacon, 6 J. B. Moore, Sherborne, and the Bishop of Bristol, praying for a decla- making no distinctions of any sect; it appoints twenty 128, the court said it had such discretion, and ration that the school ought to be open to the children discreet and honest inhabitants as governors, without it has been exercised in subsequent cases, we of all the inhabitants of Sherborne and its neigh- distinction as to sect or religious persuasion; it profeel we are bound by these precedents; but we bourhood, without distinction of religious belief; and vides for the election of future governors in a like are only bound by them in similar cases. Where that the compulsory system of religious teaching in unrestricted manner; it gives a majority of the both husband and wife have been taken in the tenets of the Church of England enforced in the governors, and their successors, full power to appoint execution, the release of the wife may be school, which prevented Dissenters from sending their master and sub-master of the school; and up to this supported on the ground that the plaintiff has children there, was contrary to the intention of the point no restriction or distinction of any kind is to be satisfaction by keeping the body of the hus-founder, and a breach of trust, and ought to be found with regard to the persons who are to be band; and whether the reasoning be correct or abolished or relaxed. benefited by this charity. But then there appears not, we should probably be bound to follow the The facts of this case relating to the foundation of in the letters patent a most important direction, which precedents, where the wife had no separate the school, the ordinances from time to time promul- is in these words: "And that the same governors, with property. But where the wife alone is taken, gated by the governors regulating the school, and the the advice of the Bishop of Bristol for the time being, the precedents do not apply. M. allowed his wife to have a separate ban-system of instruction therein, will be found detailed in shall from time to time be empowered to make fit and kers' account, to which moneys belonging to her, the judgment. settled to her separate use, and also moneys not so settled, were paid in. M. also allowed her to draw cheques upon such account in her own name. She from time to time paid such cheques to her husband, who always gave her a memorandum at the time, and at the end of the year gave a promissory note, including all the amounts so received. The last of such promissory notes was dated the 1st of January 1848. He died in August 1848, having left all his property to trustees to convert into money, at such times as they might think proper, with full power to postpone such sale; and his wife was made tenant for life in the proceeds of such sale, and in the other items of his estate, until the same should be so converted into money. Part of the property consisted in Mexican Mint shares not yet sold. It was held, first, that such promissory note operated as a good declaration of trust by the husband in favour of the wife. Secondly, that the wife was entitled to have the dividends and bonuses, the same having arisen out of profits declared since the testator's decease. Thirdly, that she was not entitled to insist upon the said Mexican shares being left in their then state of investment, against the wish of the trustees: (Murray v. Glosse, 22 L. T. Rep. 35.) REPORTS. The Solicitor-General and T. H. Terrell, for the Attorney-General, were proceeding to open the case, when his Honour asked whether they supported or opposed the views of the relator; in the latter case he could not hear them. wholesome statutes and ordinances, in writing, relating to and concerning the ordering, governing and directing of the master and sub-master, and of the scholars of the said school, for the time being, and of the stipend and salary of the said master and sub-master, and all other things touching the said school, and the ordering, The Solicitor-General said he would leave the mat- governing, preservation and disposition of the rents ter in the hands of Lloyd, Q. C., and F. J. Wood, who appeared for the Palmer, Q. C., and G. L. Russell, for the governors. The following cases were cited :-Re Bedford Cha- and revenues which now are or hereafter may be appointed to the support of the said school; which statutes and ordinances so to be made we will, grant, and by these presents have commanded, shall be inviolably observed from time to time for ever";-that is to say, that the advice of the Bishop of Bristol for the time being shall be taken in masing of rules for the governing of all matters touching or concerning the schools; in other words, that no ordinance relating to the school shall be binding, unless it has received the sanction of the Bishop. If the matter stood here alone, it would appear to me to be a strong indication of the founder's intention, that this school should be what is commonly called a Church of England school. Unless this clause in the letters patent be excluded altogether from consideration, I think it is impossible to come to any conclusion other than this-that the founder intended that the advance ment of the doctrine of the Church of England, and the instruction and education of youth who belong to that Church, should be the primary object of his foundation; and that he sought to secure this object by providing that the rules for the government of the institution should receive the sanction of one of the prelates of that Church. The contemporaneous Magdalen College, 10 Beav. 402; Whiston v. Dean and Chapter of Rochester, 7 Hare, 532; AttorneyGeneral v. Middleton, 2 Ves. 330; Eden v. Foster, 2 P. Wms. 324; Attorney-General v. Earl Mansfield, 2 Russ. 501; Shore v. Wilson, 9 Cl. & F. 397; Attorney-General v. Drummond, 1 Dru. & War. 373; Cox's case, 1 P. Wms. 29; King v. Archbishop of York, 6 T. R. 490: Rushworth's case, 2 Str. 1033; Attorney-history, which was referred to in argument, confirms General v. Corporation of Bedford, 2 Ves. 505; Attorney-General v. Earl of Clarendon, 17 Ves. 507; Ex parte Berkhampstead School, 2 V. & B. 134; the statutes of 1 Edw. 6, c. 12; 5 & 6 Edw. 6, c. 1; 43 Eliz. c. 4, s. 3; 23 Eliz. c. 1, s. 6; 1 Jac. 1, c. 4, s. 9; 13 & 14 Car. 2, c. 4. s. 8; 17 Car. 2, c. 2; 19 Geo. 3, Charity-School-Foundation-Ordinances-Religious c. 44, s. 2; 1 W. & M. c. 18; and the following auinstruction—Admission of Dissenters-Powers and functions of visitor-Information-Relator-Attorney-General. ROLLS COURT. February 15, 16, 17, and April 22. ATTORNEY-GENERAL v. SHERBORNE GRAMMAR SCHOOL thorities :-Strype's Memorials of Cranmer, 266, 293; ▲ school was founded by King Edward VI. in the The MASTER of the ROLLS.-This is an information filed at the relation of an inhabitant of Sherborne, on behalf of himself and all other inhabitants of the town and neighbourhood, not being members of the Church this view of the case. At the time when this school was founded, there were few dissenters from the Established Church other than Papists. It is possible that one object of the establishment of the institution may have been to produce converts to the Church of England, and that no child of any sect would be excluded, provided he conformed to the rules laid down for the government of the school. But to hold that the charity was intended for the benefit of all persons, without regard to this object, and whether they did or did not conform to the doctrines of the Church of England, which would necessarily include Papists, could scarcely be deemed to be in accordance with the disposition manifested by the history of that period. The first Act of Uniformity, which passed in the year 1548, two years before the date of the letters patent, provides for the establishment and use of the to be conferred exclusively on scholars going to the lect for grace, and the general thanksgiving, the Book of Common Prayer of the Church of England, Universities of Oxford and Cambridge. In consider- prayer of St. Chrysostom, and a prayer which is set and inflicts penalties for using any other forming these ordinances, the first question to be con- forth in the information, concluding with the grace of of prayer. The second Act of Uniformity, which sidered is whether these matters were within the our Lord," &c. The fifth set of ordinances was made was passed in the year 1553, requires all per- scope of the authority of the governors and the in the year 1827. The second provides that the sons to attend the parish church, and imposes Bishop-that is, whether they are in accordance with master shall be a master of arts of Oxford or Campenalties on any one present at any other common the original foundation. It is a just observation that, bridge, and well affected to the doctrines and the disprayer or administration of the sacrament. In the year in principle, all the sets of ordinances agree. They cipline of the Church of England. The fifth contains 1549 Edward VI. issued a commission to search after differ, however, considerably in details, and the latter a similar provision with respect to the usher. The Anabaptists, heretics, and contemners of the Common ones are stronger and more exclusive in their effect tenth provides that the master and usher shall take Prayer; and in that and the following years, almost than the earlier. The first set is in 1592. The first the oath of allegiance and supremacy, and an oath set contemporaneous with the granting of the letters three rules are not material, and the fourth is to this forth in the ordinance, not to teach any author or patent, two persons were publicly executed at Lon- effect: "That the scholars shall have no liberty to book or infuse any principle tending to Popery, don, one a woman as a heretic, and the other for the play within that week wherein is a holiday; and schism, or rebellion. The fourteenth provides for the offence of disseminating Arian doctrines. These cir- every week wherein there is no holiday to have use of prayer as contained in the last set. The cumstances would have little weight with me, if the licence for one afternoon only, at the discretion eighteenth provides that the governors shall be at letters patent had no words on which any exclusive of the schoolmaster, if the weather so serve; and, in liberty to grant exhibitions to boys on the foundaor primary object could have been fastened; but the eve of every holiday, to keep their school and tion going to either of the universities. The ninewhen, in fact, I am required to disregard the inference exercises until evening prayer, and then to go to teenth provides that boys eligible for exhibitions shall from the words contained in the letters patent; and church by two and two, the master and usher accom- be examined in their literary attainments, and their when I look to the other acts of the founder, to in-panying them; and, in every Sabbath-day and knowledge in religion, and that the most fit shall terpret their meaning, if analogous, as was done in holiday, shall repair to the school before the last be nominated. The sixth and last set of ordinances the case of Lady Hewley, I find these acts confirma- ringing to prayer morning and evening, and from was promulgated in the year 1851, and the rules tory of those inferences. Taking, therefore, into con- thence shall go, two by two, to church, in quiet and with respect to the instruction to be given, and sideration the circumstances of the time when these decent order, the master and usher accompanying the examination necessary for attaining an exhibiletters patent were granted, in conjunction with the them, and there shall spend the time in prayer to the tion, are substantially the same as those contained in direction therein contained, that episcopal sanction laud and praise of God." The fifth provides for the the ordinances of 1827. After fully considering these must be given to the rules for regulating the school, demeanour of the scholars in church. The sixth is ordinances, I am of opinion that they were within I am of opinion, independently of the other and sub- in these words: "That the purposes before intended the scope of the authority of the governors and Bishop, sequent transactions which have affected this charity, may, by God's grace, take the better effect and in- and that they do not constitute any violation of the that it was originally founded for the education of crease in the children and scholars to be instructed original instrument upon which the charity was youths who were members of the Church of England, and taught in the said school, be it ordained that the founded. Having arrived at this conclusion, the or were willing to conform to its doctrines; and con- schoolmaster and usher, from one of the clock in the next question is, what is the power which this court sequently that, in considering this charity, and how afternoon of every Saturday until evening prayer of possesses in such a state of circumstances with refeit has been managed, I must treat this as a leading the same day, shall instruct and catechise the children rence to this charity? The duties and authorities of object to be provided for. This, however, will not and scholars under their several teaching in the know- this court, dealing with matters of charity, are not, I dispose of this case. It does not follow, because this ledge of Christian religion, the use and benefit of the think, on this point open to much doubt or question. is a Church of England school, that Dissenters are to Sacrament, according to such books as are set forth The court has authority to redress a breach of trust be excluded from all benefit of the instruction there by authority for that purpose; and such and so where the objects of the founders have been pregiven; but it is obvious that a material distinction many of their scholars as shall be found liable, by vented or neglected. It has also authority to direct a exists between establishing a school generally for the knowledge and ripeness in years and discretion to unscheme, in order to enforce a more complete attaininstruction and education of youth of all denomina- derstand the benefit of the sacrament of the Holy ment of these objects. The court has a further power fions, whatever may be their religious tenets, and Communion of the Lord's Supper, shall at some and authority, when the objects contemplated by the regulating a school, the primary object of which is to times-once in every year at least-with the know-founder cannot be carried into effect, to direct the - afford instruction to the members of the Established ledge and privity of the schoolmaster, be partakers of Church in such a manner as to enable the families of the Communion. And, if any scholar shall refuse to dissenters to participate in these advantages. The be so instructed and catechised or to come to the ComCrown, by its letters patent, has pointed out the ob- munion, the schoolmaster shall present him to the jects of the charity, and has provided that rules shall wardens and governors of this school; and, if he shall be made from time to time for effecting the objects there continue in such his obstinacy by the space of two specified. These rules may be varied from time to time months after warning given him, he shall be expelled by the governors, with the sanction of the Bishop; and the school for ever, and be further punished as the the Crown, remaining the visitor of the charity, pre-laws of this realm do require." The tenth provides for serves a controlling power over the rules so framed and enforced; and, accordingly, any one interested in the matter may call for and obtain the interposition of visitorial authority to redress anything that is found to be amiss in the management of the school or rules framed for this purpose. The consideration of what has been done in this respect does not appear material in order to ascertain the due construction to be placed upon the original letters-patent; but it is very material with reference to the question whether this court has jurisdiction to give and can give any relief on this information to the Dissenters of Sherborne and the neighbourhood, and, if so, to what extent. Six sets of ordinances have been made for the government of the school; the first set was in 1592, and the last in 1851. All of them, except the second set, which was made in the year 1663, have been made by the sanction and approbation of the Bishop of Bristol for the time being. The information complains of four separate and distinct matters in the ordinances of 1851, which are those now regulating the government of the school. These are, first, the compulsory use of prayers in the school which are specified in the ordinances, and which imply or assert the doctrines disapproved of more or less by various classes of Dissenters; secondly, the compulsory attendance of the scholars at church; thirdly, the religious instruction which all the scholars are compelled to receive, which includes the catechism appointed by the Church of England, and also the doctrine of that Church; fourthly, the fact that exhibitions and pecuniary rewards and distinctions are application of the revenues of the charity to promote objects in accordance with the spirit of the original foundation, and in a manner which it conceives to be more beneficial to the public, or even in a manner which, as this court may surmise, the founder would himself have contemplated, could he have foreseen the changes that have taken place by the lapse of time. In this case, if the view I take of the original instrument of foundation be correct, the founder conthe attendance in church of the scholars remaining in templated the establishment of a Church of England the town of Sherborne during the vacation. The school; but left all details to be provided for by twelfth provides for the attendance in church of the rules to be made by governors, with the sanction of scholars on the burial of a governor or a governor's the Bishop. In my opinion these rules are more exwife. The second set of ordinances was made in 1663; clusive than was required either for the purpose of the but, as they do not appear to be sanctioned by the founder, or for the benefit of the school itself; but, as Bishop, I think it unnecessary to dwell upon them. The the founder has entrusted this discretion to them, and third set was dated Oct. 10, 1679. They were signed and as this discretion has been exercised in a manner approved of by the Bishop. They contained an injunc- which I think is not a violation of their duties, I tion against teaching any principle or rule tending to should be of opinion, if the matter rested here, that I Popery, schism, or rebellion. They contained similar could not interfere. The complaints made by the indirections to those contained in the first ordinances formation are, in my opinion, complaints relating to with respect to attendance at church and learning the the internal management of the school. If this be so, catechism, and ordained that on every Saturday then they are the subject of visitorial jurisdiction afternoon the master and usher should catechise and exclusively. The visitor alone is the proper person instruct the scholars in the several charges, using and to be applied to for the purpose of mitigating these explaining the Thirty-nine Articles professed by the ordinances, and of providing that they should be reChurch of England to the upper form, and the catevised with that fair and liberal spirit which the exichism of the Church established by law to the lower gencies of society and the changes produced by them forms; and every Sunday afternoon the scholars were require. If, however, it appear that such an appeal to attend the minister at his catechism lecture at the has been made to the visitor, and that he has, church. These ordinances remained in force for 120 in compliance therewith, made a regulation conyears. In the year 1799 a fourth set, also approved trolling this spirit, which has prevailed in these by the Bishop, was promulgated. This set, besides ordinances, and which regulation has not been containing similar provisions for attending in church, acted upon by the governors and the Bishop, then a and instruction in the catechism, doctrine, and discinew question arises, and a new jurisdiction is given pline of the Church of England, provided that the to this court, to say whether the ordinances which now master and ushers should use the following prayers in regulate this charity have been framed in accordance the school for the morning and evening service (only with that which has been directed by the visitor; because changing in the evening the third collect for grace for if that direction has not been complied with, but rules the third collect for aid against perils); namely, the have been made in opposition thereto, then it is posgeneral confession, the Lord's Prayer, the third col-sible that a breach of trust has been committed which |