an assignment, which is also an order to pay money, will not be void as an assignment for want of a stamp 36 an order This was an appeal from the decision of Stuart, George Hammond, the defendant in this suit, was creditor of the governors and guardians of St. Mary Nesiagion, to the amount of 3651, for some contract work performed by him at the workhouse; and, being debted to the plaintiff, John Diplock, for money bocowed, he signed and delivered to him the follow

ing document:

す

To the Governors and Guardians of St. Mary Newington,

COURT OF APPEAL.

not only subsequent to the assignment to Diplock, but was not served upon the governors and guardians till after Mr. Diplock's assignment had been served upon them. The cause would therefore be undefended a were the stamp laws out of the question; but it is said that by reason of the stamp laws the case of the plaintiff must fail. It is contended that either the stamp laws render that not an assignment which would otherwise have been an assignment, or else, being an assignment, it requires a double stamp-one as an assignment, and one as an order for payment of money. I feel sure myself that the law of this country is not in so discreditable a position, and that the stamp laws do not prevent that from being an assignment which would otherwise have been an assignment. That this is a good equitable assignment no one in his senses would ever dispute. But it is argued that there ought to have been a double stamp. It begins, "I hereby authorise you to pay;" if it had begun "I hereby assign," it would have removed all the difficulty. I think such a construction of the stamp laws is wholly unfounded, and would have been harsh, oppressive, and irrational. It may in some sense be an order for payment, but it is not the less an assignment; there is nothing in the Act of Parliament to render an assignment which is also an order to pay money liable to a double stamp. I should have felt almost ashamed if the law of this country was in such a condition as to allow of this defence. I think this petition should be dismissed, and I hope my learned brother will agree with me in thinking it should be dismissed with costs.

Lord Justice TURNER.-My learned brother has so

COURT OF APPEAL.

only had been paid), which the registrar of the dis trict court sitting in his ordinary capacity of registrar, had taxed in March 1851, upon an ex parte application of the solicitors, but in the presence of the official assignee (who afterwards died): Held, upon appeal, that the Commissioner's decision ought to be reversed, and retaxation ordered, Lord Justice Knight Bruce being of opinion that, although it was doubtful whether the registrar had authority in the then existing state of the law to tax the bilis, the Commissioner ought, as a matter of course, to hare reviewed the taxation without proof of there being improper items in the bills of costs:

Lord Justice Turner being of opinion that the Commis.. sioner had power to review the taxation of the registrar, and, that from the impropriety of many of the items, it was his duty to have exercised his jurisdic

tion.

The Court of Appeal will not, under the Bankrupt Law Consolidation Act 1849, s. 18, and 14 & 15 Vict. c. 83, s. 10, give leare to appeal to the H. of L. against its decision, unless the question in dispute is of sufficient difficulty and importance.

Upon the application of the solicitors to the assignees in bankruptcy, their bills of costs were, in the month of March 1851, taxed, in the presence of the official assignee, by the registrar of the Court of Bankruptcy of the country district in which the bankruptcy had taken place. The balance appearing to be due on the bills of costs, and which was allowed on such taxation, amounted to 17177.

"GEORGE HAMMOND."

Notice of this document was, on the following day, given to the governors and guardians by the plaintiff. Nequently the defendant Hammond assigned the me debt to the defendant Booth, and he also gave mike of the assignment, The plaintiff, being unable to obtain payment of his debt, instituted the present proceedings. His claim was opposed by Booth, on

Appeal dismissed with costs. Thursday, June 15. CHAFFERS . Baker.

1845-Motion-Term.

Practice-Taking bill pro confesso-79th order of May Every day in term is a motion-day; though it is not the practice of the court to hear opposed motions, except on days specially appointed for that purpose.

Mr. Kirby (whom they then employed as solicitor) examined the bills on the files of the Court of Bankruptcy in the year 1853. The Commissioner, howin Aug. 1853, refused the application, with costs,

ever,

was an order for the payment of money, and, as such, vold, for want of a proper stamp, under the following cause in the schedule of the 55 Geo. 3, c. 184: "The wing instruments shall be deemed and taken to be mland bills, drafts, or orders for the payment of ney, within the intent and meaning of this schedule, viz all bills, drafts, or orders for the payment of ay out of any particular fund which may or may t be available, or upon any condition or coutiney which may or may not be performed or happen, the same shall be made payable to the bearer, or to rler, or if the same shall be delivered to the payee, some person on his or her behalf." Booth, thereeclaimed priority, by reason of the subsequent signment to himself. The V. C., however, consi

red it clear that the document was an assignment opity, and decreed accordingly. The case now came before their Lordships on an peal from that decision. Craig and Welford, for the appellant.—This is not assignment-it is an order for payment of money. t even supposing it to be an assignment, and prorly stamped as such, it is not the less an order. If is both an assignment and an order, it requires a uble stamp; and for want of the stamp as an order, ich cannot now be imposed, it cannot be given in dence as an assignment: (31 Geo. 3, c. 25, s. 19.) y cited Parsons v. Middleton, 6 Hare, 261; Lord brooke v. Meredith, 13 Sim. 271; Green v. Davies, B. & C. 235; Butts v. Swann, 2 B. & B. 78; Ruff v. 4,1 Esp. 129; Hutchinson v. Heyworth, 9 Ad. & 515; Emly v. Collins, 6 M. & S. 144; Firbank v. 1 B. & A. 36; Jones v. Simpson, 2 B. & C. 318; strange v. Lestrange, 13 Beav. 581; Jenney v. Herle, Raym. 1361, S. C.; 8 Mod. 265; 1 Str. 591; sock v. Lynch, 2 Lord Raym. 1563; and Lucas v. mes, 5 Q. B. 949.

Makes aud J. H. Palmer, for Mr. Diplock, the rendent, were not called upon. Swanston, Collins, and Speed, for other parties. rd Justice KNIGHT BRUCE.-The governors and rdians of the parish of St. Mary Newington owed Hammond a debt, and Mr. Diplock asserts that Hammond assigned this debt in equity to him for aluable consideration; and he contends that his e under this assignment is preferable to the title of defendant, Mr. Booth, under another assignment he same debt to another creditor. As to the proof this disposition, unaffected by the question as to Stamp Acts, there can be no doubt or difficulty; Mr. Hammond signed the paper, which is as ws: To the governors and guardians of St. Mary vington Gentlemen- I hereby authorise you ay to Mr. John Diplock, of the Walworth-road, sum of 3654, being the amount of my contract at new workhouse, Walworth Villa, Mr. Diplock ing advanced me that sum.-I remain, &c. GEORGE MOND." This was served upon the debtors. As The claim of Mr. Booth, the assignment to him was VOL. XXIII.-No. 586.

days.

taken pro confesso, under the 79th order of 8th May C. P. Cooper moved for an order to have the bill

1845.

The 79th order is as follows: "Where any defendant who, under order 77, may be deemed to have absconded to avoid, or to have refused to obey the process of the court, has had an appearance entered

for him under orders 29, 31, or 32, and has not after

wards appeared in person or by his own solicitor, the plaintiff may cause to be inserted in the London Gazette a notice that, on a day in such notice named, (being not less than four weeks after the first insertion of such notice in the London Gazette), the court will be moved that the bill may be taken pro confesso against such defendant: and the plaintiff is upon the hearing of such motion to satisfy the court that such defendant ought, under the provisions of order 77, to be deemed to have absconded to avoid, or to have refused to obey the process of the court, and that such notice of motion has been inserted in the London Gazette at least once in every week, from the time of the first insertion thereof up to the time for which the said the answer not having been filed, may, if it so thinks notice is given; and the court, being so satisfied, and fit, order the bill to be taken pro confesso against such defendant, either immediately, or at such time, or upon such further notice, as, under the circumstances of the case, the court may think proper." Due notice of motion had been given under this order, and a day for making the motion was named in the notice; that day was in term, but not one of the days set apart for motions; and upon counsel moving on that day before Kindersley, V.C. to have the bill taken pro confesso, his Honour expressed a doubt whether a motion-day should not have been

named in the notice.

C. P. Cooper now mentioned the matter to their Lordships.

a

Lord Justice KNIGHT BRUCE.-Every day in term is a motion-day, though it is not the practice of the court to hear opposed motions except on days specially appointed. A motion-day in term is usually called "seal-day," but my opinion is, that that expression is more properly applied to a motion-day out of term. Order made to take the bill pro confesso.

Reported by OWEN DAVIES TUDOR, Esq., of the Middle Temple, Barrister-at-Law.

BANKRUPTCY.

Nov. 4 and March 20.

Ex parte BATEMAN, re BURBURY, a Bankrupt. Bills of costs, the taxation of Commissioner's right to review taxation of registrar-Appeal to H. of L. from Court of Appeal-When leave given. In Aug. 1853 a Commissioner of a Country District Court of Bankruptcy refused to retax bills of costs of the solicitors to the assignees (a small part of which

ployed by the official assignee as his solicitor in the duced, have had notice of the taxation at the time it matter of the bankruptcy about the end of the year 1850, must, as such solicitor, upon the evidence adtook place.

W. M. James, Q. C., and W. Morris, for the assignees and creditors who appealed from the decision of the Commissioner, contended that in 1851 the district registrar had no power of taxation, inasmuch as such power was not conferred upon him until Jan. 1853, by the 52nd Order of the 11th Oct. 1852. The taxation therefore which the registrar had assumed power to himself to make before that period was null and void, as the registrar had no power to tax under the old practice. But, assuming that the registrar had such power, the Commissioner had full power to review his taxation. The clerk of the official assignee, to whom this business particularly belonged, was not present, although the official manager was. The appellants were, in fact, clearly entitled to have the decision of the Commissioner reviewed: (Ex parte Woolston, 3 M. D. & De G. 702; Ex parte Moore, 1 Deac. 578; and Ex parte Rees, 1 De Gex, 205, werocited and commented upon.)

Rolt, Q.C. and Selwyn, in support of the decision of the Commissioner, contended that, at the time the bills were taxed, the registrar's taxation must be considered as that of the Commissioner, especially, as, by the 27th section of the Bankrupt Law Consolidation Act, the registrar was empowered to act for the Commissioner whenever the latter was absent from any reasonable cause; that, in the absence of fraud or surprise, no appeal could have been made to the Commissioner save within twenty-one days-the period allowed by the Act; and, lastly, that it was no sufficient reason to allege that some of the items were unreasonable, in order, after so long a period, to deHorlock v. mand a retaxation of the bills of cost. Smith, 2 Myl. & Cr. 495, was cited. By the 18th section of the Bankrupt Law Consolidation Act 1849, it.. is enacted, "that, if the Lord Chancellor shall in any case deem any matter of law or equity brought before. him by way of appeal to be of sufficient difficulty or importance to require the decision of the H. of L., or in case both parties in any proceeding before the V. C. shall desire that any such matter may be determined in the first instance by the H. of L. and not by the L. C., then and in such case the whole facts whereupon such question of law or equity shall arise shall be stated in the form of a petition of appeal to the H. of L., and the party appealing may carry an appeal to the H. of L. in like manner as other ap-peals are preferred to that House: provided always, that the cases to be lodged by the parties in the H. of L. shall be confined in matter of fact, in cases of appeal from the L. C., to setting forth the special case brought up to the L. C. from the V. C., and in cases of appeal from the V. C. to setting forth a special case, to be approved and certified by the V. C..

COURT OF APPEAL.

and to such arguments on the point of law as the parties may be advised to state."

W. M. James, Q.C. in reply, referred to 3 & 4 Will 4, c. 47, s. 18, which is as follows: "That it shall and may be lawful for the said Court of Review to order that any costs, which, by the said secondlyrecited Act, are directed to be taxed by one of the Masters of the High Court of Ch., shall and may be taxed by one of the registrars or deputy registrars of the said Court of Bankruptcy."

Lord Justice KNIGHT BRUCE.-It is unnecessary to say how this case would have stood, if the bills had been paid; or if one possible effect of the petitioners' success upon the present occasion might be, that there should be a repayment by the solicitors of any sum that they have received. But the bills have not, in any sense of the phrase, been paid. A sum of 1007. has been received on account, which it is plain, and indeed admitted, must, in every possible event, be due to the solicitors, and to be retained by them: that is not questioned. The rules, therefore, which apply to paid bills, do not apply here. Again, if there had been a loss of documents, a loss of evidence, or of the means of affording information by death or - otherwise, that might have made a material difference; but the case has no such ingredient; for I cannot consider the death of the gentleman who was official assignee during the whole or part of the period which has been the subject of discussion, a material circumstance in the case; nor has it indeed been suggested on either side that that is a material circumstance in the case. Here, therefore, there are unpaid bills, with the fullest opportunity on the part of the solicitors of perfecting their case, producing their evidence, and establishing their title to the just amount of what may be due; and no considerations, therefore, which belong to a case where possible injustice may be done to the solicitor by the proceeding can have place here. It is said that there has been a taxation, and that therefore there ought not to be another. That taxation was by a registrar of one of the district courts of bankruptcy, and the taxation took place after the Bankrupt Law Consolidation Act of 1849 had come into force, but before the orders of October 1852; and one question is, whether in that state of things a registrar of one of the district courts of bankruptcy had authority to tax. Perhaps he might have authority to do it, if the case had been suggested and proved to have come within the last section of the Consolidation Act, to which the learned counsel, Mr. Roit, drew our attention. The case has not been put upon that ground. The registrar appears to have done it in exercise of an ordinary jurisdiction, supposed to belong to him as a matter of course. Now, I confess, I doubt very much, whether the jurisdiction did belong to him in the circumstances in which he exercised or professed to exercise it. But, assuming that the jurisdiction did belong to him in those circumstances, I am still of opinion that, as the law then stoed, without at all meaning to say at present how the law will stand with regard to cases which may come under the operation of the Rules and Orders of October 1852, as to which I am purposely silent-but as the law stood at the time, to which it is material to look here, I am of opinion, I say, that if the registrar had the jurisdiction, it was incumbent upon the commissioner to review the registrar's taxation as a matter of course, without having any objectionable item proved to him or brought under his attention. Taking that view of the law then in force, I am released from the duty of examining the items, or giving any opinion upon the items which have formed the subject of dis cussion. I repeat that it is with great pleasure that I find myself exempt from the performance of that duty, especially as I might possibly, by entertaining a view on any of those items, be in a manner prejudging the solicitors' case, which I wish to leave perfectly open to them. Thinking it very possible, and (if I am at liberty to entertain any hope upon the subject) hoping that they may be able to establish a just title to all that they have clained, I am of opinion that, acting upon the law which existed at the time, to which it is material to look, here it was a matter of right, as I have already said, to have the taxation reviewed; and accordingly our order must be of that description. I have already disposed of the observations that have been made with regard to time, so far as I think it is material; but I may add that, whatever may be the true view of the evidence with re

gard to Mr. Kirby's employment, and the notice that he had, I am of opinion that he did not stand in a situation in which delay can be attributed to him, especially delay from which damage of any kind has been shown to have arisen to the solicitors concerned. Our order, therefore, I think, should be-upon the undertaking of the petitioners to abide by any order respecting the costs, charges, and expenses, of the taxation, and otherwise, that this court may make, declare that these bills ought to be retaxed, and with that declaration refer the matter back to the District Court of Bankruptcy, reserving the costs of this application, and giving liberty to the parties to apply. Lord JUSTICE TURNER-I am of opinion also that the order must be in the form which my learned brother has suggested. Assuming the registrar to be

court shall deem of sufficient difficulty and importance to require the decision of the H. of L. It is the duty, therefore, of the court to refuse to give liberty to appeal, not only where the matter under consideration is not of sufficient difficulty, but also where it is not of sufficient importance; and I confess I do not view this case as one of much difficulty, and certainly not as one of sufficient importance to justify the court in acceding to this application, the sole question being whether certain bills of costs, which have been taxed, should, under particular circumstances, be allowed to be retaxed. This application must be refused.

ROLLS COURT.

Barrister-at-law.

Monday, May 8.

HOPE v. HOPE.

Infants Jurisdiction over, when resident abroadCustody Whether the court will make order forPractice-Substituted service.

The Court of Ch. has jurisdiction over infants who are natural-born English subjects, though born abroad and resident abroad; but,

the proper officer to tax these bills, there must undoubtedly be a right in the Commissioner to review the taxation. Application was made to him for that purpose; he has refused to do so; and the question which we have to consider is, whether he was right or wrong in that refusal. I do not propose to give any opinion upon the question whether the Commissioner was or was not bound, as a matter of course, and without any special circumstances, to review that taxation; but I am of opinion, under the circumstances of this case, that he was bound to make that review. The grounds which are urged in support of the Commissioner's judgment are two; first, that these parties who are now presenting the present petition had full knowledge of all the circumstances of the case, and, therefore, ought not now to be allowed Reported by GEORGE WHITELEY, Esq., of the Middle Temple' to enter upon the taxation; and, secondly, that there is no case of fraud or surprise in the case now before the court. Now, with reference to the case of knowledge of the parties, it rests upon the fact of the assignees having employed a gentleman of the name of Kirby, for the purpose, as it is said, of watching the conduct of the solicitors, against whom the present petition is presented. Assuming it to be so, it is perfectly clear that Mr. Kirby did not attend the taxation of these bills of costs; and it is equally clear, I take it, that he could not have done so; and although I am by no means prepared to say, and do not mean to intimate an opinion, that the consequence of that would be that the bill ought to be submitted again to taxation, I think that the fact of there being no other party before the registrar, upon the taxation of the bill, is a consideration which renders it the duty of the Commissioner, and also the duty of the court, more carefully to watch the proceedings which are had before the registrar upon the taxation of a bill; and I think it is a sufficient answer to that objection to say, although Mr. Kirby may have been employed, Mr. Kirby was not there in truth to watch the proceedings. Then, on the other side, there being no case of surprise (I am prepared to go as far as any one may go on such a question), it is not upon the ground that too much or too little may have been allowed that this court will open the taxation of a bill of costs, or direct the retaxation of one that has been already taxed. But if yon find a series of charges primâ facie-for I do not intend to intimate that any one of these charges may not be maintained in the result-but if you find a series of charges prima facie unreasonable, unexplained, and not attempted to be explained, whether rightly or wrongly-and these gentlemen have not entered into an explanation in the present case-if you find such a series of charges as are to be found in the present case, that is, in my opinion, a matter requiring investigation, and quite falling within the rules by which the court would require such investigation to be had. The learned Commissioner, if I may venture to say so, seems to have put a little too much reliance upon the observations that fell from Lord Cottenham in Horlock v. Smith, which were addressed to a paid bill of costs, and not to a bill like the present, remaining unpaid. I therefore concur in the opinion which my learned brother has expressed.

on a special case

March 20.-Rolt, Q.C., and Selwyn, appeared on behalf of the solicitors whose bills had been ordered by their Lordships to be retaxed, and moved that they might be at liberty to appeal from their Lordships' decision to the H. of L., upon a special case, which they requested their Lordships to approve and certify. The application was made under the 10th section of 14 & 15 Vict. c. 83, which enacts, "that all decisions of the Court of Appeal, including decisions in matters of bankruptcy, shall be subject to appeal to the H. of L. in the cases and under the conditions in and under which the like decisions would have been subject to such appeal if this Act had not been passed; but the appeal in matters of bankruptcy shall be only on matters of law or equity, or on the rejection or admission of evidence, and to be approved and certified by one of the judges of the Court of Appeal hereby constituted, whose determination on the settlement of such case shall be final and conclusive." They contended that in this case in bankruptcy the question in dispute turned upon a matter both of law and equity, and was therefore clearly within the meaning of the 10th section of 14 & 15 Vict. c. 83. The question whether an appeal would not lie after twenty-one days from the taxation of the registrar, as being in the then state of the law the taxation of the Commissioner, was a question of law; the question whether, after so long a period, a taxation which had been made in the presence of the official assignee, as representing the bankrupt's estate, should be now opened, was a question on a matter of equity. W. M. James, Q.C. and W. Morris were not called upon by the court.

Lord Justice TURNER.-The Court, however unwilling, as a rule, to refuse to give leave to appeal against a judgment pronounced by itself, has the duty to perform of giving effect to the provisions of the Act of Parliament, and to exercise the best discretion it can in applying them. Now the Consolidation Act, and the Act constituting this court, have provided that, in matters of bankruptcy, an appeal is to be carried to the H. of L. only in those cases which the

Quiere whether, except under very special circumstances, it will make an order with reference to the custody of the infants, in a case where the court sees no mREAR! of enforcing compliance with its order: Quære, whether the French court would act as ancilly to the Court of Ch. in England in enforcing obedicace to an order made by this court for the delivery up of an infant, a natural-born English subject results France, to the custody of its parent here. The ground on which the court grants an order for substituted service is, that there is a reasonable capetation that the fact of the service will come to the knowledge of the principal.

This was a motion by the plaintiff's in the suit, whe were the five infant children of Mr. and Mrs. Hope; that the defendant Mrs. Hope might be ordered to deliver up the two infant plaintiffs, Adrian Ellas Hope and John Hope, who were in her custody in France, to the custody of their father, in order that they might be brought to and educatel is England under the direction of their father, or such other person as the court might direct; and that their father might be authorised to make all necessary applications to the courts in France to obtain possessica of the said children; and that Mrs. Hope might be restrained by injunction from removing or concealing the said infants. Mr. Hope, the father, who was & domiciled Englishman, had married Mrs. Hope, who was a French subject, in England in 1836, and fres that time until 1843 they had resided principally is Londor. In 1843 they went to France, and resed principally in Paris (where Mr. Hope had rented a house since 1846) until their separation. Durin that period they made occasional visits to England and there was no suggestion that Mr. Hope had changed his domicile. There were five children bor of the marriage. Three were daughters, who were i England under the care of their father; and two boys. the subjects of the present motion, who were both born in France. They were respectively of the of nine and seven years. In May 1853 Mr. Hope for various reasons, brought the two boys over to England, with a view to their being brought up here; but, Mrs. Hope being in a delicate state of health. at the instance of her physicians Mr. Hope agreed t restore them to the temporary custody and care of the mother, upon the terms of the following under taking, which was then drawn up, and signed by Mrs Hope, under the advice of a high judicial perser "Paris, May 1853.-I, the undersigned, undertake to place in the hands of their father my two boys, Elias and Jean Hope, in three months, to date from the 20th May 1858, that is to say, the 20th Aug., tast the father may afford them such education as he may deem advisable, either with him or with a preopter in France or in England. Mr. Hope then came England, and immediately afterwards Mrs. Hope instituted a suit in the Court of the First Instance for a separation, claiming the guardianship of the two boys; and an order was made on the 9th June for a separation, which order-after stating that this being a case of separation of body between t aliens, in which that court could only decree up measures provisional, urgent, and conservative; ad referring to the agreement made between Mr. and Mrs. Hope as to the custody of the sons, and o sidering that to deprive Mrs. Hope of all her childr would be a cause of irritation, which would be jurious to the prospect of a reconciliation ulterior and desirable-decreed that the two children should rema with Mrs. Hope, Mr. Hope to have access to them at all times, without removing them. Mrs. Hope, after this order, left Mr. Hope's house, taking the two boys with her, and lived separate from her husband.

Mr. Hope appealed against this order to the Cont Impérial, which court made an ordinance to this effect: "That, considering both parties were aliens. foreign tribunals alone were competent to pronounce in disputes the object of which was to modify the legal conditions of marriage. But, considering that it is competent to the French tribunals, when a de

ROLLS COURT.

mand of separation of body is made by a foreign woman, to provide for her wants and her safety; that it is equally competent to them to take those measures which the age and health of the children born of the marriage conditionally require, and, adopting the grounds of the decision of the first judgment: decrees that, that from which appeal is made shall take effect; and nevertheless decrces that the two chikiren conditionally confided to the guardianship of the wife Hope shall be sent to their father on the 15th Sept. 1859, if it has, not been otherwise ordered on this head by the English tribunals, the rightful judges."

ROLLS COURT.

They cited Hobhouse v. Courtney, 12 Sim. 140, and the cases there referred to.

The MASTER OF THE ROLLS, without hearing the other side, said he thought the order ought not to be set aside. The principle upon which the court acted might be shortly and clearly stated. The object of a subpoena was to give the parties notice of the claim, and where it was impossible to serve the defendant personally, that the court did its best to provide that the defendant should know what the claim against him was. So it was decided that if the subpoena was served upon any one having authority to transact business for the party, that was good service. So a service made at the last dwelling-place of the party was also held to be good. In all such cases, the court would not allow the service to be evaded, by the party setting up any technical pretence that he had no knowledge of the claim. In the case of Hunt v. Lever, Ves. 147 a, to which he had referred in the argument, a service was held to be good, where it was sent under cover to a place where the letters of the defendant were directed to be left when he was abroad. Now in this case there was primâ facie evidence that Messrs Grover and Coare were agents of the lady in the matter, and he had therefore directed that the subpoena should be served upon them. If they had, on being served, come forward and made affidavit that they had no authority to act on the part of the lady, then there might have been a difficulty in saying that the service could be supported. But, far from doing that, they merely at the time repudiated their right to receive service. That question, however, the court determines for itself; and in such a case as the present the court would not discharge the order, but hold to It was then agreed that Mrs. Hope should appear in the suit, with liberty, however, to appeal against the order just made by his Honour.

Mrs. Hope then instituted a suit in the English Ecclesiastical Court for a divorce a mensâ et thoro (which is still pending), and did not deliver up the children at the time fixed; and applied again to the Cour Impérial for the prolongation of the time of her guardianship; and an order was made decreeing that she should have the custody of the children for four months longer, pending the proceedings instituted in England by Mrs. Hope for a separation, unless it had been otherwise decreed by the rightful judges before the expiration of that time." And subsequently another order was made by the same court, giving Mrs. Hope the custody of the children "until the compeut tribunal have decided on this question." The prescut suit was then instituted on behalf of the infants by their next friend (Mr. Hope having made arlement of 10007, on each of the children, for the purpose of giving them a locus standi in this court). ast the trustees of the settlement and Mr. and Mrs. Hope, praying that the trusts of the settlement might be carried into execution, and that the infants might be placed in the custody of the father, accord-be a good service. ing to the terms of the present motion.

Ms. Hope did not appear, and Messrs. Grover and Ccare, her solicitors in the git in the Ecclesiastical Court, declined to accept service of a copy of the will en her behalf; whereupon an order for substituted service upon them was obtained on an affidavit by the dark of the plaintiff's solicitor, stating that he had Leard that they had retained counsel on her behalf; and the notice of motion was served on them. Since the notice of the motion had been given, Mrs. Hope but filed an affidavit in answer to the bill. Pelner, Q.C. and Amphlett appeared in support of the motion, and had made the general statement of facts given above; when

The Solicitor-General suggested that, to avoid entering, if possible, into the painful details of this case, the preliminary question of the jurisdiction of the court to make the order should be first argued. Polmer then proceeded to argue this question, and enter ded that it was a proposition perfectly new, and for which no authority could be produced, that the jurisdiction of the court was taken away because the Lildren were kept out of this country. They were natural-born English subjects, though born abroad, s being the children of English subjects. They were eclared aliens by the foreign court, which had deGel that the proper jurisdiction to determine the stion of the custody of the children was in this Country. These children had been to England, and ad returned to France on an undertaking, which had been broken; and therefore their present residence broad had been originally under a usurped authoity; and the French court had only given Mrs. Hope the provisional custody of the children until the quesen of rightful custody had been determined here. As soon as this court decided the right of the father have the custody of the children, and authorised im to apply to the French court, that court would Enforce its decision against Mrs. Hope, in whose cusdy the children were.

Amphlett, on the same side.

They cited Beattie v. Johnson, 10 Cl. & Fin. 42; Re Taylor, 11 Sim. 178; Salles v. Savignan, 6 Ves. 572; Strens v. James, 1 Myl. & K. 627.

The Solicitor-General, T. H. Terrell, and Wise, for be defendant, Mrs. Hope, took a preliminary objeco, that the service of the notice of motion on Mrs. pe's solicitors in the suit in the Ecclesiastical Court was not good service on her.

The MASTER of the ROLLS said that he must treat
he order for substituted service as good, until it had
een discharged; and that it could not be questioned,
Kept upon a proper motion for that purpose.
After some discussion it was arranged that the
gestion of the suthciency of the service of the notice
ould be proceeded with at once.

The Solicitor-General then argued that the order for bstituted service was bad; Mrs. Hope's solicitors the Ecclesiastical Court not having been consulted vher in this suit, and they having refused to accept ervice of the bill without receiving instructions Tom her. The suit in the Ecclesiastical Court had connection whatever with the subject of this suit; nd there was therefore no ground for saying that bese solicitors were specially retained by Mrs. lope, with respect to the matters in dispute here; or was it shown that they were the general agents Mrs. Hope, with respect to the matters out of hich this suit had arisen. These were the two only Tounds on which the court could have allowed subituted service.

T. II. Terrell, and Wise, followed on the same side.

The Solicitor-Geneval then argued the question of the jurisdiction of the court, contending that bis court had none over these children, who, though ci English parents, were born in a foreign country. By the common law of England they were aliens, though, according to municipal law, they were natural-born subjects. According to the common law of every country, France had a right to affix and had affixed the character of natural-born subjects to these children; and the question was a most difficult one for jurists to determine, whether that general law of nations was to give way to the statute law of a particular country, which was at variance with it. But, besides, these children were not within the jurisdiction. Beattie v. Johnstone, and the other cases cited by the other side, were therefore clearly distinguishable; the object of this suit was not to make the children wards of court, but only to procure an order that they might be delivered up to the custody of their father. But how could the court enforce its order if made? and without this power, assuming that the court had jurisdiction, he submitted that the court would not exercise it. It was a misapprehension of the French law to suppose that the court there would act as ancillary to this court. It was, no doubt, ancillary to the Ecclesiastical Court here, with reference to the suit for the divorce, and all matters involved therein; and when a decree had been pronounced in that cause. then the French courts would make an order touching the custody of the children; in the mean time the French court had exercised its jurisdiction over the children, by the provisional order which it had made. They cited Re Spence, 2 Phil. 247; Ragron, Code Civile, b. 1, c. 5, art. 307; Blake v. Lord Wallscourt, 7 L. T. Rep. 545. The MASTER of the ROLLS-On this preliminary objection of jurisdiction I entertain no doubt. The arguments have naturally branched into two parts. First, whether this court has any jurisdiction whatever to entertain the application; and, secondly, as to the propriety of exercising such jurisdiction, if the court has it, under the circumstances of this case. Of course, in considering the question of jurisdiction as well as that of the propriety of exercising it, I must only look to what is for the benefit of the infants. It appears to me, that the question with respect to their residence in this country depends on this proposition, whether the children are or are not natural-born English subjects. I entertain no doubt whatever in the case of these children-whatever conflict there may be in certain cases as to children born in a foreign country being, under certain circumstances, subjects of that country that the children of an English gentleman born abroad are natural-born English subjects, though of a mother formerly a foreigner; and that they are to be treated exactly in the same manner as if they had been born in this country, and gone abroad immediately after their birth. The circumstance of their being born abroad does not affect in the slightest degree the functions or powers of this court, though it may have a very material influence when considering the question as to the propriety of this court exercising its power. These children, then, being natural-born English subjects residing abroad, I cannot doubt that this court has jurisdiction over them, and is bound to exercise it, if it finds that it will be doing what is for the benefit of such children if it should exercise its power: and that this court so acts is of daily experience. The mode of enforcing

V. C. KINDERSLEY'S COURT.

its order is a totally independent and distinct question. But, if I am informed that English children, possessed of property in this country, residing abroad, are not properly treated, and not properly educated (and not doubting the jurisdiction), it becomes the duty of this court to apply itself to discover every means, if necessary, for enforcing its order for the benefit of the children. The case of Beattie v. Johnson was the converse of the present; and I am fully satisfied nothing would have more astonished the learned judges (and more particularly Lord Cottenham, who decided it on the appeal from Sir Launcelot Shadwell), than to have heard it suggested that they were laying down the proposition that this court had no jurisdicdietion to make such an order as was made in that case, with reference to infants living abroad being natural-born English subjects. The mode, and almost the only mode, in which this court can generally deal with parties, is by acting on the funds and persons within its jurisdiction (for it has obviously no means of acting on persons without its jurisdiction); and in Beattie v. Johnson, in which the child was not an English child, but a Scotch child, born of Scotch parents, the fact of the presence of the child within the jurisdiction of the court was all-important; because, if a foreign child were not within the jurisdiction of the court, it was impossible the court could deal with any question relating to it at all, it having otherwise no jurisdiction of any kind. But this court exercises the functions of parens patriæ over all objects for whom the sovereign stands as parent, viz. all natural-born subjects, to whom, as the objects of the sovereign's care, this court is bound to give its protection. Whether this court would ever pronounce an order which it does not see any mode of enforcing is a very important question; and I do not give any opinion whether, when I have heard the whole of the case, I shall think it right or beneficial for the infants to pronounce any order, or, if any, what order I should pronounce. I would here observe that the question before me is, to some extent, embarrassed by the litigation which has taken place in the French courts. The civil tribunals in France have power to deal with the whole matter, viz. with the question of divorce, and the custody of the infants; and, according to the authority which has been cited, the courts in France give the custody of the children until the divorce is pronounced to the parent who may be said not to be in the wrong, though they have power to make different order if they think fit. The rule is not imperative that the custody of the children shall follow the determination in the question of divorce-which of the parents is in the right. The Court of France may possibly have supposed that the Ecclesiastical Court here has a similar power of deciding the custody of the children; but in suits for divorce it has no such power, and in suits for the restitution of conjugal rights it may only be incidentally the consequence of the decree pronounced. The power to decree the custody of children rests with the Court of Ch. alone. I do not express an opinion whether the courts in France are expectant or attendant upon any decree that may be pronounced by this court. Certainly, not having heard Mr. Palmer upon the subject, it will be difficult to persuade me that I can make any order in a shape which shall be compulsory upon them, or in such a manner as in the slightest degree to fetter their judgment or interfere with their functions. If I were to state what this court would do with such infants if they were within the jurisdiction of this country, the courts in France might or might not pay attention to that opinion. They have made a provisional order for the custody of the infants, reserving the making of any further order until some competent tribunal in this country should pronounce upon the subject. As to what the effect of that decree may be upon them, I need not express any opinion. Upon the question whether the court will not to some extent stultify itself by making an order it cannot enforce, I shal not express any opinion until I see some mod, by which its order can be made effectual; but "pon the question that the court has a right to interfere in the question, I entertain no doubt whatever. The court is bound to entertain the question, and see what is best to be done with the infants; and therefore I consider that, if the parties require it, I am bound to go on with the hearing of this motion,

V. C. KINDERSLEY'S COURT. Reported by P. M. LEONARD and H. R. YOUNG, Esqrs, Barristers-at-Law.

Wednesday, June 14. ADAMS . BENNETT. Settlement-Wife's reversionary interest in personalty. Where a married woman entitled to personal property in possession and in reversion (whose husband had received money belonging to her, and also been twice a bankrupt), applied to the court for a settlement upon her of her property both in possession and reversion. Held, that she was not entitled to a settlement of her reversionary, but only of her personal, interest; and that a supplemental bill ought to be filed when the reversionary interest fell into possession, instead of now reserving liberty to apply..