signed this note at Florence, and sent it to London to his brother (the joint and several maker of the same note), who signed it, and delivered it into the bank. The note was for 30017., and there was another made in like manner, and at the same time in the same amount. The learned counsel contended, that under the 18th section of the Common-law Procedure Act, 1852, the Court had not jurisdiction. Cause of action means the whole cause of action. (Sichel v. Borch, 10 Jur., N. S., 107). The making of a promissory note corresponds with the acceptance of a bill of exchange, not with the indorsement. [He cited also Roff v. Miller (19 L. J., C. P., 278); Wild v. Sheridan (21 L. J., Q.B., 260); and Cox v. Troy (5 B. & Al. 474).]

Lush and G. Shaw appeared to shew cause in the first instance, but were not called upon.

MARTIN, B.-I am of opinion that there should be no rule. Where the defendant, being resident in Florence, made the note, and sent it to London, I consider that it was in his possession as much as if he had kept it in his own hands. And the case of Cox v. Troy is exactly in point. Abbott, C. J., says, "It is true that the jury have found he did not accept the bill; but connecting that finding with the other facts of the case, it does not seem to me that it means more than that at one period the defendant, or some one on his behalf, did write an acceptance on it, and at that time was minded to accept it." So Bayley, J."The question is, when the drawee comes under an engagement, whether by the act of writing something on the bill, or by the act of communicating what has been written to the holder, and I have no difficulty in saying, from principles of common sense, that it is not the mere act of writing that binds the acceptor, or the making a communication of what is so written that binds the acceptor, for the making the communication is a pledge by him to the party, and enables the holder to act upon it; but while it remains in the drawee's hands, it seems to me the acceptance is not fully binding on the person who issued it; and he is at liberty to say before he parts with it, 'I have not yet entered into an engagement to accept." And the same view was taken by Holroyd, J., than whom no judge is entitled to greater respect.

BRAMWELL, B.-I am of the same opinion, for the same reasons. There is no pretence for saying that there was any contract, or any interest in the paper, or any right or title to it till it was delivered to the bank.

CHANNELL, B., concurred.-Rule refused.

expenses. Averment, that the plaintiff was a director for the said company for such divers long times (to wit, three years) as would entitle him to receive divers large sums of money, to wit, 150l., for his remuneration, according to the said articles. Averment, that all things were done and happened, and all considerations were fulfilled, and all times elapsed, necessary to entitle the plaintiff to have the defendants pay him the money aforesaid, yet the plaintiffs have not paid the plaintiff the said sum of 1501. Claim of 1507. Demurrer, and joinder in demurrer.

The case was argued by

Kemplay, for the defendants.-The declaration shews no cause of action. The articles of association do not point out any fund out of which the payment is to be made. Therefore there is no claim which can be legally made; neither is it specified by whom the payment is to be made. The only matters specified are the person who is to receive payment, and the amount he is to receive. It is impossible to found an action on these materials. See Dunstan v. The Imperial Gaslight Company (3 B. & Ad. 135).

Quain was not called upon to argue for the plaintiff. POLLOCK, C. B.-I do not recollect having ever met with a similar case under the statute before. But I think, looking at the different sections of the act of Parliament, it was intended, that in such a case as the present an action should lie.

MARTIN, B.-The memorandum of association of this company was drawn up in accordance with sect. 7 of the Joint-stock Companies Act, and thereupon the company became, under sect. 13, a corporation. The question is, what was the effect of those articles? It is agreed by them that 50l. per annum shall be given to the director, and that amounts to a contract between the director and the company. Possibly it would have been better if it had been expreessly provided that the remuneration should be paid out of the company's funds; but I think it is certain, to a common intent, that that is the meaning, and that is all that we are called upon to look for in a declaration.

BRAMWELL, B.—I think the declaration is good. I am not certain that such a contract as this may not be made by word of mouth (sect. 41). But Mr. Kemplay admits, that if it had been provided that the remuneration should be paid out of the company's funds, the action would lie; he admits also, that there are funds in existence. The appointment of salary then is an appointment to those funds, and the action is rightly brought.

CHANNELL, B., concurred.-Judgment for the plain

COMPANY (LIMITED).-June 7.
Pleading-Ambiguity-Directors' salary.

The declaration alleging that the defendants were a company, incorporated under the Joint-stock Companies Act, 1856, and that by the articles of association it was agreed that each director should receive 50l. per annum, without naming any fund out of which it was to be paid:-Held, nevertheless, that the action was well brought against the company by the plaintiff, an exdirector.

The declaration stated, that the defendants were duly registered and incorporated under and in accordance with the provisions of the Joint-stock Companies Act, passed in the 19th & 20th Vict. Before he repeal of the said statute, and that by the articles of association of the said company, it was agreed that each director of the said company should receive 507. per annum, as his remuneration, besides his travelling

led the life of a prostitute for some years before the marriage, and whither she returned soon after.

In October, 1863, the petitioner's father discovered the marriage, and in December of the same year, a deed of separation was executed, by which an allowance of 17. a week was secured to the respondent. Adultery was proved to have been committed by her on several occasions in the early part of 1864.

Cur, adv. vult.

The Judge OrdiNARY.-The 31st section of the Divorce Act imposes a difficult and serious responsibility on the Court.

If the petitioner shall have been guilty, in the opinion of the Court, of wilful separation from his wife (or certain other wrongs) without " reasonable excuse," the Court is not to be bound to grant him a decree dissolving the marriage. The language here used is of great latitude; an opinion has first to be formed as to what in the particular case may constitute "reasonable excuse," and then a kind of discretion is to be exercised in granting or withholding a decree. The subject could not well have been otherwise treated. The shape or form that the petitioner's misconduct in married life may take-its degree, the length of its duration, its incidents of mitigation or aggravation, its causes and effects; all these have, or may have, a bearing on the petitioner's just claim to relief, and yet are capable of such infinite variety and intensity, that they escape distinct expression, and refuse to be fixed in a positive and detailed enactment.

The duty of weighing these matters has, therefore, been cast on the Court, and when the cases arising under this section have been sufficiently numerous to unfold any rules of general application, the Court may be enabled to guide itself and others within more narrow limits by further definition. But until then, the same reasons which have served to make the Legislature express itself with latitude, ought to make the Court cautious in restricting itself by precedent. One main end of the Legislature in these provisions was this, that a wife should not first be the object of neglect and illtreatment, and then the victim of the husband's own wrong. Now, in this case there certainly was an entire separation after the marriage, but it was acquiesced in by the wife, at first temporarily, and soon afterwards by a regular deed of separation, with a weekly allowance. Further, the petitioner, though he had just taken his degree at Cambridge, was without means of any sort, and entirely under the control of his father, through whom the separation was effected, and by whom the allowance was paid. Was this such a wilful separation without reasonable excuse" as should induce the Court to hold its hand, and refuse a decree? I think not; the wife led the life of a common prostitute both before and after the marriage; she never called upon or desired her husband to live with her, and she has not raised her voice here in complaint or resistance. The mere fact of the separation being the mutual act of both parties may not, in all possible cases, be enough to constitute "reasonable excuse," though it go a long way towards it. But the peculiar position in which this young man was placed under his father, and his want of means, hardly left him an alternative, and the separation, if it can be considered "wilful," may, with good reason, be excused.

Attorneys for petitioner R. & C. H. Hodgson.

ROWLEY V. ROWLEY.-May 30. Petition for dissolution-Judicial separation refused. A wife petitioned for a dissolution of marriage, but the Court being of opinion that the facts she was at liberty

to prove would only entitle her to a judicial separation, and she refusing to amend the petition, by praying for judicial separation, her petition was dismissed.

In this case, which has been reported in 10 Jur., N. S., 253,

Dr. Swabey, for the respondent, moved the Court to dismiss the petition, on the ground of its having been presented in violation of an agreement entered into for the compromise of a former suit, in which similar charges had been made against him.

THE JUDGE ORDINARY asked Dr. Tristram, who appeared for the petitioner, whether she was willing to amend the prayer of the petition, by asking for a judicial separation instead of a dissolution of marriage

Dr. Tristram stated that Mrs. Rowley refused to d so, and stood on her right to reopen the whole case and, on proof of it, to obtain a decree of dissolution of marriage.

Cur, adv. vult.

The Judge ORDINARY.—If the petitioner in this case had desired a decree of judicial separation i place of a dissolution of her marriage, it would hav been right to give her the opportunity of proving the adultery with which she has charged her husband But in making her the offer to amend the petition fo that purpose, she declined the indulgence, and inti mated that she was prepared to take her stand on th petition in its present form, and contest her right i the Court of Appeal to maintain the charge of cruelt as well as that of adultery, and so entitle herself to divorce. Now, as the cruelty and adultery must con is willing to ask, and as I am of opinion that sh cur to entitle her to the only form of relief which sh cannot, for the reasons I formerly expressed, be per mitted to sustain this charge of cruelty in proof, it follows, that her petition must be dismissed. In ar riving at this conclusion, I have endeavoured to give full weight to the ingenious argument, by which th doctrine of condonation was pressed into her servic But I retain the conviction that it has no place i the discussion; for there has been no forgiveness be tween these parties, and no return to cohabitation the result of it; so far from it, the bargain they mad and which is now argued to carry within it the ch racter and incidents of condonation, was nothing mo than the cession of a doubtful remedy, and nothi less than a contract for perpetual disunion. T

petition is, therefore, dismissed.

CROWN CASES RESERVED. COURT OF CRIMINAL APPEAL TRINITY TERM.

[Before COCKBURN, C. J., MARTIN, B., CROMPTON, and BRAMWELL and CHANNELL, BB.]

REG. v. EDWIN JOHNSON.-June 3. Indecent assault - Girl under twelve years of age

Consent.

An indecent assault committed upon a girl between the a of ten and twelve years, with her consent, is not an i dictable offence.

Case stated by the chairman of the Surrey Quart Sessions:-" At the general quarter sessions of t peace holden by adjournment at St. Mary, Newingt in and for the county of Surrey, on Monday, the May, 1865, Edwin Johnson was tried on the followi indictment:-Surrey. The jurors for our lady t Queen, upon their oath, present that Edwin Johnsa on the 29th October, 1864, unlawfully did carnall know and abuse one Emily Eliza Aslett, then a gi above the age of ten years and under the age of twen years, to wit, of the age of ten years and nine month

8

It

therefore, the child being born in wedlock, entirely declines to agitate the question of legitimacy. On the former occasion, in addition to the case of The Chevalier D'Eon and the case of Da Costa v. Jones, and the observations of Lord Mansfield, to which I on the present occasion refer as guiding me to the course I am now taking, I also referred from memory to a case in which I said a legacy had been left to a lady on condition of chastity. The reporter says the case is nowhere reported. In substance the case is what I said, though it is not the case of a lady, but of a gentleman. I have found it reported now, but very shortly indeed, and I think it is not altogether clearly stated in the report. I remember the case very well. It is reported anonymously as W. v. B., in 11 Beav. 261. It was a case of this description:-The testator in this case gave his personal estates to trustees, upon trust, as to one-fourth, to pay the yearly and other dividends and proceeds thereof into the proper hands of T. W. the younger, to the intent that the same might be a provision for his personal maintenance and support during his natural life, if he should not have in his (the testator's) lifetime married or cohabited with, or have had any child or children since the year 1825, or after her decease he should not marry or cohabit with, Susannah B., or Harriet B., or any other of the daughters or daughter of G. C. B., then or late of F., in the county of Kent.' Then there is a forfeiture, and in the event of his doing this, the forfeiture occurred. From and after any such forefeiture should have taken place, the testator directed his trustees to lay out the same; it says, 'after the decease of T. W. the younger.' might look as if there were no intermediate gift in the trust; but it says, after the decease of T. W. the Younger, upon certain trusts for the widow of T. W., except as aforesaid, and his children by any other woman or women.' He married one of these ladies, and the question was, whether his interest had ceased. The Court held that it had ceased. There is no reason given; it is put in the very shortest form. This is the Case I had before my mind, because I remembered it at the time I was giving judgment in the case of Guray v. Gurney. It is simply put thus, 'The counsel for W. the younger asked to have the dividends paid.' One case merely was cited, the case of a gift over in the event of the marriage with a particular person, which is good. The forfeiture of a gift in the event of a marriage with any particular person is perfectly good. There the Master of the Rolls held that T. W. was still entitled to the income, and ordered accordingly. That is all that is stated, but I remember that the ground was this-that the Court could not enter into any inquiry as to whether or not he had cohabited with any of these ladies without being married to them, and, therefore, considered the whole of the forfeiture entirely void. It would not enter into such a question, and it held the legacy to be good, and the condition attached to it void. It was a mistake of mine in saying that it was a legacy to a lady; it was a legacy to a gentleman, coupled with that particular form of condition. It was exactly on the same principle as that which governed the Court of Queen's Bench in the case of Da Costa v. Jones. It seems to me, therefore, that this is just such a case where one should stop, and that the right course to be taken is this. In the case of Gurney v. Gurney, I did not allow the parties to get rid of it by what was then tendered, the payment of 10001. for the benefit of the infant and a disclaimer. I should not have allowed it any more if there had been a disclaimer simpliciter, because, if I thought the father had a right to have the question tried and discussed, I should have proceeded to adjudicate upon it, whether there had been a disclaimer or

not. But considering this to be a case where the whole object is fairly stated, a case in which both the father and the mother object-of course the mother may be assumed to object, and the father distinctly and clearly says, he objects to have any such issue raised and, counsel being perfectly at liberty and prepared on behalf of the guardians to disclaim such interest, they disclaiming, I shall dismiss the bill, with costs. Unless I do it with costs, it might seem to cast some slur upon the parties, which I am not entitled to do. No doubt it is a very trifling matter in that respect-a comparatively small object. It appears to me that I must not stir a single step in cases of this description (and on that ground I rest my decision), when there is an absolute refusal on the part of both parents to have any such question raised. Therefore, the guardians of the infant, by counsel, disclaiming all interest in the fund in question, I dismiss the bill, with costs."

Overend, Q. C., for the infant defendant, asked that the affidavits already filed might be removed, but his Honor refused to do this, except upon a distinct application, which counsel might make if they thought proper.

From the above decree the plaintiff Charles Edward Stephen Cooke now appealed.

THE LORD CHANCELLOR, at the outset, expressed his opinion that the suit was collusive, and was founded on an instrument which was fraudulent, in the sense of its expressing a trust for the benefit of a child or children, whereas it was, in truth, devised for the purpose of establishing the fact of a particular child's illegitimacy.

;

Giffard, Q. C., and Godfrey Lushington appeared for the plaintiff.-They argued that there was no statute which forbade the institution of a suit like the present, and certainly no rule of the Court of Chancery; for such a suit had been instituted, and successfully carried out, in the case of Gurney v. Gurney (1 Hem. & Mil. 413; 9 Jur., N. S., 514). Indeed, if that case were law, it completely ruled the present, for there was no more fraud or simulation in this suit than was permitted in that. It was for the interest of the family-indeed, of the child herself that her status, whether of legitimacy or not, should be declared: and although the bill alleged, it did not follow that the Court would decide, that she was illegitimate. If the head of the family, and the alleged father of the child, did not come forward in vindication of his interests and those of the family, there was no reason why the next relations should not take the question up. Feigned issues were tolerated by the Court when the attempt to get the decision was bonâ fide; and this was a perfectly honest endeavour to establish a fact, whilst evidence on the subject was recent. There was no judicial process under the recent Divorce Acts, or otherwise, known to the law, whereby the status of a person could be declared; and this contrivance, for such it might be admitted to be, furnished an opportunity which was otherwise wanting. [They cited, and commented on, the authorities referred to in Gurney v. Gurney, and referred to Maine's Ancient Law, p. 25.]

Overend, Q. C., and Bagshawe, for the guardians of the infant, disclaimed all interest under the settlement. [They were not called upon.]

His Lordship reserved judgment. May 10.-LORd Chancellor.-The settlement or declaration of trust on which this suit is founded is a fraudulent instrument, that is to say, it was prepared and executed for a purpose different from that which is expressed, and apparently intended by the instrument. It was not the desire or the real object of the parties to make a bonâ fide settlement of property, or to confer any benefit on the infant defendant. The