single power of appointment of new trustees in the usual form, and all the trustees have died, the Court may, with the consent of representatives of the surviving trustee, appoint new trustees to execute the trusts of one estate without dealing with the other estates. (Re Dennis, 12 Week. Rep. 575.)

VENDORS AND PURCHASERS. Sale in chambers Reopening biddings.-The sale of an estate under a decree of the Court before the Chief Clerk, when biddings were made by sealed tenders, is so far identical with a sale by auction that any person may, within due time, apply to have the biddings reopened. (Waterhouse v. Wilkinson, 9 Law Tim. Rep. 799.)

WILL.-Unattested codicil-Wills Act.-It is well settled that the Courts cannot look at what purports to be a devise of real estate unless the instrument be attested or incorporated in an attested instrument. A testator, by a codicil to his will, imposed a condition respecting real estate of which he had, by his will, made a specific devise. The conditions was to have effect upon the personalty bequeathed by the will. The codicil was unattested, but admitted to probate. This was before the passing of the Wills Act. Held, that such codicil could not be looked at by the Court in the construction of the will so far as it affected the real estate. (Louis v. Louis, 10 Law Tim. Rep. 25.)

EDITOR'S MOOTINGS.

No. 11-Covenant to pay additional rent-Distress.-A lessee being under covenant not to build over a portion of the demised lands, except with the written consent of his lessor, applies to the latter for a license to build on that portion of the lands on which, by the covenant, he was not to build. The lessor grants the license on the lessee's covenanting (which he does in the license), to pay an additional rent of £13 "in respect of the premises comprised in and demised by" the original lease. There was no grant or reservation of the additional rent, but simply a covenant with the lessor (the freeholder), his heirs and assigns; and there was no power of distress given. The additional rent being in arrear, the lessor has distrained for it alone (the original rent having been paid) on the demised premises. The lessee contends that the distress is bad, and threatens to replevy. Is he correct? Would it make any difference if the landlord had distrained the goods of a stranger (and not of the leste) on the premises?

No. 12.-More than six years' arrear of interest-Exercise of power of sale-Surplus purchase-money to be personal estate.-A

mortgage-deed of freeholds contained a power of sale, and a declaration that the money arising on the exercise of the power should be held by the mortgagee in trust to pay, 1, the expenses; 2, the moneys secured by the mortgage-deed; 3, the surplus, as part of the mortgagor's personal estate, to the mortgagor's executors, administrators, or assigns. The mortgagor died intestate, and his heir-at-law sold the equity of redemption; and subsequently the mortgagee sold the mortgaged estate under the power, and dealt with the proceeds as follows:-He retained the expenses and his principal and arrears of interest for seventeen years, and then offered to pay the surplus to any person who could show himself entitled thereto. The purchaser of the equity of redemption from the heir claims the surplus, as does also the administrator of the mortgagor. They both of them, however, insist that the mortgagee cannot deduct more than six years' arrears of interest. Is the purchaser from the heir or the administrator of the mortgagor entitled to the surplus, and can the mortgagee deduct more than six years' arrears of interest against either claimant ?

No. 6 (p. 70).-Innkeeper-Lien of goods, &c.—I cannot say that I am of the same opinion as seems to have been expressed on the above point, but think that the innkeeper had no lien on the horse and carriage for refreshment supplied to the traveller. A horse may be detained for his own meat only, and not for the meat of the guest; for the chattels in such case are only in the custody of the law for the debt that arises from the thing itself, and not for any other debt from the same party. (14 Vin. Ab. 438. Rosse v. Bramstead, 2 Rol. 438.) And also where an innkeeper receives a horse to stand at livery, the circumstance of the owner taking occasional refreshment at the inn will not entitle the innkeeper to a lien in respect of any part of his demand. (Smith v. Dearlove, 6 C. B. 132; 17 L. J. C. P. 219.) If this view of the case be correct, of course the innkeeper does wrong by seizing and detaining the horse for the refreshment supplied to the traveller, and therefore cannot claim for the keep of it.-R. M. ENGLISH, Stamford.-[NOTE.-We are obliged to Mr. English for favouring us with his views, which, in the absence of decision, we should have thought correct; but the point has been otherwise decided in a case which we do not find reported in any of the law reports, but which we remember sceing in a newspaper. It was a well-considered judgment, and not merely a nisi prius ruling. We think one of the judges dissented. When the case is reported we shall draw attention to it. If it has been reported, and escaped us, we shall be glad to be referred to it. In the meantime we trust some of our subscribers will enter into correspondence with Mr. English on the matter.-ED.]

THE CUSTODY OF INFANT CHILDREN.

In the case of Rex v. Greenhill (4 Ad. & El. 625) it is laid down that the custody of a legitimate child belongs to the father, while that of an illegitimate child belongs to the mother. The mother had removed the children, who were legitimate, from the custody of the father, on the alleged ground that he was leading an immoral life, and would contaminate them. It appeared upon the affidavits that he had formed a connection with another woman, and had ceased to live with his wife, but he had not brought this woman to the home in which his children were. It also appeared that the mother was in every respect a proper person to have the care of her children. Thus the case was one of a father neglecting his conjugal and parental duties on one hand, and on the other of a mother duly performing hers. The authorities on the point were fully gone into and considered in the arguments of counsel and the judginents of the Court, and the decision is, that as there was no apprehension of cruelty or contamination of the children by the father, by some exhibition of gross profligacy on his part, he was entitled to have the custody of them. Although there was the illicit connection between the father and the woman spoken of, it was not pretended that she kept the house to which the children were to be brought, or that there was anything in his conduct so offensive to decency as to render it improper that the children should be left under his control. This case strongly illustrates the rule of our common law on the point, viz., that the proper custody of a child, not old enough to exercise a discretion itself, is undoubtedly the custody of the father, except where the enforcement of it would be most clearly injurious to the health or morals of the child. The law takes no notice of the mother's feelings, or even of the interest of the children, who, generally speaking, at such a tender age, look more to the mother than to the father for sympathy and aid and education. In a case in the Divorce Court (Cartledge v. Cartledge, 31 L. J., P., M., & A. 84) the rule was acted upon, to the extent of ordering an infant seven months old to be given to its father. The Judge Ordinary says, "There are certain principles to which I am bound to attend, and there can be no doubt that by the common law the father has a right to the custody of the child. The statute has given the Court discretionary powers to make orders for the custody of children pendente lite, and these powers are the same as are given to the Court of Chancery by the Act which is commonly called Talfourd's Act (2 & 3 Vict. c. 54). That discretion I must exercise, however, keeping in view the prima fácie legal right of the father, and to take that away the mother must establish something more than her mere maternal right."

A stronger case than this can hardly be put, for although the

H

mother was not nursing the child, she, of course, was, by every law of nature, the most fitting person to have the care of it, which yet she was precluded from having unless she would live with her husband. Access to it the Court would give her, but this permission, when it could only be made available by going to the house of a husband from whom she was seeking a judicial separation on the ground of cruelty, was little more than a mockery. The question was again very fully considered by Sir R. T. Kindersley, V.C., in the case of In re Curtis (reported 28 L. J., Ch., 459). There the Vice-Chancellor says-"Now, that this Court will exercise the jurisdiction is beyond all controversy. The cases which have most frequently occurred of the Court exercising it have been cases where the father, being of a perverted condition of mind in respect of religious or moral views or habits, is inculcating such habits and views upon his children in such a way as to be most grievously and seriously detrimental to them in after life as members of society. The Court will also interfere unquestionably where the father, although he may not, by teaching or example, tend to demoralise his children, treats them with such a degree of violence, harshness, or cruelty, as to appear utterly unfit to have the conduct or management of children." His Honour then considers very minutely the facts of the particular case, which appears to have been a case, if any can be put, in which it would have been better for the children to be in the custody of their mother, and decreed that he should have it.

The law, then, is clear as to the father's rights, and is but slightly affected by the provisions of Talfourd's Act. The law, however, only applies to children of such an age as not to be considered capable of exercising a discretion as to their custody. What this age was does not appear to have been clearly settled until the case of Alicia Race (26 L. J., Q. B., 169), where it was held that guardianship for nurture continues until a child has attained the age of fourteen, and that the guardian for nurture-the father, if he is aliveis entitled to the custody of the child during that period. The intellects of children may vary very much, but the Court cannot enter upon this consideration, and must lay down a rule which will be generally beneficial, although it may operate harshly in particular instances. Lastly, in the case of Hyde v. Hyde (29 L. J., P., M., & A. 150), Sir Cresswell Cresswell laid down the same rule :-"There are two or three cases in the book showing that before the age this child has attained, a child has a right to choose his own custody; but in the recent case of Alicia Race the Court of Queen's Bench held that the guardianship for nurture continues until the age of fourteen, and that a child has no right before that age to exercise his own choice as to quitting or remaining in the custody of his father."

Thus the rule of law on this subject is clear and settled. The father's conduct must be very decidedly immoral, and moreover, immoral at home, to deprive him of the custody of his children until the age of fourteen. He may be a gambler or adulterer elsewhere than in the house where his children are living, or have other vicious habits; but unless he so acts as to be likely to contaminate them, or is so violent as to be likely to injure them, he is their guardian, and entitled to their custody; and the mother must be content with entire separation from, or only occasional access to, her children, even at their tenderest age, unless she will live with her husband.

SECOND DISTRESSES.

SECOND DISTRESS WHERE FIRST ILLEGAL.

Ir is a well-established rule of law that a landlord cannot vex his tenant by levying two distresses for his rent where he might have satisfied his claim by the first distress. The rule against a double distress is founded on the supposition that the first distress could have been made available, but it was in a case in the Irish Courts contended that the taking of an illegal distress and the abandoning of it will prevent a subsequent legal distress for the same rent. This, however, has been properly repudiated by the Judges of the Court of Exchequer in Ireland. The case we allude to is Clooney v. Watson (3 Ir. Jur. 195.) There a landlord had distrained without complying with the provisions of the Irish Act of 9 & 10 Vict. c. 111, s. 10 (not having given the bailiff a written warrant, and the notice to the tenant being informal), the tenant replevied, and then the landlord gave the tenant notice that he did not intend to proceed with that distress, and tendered £1 6s. for the costs of the replevin. On the day after the landlord again distrained in a proper manner for the same rent. The Court held that the first distress being illegal and void, the second distress made for the same rent was not illegal. (Clooney v. Watson, 3 Ir. Jur. 195.) We will give the judgment of two Judges, as they state very clearly the principles and cases on this important subject. Pigot, C. B., said:"In this case it appears that a distress for rent was made on the 21st of September on a notice which did not pursue the direction of the statute, and, consequently, by the express terms of the Act, the distress was illegal and void. On the 25th or 26th of September a civil bill replevin was issued, the necessary bond was given, and the goods were restored to the possession of the tenant, according to the provisions of the statute for civil bill replevins. On the 27th, after replevin, and after the goods were restored, a notice was served