x. MACKAY, Colonel Mackay and the other guardians have, under trying CAMPBELL circumstances, shown much temper, moderation, and self-command, as well as fairness, in the execution of the delicate and important duty cast upon them by the testator. In all that they have done, they appear to have had no other object than the welfare of the children. The Court will be desirous as far as possible, to consult the feelings and wishes of the mother, but that desire will not induce it in any particular to depart from the course which it may think most conducive to the interests of its wards. If Lady Dorothea can bring herself to co-operate with the other guardians, and readily assist in carrying into effect such plan for the education of her children as the Court may approve, she may be assured that she will be doing that which her duty towards them requires, and that which is most likely to promote their welfare and to secure to herself the pleasure and satisfaction which can only result from their future prosperity. JACKSON v. HANKEY. (Reported anonymously in Jacob, 264-265.) Conditions under which the Court has allowed the father of a ward to take the ward out of the jurisdiction. 1821. August. Privately heard by Lord ELDON, L.C. [IN this case, which is reported anonymously in Jacob, 264— 265, as having been heard in private by the LORD CHANCELLOR [Jacob, 264 ] in August, 1821, the mother of infant children who were wards of Court] was possessed of a considerable property, settled to her separate use; the mother and father were living separate, and the income of the latter was small. A petition presented by the mother in the name of herself and the infants, prayed that they might be placed with her, or that it might be referred to the Master to approve of a plan for their education, and to appoint a proper person to have the care of them, the mother offering to provide for their maintenance out of her separate income; it also prayed that the father might be restrained from taking them out of the jurisdiction. It was urged, as one of the grounds in support of the petition, that the father's income was JACKSON v. HANKEY. [265] not sufficient to enable him to give the infants an education suitable to their situation in life and to their expectations, and that it would therefore be for their benefit that their mother's proposal should be acceded to. [The Attorney-General and Mr. Raithby were counsel for the father; Mr. Heald and Mr. Jacob on the other side.] His Lordship refused the application, but added, that his decision was without prejudice to any other application or proposal which might be made, in case of any permanent provision being made for the infants. As to the father taking them abroad, there was no difficulty about that; as they were wards of the Court, he must be restrained from doing that. And he had no difficulty in saying, that, as they were wards of the Court, and therefore under its protection, and recollecting that children ought to be brought up in dutiful obedience and warm affection towards both parents, he would not allow the father to take them so out of access as not to have opportunities of nourishing those feelings. If any complaint was made of want of access, that might be remedied. The father being some time afterwards appointed to a situation in his Majesty's service, which required him to reside abroad for several years, petitioned for leave to take the infants with him. He stated that he was desirous of being reconciled to his wife, and it appeared that he had with that view made some overtures to her, which she had declined. The matter was several times mentioned before the Lord Chancellor, and his Lordship ultimately ordered that the father should be at liberty to take the infants abroad with him, undertaking to bring them, or such of them as should be living, back with him; and he was half-yearly to transmit, properly vouched, to be laid before the Court, the plan of tuition and education for each of the infants, actually adopted and in practice at the time of such half-yearly returns, specifying particularly where and with whom they resided. EWING . OSBALDISTON. (2 My. & Cr. 53-88; S. C. 6 L. J. (N. S.) Ch. 161; 1 Jur. 50.) An agreement for an illegal partnership will not be enforced even if it has been partly performed. [THIS case is reprinted only with reference to the point stated in the head-note. It is not thought needful to reproduce the facts in detail, or the arguments.] THE LORD CHANCELLOR : The object of the bill in this case is to establish a partnership with the defendant in the performances at the Surrey Theatre, from the 10th of December, 1831, and to have the accounts incident to such partnership taken; to have proper articles executed for the future; to remove the defendant from the management of the theatre, and to appoint a manager in his place; or to have the partnership dissolved and the affairs of it wound up. [His Lordship then read the correspondence and evidence showing that the plaintiff had paid considerable sums of money (amounting to 1,000l.) to the defendant upon the faith and for the purposes of the alleged partnership; and he continued his judgment as follows:] From this correspondence and this evidence it is clear, first, ⚫ that the performances, as they had been carried on at the Surrey Theatre, before the contract between the plaintiff and the defendant, and as they were intended to be carried on under that contract, consisted of all the ordinary descriptions of theatrical representations; secondly, that the plaintiff knew this before he entered into the contract, or paid his money, and knew that such theatrical representations were contrary to law; and that the intention of both parties was to continue such representations. Two questions only can be for consideration in this case. First, were these representations in fact contrary to law? Secondly, if they were, can the plaintiff in this suit be entitled to any decree? Upon the first point, his Lordship referred to various Acts of Parliament (since repealed) which prohibited certain 1836. May 6, 9, 27, June 1, 4. 1837. Jan. 18. Lord COTTENHAM, L.C. 1837. Jan, 18. [ 80 ] [82] [83] EWING t. OSBALDIS TON. [87] [ *88 ] theatrical representations, and which, in his opinion, were clearly violated by the representations which the partnership was formed to produce. And upon the second point, after referring to the authorities which had been cited, his Lordship said:] It is, therefore, impossible that the plaintiff can be entitled to any decree which shall be founded upon or growing out of this contract. But it was said that some of the purposes were legal, such as the purchase of the lease and of other articles about the theatre, and that so far as the business of the partnership was lawful, the contract ought to be carried into effect, and Knowles v. Haughton (1), was cited for that purpose; but, in that case, the business of brokers was entirely distinct from that of insurers, whereas, in the present case, every part of the joint transaction was auxiliary to, and in execution and furtherance of, the illegal object; besides which, the lease then existing has expired, and there is no evidence of any new lease having been granted, and the answer says that it has been refused. In De Begnis v. Armistead (2) the plaintiff was not permitted to recover money actually paid, at the request of the defendant, in furtherance of the illegal object, such as for the dresses and travelling expenses of the *performers, though he was permitted to recover a sum of 30l. paid for the personal expenses of the defendant. It was then urged that the plaintiff ought at least to recover the money he had advanced; and it was said that he had a lien for it upon the property purchased. If the plaintiff be entitled to recover back the money paid, and that right be a personal demand against the defendant, this is not the Court in which such a demand can be enforced; and as to the alleged lien, it is sufficient to observe that no such case is made by the bill. If it had been, it is difficult to imagine how such a case could have been supported, consistently with the ground upon which the Court declines to give to the plaintiff the benefit of his contract; for such, undoubtedly, would, to a certain extent, be giving him the benefit of it. The mere payment of the money can give no lien. You must, therefore, look to the contract to raise the question of lien; and if the plaintiff be entitled to any lien, (1) 11 Ves. 168. (2) 38 R. R. 406 (10 Bing. 107). it must be upon or in consequence of the illegal contract; but I do not consider this question as before me. It is undoubtedly a case of great hardship upon the plaintiff to have parted with his money, and now to be denied the fruits of it; but this hardship is common to all cases of contract which cannot be enforced, from their illegality. It was stated at the Bar, and, I believe, stated in the answer, that the defendant had offered to return the money advanced by the plaintiff. As an honest man, this was, and clearly is, his duty; but in this suit I have no power to enforce it. I think the judgment of the VICE-CHANCELLOR supported by principle and authority; and I must therefore Dismiss this appeal with costs. EWING v. OSBALDIS TON. IN THE MATTER OF JEREMIAH NEWMAN, A LUNATIC. (2 My. & Cr. 112-117.) 1836. Aug. 9, 13. 1837. Feb. 4. Lord L.C. [112] Principles by which the Lord Chancellor, when protector of a settle- COTTENHAM, ment in the place of a lunatic, will be guided, in giving or withholding his consent to a deed of disposition under the Fines and Recoveries Act. THE petition of Charles Seale and Edith his wife, stated that William Newman deceased, by his will, dated the 2nd of July, 1810, devised to Samuel Jones and Thomas Dowle, his messuage and farm called Walton's Hill, and all his free lands and hereditaments occupied therewith, situate in the parishes of Deerhurst, Elmstone, Hardwicke, and Lye in the county of Gloucester; and also all his lands in Artersfield and Britsfield, and his free lands in Wickham in the parish of Deerhurst aforesaid, with all the appurtenances, or the allotment set out in lieu of those lands under the Deerhurst Inclosure Act; to hold the same unto Samuel Jones and Thomas Dowle, and their heirs, to the use of his (the testator's) son Jeremiah (the lunatic) and his assigns, for his life, with remainder to the use of trustees to preserve contingent remainders, with remainder to the use of all and every the children of his son Jeremiah, in equal shares and proportions as tenant in common, and the heirs of their |