maternal grandmother), is not even suggested; and it must be remembered that she was the proper person to interfere for the infant. I am therefore glad to be able to hold that the infant's adoption of the proceedings prevents him from now objecting to what was actually done.

Further, the Statute of Limitations is pleaded; certainly, in one of the very last cases in which one would have expected such a plea. I think that the statute would not run while the proceedings were going on with Mr. Jeffries on the record as the Plaintiff's solicitor, and the receiver in possession; though, as a matter of fact, the solicitor took no step within six years of the present time. This seems to me the true conclusion on principle, and in conformity with Harris v. Quine (1). If so, the statute did not begin to run till the death of Mr. Jeffries in August, 1866, and the plea fails.

Further, it is said the right is personal to the solicitor, and is not extended to his personal representatives. I should have thought that argument a very strong one if the law had now been in the same state as it was before the 6 & 7 Vict. c. 73; because the right to a lien might well have been held under that statute correlative to the liability to taxation. But the law is altered, and the argument seems to me unfounded.

Lastly, it is said that a voluntary conveyance before the charge is declared defeats it. I cannot so read the statute. To do so appears to me inconsistent with the true construction of it, and

with the authorities.

It occurred to me during the arguments that the Petitioner was bound to shew the incapacity of the next friend to pay, or, at least, an attempt to make her pay, these costs before coming to assert the charge in respect of them. But if the Plaintiff has adopted the proceedings the next friend has become a mere surety; and it cannot lie in his mouth to say that the remedies against her should be first exhausted.

The Plaintiff was tenant in tail in possession, and disentailed the property when he came of age, for the purpose of making a voluntary settlement. This may or may not have let in the Petitioner's claim as a charge on the fee simple; but whether it did or (1) Law Rep. 4 Q. B. 653. 2 P

VOL. XIII.

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not is immaterial for the purpose of the order I have now to make; though of course it might, under certain circumstances, become important. I make the usual order.

Solicitors for the Petitioner: Messrs. Vizard & Co.

Solicitors for the Plaintiff and Defendant: Messrs. Dobinson & Geare, agents for Mr. John Williams, Brecon.

HAMILTON v. HECTOR.

[1871 H. 152.]

Separation Deed-Custody of Children-Lawful Agreement-Specific Performance-Covenant to deliver up Private Documents-Making and Retaining Copies.

The Court will enforce a legal and proper covenant in a separation deed although other covenants in the same deed may be illegal.

By a separation deed, made after the wife had instituted proceedings in the Divorce Court for divorce and the custody of her children, the husband covenanted to deliver up forthwith to his wife all her journals, diaries, and private correspondence and memoranda; that the elder two children of the marriage should remain at such schools in England as the husband, or such schools elsewhere as the husband, with the consent of the wife, should direct; that the husband and wife should each have access to them at all reasonable and convenient times, subject to the regulations of the schools; and that their holidays should be passed by them at such places and in such manner as the trustees of the deed should direct; and that the younger two children (who were respectively under the age of seven years) should remain in the custody of the wife :—

Held, that the husband was not entitled to make or retain copies of the journals, diaries, and memoranda covenanted to be delivered up:

Held, also, that having regard to the evidence with respect to the husband's misconduct, the covenants with respect to the holidays of the elder two children were reasonable and proper, and would be enforced by the Court, even if the covenant as to the custody of the younger children were not legal, as to which however the Court expressed no opinion.

Vansittart v. Vansittart (1), and Swift v. Swift (2) considered.

ANNE HECTOR, one of the Plaintiffs in this case, was, in 1858, married to the Defendant Alexander Hector, and there was issue of the marriage four children, of whom the younger two were under seven years of age. In October, 1870, Anne Hector gave instructions to her solicitors to present a petition in the Divorce Court, first for a judicial separation, and afterwards for a divorce, from Alexander Hector; the draft of such petition was prepared and signed by counsel; and the prayer thereof, as finally settled, was for a divorce and the custody of the children of the marriage. She also filed a bill in Chancery against her husband (2) 34 Beav. 266; 34 L. J. (Ch.) 394.

(1) 4 K. & J. 62; 2 De G. & J. 249. VOL. XIII.

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March 1, 4.

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to set aside a certain appointment, as having been obtained from her by undue influence. After some negotiation between the HAMILTON parties they agreed to live separately, and a separation deed was executed by them. This deed bore date the 10th of December, 1870, and was made between Alexander Hector of the first part, Anne Hector of the second part, and A. Hamilton and F. Jones, as trustees, of the third part, and contained covenants by Alexander Hector (amongst others) that Anne Hector might thereafter live separate from him, and that he would not seek to enter her residence, except with the written authority of the trustees, for the purpose of seeing either of the children; and that he would, upon the execution thereof, deliver over to her, or as she should direct (amongst other things), all her journals, diaries, and private correspondence and memoranda for her own absolute use and benefit. The deed contained covenants as to the property of the husband and wife; and also covenants that the elder two children should, subject to such powers as were conferred upon the trustees, remain in such schools in England as Alexander Hector, or such schools elsewhere as Alexander Hector, with the consent of Anne Hector, should from time to time direct; and that each of them should from time to time have all reasonable access to and communication with the said children, subject, nevertheless, to the ordinary regulations of the respective schools; and that the holidays of the children should be passed by them at such places and in such manner as the said trustees should from time to time direct, having regard, as far as practicable, to the wishes of each of them the said Alexander Hector and Anne Hector; and also that the younger two children should remain in the custody or under the control or charge of Anne Hector so long as the trustees should think proper, but that Alexander Hector should from time to time, but at convenient and reasonable times, have access and communication with them: Provided always, that if any disputes should arise between them as to the times and manner in which Anne Hector should have communication with the elder two children, then such disputes should be settled by the trustees: and further, that it should be lawful for the trustees, if any circumstances should arise which in their opinion rendered it absolutely necessary for the welfare and interest of the children that the elder

two children should be removed from the custody or control of Alexander Hector, or the younger two children from the custody, control, or charge of Anne Hector, or from the school at which they might be, to remove any of the four children accordingly, and to place the child so removed under such control, custody, or charge, or at such school as the trustees might think fit; but they were not to exercise this power as regards the elder two children unless Alexander Hector should become incapable or unfit to manage his own affairs. And it was agreed that the bill in Chancery should be dismissed, and that Anne Hector should not institute proceedings for a judicial separation or divorce so long as she lived separate from Alexander Hector; and that the trustees should indemnify Alexander Hector against the debts and engagements of Anne Hector.

The elder two children (a son and a daughter) were placed in schools chosen by Alexander Hector. Alexander Hector gave directions that these children should not be allowed to see or communicate with Anne Hector except (as to his daughter) in the presence of a third person. He also refused to allow them to pass any part of the holidays at Christmas, 1870, with Anne Hector; and the following Easter holidays were passed by the children with Alexander Hector. In April, 1871, the solicitors of the trustees applied to the solicitors of Alexander Hector, asking for a definite arrangement as to the Midsummer holidays. Another letter was sent in May; but no answer was returned to either letter. On the 26th of May the trustees sent notice to Alexander Hector that they directed that the first four weeks of the children's coming Midsummer holidays should be passed with Mrs. Hector and the rest with Mr. Hector. On the 13th of June the bill in this suit was filed by Anne Hector and the trustees of the deed of separation, and by the four children, against Alexander Hector, praying that the trusts of the deed might be carried into effect, that Alexander Hector might be ordered to deliver up to the Plaintiff Anne Hector all articles covenanted to be delivered up by him, and for an injunction to restrain him, first, from preventing Anne Hector from having access to or communication with her elder two children, or either of them, at their respective schools, subject only to the regulations mentioned in the deed of separation; and, secondly,

M. R.

1872 HAMILTON

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HECTOR.