1876 In re Taylor, an Infant. M.R. future, where the wife was innocent, the court was to exercise a wider discretion, and consider other reasons besides; and Sir George Turner, in considering, in Re Halliday's Estate ('), the rule of the court applicable to that case, said there was to be kept in mind, first of all, the paternal right; secondly, the marital duty; and, thirdly, the interest of the children. Now it is quite plain that the two latter considerations were the grounds which induced the Legislature to interfere. The father had already sufficient protection by the common law. His rights were certainly large enough. Marital misconduct of a gross character, if it injured the children, was certainly provided for before, and therefore what the Legislature intended to provide for was the protection of the wife and children-for the petition was to be the wife's; and the child, of course, must have its interests protected and cared for: in other words, the only alteration in the law was, that you could have the custody of the children given to the wife; that is to say, she was the only person who acquired new rights; but of course, in deciding who 161] is to have the custody *of the children, you must have a great regard to the interests of the children. Well, that being so, what is the case before me? It is a painful case, as most of these cases are. The husband has abandoned his home and his wife for a long period, that is to say, for several months. He has abandoned her under circumstances which are suspicious as regards his own conduct, for it seems that shortly after that abandonment a suit in the Divorce Court was instituted against him by another gentleman, who alleged adultery with his wife. That suit is now pending. I do not wish any observation of mine to prejudice that suit in the least degree, and therefore I shall refrain as much as possible from making any observations upon it; but I must say that it does not lie in the mouth of a husband-who under these circumstances can only say that because the suit is pending he is advised by his solicitor to make no reference to the charge to which that suit relates-to accuse his wife of being jealous, or of exhibiting a jealous temper, even if she had done so. On the other hand, the wife says that as far as she is concerned, she hopes that the charge will be disproved, and she is willing to receive her husband back if he chooses to return home. Then what is the age of the child? The child is a little boy, rather more than three (1) 17 Jur., 56. M.R. In re Taylor, an Infant. 1876 years old. What is the interest of the child? Who is likely to take the most care of him-the mother or the father-under the circumstances existing in this case? As regards means, the mother and the father has nothing. father, who will maintain him. says, who will maintain her. are both upon a par. has an income of £60 a year I have no reason to doubt that the grandfather of the child will himself come forward, if necessary. I think, considering his position as a wealthy man, that he would not allow the child to starve whatever order I made; for both the paternal grandfather and the paternal grandmother are on terms of intimate friendship with their daughter-in-law, the mother of the child, and obviously wish well to her, and would be glad if she were well provided for. I do not for a moment hesitate in saying that I am satisfied that if I make this order the child will be properly maintained and educated; *but, inasmuch as I must regard the inter- [162 ests of the child, if it should appear that the child is not properly provided for or educated, I will give leave to apply. The next point that was urged upon me was that I was depriving the father of all control over the child. I do not intend to do anything of the sort, for I intend to give him free access to the child, and the grandfather and grandmother also, at all reasonable times. I should be very sorry that anything should alienate the child from the father or the father from the child, and if he has that right of access it appears to me he has got all that he is entitled to under the circumstances of this case. Of course, if the father and mother come together again, it is very easy to apply to the court. Therefore, I intend simply at present to give the custody of the child to the mother until further order, and, by analogy to Talfourd's Act, to give the father liberty to apply again with reference to a scheme for the education of the child when he attains the age of seven years; but I do not mean to intimate that I shall necessarily take away the custody of the child from the mother at that period. That must depend on the circumstances under which the application (should one become necessary) is made. His Lordship then made an order for immediate delivery of the child to the mother, with liberty of access at reasonable times by the father, and the paternal grandfather and grandmother, and also with liberty to apply for a scheme 19 ENG. REP. 94 Henderson v. Maxwell. M.R. 1876 for the maintenance and education of the child on his attaining seven years of age. The respondent to pay the costs of the petition. Solicitors for petitioner: Woodrooffe & Plaskitt. See ante, 224 note. 163] [4 Chancery Division, 163.] M.R., Nov. 9, 1876. *HENDERSON V. MAXWELL. [1875 H. 10a.] Copyright-Periodical—Infringement—Separate Publication of Serial—5 & 6 Vict. c. 45, ss. 18, 19, 24. A periodical or magazine is a book within the meaning of sect. 24 of 5 & 6 Vict. c. 45, and its proprietor, if he has, pursuant to sect. 19, registered the first number at Stationers' Hall, is entitled to restrain the publication without his consent in a separate form of a serial published in successive numbers of the periodical, the copyright of which belongs to him under sect. 18, although neither the serial nor the first number containing it has been separately registered. THE plaintiff in this case was the proprietor of a periodical or magazine called the The Orb, and employed C. Gibbons to write a serial story called The Verger's Daughter, for publication in successive numbers, upon the usual terms that the copyright should belong to and be paid for by the plaintiff. The first number of The Orb was duly registered at Stationers' Hall, as provided in 5 & 6 Vict. c. 45, s. 19. After the serial had been thus published in The Orb, the defendant, without the plaintiff's written consent, published for Gibbons the same work under the name or title of Dangerous Connections, and the object of the present action was to restrain its publication by the defendant as being an infringement of the plaintiff's copyright. Chitty, Q.C., and Rigby, for the plaintiff. Davey, Q.C. (Romer with him), for the defendant, took the objection that the plaintiff, having only registered at Stationers' Hall the first number of the magazine, but not the first number of the serial in question, was not protected by sects. 18 and 19 of the Act 5 & 6 Vict. c. 45, and that he had no right to restrain the defendant from publication of the serial in a separate form. JESSEL, M.R.: I think there is nothing at all in this objection. The 18th section in effect gives the proprietor of a 164] periodical a copyright *in the periodical. The result, therefore, is, that nobody can take any part of a peri M.R. In re Coleman and Jarrom. 1876 odical, whether it is the whole of an article or part, and publish it. The 19th section provides that the proprietor of the copyright in a periodical, if he registers the first number, shall be entitled to all the benefits of registration under the act. The 24th section provides "that no proprietor of copyright in any book which shall be first published after the passing of this act shall maintain any action. . in respect of any infringement of such copyright, unless he shall, before commencing such action, have caused an entry to be made in the book of registry of the Stationers' Company of such book," and so on. Here the proprietor of the copyright of a periodical seeks to restrain a separate publication of an article which is part of that periodical; but I am told that he cannot maintain the action until he has registered that article or the first number of the serial, and the date. That is out of the question. A periodical is a book within the meaning of the act, but the article or serial would be only part of the book, and it is unnecessary that it should be separately registered. Solicitors: Crowdy & Son; Linklater & Co. [4 Chancery Division, 165.] M.R., Nov. 18, 1876. *In re COLEMAN AND JARROM. [165 Will-Gift to "Children of A. who shall be living at my Death, or who shall have died in my lifetime leaving Issue living at my Death"-Presumption of Gift to Issue-Gift to Class capable of taking—Lapse—Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78). A testator devised five freehold houses to "all and every the children of my late brother J. C. who shall be living at my decease or who shall have died in my lifetime leaving issue living at my death in equal shares." By a codicil, after reciting that some of the children of his late brother J. C. had lately died without issue, the testator revoked his previous devise, and devised one of the houses to A., and the remaining four in the same terms as the original devise. Four children of J. C. were living at the testator's death, and one other child died in the testator's lifetime leaving children living at the testator's death: Held, that the four children who survived the testator took the whole property. Where there is a gift by a testator to a class, the rule is that those members of the class who are at his death capable of taking, take the whole, the gift being construed as showing an intention on the part of the testator that the class shall take so far as the law allows. SAMUEL COLEMAN, by his will, dated the 14th of July, 1868, devised his five freehold houses in Leicester "unto and to the use of all and every the children of my late brother Joseph Coleman *who shall be living at my [166 decease or who shall have died in my lifetime leaving issue 1876 In re Coleman and Jarrom. M.R. living at my death in equal shares as tenants in common in fee simple.' By a codicil dated the 9th of May, 1872, after reciting that some of the children of Joseph Coleman had lately died without issue, the testator revoked his previous devise of the five houses and, instead thereof, devised one of them to his wife's grandson, and the remaining four “unto and to the use of all and every the children of my said late brother Joseph Coleman who shall be living at my decease or who shall have died in my lifetime leaving issue living at my death in equal shares as tenants in common in fee simple. The testator died on the 31st of January, 1875. His brother, Joseph Coleman, had several children, of whom four were living at the testator's death, and one, Thomas Hunt Coleman, died in the testator's lifetime leaving children living at the testator's death. In June, 1876, the four surviving children entered into a contract for the sale of the four houses to Joseph Jarrom, who died before the completion of the purchase, having by his will devised all his real estate to trustees. In investigating the title to the property, Jarrom's trustees raised the objection that the vendors had not the whole of the property vested in them, but that the fifth share, which Thomas Hunt Coleman would have taken had he survived the testator, Samuel Coleman, was vested either in Thomas Hunt Coleman's issue, or in the testator's residuary devisee or heir-at-law. As the purchasers insisted on their objection, the vendors took out a summons in Chambers under the Vendor and Purchaser Act, 1874, to obtain a declaration that the objection was not a good and valid objection, and that they had deduced a good title to the property. The question was argued by counsel in Chambers, but at the request of the parties judgment was delivered in court. Cozens-Hardy, for the vendors: It is clear that the only persons included in the gift are children, and that the issue of a deceased child take nothing by implication. Had the 167] devise been to the testator's own children, the *property would, no doubt, by virtue of the 33d section of the Wills Act (1 Vict. c. 26), have gone to the children who survived him, and to the heir or devisee of any child who predeceased him. But the devisee who predeceased the testator, being a nephew, could not take. Lapse can only be excluded by clear words, and by a clear indication of the person to take in the place of the deceased legatee, Browne |