Mr. Pemberton and Mr. K. Parker opposed dent in a foreign country, from giving | to be a creditor of the late Mr. Cobbett, as effect to his wishes in the disposition of his having been employed by him in the manageproperty at his death, and to deprive him ment of his well-known publications. Mr. Bickersteth and Mr. Lovatt were for the of his testamentary privilege, which is so motion to discharge the injunction. highly favoured by the general law of this, and of most other countries. Without it. some more direct authority than which has been quoted, or with which this court is aquainted, I do not feel warranted to proceed to such a length." any In addition to these inconveniences, it is to be observed, that the testator would be under the necessity of making two wills, if he is possessed of both real and personal property; for it is admitted on all hands, that the law of the Situs must govern the will as to real property. A man therefore, who wishes to make his will at Calais, concerning real and personal property in England, he being domiciled at Calais, must have the advice of a French lawyer, as to his personal property, and an English lawyer as to his real property. If he dies there, that will may be enforced by the Courts of this country. But if he resumes his domicil in this country, and dies without making any other will, that will be of no avail as to the personal property, because he has changed his domicil, and the provisions of the domicilary law are to be the guide. [To be continued.] SUPERIOR COURTS. Ralls. An executor named by the testator, having been found to be in embarrassed circumstances, or having been heard to say he would apply the testator's estate to his own uses, may be restrained by the Court from dealing with the estates, on the application of a creditor, and a receiver may be appointed. This was a motion to discharge an injunction obtained by the plaintiff, to restrain W. Cobbett from dealing with the estate of his father, William Cobbett, lately deceased, on the ground suggested in the affidavits of the plaintiff, that he would waste the estate. The late Mr. Cobbett had by his will given to the defendant all his property, subject to the payment of his debts, and other charges in the will mentioned, and appointed him his executor, expressing his entire confidence in his integrity and honour that he would do what was right in the execution of the trust. The will was not yet proved. The plaintiff claimed The Master of the Rolls said, the question was, whether the plaintiff, who was a creditor upon the estate of the testator, William Cobbett, was entitled to the interposition of the tor's estate for the payment of his debts. Of Court for the purpose of securing the testathe existence of a debt due to the plaintiff there was no doubt; for it appeared that the testator had recognized and settled it up to a certain amount, and the defendant, William Cobbett, had himself, in several instances, acknowledged the plaintiff to be a creditor. The testator made his will in 1833, and in that will he expressed great confidence in his son, the defendant. A testator having a right to appoint his own executor, the rule of the Court was not to interfere with the administration of the assets, merely because the person appoined executor was in embarrassed circumstances. But where a testator had appointed a person his executor who became bankrupt in his lifetime, and the testator made no alteration in his will, the Court had gone the length of appointing a receiver for the protection of the property, on the ground that the will was made long before the commission, and that the testator could not have a deliberate intention to intrust the management of his property to an insolvent executor. In the present case, all the evidence of insolvency and difficulty, and especially the strong circumstance of the defendant's having gone under a feigned name, occurred subsequently to 1833. It did not appear from the defendant's own statement that he knew whether there were assets to pay his father's debts or not; he had stated no sums, and given the Court no information whatever as to the state of the property. The Court would go as far as it reasonably could tator of his executor, but where a party was in giving effect to the appointment by a tesactually insolvent, or where it appeared that the property of the testator was in such hands as no person would be willing to trust his own property to, the Court had not gone the length of considering such a person appointed executor, entitled to so much deference as that his claim to manage the property should be supported against the claims of creditors to have the property secured. If the assets were not more than sufficient for the payment of the testator's debts, the defendant was a mere trustee for the creditors. Though some of the facts stated in the plaintiff's affidavits were contradicted, there was enough admitted by the defendant to prove that the defendant was not in a situation in which he could safely be trusted with the management of the property for the creditors. If implicit credit could be given to the representations of the persons who had sworn that the defendant had declared his intention not duly to administer the pro 12 Superior Courte: K. B. Practice Court. perty, but to apply it to his own use, it would | ARREST WITHOUT PROBABLE CAUSE.-DEfen be quite immaterial to consider the question of insolvency. It was certainly singular, that if the defendant had any sucfi intention, he should have communicated it to the creditors; but the plaintiff and two other persons had sworn to expressions to that effect used by the defendant, and whether truly or falsely, it was impossible for the Court to disregard the statements upon oath made by three persons, and to take the contradiction of the defendant as conclusive. It was the duty of the Court to protect the property of the creditors, and the motion for discharging the injunction must consequently be refused, and a receiver must be appointed. Oldfield v. Cobbett, at the Rolls, July 31st, and August 1st, 1835. DANT'S COSTS.-PROOF OF MALICIOUS AR- On an application for the defendant's costs, The Court will not go into the question as to whether the finding of the jury was a just one. A rule had been obtained, calling upon the plaintiff to shew cause why the defendant should not be allowed his costs, according to the statute 43 Geo. 3, c. 46, s. 3. It appeared, from the affidavits on which the rule was obtained, that the plaintiff was a brewer, and the defendant a publican. The former called on the defendant, and, saying that he was desirous of introducing some ale into the London market of his brewing, requested him to endeavour to establish it, and to VERDICT.-REFERENCE.-ENLARGEMENT OF sell some "for him." The defendant con 1 King's Bench Practice Court. TIME. A verdict having been found, subject to a reference, and the award not having been made within the specified time, the Court will order judgment and execution to issue for the full amount of verdict, if the defendant shall refuse to consent to the enlargement of the time, if the arbitrator has accidentally omitted to enlarge the time for making his award pursuant to his power. Cause was in this case shewn against a rule nisi, which had been obtained for entering up judgment, and issuing execution for 1000, unless the defendant would consent to the time being enlarged for making the award. sented, and desired some to be sent to his house; ten barrels were accordingly sent, but it was soon discovered that the ale was not of a character to suit the public taste, and the defendant in consequence complained to the plaintiff, stating that he was unable to sell it. The latter then promised to send him some more of a superior description; and in a short time, accordingly, he received two half barrels of ale as a sample. This proved of an equally unsaleable quality as the former ale, and the In reply to this, the plaintiff begged of him to defendant again complained to the plaintiff. sell the ale "for him" as well as he could, and promised to take off 12s. per barrel in the It appeared that it was an action of trespass, price, rather than take it back. The defenand a verdict to the above amount had been dant, however, could only dispose of four barreturned, subject to reference. An order was rels of the ale altogether. The plaintiff subsethen made, which empowered the arbitrator to quently ordered a carrier to call at the defenenlarge the period pointed out for making the dant's house for the ten empty barrels, in award; but he suffered the proper time to which the ale had been sent; and on his elapse before he took any steps. The defen- calling, the defendant gave him the four empty dant's attorney then refused to consent to the barrels, and the six full ones to convey to the time being enlarged, and the rule in conse- plaintiff; but the latter refused to receive them quence was obtained; in opposition to which-into his premises. On the same day an affidaIt was now contended, that such a rule could only be granted when the action was brought for the recovery of a debt. A case was also cited, where, in the case of a verdict having been taken with damages, subject to a reference, the Court ordered a new trial, the arbitrator having omitted to make his award within the proper time. The Court said, that no doubt existed that the Court had the power to order the judgment and execution to issue for the whole amount of damages found by the verdict, if the defendant still objected to the enlargement of the time. As there was nothing objectionable in the conduct of the arbitrator, the Court would therefore make the rule absolute, unless the defendant consented to the enlargement. Rule absolute.-Wilkinson v. Time, T. T., 1835. K. B. P. C. vit of debt to the amount of 337. 1s. was sworn, trial, it was attempted to be shewn by the on which the defendant was arrested. On the plaintiff, that the custom was to charge a customer for barrels, when they were kept an unusually long time; but having failed in this point, the jury were directed to put the item of 10%. out of their consideration. The other question was, whether the sale of the beer was absolute, or whether, in point of fact, the defendant was merely employed to dispose of it for the plaintiff on commission. If the former, the amount to be recovered, exclusive of a sethave been 21/. 14s., but otherwise only 81. 188. off of 17. 78. admitted by the plaintiff, would The jury found a verdict for the latter sum only. Cause was now shewn against the rule, when it was contended, that even from the facts as set out upon the defendant's affidavits, the plaintiff would have had grounds to believe Superior Courts: K. B. Practice Court. 13 that he was entitled to proceed for the full by the plaintiff, Palmer, to endeavour to reamount which he alleged to be due. Further cover possession of the premises by ejectment, affidavits from the plaintiff were now sworn, and he accordingly affixed a declaration on the however, in which he stated that the sale was premises on the several demises of John Butler positive and absolute. No account was kept by and Palmer. Leigh then addressed himself to him of the sale of the ale. It was a sufficient the attorney, and, upon representations that he answer to the rule to shew, that reasonable should lose the money he had advanced, evencause existed on the part of the plaintiff to tually succeeded in procuring the proceedings proceed against the defendant for the full to be stayed, upon his undertaking to perform amount, and that there was a fair question to the covenants which had been broken, and to try thereon. The latter question, as to whether pay the costs in the whole of the proceedings the sale was real or not, was, it was contended, on this agreement. The bill of costs in the set at rest by the defendant's shewing no ac-ejectment was then made out to Palmer, and count of the sale of the ale, and by his not was delivered to Leigh, who paid it. He then claiming any sum for commission. With re-entered into a written agreement with C. S. gard to the defendant's liability for the value of the barrels, it was a question of law; and it had been held, that where a defendant had been arrested under a misapprehension of a doubtful point of law, the plaintiff could not be called upon, on failure, to pay the defendant's costs. The Court, without hearing the arguments on the other side, said that they could not go into the question whether the finding of the jury was correct or not, but must take the facts to be as found by them. If the plaintiff had desired to shew that the jury had come to a wrong conclusion, it was his duty to take steps to set aside the verdict. The onus of shewing the plaintiff had proceeded improperly against the defendant, rested with the latter, and the Court was of opinion that it had been sufficiently shewn. The rule must therefore be made absolute. Rule accordingly.-Twiss v. Osborne, T. T., 1835. K. B. P. C. TAXATION. VARIOUS CHARGES. ONE TRANSACTION.-ONE BILL. The Court has power only to order a bill to be A rule had been obtained requiring C. S. Butler, an attorney of the Court, to shew cause why the several bills of costs in this cause, and in all other matters delivered by him to William H. Fosbrook and Philip Leigh, should not he taxed, and why he should not refund any sum which he had received, over and above the proper amount of such bills. It appeared from the affidavits, that the facts of the case were as follows: Fosbrook had become the assignee of a lease of some premises which he had formerly rented of John Butler, but which afterwards came into the possession of the plaintiff, Palmer. Leigh had made some advances in money on the lease to Fosbrook, who, however, subsequently broke through some of its covenants, and left the premises. The attorney, C. S. Butler, was then directed Butler on behalf of Palmer, that he would take a new lease, and would pay all costs attending the surrender of the old one and the granting of the new one. The necessary writings were now also prepared by C. S. Butler, who delivered his bill to Leigh, which he also paid when the deed of surrender was executed by Fosbrook. The third bill was for the expences of the lease, and was likewise paid by Leigh, as well as the fourth for the registry, memorial, &c.; these bills, although paid by Leigh, were all addressed to Fosbrook, at his request. After all these proceedings had been accomplished, Leigh for the first time desired that the bills should be taxed. This was, however, refused, and he in consequence took out a summons for that purpose, when on its being heard at chambers, it was alleged that the application was on behalf of Fosbrook, and that Leigh was acting as his attorney. The order was eventually made, that the first bill for the costs of ejectment should be taxed; but it was not acted upon, and the parties having suffered a considerable period to elapse, now again applied that all the bills might be taxed. Cause was now shewn, when it was submitted, that no power existed with the Court to order any of the bills to be taxed, and that the order made at chambers could not be supported. The act 2 G. 2, c. 23, s. 23, was referred to, by which it was clear, that the Court could only send an attorney's bill for taxation when the relation of attorney and client existed between the parties, and when the business was done in the Court where the application was made. No such relation existed in the present case, Palmer being the client of C. s. Butler. A case was cited where that principle was supported by the Court, and where a bill having been paid, as in the present case, the Court held, that a party was not competent afterwards to apply to have his bill taxed as between attorney and client. The one party in that case had consented to pay the bill of the other's solicitor on a compromise, and the Court had therefore held, that that act could not make him that solicitor's client. Another case had also been decided, where the defendant had agreed to pay the plaintiff's costs on a compromise, and a considerable time after the payment was made he applied to have the bill taxed, alleging that there were some fraudulent charges contained 14 Superior Courts: K. B. Practice Court.-Notes of the Week. NOTES OF THE WEEK. LAW LECTURES. therein. The Court, however, had refused to grant the application, on the ground that the payment of the bill had formed a part of the agreement, and could not therefore be set aside. A number of other cases were also pointed out, in which it was contended, that al- We observe that at no less than three though the facts differed, the principle sup- institutions in the metropolis, the Law Stuported was the same. On the authority of dent may now derive the advantage of Pubother cases, it was also submitted, that a lic Lectures. Supposing that the learned period of three months having elapsed since the payment of the bill, the Court had no Lecturers pursue a practical course, we power to interfere, unless upon positive proof doubt not that the rising members of the of fraud or gross overcharge. No such proof Profession will be much benefited by their was tendered in the present instance. A fur- labours. It may be doubtful whether the ther point which was argued for the considera- mere elements of the law can be better tion of the Court, was, whether an order hav-taught in the lecture room than in the ing been made for the taxation of the first bill, chambers of counsel, or by private study. which was the only one containing common We are not, however, for separating an aclaw charges, the Court would now interfere, unless it was shewn, that that bill was taxable quisition of the principles of the law from at the instance of Fosbrook or Leigh, and that its practice; but it is manifest in the preall the bills should be considered as one. sent day that no large number of the legal There was no connection between the first bill profession will be induced to congregate, and the others, the latter containing convey- unless the matter laid before them can be ancing charges only, having been incurred entirely on the responsibility of Leigh, while the practically applied. The important changes charges in the former were solely incurred by made in the law by recent Acts of Parliament and Rules of Court-the new decisions which are from time to time pronounced in the several Courts of Law and Equity,— and the practice of Conveyancing, which is not perfectly detailed in the Books;these are the subjects on which Lectures should mainly be delivered, and they are equally interesting to the active Practitioner and the Student or Articled Clerk. Be this as it may, we are glad to find that our younger brethren have the means placed before them of facilitating, at least, the acquisition of legal knowledge, and enabling them, by due diligence, to become well skilled in their professional duties. Palmer. In support of the rule, it was contended, that the relation of attorney and client, was sufficiently established by the arrangement made between the parties. The attorney being an officer of the Court, they surely possessed the power to order his bill of costs to be taxed. Cur, adv. vult. The Court, in giving judgment on a subsequent day, said, that whatever private understanding might exist between Leigh and Butler, Fosbrook should be considered as the party charged by the latter. The bills should have been delivered all as one. The objection made, that the Court had no power to order the taxation of the bill of costs, must prevail. C. S. Butler could not have delivered any bill, nor maintained any action for his costs in We observe that Mr. Preston has comejectment against Fosbrook, until after judg-menced a course of Lectures at King's Colment had passed against him, provided he had defended the action; he would then have paid the costs, which would have been taxed as between party and party; but he could not entitle himself to have them taxed as between attorney and client, because one of the terms of the agreement was, that he should pay the bill of costs. Nothing of a taxable nature appeared in the other three bills. The amount of charges in the bills was not, perhaps, satisfactory; but if Leigh has forfeited the interests of Fosbrook to his own, or if Butler had been guilty of any fraud or extortion, proper remedies existed against both of them. The case might have been disposed of on the ground of the delay, but sufficient reason had already been shewn in addition to that ground. lege, in which, as stated in his Introductory Lecture, he will explain the Maxims and Precepts of the English Law, and the legal expressions and phrases which require to be simplified, in order to be understood by the beginner: next the History of the Law, examining the useful part of Bracton's learned work, and shewing the changes which have taken place in the law since his time: the Form and Language of some species of Assurance, &c. &c.; and the Rules of Law, and also the decisions by which the practice is governed. Mr. Lumley, the Law Professor at the University of London, has arranged his Rule discharged.-Doe dem. Palmer v. Roe. | lectures into two classes: the first, on the T. T. 1835. K. B. P. C. Rights of Persons and of Personal Property; and the second, on the Law of Real Property, and the modes of enforcing rights and redressing wrongs. At the Incorporated Law Society there | jurisdiction; as trusts, forfeited mortgages, are three Courses of Lectures.-On Con- &c. 2nd. In matters of concurrent jurisdiction, veyancing, by Mr. Wilde, who intends to give a practical illustration of the Law relating to Mortgages, and the granting of Leases for Lives and Years, and to instruct the young solicitor in the duties which will be required of him when he enters upon the practice of his profession, whether concerned for the mortgagor or mortgagee, the lessor or the lessee. The points which it appears will be principally explained are:The persons by and to whom mortgages may be made; the property which may be the subject of a mortgage; the form of the mortgage deed, and the powers and covenants which it ought to contain.- The persons by and to whom leases may be made; the enabling and restraining statutes; the form of the lease; the reservation and apportionment of rent; the covenants and restrictions which should be contained in the lease; the relief which will be afforded in equity; and the circumstances under which an instrument, although bearing the form of an agreement, and expressly referring to a future lease, will be considered as operating as a present demise, and not as an executory contract. as, account, contract, fraud, &c.; originat- 2. We heartily wish success to all these gentlemen, and feel assured that their labour must reflect honor on themselves, whilst it confers advantage on their pupils, and enhances the credit of the profession. Mr. Jardine, the Common Law Lecturer, has selected for his subject the Law of Evidence, which, we understand, will be com-petuam memoriam. prehended under the following general heads:-1. An illustration of the principles of judicial evidence in general: 2. The origin, history, and gradual development of the system of evidence adopted by the English law: 3. A detailed account of the most important practical rules prescribed by the Common and Statute Law upon the subject of Evidence, and a statement of the reasons and principles upon which they are founded. COMMENCEMENT OF BUSINESS. Michaelmas Term commenced on Mon The lectures under the last head will treat day last, and business has begun again in fully of the competency and credibility of all quarters. The Vice-Chancellor had prewitnesses, and of the restrictions and limi-viously given ten days of his vacation to tations imposed with respect to the nature the disposal of certain kinds of equity matand quality of facts to be conveyed to a jury. The Equity Lectures will be delivered by Mr. E. J. Lloyd, who thus announces his plan: One or more preliminary lectures will be devoted to an explanation of the distinctions between natural equity and equitable interpretations of the written law (common to all Courts of Justice), and that system of law which is adminstered in Courts of Equity; and toa brief exposition of the kinds and limits of the jurisdiction of those Courts, and especially of the Court of Chancery, under the following heads:-1st. In matters of exclusive ters. We consider, however, that this abridgment of the usual time allotted to the lawyer for repose, to be attended with little benefit. The learned Judge, however, deserves full credit for making the sacrifice of his own leisure for the benefit of the suitor. The reason of this premature commencement of business was, the time which his Honour had devoted to the Lords Commissioners' Court. We have already frequently pointed out the inconvenience to the profession and the public of the present Equity arrangements, of which this has been one. |