150 Law of Attorneys and Solicitors.-Law of Costs. considered a question entirely between the solicitor and the person liable to pay such moiety. "15. It does not appear to me that the petition presented by Mr. Ford for the order to "9. If, however, the liability be joint, the solicitor makes out one joint bill against all the clients, and whether he sues them at law, or proceeds against them in this Court under the Statute, his proceedings must, I appre-tax the bill (to which I have referred), contains hend, be against them jointly. "10. And, on the other hand, it has been decided, both in Equity and at Law (Re Chil cote, 1 Beav. 421; Hobby v. Prichard, 2 M. & W. 124), that one of two persons jointly liable on a solicitor's bill cannot have an order to tax, because the solicitor is entitled to the undertaking of all to pay (although, no doubt, under special circumstances, as in case of a paid bill (Re Stephen, 2 Phill. 562), or, probably so, on the petitioner bringing the amount into Court, taxation would be ordered. "11. After judgment on a joint bill, whether in this Court under the Statute, or at Law, the solicitor could undoubtedly levy his whole demand against one defendant, but such defendant would, in such case, be entitled to contribution over: Edgar v. Knapp, 5 Man. & G. 753. "12. And when a solicitor sues his client for his bill at law, and his client disputes his liability to the whole or any portion of the demand, he may have the bill taxed without prejudice to his liability, and may afterwards try before the jury whether he is liable to pay the whole, or any, and what portion of the bill, the items of which have been so ascertained by the taxation; but in this Court the amount and the liability are both to be ascertained by the Master. "13. It appears to me, therefore, that the position that the solicitor in this instance could at law have recovered his whole bill against any one of his clients, must be made with great reservations, and must depend on the circumstances of the case (whether the liability be joint or several is a question for the jury: see Hillings v. Gregory, i Car. & P. 627). any admission which varies or increases his original liability, whatever that may be. He says that he, the petitioner, employed Mr. Colquhoun to defend him in a certain suit, wherein A. was plaintiff, and B. and others were defendants; that the solicitor had delivered him a bill of fees and disbursements, which contains many extravagant and unreasonable charges, and he prays for taxation, being ready and willing to pay what may be found due from him; and the order thereupon directs the taxation and an account between the parties, and that the solicitor gives credit for what he has received on account from Ford; but it is to be observed that if Ford was to pay the joint bill of himself and others, he would be entitled to credit for anything which might have been paid on account by the parties jointly liable with him. If the demand were a joint demand, this order might, I apprehend, have been discharged by Mr. Colquhoun for irregularity; but while it stands, it is, I think, sufficient to warrant the finding against Mr. Ford of whatever may be jointly due from him in either view of the case, though, for the reasons above given, I do not think it in any way varies his original liability. "16. It seems to me that it must be a question for your Honour's consideration, whether, under the circumstances of this case, the petitioner should be allowed, if they desire it, a further opportunity of showing the circumstances of Mr. Ford's retainer, and of esta blishing against him, if they can, a liability to pay anything more than his own share of the costs; but, in the absence of any evidence to that effect, the taxation appears to me to have been made in accordance with the long-established practice of the Court, from which, except on sufficient legal proof to vary the liability, I apprehend the Master has no discretion to depart." LAW OF COSTS. COMMISSION OF LUNACY AFTER LU- "14. The allegation in the petition of appeal that each defendant is severally liable for the whole of each general fee or proceeding, so that the amount be not increased by its being taken on behalf of several persons, and not to the proportion only, does not appear to be in accordance with the practice of this Court, or with the practice of the Courts of Law. If a bill against two defendants appearing by the same PROOF IN CREDITORS' SUIT FOR COSTS OF solicitor be dismissed with costs against one, and without costs as to the other, all the general costs are divided, though if there had been only one defendant, the amount would have been the same: Harmer v. Harris, 1 Russ. 155; so, in an action at law, if the verdict be for one defendant and against another: Griffiths v. Jones, 2 Cr. M. & R. 333; Starling v. Cozens, 2 Cr. M. & R. 445; so, in the com- 1 De G., MN. & G. 537). She afterwards mon case of an attorney attending at the as- died, and under the common decree in a cresizes to try two actions for two distinct clients, ditors' suit which was instituted, the husband the expenses of his journey and attendance are of the administratrix tendered a proof for the equally divided, and a moiety only charged to UNDER a Commission of Lunacy which had issued against Mrs. Catherine Cumming, she had been found lunatic, but leave had been given her to traverse the inquisition (reported each. And in none of these cases is it ever costs incurred in the lunacy, which had been taken into consideration whether the remaining paid to the solicitor for the petitioners for the moiety will ever be received or not, that being Commission, and the solicitor also tendered a Law of Costs.-Legal Obituary.-Grievances of Jurors. 151 proof for the residue of his bills of costs. The the death of the Hon. E. Law, M.P., the late Vice-Chancellor Stuart declined to admit the Recorder of London, Mr. Cowling, who in poproof until application to the Lords Justices, litics was a Conservative, announced himself under the reservation in the order of lunacy. as a candidate, and would have received powerLord Justice Knight Bruce said :—"I think ful support, but he withdrew in a very handthat the costs and expenses, to a proper amount, some manner in favour of Mr. Wigram. were incurred for the benefit of the lunatic." The order was therefore made for taxation: the plaintiff's solicitor in the creditors' suit to be allowed to attend. In re Cumming, 5 De G., M'N. & G. 30. Mr. Cowling was appointed Deputy High Steward of the University of Cambridge in 1839. He also held the honourable post of Standing Counsel to the University, to which office he was appointed in 1835. He was distinguished for his scientific and OF SUIT TO SET ASIDE ANNUITY AS VOID profound knowledge of law, and the accuracy FOR RETURN OF CONSIDERATION. and logical ability with which he brought it to Upon a bill to set aside a deed securing an bear on every case in which he was engaged. annuity, on the ground of being void by rea- He was of a diffident temper and characterised son of the return of the consideration, under uniformly by simplicity of character and hothe 53 Geo. 3, c. 141, s. 6, the Lord Chancellor, nour both in private and professional life. No not being on the whole satisfied that the plain-member of the Bar was listened to by the tiff had established the return of the consider- Judges with more manifest respect than Mr. ation, dismissed the bill without costs, on the Cowling, and few have been more distinguished ground, that in a transaction of the nature of by the tact with which he detected the weakthe one in question, the defendant was bound ness of an opponent's case and vindicated his to have been prepared with clear proof in sup- own. One of his latest arguments was at the port of his title. Pennell v. Smith, 5 De G., close of last Term,-the very important one MN. & G. 167. of "Hilton v. Eckersley," in error from the Queen's Bench, the question turning on the right of counter-combination by masters against their men, and which stands over for judgment till next Term. His argument was a masterly one. LEGAL OBITUARY. DEATH OF MR. COWLING. GRIEVANCES OF JURORS. THIS eminent member of the Common Law Bar died on Wednesday night, the 12th inst., For the last few years he has been spoken of at his house in Albemarle Street. His unex- as likely to be raised to the Bench, and no pected death was attributed to some spasmodic one's elevation would have secured a greater affection of the heart. Though he had suffered share of professional approbation. during the last week from a bronchial affection, it had not interfered with his attendance in Court during the last Term, nor at Chambers, till the evening of the day on which he died, and where he was engaged in his ordinary professional avocations till nearly six o'clock, when he walked home. He was in his 54th year, and born in Lancashire; the only son, we believe, of a physician. At the Nisi Prius Sittings in London, before 12th instant, shortly before the sitting of the Chief Justice Jervis and a Special Jury, on the Court, the Crier announced that one of the Special Jury Cases in the List had been withdrawn, and the jurymen summoned in it would not be wanted. A special juryman addressed his Lordship on his taking his seat, and said, that he had been summoned in a special jury case, which he had learned at the last moment had been withdrawn; he had come six miles on purpose to obey his summons, and had been put to expense in so doing; and he wished to ask his Lordship whether he was not entitled to previous notice of withdrawal, or to some compensation for the expense to which he had been put. He was Senior Wrangler and first Smith's prizeman in the year 1824,-the late Dr. Bowstead, Bishop of Lichfield, being second to him in both examinations. He took the degree of Master of Arts, and was till his marriage a Fellow of St. John's College. He was a member of the Middle Temple, and called to the Bar on the 9th of November, 1827, and went the Northern Circuit, where he was universally The Chief Justice.-You ought certainly to respected. On the last vacancy in the repre- have been informed that the case was withsentation of the University of Cambridge, on drawn. 152 Notes of the Week.-Superior Courts: Court of Chancery. The Special Juryman.-I have been here in this Court for the last half hour, and I have had no notice until the last moment. May I take the freedom of mentioning that the Chief| Justice in the Queen's Bench expressed an opinion yesterday, that in such cases jurors should be compensated? The Lord Chief Justice.—I agree with my Lord Chief Justice in giving the expression of his regret that no notice has been given, but I can give you no remedy.—From the “Daily News" of 13th December. A jury having been in the box nearly all day. applied to be discharged, on the ground that they had been in attendance for several days, during which time many of the other jurors, whom they knew personally, had never been in Court at all. Lord Campbell said, they should be discharged if they could secure a fresh jury. The jury list was then called over, and, with the exception of those already in the box, not one of them answered. Lord Campbell said, it was but fair to those jurymen who were in attendance that those who were absent should be fined. They were accordingly fined 40s. From The Times of 12th Dec. NOTES OF THE WEEK. COSTS IN ASSIZE CASES. Mr. Baron Martin shortly afterwards made a similar announcement in the other Court. The alteration is a most sensible one, and will, no doubt, be received with general satisfaction. -Newcastle Chronicle. FOREIGN POST REGULATIONS. Postmasters making up mails for foreign parts, are directed to treat as unpaid letters all those upon which an insufficient amount of postage may have been paid in postage stamps. In the case of letters insufficiently paid in money, they are directed to surcharge the deficiency upon the postmaster at whose office the letters may have been posted, and treat them as paid, and transmit them as such to foreign destinations. LAW APPOINTMENTS. The Queen has been pleased to appoint Henry Cloete, Esq., to be a Puisne Judge of the Supreme Court of the Colony of the Cape of each.-Good Hope.-From the London Gazette of 14th Dec. AT the conclusion of one of the Assize cases in Durham on Thursday, the 6th instant, Mr. Meynell asked Mr. Justice Willes, as usual, if he would allow the costs. His Lordship said, "Yes; and in future we intend to grant costs as a matter of course. I think the mode which has hitherto been adopted is rather ungracious. When we intend not to allow costs, we shall notify the fact." Mr. May, has been appointed First Clerk Assistant of the House of Commons, in the room of Mr. W. Ley, resigned.—Observer. Mr. Duncan Davidson has been appointed Collector and Magistrate at Poonah. Mr. A. Bettington has been appointed Commissioner of Police in Bombay. Mr. John Pares Bickersteth has been appointed the Company's Attorney at Bombay. Mr. S. Bowring, Civil and Sessions Judge of Dacca, is about to retire from the service.-Civil Service Gazette. SOLICITORS ELECTED AS MAYORS. Louth.-Mr. W. G. Allison." RECENT DECISIONS IN THE SUPERIOR COURTS. Court of Chancery. (Coram Lord Chancellor and Lords Justices.) THIS was a petition by the tenant in tail in reversion expectant on the death of the tenant in tail in possession (a lunatic) of certain estates in Monmouthshire, praying the consent of the Court, as protector of the settlement, under the 3 & 4 Wm. 4, c. 74, for the purpose of barring the petitioner's estate tail and all Upon the lunacy of the tenant in tail in pos-remainders over, in order to raise a sum of session of an estate, held that the consent money to pay debts. In re Blewitt. Dec. 18, 1855. OF LORD CHANCELLOR. Nelson for other parties. of the Lord Chancellor is necessary, as Solicitor-General and Lewin in support; protector of the settlement, to a disentail-Malins, Daniel, Giffard, J. Hnide Palmer, and deed, under the 3 & 4 Wm. 4, c. 74. On petition of the tenant in tail in reversion, such consent was given, the deed to be settled by the Master and afterwards to be submitted to the Court for revision. The Court said, there was no doubt but that the Lord Chancellor became protector, during his lunacy, in the place of the tenant in tail, who was protector of the settlement under the Statute. A reference would be therefore di- | with remainder to their children in tail as purrected to the Master to settle the deeds, which chasers, this appeal was presented. should be afterwards submitted to the revision of the Court. Lord Chancellor. Parker v. Clark. Dec. 14, 1855. WILL. CONSTRUCTION. "ISSUE."-TEN ANCY FOR LIFE. Malins, Rudall, and Kirkmann, for the plaintiffs, in support. Lords Justices. The Lord Chancellor (without calling on Elmsley and Prendergast, contrà), said, that the testatrix had in the first place most clearly given estates for life to her two grand-nieces, and the sole question was, whether she had enlarged the estate by the use of the subseDevise of freeholds in trust for all the chil-had clearly explained the meaning she intendquent words. It appeared that the testatrix dren of the testatrix's nieces, and the sur-ed to use the word "issue," which was that vivors and survivor for life, and after the somebody was to take under it after her two death of the survivor then in trust for all grand-nieces. The decision of the Vice-Chanand every the lawful issue, male and female, cellor was therefore right, and the appeal must of such of the children of her niece as be dismissed. should be living at the testatrix's death in equal shares, as tenants in common, and the heirs of the body and respective bodies of all and every the issue of the said chil- In re Baker's Estate; Baker v. Baker. Dec. dren. She further directed, that on the death and failure of heirs of the body of any one or more of the issue of the said WILL. children, as well the original share or shares of him, her, or them so dying, and of whom there should be such failure of heirs of the body, as also such share or shares as should accrue to him, her, or them, or his, her, or their issue, by virtue of that clause should be in trust, for the survivors and survivor and other or others of them, if more than one, in equal shares as tenants in common, and for the heirs of the body or respective bodies of such surviving issue: Held, affirming the decision of Vice-Chancellor Stuart, that the surviving children of the nice took, as tenants for life, with remainder to their children in tail, as purchasers. THE testatrix, by her will, dated in October, 1833, devised certain freehold estates in Yorkshire to trustees in trust for all the children of her niece, and the survivors and survivor for life, and after the death of the survivor then in trust for all and every the lawful issue, male and female, of such of the children of her niece as should be living at the testatrix's decease, in equal shares and proportions, as tenants in common, and not as joint tenants, and the heirs of the body and respective bodies of all and every the issue of the said children. And she directed that on the death and failure of heirs of the body of any one or more of the issue of the said children, as well the original share or shares of him, or them so dying, and of whom there should be such failure of heirs of the body, as also such share or shares as should accrue to him, her, or them, or his, her, or their issue by virtue of that clause, should be in trust for the survivors and survivor, and other or others of them, if more than one, in equal shares, as tenants in common, and for the heirs of the body or respective bodies of such surviving issue. It appeared that upon the death of the testatrix in July, 1839, her niece had only two children surviving, the present plaintiffs. The Vice-Chancellor Stuart having held that they took as tenants for life, 13, 1855. CONSTRUCTION. ANNUITY TO PAYMENT OF DEFICIENCY OUT WIFE. A testator gave and devised all his real and personal estate on trust, to sell and to hold the proceeds and all his moneys on trust, to raise thereout and invest in the funds or on mortgage, such a sum of money as when placed out should realise the clear annual income or sum of 2001., and to pay the same to his wife durante viduitate, and after her death or second marriage, in case the testator should die without issue, among his brothers and sister, and he gave the residue, after raising thereout the money sufficient to realise the annuity to his wife, among his brothers and sister. The Master of the Rolls held, that the widow was entitled, on there being insufficient assets, to have the deficiency of annuity made up out of the corpus: on appeal, Lord Justice Knight Bruce held his decision right, secus Lord Justice Turner. The appeal was therefore dismissed. THIS was an appeal from the Master of the Rolls. It appeared that the testator, by his will, gave and devised all his real and personal estate to his brother, upon trust to sell and to hold the proceeds and all the money of the testator upon trust to raise thereout and invest in the funds or on mortgage, such a sum of money as when placed out should realise the clear annual income or sum of 2001., and to pay the same to his wife for life durante viduitate, and after her death or second marriage, in case the testator should die without issue, then on trust for himself and the other brothers and the sister of the testator in equal shares; and he gave the residue of the trust moneys after raising thereout the money, sufficient to realise the annuity for his wife upon like trusts for his brothers and sister. It appeared that the estate was insufficient to produce the 2007. annuity, and the Master of the Rolls, on further directions, having held 154 Superior Courts: Lords Justices.-V. C. Kindersley. that the widow was entitled to have her The Lord Justice Knight Bruce said, it appeared that the wife was the chief object of the testator's bounty, and his brothers and sister only secondary, as their right was to be defeated if he left issue, and besides he intended that any benefit they were to take was to be burdened with the annuity to his widow. The Lord Justice Turner said, that the will established the relative position between the widow and the brothers and sister of tenant for life and remainder-men, and it did not seem the testator had shown any intention that any deficiency of the income should be made up out of the capital, As, however, there was a difference of opinion, the decree of the Master of the Rolls would stand and the appeal be dismissed. Rolt, Osborne, and Erskine for the plaintiff; Solicitor-General, Greene, and Bateman for the defendants: R. Palmer and Walford for the trustees; Lloyd, Follett, Shapter, and Shebbeare for other parties. Cur, ad. vult. The Lords Justices said, that, in the case of a marriage between adults, and a contract before containing a power over real estate, there could be no objection to its validity: Wright v. Lord Cadogan, 2 Eden, 239; and if the contract was post-nuptial, the result would be the same: Dillon v. Grace, 2 Sch. & Lef. 456. It was next to be considered where the parties were infants and the settlement was made before marriage. It was clear that infants could not themselves contract, and it was difficult to hold that their parents or guardians could contract so as to bind real estate: Salsbury v. Bagott, 2 Swanst. 603, and the doubts thrown on the point by Lord Macclesfield in Cannel v. Buckle, 2 P. Wms. 243, had been removed by subsequent decisions. The result would be the same where the settlement was postnuptial. Then it was necessary to consider Field v. Moore. Nov. 16, 17; Dec. 17, 1855 how the case would stand where the settlement INFANT.-WARD OF COURT.-SETTLEMENT. On the marriage of an infant ward of Court, was approved by the Court. Parents and although the Court might have greater power guardians had no authority to contract, and an order was made for a settlement to the exclusion of her husband, and with for some purposes, yet it could not have power to appoint in default of issue, in favour of greater power to contract than the natural any person except her husband. A deed guardians: Savill v. Savill, 2 Coll. 721, and therefore no valid settlement could be made was accordingly executed to this effect by by any agreement on the part of the infant or her, after she attained 21, but it appeared by the authority of the Court. The settlement that certain real estates to which she was entitled under her father's will were not was therefore not binding on Mrs. Brown, nor included, and that she had not acknow-was the power given to her well created, nor ledged the deed, under the 3 & 4 Wm. 4, c. was there any confirmation by her. The ap74. She appointed by will in favour of peal would therefore be dismissed, but without W.: Held, affirming the decision of the Master of the Rolls, that the appointment was inoperative, and that the heir-at-law was entitled. This was an appeal from the decision of the Master of the Rolls. It appeared that on the marriage of Esther Field, an infant ward of Court, with Samuel Brown, an order was made for a settlement of her property to the exclusion of her husband, and with a power to her to appoint, in default of issue of the marriage, in favour of any person, except her husband. The settlement drawn up in pursuance of this order was duly executed by her after she had attained the age of 21, but it did not extend to certain real estate to which she was entitled in remainder under her father's will, nor was this deed acknowledged by her pursuant to the Fines' and Recoveries' Act, 3 & 4 Wm. 4, c. 74. Mrs. Brown, by will, executed the power of appointment in favour of Mr. Wm. Geo. D. Wingfield and his children, and afterwards died without issue. The plaintiff, as heir at law, claimed the real estate as not being affected by the settlement, and therefore not passing by the will, and the Master of the Rolls having decided in his favour, this appeal was presented. costs. Vice-Chancellor Kindersley. Ogden v. Lowry. Dec. 15, 1855. CREDITORS' SUMMONS AT CHAMBERS. DEVISEE SUBJECT TO DEBTS.-TRUSTEE. Held, that the devisee of real estate subject to the payment of debts, funeral and testamentary expenses, is a trustee within within the 15 & 16 Vict. c. 134, s. 47, against whom a creditor may obtain a summons at Chambers, to adninister the estate of his testator. THE testator, by his will, devised all his real estate to the defendant, subject to the payment of his debts, funeral and testamentary expenses. One of the creditors had obtained a summons, under the 15 & 16 Vict. c. 134, to administer the estate, and the question now arose on adjournment from Chambers, whether he was entitled to do so in the present case. By s. 45, it is enacted, that "it shall be lawful for any person claiming to be a creditor, or a specific pecuniary or residuary legatee, or the next of kin, or some or one of the next of kin, of a deceased person, to apply for and obtain as of course, without bill or claim filed, or any |