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or revoking any probate of a will or any grant faction of the Court to have been forged, or of letters of administration of his personal the cancellation or restoration of any part of a estate; and the administrator so appointed will which may be shown to have been forged, shall have all the rights and powers of general altered or tampered with; s. 71. administrators, other than the right of distributing the residue of such personal estate after payment of the funeral expenses and debts of such deceased person, except so far as such rights and powers may be limited or restricted by any order of the Court; and every such administrator shall be subject to the immediate control of the Court, and act under its direc-any paper or writing, being or purporting to be

tion; s. 65.

It shall be lawful for the Court to appoint a receiver of the real estate of any deceased person pending any suit in the Court touching the validity of any will of such deceased person; s. 66.

It shall be lawful for the Court to direct that administrators and receivers appointed by the Court pending suits therein should receive out of the personal or real estate of the deceased (as the case may be) such reasonable remuneration as the Court shall think fit; s. 67.

After any administration shall have been granted by the Court of the personal estate of any deceased person, or any part thereof, no person shall have power to sue or prosecute any suit or otherwise act as executor of the deceased as to the estate comprised in or affected by such grant of administration until the same grant shall have been by act of the Court revoked or declared to have been determined; s. 68.

It shall be lawful for the Court, on motion, petition, or otherwise, in a summary way, whether any suit shall be depending in the Court with respect to any probate or administration or not, to order any person to produce and bring in to the Testamentary Office of the Court, or otherwise as the Court may direct,

possession or under the control of such pertestamentary, which may be shown to be in the son; and if it shall not be shown that any such paper or writing is in the possession or under the control of such person, but it shall concluding that he has the knowledge of any appear that there are reasonable grounds for such paper or writing, it shall be lawful for the Court to direct such person to be examined upon interrogatories respecting the same, and such person shall be bound to answer such inand bring in such paper or writing, and shall terrogatories, and, if so ordered, to produce be subject to the like process of contempt in case of default in not answering such interrogatories, or not producing or bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit in the Court, and made such default as aforesaid; and the costs of all such proceedings and of such production as aforesaid shall be in the discretion of the Court; s. 72.

It shall be lawful for but not obligatory upon the Court to direct the validity of any will, whether affecting real estate or personal estate, or both real estate and personal estate, to be tried at law by a jury; s. 73.

The revocation or determination by Act of the Court of any temporary administration granted by the Court shall in nowise prejudice any proceedings at Law or in Equity which may have been commenced by or against any administrator so appointed; but a suggestion may be made upon the record, of the revoca- lidity of any will, whether affecting real estate In any suit in the Court touching the vation or determination of such administration, or personal estate, or both real and personal and of the grant of probate or administration estate, it shall be lawful for any party inwhich shall have been made consequent upon terested to require that the subscribing witsuch revocation or determination; and the pro- nesses to such will, if living, and within the ceedings which shall have been commenced jurisdiction of the Court of Chancery, shall be by or against the administrator whose adminis- produced and examined in open Court: Protration shall have been so revoked or deter- vided, that the Court shall have power to dismined shall be continued in the name of the pense with the production and examination of executor or administrator constituted or ap- such subscribing witnesses in cases in which pointed in his place, in like manner in all re- it shall deem it expedient so to do, and that spects, with reference to liability to costs and the costs attending such production and exaotherwise, as if the proceeding had been origi-mination shall in all cases be in the discretion nally commenced by or against the executor or of the Court; s. 74. administrator so last established or appointed; s. 69.

Power over Wills, &c.

The Court shall have the same or the like power and control over all wills and testamentary instruments, and over all papers or writings purporting to be testamentary, as the Prerogative Court now has or can exercise with respect to matters within the jurisdiction of the same Court; s. 70.

The Court shall have jurisdiction to order the removal from the registry or the cancellation of any will which may be shown to the satis

Appointment of real Representative.

It shall be lawful for any person interested in the real estate of any deceased person, whether such person shall have died before or after the passing of this Act, to apply to the Court in any suit, or upon motion or petition, in a summary manner, without bill or claim filed, to appoint some person to be the representative of the real estate of such deceased person or fit, shall, upon notice of such application to any part therof; and the Court, if it shall think such persons, if any, as it shall think fit, have power to make such appointment as to such

496

Testamentary Jurisdiction Bill.-Law of Attorneys and Solicitors.

real estate only of the deceased as may not be vested in trustees or trustee in trust for sale, with power to give discharges to purchasers, or over which there shall not be a power of sale exerciseable by any trustee or trustees or other person or persons, with a like power of giving discharges to purchasers, or any part of such real estate; s. 75.

of the Court be previously obtained authoris ing the institution of such suit or proceeding, such leave to be applied for by petition or motion, in a summary way, and upon notice to such persons, if any, as the Court shall think fit, and to be granted upon such terms, if any, as the Court may think fit to impose; s.

81.

Every real representative so to be appointed All probates and administrations granted beshall have full power to sell and convey the real fore the time appointed for the commencement estate of the deceased, or so much thereof as of this Act, which may be void or voidable by shall be comprised in or affected by the order reason only that the Courts from which respecappointing such real representative, and to re-tively the same were obtained had not jurisdicceive the rents and profits thereof, and to raise money by mortgage of the same, and to give discharges for such purchase and mortgage moneys, and rents and profits, and shall apply the money to be received by him for the purposes and in the manner in such order to be expressed, but no purchaser or mortgagee shall be in any manner bound to see to such application; s. 76.

In all suits respecting the real estate comprised in or affected by any order appointing a real representative, the real representative so appointed shall represent such real estate in the same manner and to the same extent as the executor or administrator of any deceased person represents the personal estate of such deceased person: s. 77.

Except where otherwise provided, none of the provisions herein contained with reference to the real estate of deceased persons shall extend to the real estate of persons dying before this Act comes into operation; s. 78.

Limitation, Disability, &c. Except as hereinafter provided, no suit or proceeding shall be instituted or taken to revoke or recal any probate of a will or grant of administration, after the expiration of 20 years from the date of such probate or administra

tion; s. 79.

If, at the time of the granting any probate or administration with respect to the estate of any deceased person, the person or some or one of the persons entitled to revoke or recal such probate or administration shall have been or shall be under the disability of infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, then and in such case such person so under disability, or any person claiming under him, may institute or take any suit or proceeding for the purpose of revoking or recalling any probate or administration of his estate within 10 years after the removal of such disability, or after the death of the person under disability, which shall have first happened; s. 80.

Fraud.

tion to grant such probates of will or admini-
stration, shall be and be deemed for all purposes
whatsoever to be and to have been as void as
if the same had been obtained from the Courts
entitled to grant such probates and administra-
tions respectively: Provided always, that any
void or voidable probate or administration shall
not be made valid by this Act when another
probate of the same will or other letters of ad-
ministration of the same personal estate shall
subsequently, but before the time appointed
for the commencement of this Act, have been
granted out of the proper Court nor when such
probate or administration shall have been re-
voked, or determined by any Court of compe-
tent jurisdiction to have been void, before that
time; nor so far as the same respects any per-
sonal estate which at the time of the passing of
this Act shall be in the possession of any per-
son who would not have been entitled thereto
if the same probate or administration were
valid; nor shall this Act prejudice or affect any
proceedings pending at the time of the passing
of this Act in which the validity of any such
probate or administration shall be in question
between the persons claiming under the same
and the person claiming adversely thereto, and
such probate or administration, if the result of
such proceeding shall be to invalidate the
same, shall not be rendered valid by this Act;
and if such proceedings shall abate or become
defective by reason of the death of any party,
any person who but for this Act would have
any right by reason of the inability of any such
probate or administration shall retain such
right, so that he may commence such proceed-
ings for enforcing the same within six calendar
months after the death of such party: s. 82.
[To be continued.]

LAW OF ATTORNEYS AND
SOLICITORS.

TAXATION AFTER PAYMENT.

Ir appeared that the petitioner, Mrs. In cases of fraud, it shall be lawful for the Smith, had employed Mr. Abbott in several person aggrieved or supposed to be aggrieved matters, and ultimately to raise the sum of thereby, or any person claiming under him, to 4,000l. on mortgage. At the meeting to institute a suit or proceeding for the purpose execute the mortgage, the mortgagee's soof revoking or recalling probate of a will or grant of administration, notwithstanding the licitor said his bill must be paid, and inexpiration of the limited period herein before quired how the cheques were to be drawn, fixed for the purpose, provided the special leave when Mr. Abbott directed them to be

Law of Attorneys and Solicitors.

Her

drawn for 295l. 1s., 2,443l. 78. 9d., and 1,2611. 11s. 3d., and Mrs. Smith, at the request of the mortgagee's solicitor, wrote her name on each, observing in jest she would take them away with her. solicitor then gave the cheque for the 2957. 18. to the mortgagee's solicitor in payment of his costs, and retained the one for 2,4431. 78. 9d. for his own costs against her in respect of the various matters in which he had acted professionally, and he delivered the other cheque to Mrs. Smith together with a sealed packet which he told her to look at at her leisure, as perhaps it would amuse her. Mrs. Smith did not then examine the packet, but some days afterwards she did so, and found it contained Mr. Abbott's bills of costs, and she presented this petition within 12 months for a special order to tax on the ground of unreasonable and extravagant charges.

The Master of the Rolls said :

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"I think that the facts appearing in this case (assuming that there are items sufficiently objectionable in the bill, of which I have heard nothing, and which is an important point) do not prevent the petitioner from being entitled to an order for taxation of this bill. Upon this application, it is immaterial whether the petitioner intended to pay the bill, if the Court should be of opinion that the circumstances are such as would entitle her to tax the bill, assuming it to have been actually paid.

497

was to be paid to the lady herself. Undoubtedly the cheques got into the possession of this lady, for she writes her name on them, and says, laughing, she will take them away;' but it is obvious that she would not have been She knew nothing whatever of the solicitor's allowed to leave the room with those cheques. bills, except that she was told their amount, and that she would find the details in a certain sealed-up paper, which was given to her. I admit that where a client intends to pay a bill of costs at the meeting to complete a matter, the mere fact of the bill being then delivered and paid, without any further opportunity of title the client to a taxation; but that such a examining it, will not alone be sufficient to encircumstance forms a material consideration, is certain; for it has been said, and it is undoubtedly the law now, notwithstanding the changes which have taken place, that there must be no pressure, no undue influence, and the means of examining the bill which is de

livered.

"In this case, undoubtedly, there were no with her own solicitor, the person who benemeans of examining the bill. She was there fited by the transaction, and his clerk, and was without the means of resisting. though there may be no suspicion of any unSo that, due influence, there was the necessary influence which exists between a solicitor and his client, besides this species of pressure:-that it was certain that the transaction would come to nothing unless she consented to the payment.

"I concur in the observation, that the pro-matter is complained of within three months "To say, in that state of things, when the bability, nay the certainty of the case is, that afterwards, and a petition presented within a Mr. Abbott would not have allowed this trans- year for the purpose of taxing the bill, this action to be completed, unless his bill, or a con- Court would refuse taxation, does appear to siderable part of it, had been paid. A sum of me contrary to the decided cases upon this 4,000l. was raised by mortgage, and a large subject, and contrary to the principle upon sum of money was due for costs to Mr. Ab- which I have acted. bott, who would not have allowed the transaction to be completed and the whole money to be paid to Mrs. Smith, without having some security for the payment of his bill.

"I will look at the affidavits with respect to the items of alleged overcharge; because undoubtedly the Court does require to have some that point, I usually take the advice and assuch items established. In cases of doubt on sistance of one of the Taxing Masters, who understand these matters infinitely better than the Court can do, and whose advice usually guides one in matters of disputed items."

said :—
The Master of the Rolls afterwards

"The transaction was this:-On the 12th of February, the mortgagee's solicitor, the solicitor of this lady, his clerk, and this lady, met. In this matter, in which she was opposed to her solicitor, this lady had neither assistance nor support, or anything whatever to point out to her the consequences of the acts she was doing. A sum of 4,000l. was to be paid by the mortgagee; his solicitor says, my bill, which amounts to 2957. 18., must be paid; in what manner are the cheques to be drawn?' Mrs. Smith looks at Mr. Abbott, as much as to say, as you know how they are to opinion that they are. I shall not specify them, be drawn, inform him;' upon which Mr. Ab- for as the matter will go to the Taxing Master, bott tells the mortgagee's solicitor, and there- it would be better not to do so. There must upon three cheques are drawn-2,4431. 7s. 9d. be a taxation, and I shall reserve the costs." for the amount of the mortgage money to be paid In re Abbott, 18 Beav. 393.

off, and her solicitor's bills; 2957. 1s. the mort

gagee's costs; and the balance of 1,2617. 11s. 3d.

"The only remaining question was, whether the items of alleged overcharge were sufficient

to warrant a taxation of the bill? and I am of

498

The Law of Duelling-Illustrated from Mr. Warren's Miscellanies.

THE LAW OF DUELLING.

ILLUSTRATED FROM MR. WARREN'S

MISCELLANIES.

FROM the highly interesting and admirable "Miscellanies, Critical, Imaginative, and Juridical," of Mr. Warren, Q. C., we extract the following graphic and eloquent narrative of a trial before Mr. Justice Bayley, in the year 1830:

number of witnesses was called for both the prosecution and the defence; who gave conflicting testimony as to the circumstances under which the parties had fired at each other. The unhappy deceased, a very young man, was shot through the neck, and died, shortly afterwards, had seen the duel, denied that he had fired on the ground. The prisoner's witnesses, who irregularly. As counsel were not at that time allowed to address the jury for the defence, the prisoner spoke himself at considerable length, alleging himself, and truly, to have been the "We ourselves were present at a remarkable challenged party, and denying that he had been trial for duelling, 24 years ago, at the Old il-will towards the deceased. As the case stood, guilty of any unfairness, or had entertained any Bailey, before the late excellent and very learned Justice Bayley, on which occasion he also knew the law, and the character of the Judge however, it looked black enough to those who laid down the rule of law respecting duelling, who sat to administer it. That venerable perwith uncompromising firmness and straight. son began his summing-up to the jury about forwardness. This was the case of a militia officer, who had shot, in a duel in France, a never be effaced from our memory. The Court 7 o'clock in the evening, and the scene can young officer in the army; and a clergyman, the brother of the deceased, made strenuous brightly, exhibiting anxious faces in every diwas extremely crowded; the lights burned and persevering efforts to bring the survivor to rection: but what a striking figure was the trial. The latter continued, for some time after central one-that of the prisoner! Immedithe duel, in France; and possibly under the impression, then a natural one, that he could ately over his head was a mirror, so placed as to reflect his face and figure vividly, especially to not be tried in this country for a duel fought in the jury. A few moments after the Judge had a foreign country not under the British crown, commenced his charge, we observed the Ordihe came to England; where he was instantly arrested under Stat. 9 Geo. 4, c. 31, s. 7, which nary of Newgate glide into Court, the late Rev. Dr. Cotton, in full canonicals, and with flowhad been passed only two or three years pre- ing white hair, having a picturesquely veneviously, viz., in 1828, and might consequently rable and ominous appearance, and take his well escape the notice of a non-professional per-seat near to, but a little behind, the Judge. It son. That Act authorises the trial, in England, was then usual for the Ordinary to be present under a special Commission, issued under the at the close of capital cases, in order to add a Great Seal, of any British subject charged with having committed any murder or manslaughter abroad, whether within or without the British

dominions, as if such crimes had been committed in England. The prisoner was admitted to bail, to meet the charge, and, having duly surrendered, took his place at the bar of the Old Bailey, at 9 o'clock on a Saturday morning.

"He was

a man apparently approaching middle age, of gentlemanly appearance, his features indicating determination of character; but they wore an expression of manifest anxiety and apprehension as he entered the dock, and, looking down, beheld immediately beneath him, the brother of the man whom he had shot, and through whose ceaseless activity he was then placed on trial for his life as a murderer. He was to be tried, moreover, by an uncompromising Judge-stern and exact in administering the law, and animated by pure religious spirit, but, withal, thoroughly humane. Throughout the whole of that agitating day, the prisoner stood firm as a rock, sometimes his arms folded, at others his hands resting on the bar; while his eyes were fixed intently on the Judge, the witnesses, or the counsel; every now and then glancing with gloomy inquisitiveness at the jury and the Judge. His lips were from first to last firmly compressed. A considerable

"On Saturday, the 9th October, 1830.

solemn 'amen' to the prayer with which the
sentence of death concluded-that 'God would
have mercy on the soul' of the condemned.
"Gentlemen of the jury,' commenced Mr.
Justice Bayley, amidst profound silence, we
have heard several times during the course of
this trial, of the law of honour; but I will now
tell you what is the law of the land, which is
all that you and I have to do with. It is this:
that if two persons go out with deadly weapons,
intending to use them against each other, and
do use them, and death ensue, that is-murder,
wilful murder.' He paused for a moment, as
if to give the jury time to appreciate the
dread significance of his opening. As soon as
he had uttered the last two words, the pri-
soner's cheek was instantaneously blanched.
We were eyeing him intently at the moment,
and shall never forget it. He stood, however,
with rigid erectness, gazing apparently with
mingled anger and fear at the Judge, whom he
felt to be uttering his death warrant; and after
a while bent his eyes on the jury, from whom
they wandered scarce a moment during that
momentous summing-up-one which, with
every word, was letting fall around him, as he
must have felt, the curtain of death. The
law of honour,' said the Judge, towards the
close of his charge, is an imposture-a wicked
imposture, when set against the law of the

"2 Such is believed to be still the case."

Law of Duelling.-Review: Wills's Vestryman's Guide.

130."

499

land, and the law of God Almighty, claiming | plaintiff's character, it is clear upon every the right to take away human life. I tell you, principle of the law of libel, that that must be who sit there to discharge a sworn duty, that a justified as well as the rest, or the defence fatal duel is malicious homicide-and that is fails.'-11th Common Bench Reports, pp. 128, wilful murder.' The jury retired to consider their verdict; and the Judge at the same time quitted the Court till his presence should be We shall, from time to time, embellish required again. The prisoner, however, con- our pages with other extracts from the tinued standing at the bar almost motionless Juridical parts of these excellent volumes, as a statue. After a considerable absence the the style and composition of which has jury returned into Court. The prisoner eyed never been surpassed, rarely equalled. them, as one by one they re-entered their box, with a solicitude dismal to behold, and the irrepressible quivering of his upper lip indicated mortal agitation. The verdict, however, was-Not Guilty; on which the prisoner heaved a heavy sigh, passing his hand slowly over his damp forehead, bowed slightly, but rather sternly to the jury, and was then removed from the bar, and released from custody."

The learned Counsel's notes on the law of the case are as follow:

:

NOTICES OF NEW BOOKS.

A Treatise on the Powers and Duties of Parish Vestries in Ecclesiastical Matters: being a Vestryman's Guide. By ALFRED WILLS, of the Middle Temple, Esq., Barrister-at-Law. London: Maxwell. 1855. Pp. 255.

THIS work affords complete information "Owing to the length of time which had on the rights and duties of Parishioners in elapsed since this case was tried, nearly a their position as Vestrymen. Former pubquarter of a century, the author, trusting lications have amply supplied the wants of solely to memory, erroneously stated certain Churchwardens in regard to their legal incidents to have been supposed to attend the duel, which led the survivor to challenge the powers, and Mr. Wills has chiefly devoted correctnes of the statements in a Court of Law. his pages to the obligations, rights, and At the suggestion of the Court, who stated privileges of the parishioners in general. that the article in question was evidently writ- His volume treatsten with a high moral object, and that there was no pretence for imputing more than bond fide mistake, the matter at once terminated by an ample apology.

1st. Of the vestry in general and of vestrymen, comprising-1. Introductory. 2. Of persons entitled to attend and vote at the vestry. 3. Of the number of votes.

2nd. Of the notice and place of holding the vestry.

3rd. Of the vestry meeting: viz., 1. Of the chairman. 2. Of the method of voting. 3. Of the power of adjournment and of adjourned meetings. 4. Of irregularity.

business, viz., 1. Introductory. 2. Of the 4th. Of the vestry meeting and course of election of churchwardens and of their ac3. Of granting a

6. Of the vestry

"The decision of the Court on that occasion, and the interesting and important point of law submitted to it, has been much canvassed; and, it is said, has been disapproved of by very high authority. The question was, whether an action for damages can be maintained by the survivor, in a fatal duel, against any one who, in giving an account of the duel, alleges it to have been supposed accompanied by circumstances at variance with the ordinary notions of fairness or honour on such occasions? It was argued for the defendant, that the libel counts and estimates. resolved itself into a charge of murder;-that rate. 4. Of the parish clerk and sexton. there are no degrees of murder ;-that there 5. Of the parish books. is no such thing known to the law as a clerk. "fair" murder; and that there can be no 5th. Of the churchwardens. such distinction as a "fair" or a "foul" duel, when it ends fatally." 6th. Of the church-rate: viz., 1. Introcontended, that no action for libel lies for ductory. 2. Of the period for which the anything written against a person touching rate is to be made. 3. Of the subjecthis conduct in an illegal transaction, accord- matter of a rate. 4. Of certain requisites ing to the cases of Yrisarri v. Clement, 3 of a rate. 5. Of the property liable to be Bing. Cas. 432, and Hunt v. Bell, 1 Bing. 1. rated. 6. Of the mode of assessment. The Court said, however, that the libel, in Of the form of the rate. 8. Of the confirsubstance, charged that the plaintiff was guilty mation of the rate. 9. Of treating. of murder, under circumstances of grave and malignant aggravation; and the justification states simply, that the plaintiff committed ing Acts. murder by killing his antagonist in a duel !'

It was also

7.

7th. Of rates under the Church Build

8th. Of enforcing payment of rates; viz. If the libel go further, and state something-1. Of proceedings in the Ecclesiastical besides the murder, which is injurious to the Courts. 2. Of summary proceedings before

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