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however, is limited to the notice of some of the works issued on the Probate and Administration Act, and the first among these is Mr. Horsey's edition of the act. This gentleman is already favourably known by his edition of "PURchase Deeds, &c.," and this will afford some guarantee that his present labours will not be without profit to the profession. He appears to us to have adopted a very good plan, under the circumstances of the case. For instead of producing a treatise on the new law (which can only be usefully done after the course of procedure is settled), he has furnished a little work which commences with an introduction giving a concise and intelligible statement of the provisions of the act (a sort of run-and-read summary); followed by the act itself, furnished with short and pithy explananatory notes; and that followed very appropriately by a "Summary of the Law of Executors and Administrators in reference to Probates and Administrations." In addition to which the volume is furnished with a table of contents, and an index. This work will, we think, answer effectually all the purposes of the practitioner or student, until the lapse of such a time as will justify the production of a more complete and larger treatise. The " Summary" will be especially valuable to those who may require an intelligible statement of the law on points relating to the offices and duties of executors and administrators, and the mode of their appointment. This summary being placed at the end of the work, can be more conveniently read and understood than if placed in shreds and patches against the appropriate sections of the act. We observe, too, that the author has given a reference under the various sections to the proper part of the summary. It is impossible for us to furnish extracts from the work which would afford an adequate representation of the labours of Mr. Horsey, for the many notes (independently of the summary) contain, in a short space, much useful matter, though necessarily of a fragmentary character. From the Introduction, we take the following: :

"The evils which, in a community like England, arose on the system of probate and administration, soon manifested themselves. They consisted principally of the numerous jurisdictions entitled to grant administration, and consequently to have wills proved before them. Of these jurisdictions there is no reason for speaking at any length. Their name is Legion,' but professionally styled prerogatives, diocesan, and peculiars. Of prerogatives there were but two-Canterbury and York. Of 'Diocesans,' not less than the number of English bishops. of "Peculiars,' which were so called because they were exempt from the ordinary, and had a peculiar and special ordinary of its own, the number was of


several sorts: 1. Peculiars of archbishops, more than one hundred of which were within the province of Canterbury; 2. Peculiars of bishops, exclusive of the bishop; 3. Peculiars of bishops, exclusive of archdeacons; 4. Peculiars of deans, deans and chapters, prebendaries, and the like; and lastly, royal peculiars, which were so highly peculiar and exempt, that it is quite pleasing to be no longer troubled with defining them.

"From one or other, and not unfrequently from more than one of these authorities, the administration or probate had to be obtained, and care was to be taken that the right court was applied to, for if it were not the proper tribunal, the payment of duty, fees, &c., was all thrown away, so far as the giving validity to the administration or probate was concerned. It was not, of course, always easy to determine to which of these jurisdictions an executor or intending administrator should direct his steps. That was regulated by the notable goods (bona notabilia) the deceased had in the jurisdiction. But. then he might have had notable goods in two jurisdictions, and in that case the Prerogative Court was the safer tribunal, though not always, for sometimes a prerogative grant and a peculiar grant were each necessary, within the same province. Further, a prerogative Canterbury grant was as nothing to goods in the province of York, and thus two grants were frequently necessary for the same deceased on account of property in both provinces. The vexation of all this was slightly soothed by the distinction which existed between void and voidable probates; thus, a diocesan or peculiar probate or administration might be shown to be void on any occasion; and when so shown, it was as if no probate or administration had been obtained; but a prerogative probate was, if wrongly obtained as to jurisdiction, only voidable and good until revoked by the court granting it, and which was rarely, if ever, done upon any litigation between the executor or administrator and third persons. There was, consequently, the most frequent application to the prerogative courts, and as the province of Canterbury comprised London, with the Bank of England, and all the Government Stocks which were bona notabilia, in the London diocese, the greatest number of probates and administrations issued from Canterbury, and the most likely registry in which to find a will was at its Doctors'-Commons registry..

"The foregoing sketch of the existing law of probate and administration will serve as an introduction to the alterations effected by the present act. Its operation is confined to England; and all jurisdiction in relation to the grant and revocation of probates and administration are to be exercised in her Majesty's name in one court, to be styled 'THE

COURT OF PROBATE.' As a necessary preliminary, the voluntary and contentious jurisdiction of all ecclesiastical, royal peculiar, peculiar manorial, and other courts and persons in England are to cease, and the necessary jurisdiction to supply their places is vested in her Majesty, and to be exercised by her in the Court of Probate. This court is to be presided over by one judge, ranking with the Puisne Common Law Bench, and with a salary which will ultimately be £5,000.

"The kingdom is parcelled out into forty districts, corresponding to the divisions of the Reform Act as to the counties, each of which districts is to have a registry in which wills may be proved and administrations granted where no contention arises thereon. These are all to communicate their acts, and copies of the wills proved, to the principal London registry, so that a search there will give the evidence of every will proved in the kingdom, and every administration granted.

"The court will be one of record, and its powers in England the same as those of the prerogative courts, but no suits for legacies, or for the administration of estates, are to be entertained by the court. Matters of fact may be tried either by an issue to a court of law, or by a jury before itself upon a defined question.

"An appeal lies to the House of Lords direct, and as a matter of right upon a final decree, but upon any interlocutory order not without leave of the court. An appeal, however, from a final decree places all interlocutory orders under appeal. The bar of the court is open to the advocate of Doctors'Commons and the barrister-at-law, and the former is to be entitled to practise as a barrister-at-law. Proctors are also at liberty to practise in the court, and also as solicitors and attorneys upon application by them, for that purpose, within one year after the act passed. Articled clerks to proctors are to be considered as having been articled to solicitors as regards their subsequent admission to practise. Solicitors and attorneys complete the class of practitioners, and such of them as are commissioners for taking oaths in Chancery are authorised to take oaths in the Court of Probate."

From the notes to the act we select the following on the subjects of appeal, and the practitioners of the new courts (secs. 39, 40).

"The consequence of an appeal from a final decree which is to be of right, being as above provided to place all the interlocutory orders under appeal, may operate inconveniently to the respondent, unless some provision be made for notice to him that such orders are intended to be appealed against. It might happen that a final decree was valid in itself, though invalid from some irregular

interlocutory order. If then an appeal be presented against the decree, the support of which the respondent would principally direct his attention to, it would be a surprise for him to find it was the interlocutory order which was really to be attacked and required to be supported. It will, however, probably have been made the subject of an application for leave to appeal, so that notice will thus be obtained, or which is more likely, the mode in which cases on appeal are presented to the House of Lords, with the reasons for the reversal, which are appended, will necessarily bring out notice of any interlocutory order which is intended to be made the subject of appeal.

"There seems some attempt in this section at an exclusion of barristers from the same benefits as advocates. The latter are to be entitled 'to practise as advocates or counsel in all matters and causes,' whereas barristers are to be entitled 'to practise as advocates or counsel in all contentious matters and causes.' The distinction seems unnecessary, if nothing be meant by it; and unfair, if there be a difference. As the privilege, if any, reserved to the advocates is only to those who are ecclesiastical advocates at the passing of the act, who will not live for ever, it may be asked, who, on their departure, are to supply their places in the department they are to fill to the exclusion of the barristers? There is no provision for any future advocates; and the result of any exclusive privilege would be to create a monopoly, unfair and inconsistent with the free right for advocates to practise as barristers in all courts of law and equity."

From that portion of the "Summary" which treats of the "Manner of Proving," we extract the following short statement, as our limits will not allow more.

"In ordinary cases.-There were two modes of proving a will. In common form, and in solemn form, and these are continued by the late act. The common form, which was the usual way, was simply by the presentation of the will on the oath of the executor, to the effect, that the writing exhibited contained the last will and testament of the deceased as far as the executor knew or believed. Also that he would truly perform the same by paying first the testator's debts, and then the legacies therein contained, as far as the goods, chattels, and credits extended, and the law charged him, and that he would make a true and perfect inventory of all the goods, chattels, and credits of the deceased, and exhibit the same into the registry of the spiritual court at the time assigned him by the court, and render a just account thereof when lawfully required (Toller, 58). Also of the time the testator died and (by the Stamp Act), as to the value of the personalty (post, p. 135).

"This was all that was required as to wills made before the Wills Act (1838). Before that time, as witnesses were not required to a will of personal estate, no evidence of the mode of execution was required by the ecclesiastical courts; but as the Wills Act denies effect to any instrument as a will, unless it be attested in the manner specified in the act, the spiritual courts, in some instances, required a preliminary proof that the solemnities of the act had been observed. Thus, although the act does not require any statement in the attestation by the witnesses that the solemnities have been observed, and expressly enacts that no form of attestation shall be necessary, yet it frequently happens that wills are made with an attestation clause, which, although attempting, does not, by its terms, show that all the forms of the act have been gone through, or it may state something to have been done contrary to the act. In these cases, though the will is not dependent upon the attestation clause for validity (for it is the actual performance and observance of the forms which is to determine the fact of a will, and not the statement of them), yet the ecclesiastical courts, before admitting an instrument, which on the face of it does not appear to be a will according to the statute, requires that the witnesses should, by their oath, depose in what manner the will was executed and attested. If the evidence thus obtained showed a compliance with the act, the will was admitted to probate (see ante, p. 84, for suggested form of attestation).

SCOTT'S PROBATE ACT, 1857. Probates and Letters of Administration Act, with Explanatory Observations, shewing the Principal Alterations in the Law effected thereby: with an Index. By JOHN SCOTT, Esq., Barrister-at-Law. London: Wildy and Sons.

The above is another work on the Probates and Administrations Act, but it is of a different order to that of Mr. Horsey, consisting of nothing but an introduction, the act itself (without a note), and an index. Of the value of the introduction, the following extract will,, perhaps, furnish a good notion, though it is only, perhaps, a brick of the edifice, but still a rather large one compared with the edifice itself:

"The provisions contained in the 20 & 21 Vic. c. 77, 'An Act to amend the Law relating to Probates and Letters of Administration in England,' are founded mainly upon the recommendations of the commissioners appointed to inquire and report upon the jurisdiction and authority of the ecclesiastical courts in England. These recommendations are


embodied in two reports, the former of which was made in the year 1832, and the latter in 1854. alterations, however, effected by the statute fall very far short of those suggested by the learned commissioners, and, notwithstanding the length of time that has elapsed since the issuing of the first report, seem to have been made with more haste than consideration.

"The period at which the act is to come into operation (which, by s. 1, is not to be anterior to the 1st of January, 1858) has not yet been determined upon; but, in all probability, circumstances will render it necessary to delay its commencement until long after the day mentioned.

"The interpretation clause (s. 2) gives a definition to 'will,' 'administration,' 'matters and causes testamentary,' and 'common form of business.' The 3rd section provides that the voluntary and contentious jurisdiction of all ecclesiastical, royal peculiar, peculiar, manorial, and other courts and persons in England, so far as regards their authority in relation to matters or causes testamentary, or to any matter arising out of or connected with the grant or revocation of probate or administration, shall cease; and the jurisdiction thus abolished is by s. 4 vested in a court to be called the 'Court of Probate,' the principal registry whereof is to be in London or Middlesex. The jurisdiction so abolished is thus described by the commissioners at p. 21 of their first report: 'The peculiar jurisdictions in England and Wales, with the manorial courts, amount in number to nearly 300. These jurisdictions are of several kinds, -royal peculiars; peculiars belonging to the archbishops, bishops, deans, deans and chapters, archdeacons, prebendaries, and canons, and even to rectors and vicars; and there are also some of so anomalous a nature as scarcely to admit of accurate description. In some instances, these jurisdictions extend over large tracts of country, embracing many towns and parishes, as, the peculiar of the Dean of Salisbury. In others, several places may be comprehended, lying at a great distance apart from each other. Again, some include only one or two parishes. The jurisdiction to be exercised in these different courts is not defined by any general law. It is often extremely difficult to ascertain over what description of causes the jurisdiction of any particular court operates; and much inconvenience results from this uncertainty. This variety of jurisdiction has proceeded from different causes connected with the history of the church, which it is not necessary here to specify. The peculiars were always considered as interfering with the beneficial exercise of the authority of the bishop of the diocese; and proposals have been advanced, at different times, to remove the inconvenience.'

"The administration of this branch of the law is now effectually cleansed from this blot.

"The 5th to the 12th sections of the act contain provisions for the appointment, the tenure of office, the oath, the rank and precedence, the salary, and the retiring allowance of the judge of the new court. The 13th section provides for the establishment of the forty 'district registries' mentioned in schedule A.; and the following sections to 21 inclusive relate to the appointment of the various officers and clerks of the Court of Probate, and of the principal and district registries, their salaries, qualifications, tenure of office, and duties.

"The 22nd section empowers the judge of the Court of Probate to cause seals to be made for the court and for the principal and each district registry, and makes all probates, letters of administration, orders, and other instruments and exemplifications, and copies thereof respectively,' purporting to be sealed with the seal of court, receivable in evidence without further proof: and s. 28 imposes penalties on persons forging or counterfeiting such seals or the signatures of registrars, &c.

"The court is, by s. 23, to be a court of record, and to have the same powers in relation to the personal estate in all parts of England of deceased persons as the Prerogative Court of Canterbury had in relation to matters and causes testamentary within the jurisdiction of that court, with a proviso that 'no suits for legacies, or suits for the distribution of residues, shall be entertained by the court, or by any court or person whose jurisdiction as to matters and causes testamentary is hereby abolished.'

"Sections 24 and 25 relate to the examination of witnesses and production of deeds.

"The mode of taking evidence in the ecclesiastical courts heretofore was, by depositions' taken by examiners employed for that purpose by the registrars, or, if the witnesses resided at a great distance, or were otherwise unable to attend, they were examined by commission. The examination did not take place upon written interrogatories previously prepared and known; but the allegation,' or plea, was delivered to the examiner, who, after making himself master of all the facts pleaded, examined the witnesses by questions which he framed at the time, so as to obtain upon each article of the allegation separately the truth and the whole truth, as far as possible, respecting such of the circumstances alleged as were within the knowledge of each witness. The cross-examination was conducted by interrogatories addressed to the adverse witnesses; and, when the deposition was complete, the witness was examined upon the interrogatories delivered to the examiner by the adverse proctor, but not disclosed to the witness till after the examination in chief was con

cluded and signed, nor to the party producing him till publication passed.

66 Now, however, in all contentious matters where their attendance can be had, the witnesses are (s. 31) to be examined orally by or before the judge in open court, and (s. 33) according to the rules of evidence observed in the superior courts-the Court of Probate having, by s. 32, power to issue commissions for the examination of witnesses abroad, or who are unable to attend.

"Section 26 makes provision for the production of testamentary instruments, and the examination of persons having control over or knowledge of them; and s. 27 for the administering of oaths by the registrars, district registrars, surrogates, and commissioners to be appointed for the purpose, and also for the substitution of affirmations or declarations in lieu of affidavits or depositions, and the penalty for false affirmations, &c."


EQUITY AND CONVEYANCING. COPYRIGHT.-Account of the produce of sale of pirated work.-By s. 23 of the 5 & 6 Vic. c. 45, all copies of a work unlawfully printed without the consent of the proprietor of copyright, shall be deemed to be the property of such proprietor of the copyright, and he shall be entitled to sue for and recover the same or damages for the detention thereof, in an action of detinue, from any person who shall detain the same, or to sue for, and recover damages for the conversion thereof in an action of trover. Formerly, the pirated copies were destroyed. As to the sold copies, courts of equity never gave mare than the profits made by the sale of the pirated copies of the work; and this course is still adhered to, as shown in the following case, where it was held, that though the registered owner of the copyright in a work is entitled to have all the unsold copies of a piratical edition delivered up to him for his own use, without making any compensation for the cost of production or publication, yet, as to the copies of such piratical edition which may have been sold, he is not entitled in equity to the gross produce of the sale thereof, but only to the profits which the defendant may have made by the sale thereof. Delf v. Delamotte, 3 Jur. N. S. 933.

FEME COVERT.-Liability for debts where she has separate estate [vol. 2, p. 407]—Retainer of solicitor. Wherever a woman has property settled to her separate use, and she enters into any contract, by which it clearly and manifestly appears that she intends to create a debt as against herself personally, if the expression may be used, it will be assumed

that she intended that the money should be paid out of the only property by which she could fulfil the engagement. All that is requisite is to show a clear intention expressed on her part to take the debt on herself; although that would not make her personally liable, it will be assumed that she intended to pay and discharge the amount out of her separate estate. In Murray v. Barlee (4 Sim. 90; 3 Myl. and Ke. 209), which was the case of a solicitor, Lord Brougham says, that a retainer is an implied promise to pay whatever may be really and properly incurred in respect of that retainer; and, therefore, he held, that in the case of a married woman giving a retainer, or instructions emanating from herself personally, as distinguished from her husband, all the consequences would follow which would flow from a charge upon her separate estate. In the following case it appeared that real property belonging to a female was, upon her marriage, conveyed to such uses as she should by deed or will, notwithstanding coverture, appoint; and subject thereto, to the separate use of herself during the joint lives of herself and husband; remainder to the use of herself for life; remainder over. She employed a solicitor, during her husband's life, first to mortgage the lands, and then to sell the equity of redemption. The sale was not completed during his life, although the mortgage was: Held, that the solicitor was entitled to be paid his costs out of the purchase money (which, according to the contract, was to come to her separate use), when the same was paid after her husband's decease, although she could then have no separate estate. A retainer implies a promise to pay all costs rightly and properly incurred upon the retainer. A retainer by a married woman to a solicitor to act in respect to one portion of her separate estate operates as a charge upon all property settled to her separate use, and is not confined to the particular property upon which the solicitor is called upon to act. Where a married woman, having property settled to her separate use, evinces a clear intention to take a debt upon herself, it will immediately be assumed that she intends it to be paid out of her separate estate, and her separate estate will be charged accordingly. Bolden v. Nicholay, 3 Jur. N. S. 884.

FEME COVERT.-Separate estate [vol. 3, p. 388]-Mortgagor and mortgagee-Charge-Solicitor and client-Transfer of debt-Purchase by solicitor [vol. 3, p. 311].-The following is a very complicated case in its circumstances, but as involving the doctrines of the liability of the separate estate of a feme covert for her debts, and the right of a solicitor to obtain security for his debt from his client as to the first, it shall be observed, that it is clearly settled upon the equities between husband and wife,

that if a married woman be entitled to the equity of redemption of an estate settled to her separate use at the time of her marriage, and the mortgage debt, which left to her only such equity of redemption, be paid off by her husband, he can so deal with such mortgage debt as to acquire for himself and for his own benefit a right to stand in the place of the original mortgagee. The husband, so paying off such mortgage debt and obtaining possession of the title-deeds, can, as against his wife and her assigns, retain the deeds until he or his estate be indemnified for the amount paid by him. As to the second point above referred to, the well-established doctrine, as laid down in Carter v. Palmer (8 Cl. and Fin. 657), is not now to be shaken; and any trustee or solicitor, who in the course of confidential employment in either of the above capacities happens to acquire a knowledge which enables him to deal with property in which his cestuís que trust or clients are interested, will not be permitted in a court of equity to avail himself of the benefit of any such dealings. But it is another thing to say, if a debt be fairly due to a trustee or a solicitor from his cestuis que trust or client, that his right to that debt is so far annihilated that no security which he may obtain in respect of such debt can stand. It appeared that certain hereditaments belonging to the plaintiff were, upon her marriage with J. W. in 1831, vested in trustees to the separate use of the plaintiff for life, with remainder to the use of such person, &c., as she should appoint; and in default, in trust to pay the rents, &c. to or permit her to receive the same for life; and after her death, to the use of her husband for life, with remainder to the children, &c. At the date of the marriage the hereditaments were subject to a term of 1,000 years, created to secure the payment of £300 and interest, but such sum had long been paid off, although no assignment of the term was made. In March, 1833, the hereditaments were, by the plaintiff and her husband J. W., appointed, &c., to secure the sum of £250 and interest, and the term was assigned to a trustee to secure the payment, and subject thereto, in trust for the person, &c., entitled to the equity of redemption. J. W. died in Oct., 1836; and the plaintiff, shortly after his death, paid off the £250. In March, 1837, the plaintiff charged the hereditaments with the payment to J. T. of £400 and interest; and the term was again assigned to a trustee for him, and subject thereto, in trust for the person, &c., entitled to the equity of redemption. In Feb., 1838, the plaintiff married S. U., but no settlement was then made; and in Oct., 1838, the £400 due to J. T. was paid off, and the indentures of March, 1837, and the title deeds of the hereditaments, were given up to S. U., but no reconveyance of the heredita

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