1835. DAVIES and Wife, Tenant. general sense of the country, the representative of the family of the Selbys in whose favour it is probable he meant this devise should operate, and for whom he meant to keep the leasehold estates connected with the Demandants; freehold, and charged the payment of the debts and le- LOWNDES, gacies out of the estate. I say no more than that it is probable, because it is not necessary to carry that argument further; for it must not be forgot that the lessors of the Plaintiff are now called to maintain their right; that they must shew against a clear and specific devise to a person named, of whose identity there can be no doubt, that they come under the words of the will; and, in my apprehension, the argument that is attempted to support their case does not make it out with clearness, with certainty, and with that conviction that is necessary to establish a title against another which undoubtedly is clear. In the first place, more certain, that However, the Defendant's counsel don't leave the matter upon the imperfection of the argument urged on behalf of the lessors of the Plaintiff, for they undertake to shew, on the behalf of the Defendant, that negatively the lessors of the Plaintiff cannot be the persons meant in in this will; and there are two circumstances by which they contend that that proposition is made out with a very strong degree of evidence. they say, and nothing can be the person to whom the testator meant to apply the description of right and lawful heir at law was one whose person was unknown to him; for he directs that advertisements should be published, immediately after his decease, for the better finding out of that person. Then he is there describing one of whose possible existence he had some idea, but of whose actual existence he knew nothing. Now, that, they say, never can apply to the lessors of the Plaintiff, because the lessors of the Plaintiff he undoubtedly knew, and one of them, 1835. Tenant. Elizabeth Wells, is mentioned by name in the will; and, though the names of the other two are not mentioned, DAVIES and yet their mother's name is mentioned. Their father is Wife, Demandants; described, and described by the circumstance that exLOWNDES, plains his connection with the testator; he is described as the husband of Elizabeth: the female who is in the same degree with them, and married a person of the name of Franklyn, is also named in the will. The object of the inquiry the testator directed to be made was, not to ascertain a point of law, but to discover an unknown person; and it would be ridiculous to suppose he had directed advertisements to find out that which he extremely well knew. The object, therefore, of this description must be some other person than those who were before his eyes, and whom he names. When the testator comes to make a devise in favor of Lowndes, he takes care and is anxious that Lowndes should assume the name of Selby: there is a positive direction in the will that Lowndes, whenever he becomes entitled, shall take the name of Selby. Now, if the testator could have conceived that there was any event in which Elizabeth Wells and the Franklyns might be entitled to claim under the will, it is inconceivable that he who was anxious to make a gentleman abandon his own name, should not be equally anxious to make those assume that name under which he intended the representation of his family should continue. But, besides this, there is another circumstance in the will which the Defendant's counsel contend, and it seems to me unanswerably, makes it still more clear that the testator negatively did not intend that the lessors of the Plaintiff should be the representatives of his family in possession of his estate, managing that estate, and of course, as the heirs of that estate by the will, executing his will with regard to that estate. To Elizabeth Wells, and to the Franklyns, there are two legacies given; those legacies are charged upon 1835. DAVIES and Wife, Demandants; Tenant. this estate. The mere circumstance of giving legacies charged upon an estate will not, perhaps, of itself be sufficient to shew that the legatees could not in any event take the estate out of which the legacies are to issue. But this is not all; the testator has proceeded LOWNDES, to give several legacies, and directs that they shall be paid within twelve months, which is the usual time at which legacies are made payable; he directs that they shall be paid by his heir at law within a twelvemonth after his decease; but if it should so happen that no heir at law should be found, he then appoints Mr. Lowndes his lawful heir, upon condition that he changes his name; and he gives him the estate charged with those legacies. It is clear, therefore, that the testator supposed a case in which Mr. Lowndes might be the person to pay the legacies to Wells and to the Franklyns. Now, that case could not by possibility exist, if Wells and the Franklyns were the persons to answer the description of his right and lawful heir, because they would take the estate; the estate would not come to Mr. Lowndes, and Mr. Lowndes, therefore, could never be in the situation which the testator has supposed to be a situation likely to happen within a short compass of time. From these circumstances, the counsel for the Defendant contend, and their argument seems to me well founded, that there is sufficient evidence to shew negatively that the heir could not be the lessors of the Plaintiff. The other part of the argument seems to me to shew that the lessors of the Plaintiff have not been successful to make out the point that they are the persons intended: the utmost of the argument would be probable conjecture, not very certain, and which, in such a case, ought not to prevail against a clear title. Mr. Lowndes's title is a clear one, unless another be found to bar it; therefore the Court, upon the whole, are of opinion judgment ought to be for the Defendant. Judgment for Defendant accordingly. 1835. April 30. searching for judgments, will not render an attorney's bill taxable under 2 G. 2. c. 23. Ex parte BowLES's Trustees. A charge for WHITE applied to refer to the prothonotary to be taxed, an attorney's bill for the expense of certain settlements and conveyances, on the ground that the bill contained charges for searching for judgments: these charges, he contended, were disbursements at law under 2 G. 2. c. 23. s. 23.: and he relied on Wilson v. Gutteridge (a), where preparing a warrant of attorney was held to be a taxable item, the Court of King's Bench saying they had a general jurisdiction, independently of the statute, to tax an attorney's bill. Sed per Curiam. That case has been over-ruled by Fenton v. Correa (b); and it has been held in Clutterbuck v. Combes (c), and a long list of cases, that the Court has not a common law right to tax an attorney's bill. It cannot be said, that searching for judgments is a charge or disbursement at law or in equity under the statute 2 G. 2. c. 23. (a) 3 B. & C. 157. Rule refused. (•) 5 B. & Adol. 400. 1835. BARNETT v. GLOSSOP. May 1. THE 'HE Plaintiff sued in assumpsit upon an alleged In assumpsit bargain and sale of his copyright in a dramatic composition, entitled "Victorine, or, I'll sleep on it," to the Defendant, the manager of a suburban theatre. The declaration also contained a count on an account stated. The Defendant pleaded that he never promised modo et formâ. for the price of a copyright bargained and sold, a defence on the ground that the copyright was not assigned in writing, must be specially At the trial before the Undersheriff, it was proved pleaded. that the Defendant agreed to give 157. for the piece, but afterwards repudiated it. There was no written assignment of the copyright; and it was objected, on behalf of the Defendant, that, without such an assignment, the piece could not be said to have been sold to the Defendant, the statute 3 & 4 W. 4. c. 15., prescribing that the author of any dramatic piece shall have, as his property, the sole liberty of representing it, or causing it to be represented at any place of dramatic entertainment, and the statute 8 Ann. c. 19. s. 1. having enacted, that no bookseller, printer, or other person whatsoever, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing. The Undersheriff thought that, under the new rules, the objection could not be taken unless it were specially pleaded. Whereupon the Plaintiff had a verdict for 157., with leave for the Defendant to move to set it aside and enter a nonsuit instead, if the Court should be of opinion that the objection could be taken under the general issue. 9 Pin 1544 |