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1834.

Ex parte

LAW.

his refusal to deliver up the will till his account was settled, whereupon he was served with a citation from the Prerogative Court of Canterbury, at the instance of Mary Wood, requiring him to appear in that court, and bring in and leave in the registry of that court the original will. Law further deposed that he was advised that he and Coates had a lien on the will at common law, but he was informed that the Prerogative Court would decree that he should give up the will without payment of his bill of costs. It was further sworn that Sir John Nicholl, the Judge of the Prerogative Court, had, on a day subsequent to the day on which the citation required the will to be brought in, declared, upon the case being mentioned, that the claim of lien was no excuse for not bringing in the will; and that, if it was not brought in on or before the next sitting of the court, he should pronounce Law to be in contempt.

Follett now shewed cause. The Prerogative Court has an exclusive jurisdiction as to the probate of wills, or compelling the production of them: this Court, therefore, will not interfere by prohibition, which is a proceeding applicable properly to cases where the Spiritual Court is exceeding its jurisdiction. As to the question of lien, this Court, if a proper case should appear, may interfere when the question arises; but they will not anticipate it.

Wightman, contrà. It is true that the Spiritual Court has exclusive jurisdiction; but the question here is, whether the Court of King's Bench will interfere to prevent the Spiritual Court from proceeding in derogation of

the

the common law. In a tithe suit, this Court inter

feres when a question of modus, or other matter of common law, arises. Here a lien is claimed, which is matter of common law. If this application were to fail, an attorney's lien on a will would be altogether nugatory.

Lord DENMAN C. J. Your application goes to prevent the Spiritual Court from even having the will brought in till the lien is satisfied. You do not call on them not to keep it in the registry. We cannot presume that, when they have ordered the will in, they will do any thing improper. Supposing the question of lien to arise, we should see whether we could give effect to the right without injuring parties.

TAUNTON J. There is clearly no ground for this application. It is assumed that the Prerogative Court are going to act in derogation of the course of common law; that is, that they will try the right of lien. I know that when a Spiritual Court proceeds to try a custom, or other similar question, this Court will interfere. But at present, it does not appear that anything is going to be done in derogation of the common law. The Spiritual Court has not only jurisdiction over wills, but exclusive jurisdiction; and they are not exceeding that jurisdiction when they order the will to be brought in. We cannot act upon the mere suggestion that it is likely they will proceed as this Court would not proceed. I trust that the Spiritual Court will hold the will to be in the possession of the parties who are entitled to it.

WILLIAMS

1834.

Ex parte
LAW.

1834.

Ex parte
LAW.

WILLIAMS J. (a) No ground has been shewn for this application. We cannot say that the Spiritual Court will proceed improperly. Admitting that it is the proper place for the custody of wills, it is too much to say that we are to prevent their having that custody on the supposition that the rights of parties will be injured. The usual case of a prohibition being granted is, where there is either a proceeding contrary to common law, or cognisance taken of that which is cognisable only at common law.

(a) Patteson J. was absent.

Rule discharged with costs (b).

(b) See Georges v. Georges, 18 Ves. 294., Balch v. Symes, 1 Turn. & R. 87., Tyler v. Drayton, 2 Sim. & St. 309.

Monday,
Nov. 10th.

A Judge has

to

costs on pro

ceedings at

chambers, but it will be ex

extreme cases.

In the Matter of Arbitration between BRIDGE

and WRIGHT.

power to give F POLLOCK had obtained a rule in Hilary term last, to shew cause why Bridge or his agents should not pay the costs of John Henry Law and others, inercised only in curred in opposing the several applications made against them respectively on summons before Denman C. J. and Littledale J. in the matter of this arbitration. The rule had been obtained, and was opposed, upon affidavits stating the course of proceedings before the learned Judges, which it is not necessary to particularise here.

Joseph Addison now shewed cause against the rule, and F. Pollock was heard in support of it. [Taunton J. Some time ago, the Judges resolved that they had power

to

to give costs on proceedings at chambers; but they determined that it should not be exercised except in ex

treme cases.]

1834.

In the Matter of
BRIDGE and
WRIGHT.

The Court (a)

Discharged the rule (b).

(a) Lord Denman C. J., Taunton, and Williams Js.

(b) See Read v. Lee, 2 B. & Ad. 415. Doe dem. Prescott v. Roe, 9 Bing. 104.

The KING against SAMUEL FRANCEYS.

SIR JAMES SCARLETT had obtained a rule in Easter term last, calling upon the defendant to shew cause why a criminal information should not be filed against him for printing and publishing certain alleged libels. The publications complained of were contained in numbers of a newspaper, called "The Liverpool Standard

Monday,
Nov. 10th.

On motion for formation for

a criminal in

a libel pub

lished in a newspaper, if

the Stamp

Office affidavit, under stat.

38 G. 3. c. 78.

be put in to

shew that the

defendant is

and General Commercial Advertiser." The newspapers were not annexed to, and identified by, any of the the printer and

in

affidavits; the deposition of the prosecutor simply stat-
ing that the libels had appeared from time to time
a certain newspaper, called &c. A copy of the de-
fendant's affidavit delivered at the Stamp Office was put
in, with the certificate of a commissioner of stamps
indorsed and verified on oath, according to stat. 38 G. 3.

publisher, such proof is not

sufficient unless

the newspaper produced as

containing the libel corre

spond with the description in

the affidavit,

not only in
title, but in the
name of the

place of printing.

And where the place of printing was called Union Street, Castle Street, in the affidavit, and Union Buildings, John Street, in the newspaper, the Court refused to enlarge the rule, in order that supplemental affidavits might be filed, shewing that the places named were identical.

Where a newspaper is filed, together with affidavits, in support of a motion for a criminal information for a libel, the Court will take notice of it, if it correspond in the necessary particulars with the Stamp Office affidavit, though it be not annexed to, and expressly identified by, any affidavit.

VOL. II.

E

c. 78.

1834.

The KING against FRANCEYS.

c. 78. ss. 9. 13. This affidavit set forth that the defendant was the printer, publisher, and sole proprietor of a certain newspaper, called "The Liverpool Standard and General Commercial Advertiser," and that it was intended to be printed at the printing-office of the said S. F., situate in Union Street, Castle Street, in the parish &c., and that it was entitled (as before). The affidavits contained no further description of the newspapers; but newspapers were filed (a), together with the affidavits, which contained the libels complained of, and bore the same title with that mentioned in the defendant's affidavit at the Stamp Office, but which purported to be printed at "Union Buildings, John Street."

F. Pollock, Kelly, and W. H. Watson shewed cause. The defendant is not shewn to be connected with the publication complained of. The paper produced does not correspond with that described in the affidavit at the Stamp Office. Even admitting it to be unnecessary that the affidavits in support of the prosecution should have the libel annexed and identified, under the eleventh section of the act, still that section applies only where the name or names and the place of printing of the paper produced, shall be the same as the name or names and the place of printing mentioned in the affidavit at the Stamp Office; and the proof of the publication and printing of the paper is not rendered unnecessary if this section be not complied with. Sect. 9. makes the affidavit evidence of all contained in it; but

(a) The counsel for the defendant objected to these newspapers being noticed by the Court, as not being connected by express affidavit with the alleged libels: but the Court said they would take notice of them. See Mayne v. Fletcher, 9 B. & C. S82. Rex v. Donnison, 4 B. & Ad. 699. that

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