cutors, in the banking-house of Messrs. Pitt and Co., bankers, Cheltenham, divers sums of money, being part of the personal estate of the testatrix. And he found that on the 20th day of October 1824 John Togwell, as one of such executors, received from the said bank the sum of 1007. under the joint cheque of himself and James Motly, the said John Togwell being at that time largely indebted to the testatrix's estate. And he found that James Motly thereby became liable for such sum of 100%, and that the same ought to be proved under the commission of bankrupt against James Motly, in addition to the aforesaid balance of 7411. 7s. 1d. And he further found that James Motly, as one of such executors, received from the said bank, under the joint cheque of himself and John Togwell, several sums of money, from September 1824, to January 1828, making together the sum of 600l. And he found, that at the times the said several sums of money were paid to James Motly, the said James Motly was largely indebted to the testatrix's estate; and that John Togwell thereby became liable for such several sums, amounting together to the sum of 600%; and that the same ought to be proved under the commission against John Togwell, in addition to the aforesaid balance of 665l. 2s. 5d. On the cause coming on for further directions, Mr. C. Romilly, for the Plaintiffs, submitted, that as the Master had found that Motly and Togwell had respectively committed a devastavit upon the testatrix's estate, Motly by enabling Togwell to get into his possession the sum of 100l., and Togwell by enabling Motly to possess himself of 600l., the Defendants' estates ought respectively to be charged with interest at 5 per cent., upon the sums so permitted to be improperly drawn out; and he cited Tebbs v. Carpenter (a), and Underwood v. Stevens. (b) In this 1835. BICK บ. MOTLY. 1835. ВІСК V. MOTLY. this case the finding of the Master charged each executor with a devastavit, and their respective estates were consequently liable, according to the practice of the Court, to pay interest at 5 per cent. The Plaintiffs were, therefore, entitled to a reference back to the Master to calculate interest at 5 per cent. on the sums found to have been improperly drawn out. Mr. Pemberton and Mr. Sharpe, contrà, contended that, as the Master had expressly found that the principal sums drawn out ought to be proved against the estates of the bankrupts in addition to the balances. before found to be due, and as no exception had been taken to the Master's report, the Plaintiffs were not now entitled to claim any interest, still less interest at 5 per cent., by way of penalty for an act not amounting, for anything that appeared upon the report, to more than an act of negligence. As far as the sum of 100l. was concerned, the expense of the reference back to the Master to calculate the interest would exceed tenfold the amount of interest when calculated. There was no precedent for an executor being charged with interest at 5 per cent. for having permitted his co-executor to receive money; more especially where the estate of the executor, against which the interest was to be charged, was a bankrupt estate. The MASTER of the ROLLS.* The Master by his report, after stating the balances due from the estate of each executor upon his receipts and payments, as executor, finds specially that Motly enabled his co-executor Togwell to receive from a particular banking-house, under the joint cheque of Motly and Togwell, the sum of 1007. belonging to the estate of Sir C. Pepys. the the testatrix, at a time when Togwell was largely indebted to that estate; and that Togwell enabled Motly to receive, under like joint cheques, several sums of money belonging to the estate of the testatrix, amounting in the whole to 600l., when Motly was largely indebted to that estate; and he finds that those sums of 100l. and 600l. ought to be proved against the bankrupts' estates respectively, in addition to the balances before found due upon their receipts and payments. Where the facts are so clearly stated in a report, as necessarily to involve a particular consequence, it is for the Court to act upon the facts so reported, and it would not be a proper ground of exception that the Master had omitted to point out the consequence. Here the Master has found that in respect of the sums of 1007. and 600l., the executors have, each of them, committed a devastavit; and, according to the uniform practice of the Court, each of the executors is chargeable with interest at 5 per cent. upon the sums which he enabled his co-executor to receive. 1835. BICK v. MOTLY. An order was made, that interest at 5 per cent. should be added to the principal sums of 100l. and 600l., to be proved against the bankrupts' estates respectively; and that, in case the parties should differ as to the amount of the interest, it should be referred back to the Master to calculate the same. questions arising upon the practice of retainer. A motion for an injunc tion to restrain a particular counsel, who had acted for the Defendants, from acting, at a subsequent stage of the proceedings, on behalf of the Plaintiffs from whom he had received a retainer, was refused. BAYLIS v. GROUT. THIS was a motion on the part of the Defendants in Mr. Bickersteth, with reference to this part of the motion, said that, although the law or practice of retainer was a subject not altogether free from obscurity, and there was some doubt as to the jurisdiction of the Court to interfere with matters relating to the retaining of particular counsel, yet, if any rule upon this subject could be held to be clear and reasonable, it was that where a counsel had, by reason of the part he had taken in a particular suit, possessed himself of a knowledge of the case of the party for whom he acted, he ought not to receive a retainer from, or afford his assistance to the opposite side, without giving notice to the party for whom he had previously acted. In Cholmondeley v. Clinton (a), it was said by Sir Samuel Romilly, in the argument, that great laxity prevailed at the bar as to retainers, and that a difficulty, when it occurred, was usually referred to some other counsel; and Lord Eldon, in his judgment, made the following observations: "The practice of the bar (a) 19 Ves. 261. and Coop. 80.; and see Ex parte Elsee, Montagu's Ca. in Bankruptcy, 69., in and Ex parte Lloyd, in the note to that case. in my time was this; if a retainer was sent by a party against whom the counsel had been employed, the retainer being in a cause between the same parties, the counsel, before accepting it, sent to his former client stating the circumstance, and giving him the option. That has, I believe, been relaxed; and the course is as it has been represented at the bar. I do not admit that he is bound to accept the new brief. My opinion is, that he ought not, if he knows any thing that may be prejudicial to his former client, to accept the new brief, though that client refused to retain him." In the present case, the Defendants insisted that a particular counsel, who had acted on their behalf in the previous proceedings, had obtained such a knowledge of their case as could not but be prejudicial to them, if he gave his professional assistance to the other side; and, in that state of circumstances, Lord Eldon's opinion went, undoubtedly, to a distinct recognition of the propriety and reasonableness of the present application. The MASTER of the ROLLS*, without calling upon the other side to argue this part of the motion, said that, as the Defendants had not taken the usual means of securing the professional assistance of Mr. Kindersley, the Court could not interfere. The case cited went itself to show Lord Eldon's opinion, that the Court had no jurisdiction to interfere in questions arising upon the practice of retainer. * Sir C. Pepys. 1835. BAYLIS v. GROUT. |