Page images




this verdict might be set aside, and a nonsuit entered, on the grounds that no retainer of the plaintiff by Wainman had been proved at the trial; and as the bill of costs, for which this action was brought, had never been delivered to him, he could not be considered as answerable for any part of its amount; and more particularly so, as he was not originally a party to the suit, for the conducting of which the plaintiff's claim was founded. The sum he took under the decree, he was entitled to as a legatee in right of his wife, and not as a party; and although he was beneficially interested in the result, yet he has done no act to render himself responsible to the plaintiff for carrying on the suit in Chancery.

Lord Chief Justice Dallas. The receipt of the money by the defendant under the decree of that Court at the termination of the suit, was equivalent to a retainer of the plaintiff in the first instance. The defendant's wife was one of the original parties to the suit, for the expense of conducting which the present action was brought; and on her marriage, Wainman became a party in her right; and the suit was not brought to a conclusion until some time afterwards. The plaintiff had the management of the sait as well before as after the marriage of Wainman; and it is a well known principle, that all parties interested in a suit in equity must be before the Court; and as he became an intervening party by marriage, and took his share of the property under the decree, the plaintiff is entitled to receive a remuneration for his services; and more particularly so, as he was eventually successful in his application to that Court. The defendant, therefore, is bound to pay his proportion of the plaintiff's bill, subject to its taxation by a Master in Chancery.




Mr. Justice. PARK.-The acceptance of the money by Wainman under the decree, was an adoption of the plaintiff's services in the conducting of the suit; and as he received a benefit from those services, it is but just that he should bear his proportion of the expenses attending it. The wife was a party to the suit under the original order of the Court ; and the defendant by marriage, eventually received his proportion of the fund through the professional assistance of the plaintiff.

Mr. Justice BURROUGH.-Both the defendant and his wife were parties to the suit before it was finally determined. The plaintiff, therefore, conducted it for both; and by the defendant's accepting his proportion of the fund in right of his wife, it amounted to an adoption of the suit, as well as an acknowledgment and ratification of the plaintiff's services in conducting it. The original bill was of course annended on the marriage, by making Wainman a party to it. The jury were therefore fully warranted in finding a verdict for the plaintiff, as the de fendant must have known that he was originally retained or employed to conduct the proceedings in the Court of Chancery. His bill, therefore, must be subject to taxation in the usual course; and the defendant is bound to pay his proportion, after such taxation has been completed.

Rule refused.


BROOKE V. BRIDGES and others.

Tuesday, Jan. 28th.

ment is defend

crease the da.

Mr. Serjeant Bosanquet, on the first day of this Term, Where an ac

tion of ejectobtained a rule, calling on the plaintiff to shew cause why the writ of inquiry, and inquisition taken thereon in ed, and the

plaintiff obtains this cause, might not be set aside, and a new writ of in- a verdict, he quiry issued and executed between the parties; or that execution of a the damages found by the jury on the execution of the writ of inquiry

to assess dasaid writ, should be reduced to the sum of 501. He mages in an

action for founded his motion on an affidavit, which stated that mesne

mesne profits, the present plaintiff was the lessor of the plaintiff in the estra costs an action of ejectment, brought in the Court of King's beyond his

taxed costs, in Bench, and tried at the last assizes for the county of order to inEssex, where he obtained a verdict against the defendants, ma

mages ; but who appeared and defended; and that he ultimately got by default in possession of the premises sought to be recovered ; that ejectment, the the bill of costs of the plaintiff's attorney in that action judgment may amounted to 3111. 12s. 7d., which was afterwards referred be recovered as to the Master for taxation, who ordered 1341. 4s. 11d. to mesne profits. be deducted; that 1771. 75. 8d. being the amount of the Master's allocatur, was paid to the plaintiff's attorney immediately after the taxation. That after possession of the premises had been given, and just before the payment of those costs, the plaintiff commenced the present action against the defendants in this Court, for the recovery of the mesne profits of the preinises, in which he obtained judgment by default : that thereupon a writ of inquiry was issued and executed before the under-sheriff of Esser : that the plaintiff's attorney, after giving evidence of the yearly value of the premises, produced the bill of costs as taxed by the Master, and tendered it in evidence, in order to increase the damages, as forming part thereof, to which the defendant's attorney objected, but was overruled by the under-sheriff ;



whereupon the jury, under his direction, returned a vera dict for 1177., expressing, at the time, that 501. was for the value of the land, and 671. the residue, towards such part of the bill of costs of the plaintiff's attorney as had not been allowed by the Master on the taxation.


Mr. Serjeant Lens now shewed cause, on an affidavit of the plaintiff's attorney, which stated that his bill of costs, produced on the execution of the writ of enquiry, was not only reasonable and fair, but that he was entitled to a verdict for the whole of the monies which had been disallowed by the Master on taxation ; but that the jury, under the direction of the under-sheriff, thought otherwise, and allowed a part of it only.

Mr. Serjeant Bosanquet, in support of the rule, referred to the case of Doe v. Davis, where Lord Kenyon is reported to have said, that(a) “ where there was a judgment by default in an action of ejectment, the plaintiff might, in an action for mesne profits, go into evidence and recover the costs of such judgment, as well as the mesne profits of the estate ; but that where the ejectment had been defended, and the plaintiff bad recovered, and taxed his costs, that he could not recover above his taxed costs, And in this case, it appears, that the plaintiff has taxed his costs, and received 1771. 7s. 8d. as the amount thereof.

The Court being of opinion that the distinction in that case was properly taken, ordered the rule to be made . absolute to reduce the damages to the sum of 50l. as prayed for, being for the value of the land only; thereby disallowing the extra costs.

Rule absolute accordingly (b).

(a) 1 Esp. Rep. 358.

-(6) See Gulliver V. Drinkwater, 2 Term Rep. 261.

[merged small][merged small][ocr errors][merged small]

The prisoner was convicted before Mr. Justice Bayley Where a person and Mr. Baron Garrow, at the last Old Bailey sessions, name of his coof uttering a forged power of attorney for selling stock, trustee to a

power of attorwhich was standing in the joint names of the prisoner ney for the sale and John Cox. The power purported to be executed by ing in their the prisoner and John Cox, and the attestation imported joint names in that it was executed in the presence of the subscribing Company of the witnesses by the above-named John Wait, (the prisoner,) land, and the and John Cor (a). The subscribing witnesses proved

gery, that such

forgery being discovered, the stock was not

sold;-Held, (a) The power was as follows :~" Know all men by these presents, that on an indicto we, John Wait, of St. James's, Gloucestershire, gentleman ; and John Cox, of ment for forWrington, Somersetshire, attorney, do jointly, and each of us doth sepa- co-trustee was a rately, for ourselves and for the survivor of us, make, constitute, and ap- competent witpoint John Underhill, of the Stock Exchange, gentleman, our true and lawful ness to prove attorney, for us, and in our names, and in our behalf, and also for and in that the signa.

ture of his the name and on the behalf of the survivor of us, to sell, assign, and trans

name to the fer all or any part of 2,1891. 173. 1d., being all our interest or share in the power was a capital or joint stock of Three per Cent. Annuities, created by an act of para forgery ; and, liament of the 25th year of the reign of his Majesty King George the Second, it seems, that entitled, “An act for converting the several annuities therein mentioned the practice of into several joint stocks of annuities transferrable at the Bank of England, to the Bank, such be charged on the Sinking Fund," &c. and by several subsequent acts : also a power is reto receive the consideration money, and give a receipt or receipts for the vocable without

deed. same, and to do all lawful acts requisite for effecting the premises ; hereby ratifying and confirming all that our said attorney shall do therein by virtue hereof; and in case of the death of both or either of us, this letter of attorney, as to all matters and things which after our respective decease shall be done by our said attorney, by virtue of, or under colour, or in pursuance thereof, shall, so far as the Governor and Company of the Bank of England are interested or concerned, be as binding upon our respective executors and administrators, as the same would have been upon us if living, unless notice in writing of our respective deaths shall have been previously given to

« PreviousContinue »