« PreviousContinue »
1001, in consideration of his not agreed that the amount should be consigning any herrings of a par- deposited with the defendant, until ticular description to the London it should be ascertained whether market, and in particular to the the auctioneer was entitled to the house of Messrs. M. for the space whole of his demand or not, and of one year; and the plaintiff the defendant paid it over to the declared in assumpsit against the auctioneer on receiving his indemexecutors of J. S. who survived nity, without the knowledge or G, S.:-Held, that the action was concurrence of the plaintiff :well brought against the execu- Held, that the latter was entitled tors of J. S. without describing to recover it back in an action for him as the surviving partner of money had and received. Cowling G. S. in the declaration. Calder v. Beachum, H. 3 & 4 G. 4. v. Rutherford, E. 3 G.4. Page 158
Page 465 Where a count of a declaration in aysumpsit against a carrier by
ATTACHMENT. water, alleged, that in considera
See SHERITY, 4. tion that the plaintiff, at the request of the defendant, had caused to be
ATTORNEY. shipped on board the defendant's vessel a quantity of wheat, to be See AGREEMENT, 1. carried to & certain place for
Annuity, 2. freight to be therefore paid to the
BANKRUPT, 1. defendant, he undertook to carry
Damages, 2. the wheat safely, and deliver it for
RELEASE, 1. the plaintiff on a given day : but it appeared that the defendant's 1. An attorney who had ceased to undertaking to carry, was made practise for six years, may be rebefore the whole of the wheat had admitted, on payment of a nominal been shipped on board his vessel: fine, without the arrears of duty, Held, that the count might be on an affidavit stating that he had supported, although it was object- discontinued to practise on account ed that the consideration for the of bis affairs having become empromise was executory :-on the barrassed ; that he had not pracground, that where an order is tised in the interval, and that no given to a carrier, antecedently to misconduct could be imputed to the delivery of goods, who assents him in his character of an attorto deal with them when delivered, ney. Ex parte Cunningham, M. in a particular manner, a duty is 3 G. 4.
410 imposed on him on the receipt of 2. Where an attorney was admitted the goods to deal with them ac- iu 1799, and regularly took out cording to the order previously his certificates to 1814, but did given ; and the law implies a pro
not renew them for that and the mise by him to perform such duty. following year, on account of his Streeter v. Horlock, T. 3 G. 4. having been employed as a ma
283 naging clerk to an attorney in the 5. Where the plaintiff employed an country, and re-commenced prac
auctioneer to sell an estate, and tising on his own account in 1817, disputed the sum charged by him having first obtained his certififor his expences, when it was cate for 1816; the court allowed
him to be readmitted on payment tures of certain creditors of a of a nominal fine, and the duty for bankrupt to a petition to the Lord the two years in which he had not Chancellor for the taxation of a taken out his certificates. Ex bill of costs, which petition was parte Sherwood, H. 3 & 4 G, 4. entitled “In Bankruptcy:"-Héld,
Page 493 that the action was not maintain.' 3. So an attorney was re-admitted on able. Ford v. Webb, E. 3 G. 4. payment of a nominal fine, where
Page 31 he had discontinued to practise on 6. Where the plaintiff's attorney had account of ill health. Er parte been guilty of gross misconduct
Maliphant, H.3 & 4 G. 4. 495 towards the defendant, in conse4. It is the duty of an attorney to quence of which, the Prothonotary
communicate personally with his refused to allow the plaintiff any clients, and give his attention to costs: the Court refused a rule their concerns, so that they may for him to review his taxation, reap the benefit of his advice and although the defendant had taken judgment :- Where therefore, an out a summons to stay proceedings attorney had an office at a distance in the action on payment of debt from his own residence, at which and costs. Adanis v. Staton, M. he carried on business by a clerk, 3 G. 4.
365 to whom he allowed one third of 7. The Court refused to strike an the profits :-Held, that the former attorney off the roll, on an affidacould not recover the amount of a vit which merely stated that he bill of costs, delivered by him to had been struck off the roll of the the defendant for business done by Court of King's Bench ;-as it his clerk, in carrying on a suit ; should have been shewn for what as the defendant had never seen or cause he was struck off the roll communicated with the plaintiff on of the latter Court, viz. whether the subject ; and it seems that the for contempt, mal-practice, or misplaintiff could not sue alone ; as by demeanor; and an application for his allowing his clerk to partici- that purpose cannot be made on pate in the profits, it amounted to the last day of Term. In re a partnership. Hopkinson v. Smith, Hague, E. 3 G. 4.
64 T. 3 G. 4.
237 8. Where a charge was made by 5. Petitions in bankruptcy are not affidavit, against an attorney of
proceedings in Chancery: Where the Court, amounting to an indiettherefore, in an action of debt to able offence, the Court refused to recover penalties under the sta- call upon him summarily to antute 2 Geo. 2. c. 23, the declara- swer the affidavit, but left the tion charged the defendant with party to prosecute : - but they having acted as a solicitor in the granted a rule calling on him to Court of Chancery, and carried on deliver over deeds and papers in proceedings there, he not having his bands to the then attorney of been admitted and enrolled a soli- the complaining party. Short, citor of that Court; and it appear- Demandant; Pratt, Tenant, M. ed that the defendant (a certifi- 3 G. 4. cated conveyancer, but not an 9. Where it appeared by afhdavit attorney,) had been employed by that a client had given his attorney the solicitors under a commission, two bills of exchange, for the purto attend the obtaining the signa- pose of getting them discounted,
and that he did so, but applied the proceeds to his own use; the Court granted a rule nisi that the attorney might pay over the amount to the client, or deliver up the bills to him; although he was not employed in any suit at the time the application was made. Er parte Hall, in re Knight, M. 3 G. 4.
Page 437 10. The Court refused to strike an
attorney off the roll, on an affidavit which stated that he had not served a regular clerkship ;-as he had been opposed by counsel before a Judge on the same ground, at the time he obtained his admission; and as no misconduct or mal-practice had been imputed to him subsequently to such admission. In re Page, H. 3 & 4 G. 4.
572 11. Where the plaintiff was employed
as a solicitor to carry on proceellings in Chancery, after which the defendant married one of the parties to the suit, and eventually received a proportionate part of the property in dispute, in right of his wife, under an order of that Court: -Held, that he was liable to pay the plaintiff a proportion of his bill of costs after taxation by the Master ; although there had been uo retainer of the plaintiff by the defendant, and although the bill had not been delivered to the latter, but to a co-defendant, who had suffered judgment by default. Gray v. Wainman, H. 3 & 4 G. 4.
467 12. The Court will not direct an at
torney's bill to be referred to taxation after payment, unless it can be impeached on the grounds of gross overcharge, fraud, or mistake, or some specific charge, which must be distinctly pointed out; and although the application was made by a cestui que trust,
who had a direct interest in the subject matter for which the expences in the bill were incurred, yet it having been previously paid by the representative of a surviving trustee, acting under a deed of trust for sale,the Court refused to interfere. Wilkinson, Demandant; Foster, Vouchee, H. 3 & 4 G. 4.
Page 496 13. An agent has only a lien for his
ngency charges in the particular cause in which he is employed, and not for the general balance due to him from the attorney who employs him. Where, therefore, the plaintiff's attorney was indebted to the plaintiff on a bond, in a sum exceeding his custs in the cause, and was also indebted to his agents on a general account :Held, that the latter could not retain as against the plaintiff, more than their charges for agency in the cause they had conducted for him; and the plaintiff having died, the Court ordered that the damages and costs recovered by him in an action against the defendants, should be paid over to his executors, on paynient of the sum due to the agents of such attorney in the particular cause. White v. Royal Exchange Assurance Company, T.3 G.4.
ATTORNMENT. See EVIDENCE, 4.
AUCTION. See EXECUTORS, 2.
AUCTIONEER. See Assumpsit, 5.
AVOWANT. Sex EVIDENCE, 4.
aside the award. Cramp v. Symonds, M. 3 G. 4. Page 434
PRISONER. 1. Where one of the ball had been miss
named in the notice of justification, and was sworn accordingly, the Court permitted him to justify, on his swearing that he had sufficient property, and it appearing that he had been found by the party enquiring after him, with reference to his becoming bail. Levi's Bail, T. 3 G. 4.
282 2. Where the plaintiff, having a joint
verdict subject to a reference, and the arbitrator awarded in favour of the plaintiff, but made a material mistake in his award, when the plaintiff applied to the Court that it might be referred back to the arbitrator to re-consider his award; but the defendant would not accede to that proposition; on which the Court ordered the rule of reference to be discharged, and the award set aside, and the plaintiff having taken the cause down for a second trial, and again obtained a verdict; -Held, that he was entitled to the costs of both trials.
Payne v. Bailey, E. 3 G. 4. Page 147 2. Where a cause was referred to ar
bitration under an order of a judge at Nisi Prius, by the consent of the parties, one of whom revoked his submission before the award was published; notwithstanding which, the arbitrator afterwards made his award ;--the Court set it aside, the order having been previously made a rule of Court. Clapham v. Higham, M. 3 G. 4.
403 3. The Court will not set aside an
award, on the ground that the arbitrator has been mistaken in the law, unless the principles of law upon which he has decided, appear upon the face of the award itself. Where, therefore, the question was, whether fees for the interment of bodies in the chancel of a church, were payable to the rector or vicar, and the arbitrator awarded that the latter was entitled to them, the Court refused to set
cause of action against five several defendants, sued out bailable process against one alone, under which he was arrested, and put in bail, and afterwards sued out serviceable process against the other four, and all the defendants were named in the affidavit to hold to bail, and a declaration was delivered in which they were all included; but the bail-piece was taken in the name of the defendant only against whom bailable process had issued; the Court refused to enter an eioneretur on the bail-piece, as there was no variance between the process and declaration; on the grounds that the plaintiff might sue out hailable process against one defendant, and serviceable against others; that four only could be included in one writ; that the bailpiece must agree with the writ under which the one defendant was arrested, and that the affidavit of debt corresponded with the declaration which had been delivered as against all. Christie
v. Walker, M. 3 G. 4. 362 3. An attorney's clerk may be put
not take an assignment of the bail bond pending such rule, as it is an election by him to proceed against the sheriff in the first instance ; and the affidavits to set aside the proceedings on the bail bond, must be entitled in the action against the bail. Blachford v. Hawkins, H. 3 & 4 G. 4.
in as bail, for the purpose of surrendering a defendant, but he cannot justify as such. Hill v. Thompson, M.3 G, 4.
Page 403 4, Where the principal offered to sur
render in discharge of his bail, and an agreement was afterwards entered into between his attornies and the plaintiffs' agent, that the surrender should be dispensed with for six weeks, on the terms of the bail continuing liable, which agreement they were ignorant of at the time, as well as that their principal had offered to surrender; but they afterwards consented to their liability continuing on the terms mentioned in the agreement; and the principal in the meantime became bankrupt, and obtained his certificate, and the plaintiff afterwards proceeded against the hail without notice :Held, that they were discharged; on the grounds that their liability under their recognizance ceased, time having been given their principal to surrender without their consent or authority in the first instance ; and that it could not be revived by their subsequent ratification of such agreement to continue liable, as they had not been informed that their principal had previously offered to surrender himself in their discharge. West V. Ashdown, H. 3 & 4 G. 4. 566
BAILMENT. 1. Where an order is given to a carrier, antecedently to the delivery of goods, who assents to deal with them when delivered in a particular manner, a duty is imposed on him on the receipt of the goods, to deal with them according to the order previously given ; and the law implies a promise by him to perform such duty. Streeter v. Horlock, T. 3 G. 4. 283
See Ball., 2.
See COVENANT, 1.
1. If a bail bond has been irregular
ly assigned, the affidavit to set aside the proceedings thereon, must be entitled in the original action ; but if it has been assigned regularly, then in the action on the bail bond. Ham v. Philcor, H. 3 & 4 G. 4.
521 2. The plaintiff having ruled the
sheriff to bring in the body, can
VENUE, 3. 1. Where a bankrupt refused to be
sworn before commissioners until his attorney arrived :-held, that a warrant issued for his commitment by them, stating generally the refusal of the bankrupt to be sworn, was sufficient, without assigning the reason for such refusal. Held also, that the warrant committing him until such time as he should submit himself