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38 Notices of Books.— Publishing Proceedings of House of Commons.- Practical Points.
1. Injuries affecting personal security: the making themselves acquainted with the health. 'the reputation, &c. 2. Injuries affect-branches of Law concisely treated of in ing personal liberty: false imprisonment, &c. this pocket volume 3. Injuries affecting the relative rights of persons, as husbands, parents, guardians, masters. 4. Injuries to personal property in possession. THE PUBLICATION OF THE PRO5. Injuries affecting personal property in ac
CEEDINGS OF THE HOUSE OF tion or breach of contract. 6. Injuries affecting real property. 7. Injuries to chattels real.] COMMONS. 8. Trespass. 9. Nuisance. 10. Waste. 11. Sub-THE Select Committee which were aptraction of suit, service, &c. 12. Disturbance pointed to report on the matter of Stockof franchise, commons, ways, patronage, dc; 1 dale v. Hansard, to which we have already 13. Injuries by Inferior Courts by neglect and encroachment. 14. Injuries by or affecting
adverted (see Vol. 13, p. 305), has now the Crown.
made its report; and they find that Hans
ard having acted in strict conformity to the The appropriate remedies for each injury
orders of the House, ought to be reimare treated of in the several chapters to li
bursed ; and they lay down the following which they relate : so that the reader will
rules : have the bane and antidote equally before
“ Upon the whole matter referred to your him. The Second Part comprises the In-/
Committee they report as their opinion, that juries relieved and Protection afforded by Courts of Equity. The subjects of this
the power of publishing such of its reports, part of the volume are classed under the
votes, and proceedings as it shall deem ne
cessary or conducive to the public interests, following heads :
is an essential incident to the constitutional 1. The general nature of Equity. 2. The relief afforded in Equity, as well in
| functions of Parliament, more especially of aid of Courts of Law as concurrently with and this House, as the representative portion exclusively of them.
of it. 3. The relief and protection of infants. “ That by the law and privilege of Par4. Of wards in Chancery.
liament this House has the sole and exclu5. Of married women.
sive jurisdiction to determine upon the 6. Of idiots and lunatics. 7. Of charities.
existence and extent of its privileges, and 8. Of the specific performance of agree that the institution or prosecution of a ments.
action, suit, or other proceeding for the 9. Of trusts.
purpose of bringing them into discussion or The Third Part treats of the Relief and decision before any court or tribunal elseProtection afforded to Creditors and Deb- where than in Parliament, is a high breach tors in Trade in the Courts of Bankruptcy. of such privilege, and renders all parties The materials of this part are thus arranged: con
re thus arranged: concerned therein amenable to its just dis1. Persons liable to the Bankrupt Laws.
pleasure and to the punishments conse2. The act of bankruptıy.
quent thereon. 3. The petitioning creditor's debt.
“ That for any court or tribunal to as4. The fiat.
sume to decide upon matters of privilege 5. The proof of debts.
inconsistent with the determination of either 6. The validity of transactions before the House of Parliament thereon, is contrary to fiat.
the law of Parliament, and is a breach and 7. (of disputing the validity of the fiat. 8. The liabilities of the bankrupt, and his
his contempt of the privileges of Parliament." protection and relief.
The Fourth Part states the Remedies by PRACTICAL POINTS OF GENERAL Distress, the Injuries to which it applies,
INTEREST. what may be distrained, and how the dis- | tress should be taken and disposed of. BURGESSES UNDER THE NEW CORPORATION The Fifth and concluding Part relates to Arbitrations, the powers of the Arbitrator, UNDER the old corporation system, parties and the grounds of setting aside Awards, &c. who had an inchoate right as burgesses
Besides the class for whom the work is were entitled to a mandamus. See Com. especially designed—the Articled Clerk or Dig. Mandamus, (A). Townsend's case, Law Student-it is not improbable that it i Lev. 91. But this seems different under may be useful to many of the younger Prac- the new system, where the objection made titioners who have been admitted without to the retention of the names of certain much opportunity of previous preparation, burgesses on the list was the non-payment und who may therefore be desirous of of the shilling required by the Reform Act,
New Bills in Parliament.- Selections from Correspondence. 2 & 3 W. 4, c. '56, but that in all other New Rules for the Examination of Attorneys. respects the parties were duly qualified ac- He observes that “they are calculated very cording to the 9th section of the Municipal little if at all, to accomplish the end which Corporation Act, 4 & 5 W. 4, c. 76. Sir
| they were designed to effect.” Now. I would
| ask, what was the proposed end? Was it not William Follett applied for a mandamus, on that
that the young attorney might possess an adethe ground that the parties had an inchoatequate knowledge of the practice of the profesright, and there was no other remedy. Butsion he was about to enter? Your corresponthe Court of King's Bench refused the writ, dent subinits that their moral capacity should on the ground that they had no power to be enquired into, to ascertain whether or not grant it in this case. Rer v. Mayor of the ase. Her v. Mavor of they would be likely to turn the ability which
the Rules require, to an improper purpose ; a Hythe, 1 Nev. & Perry, 352.
task that would puzzle even himself to execute : for what proof can he adduce of the honesty
or dishonesty of a man who has not yet enterNEW BILLS IN PARLIAMENT.
ed the profession, where alone such honesty or
dishonesty can be exhibited ? Besides, there BILLS OF EXCHANGE.
are few, very few, who would entrust their The object of this bill (proposed by Mr. affairs to an attorney, without having preWarburton) is to exempt bills of exchange / viously some knowledge of his general chaand promissory notes payable within twelve racter and ability. How many actions are months from the operation of the laws relating brought, how many suits commenced, in which to usury. It recites that by the 4 W.4, c. 98, each alike considers himself the aggrieved being an act for giving to the corporation of party, and each consequently entertains strong the governor and company of the bank of Eng- expectations of success and he who fails inland certain privileges for a limited period under variably attributes to the solicitor the blaine certain conditions,” bills of exchange and pro- which in most cases, attaches solely to himself. missory notes, made payable at or within three Your correspondent gives it as his opinion, months after the date thereof, or not having that an enquiry into the inoral fitness of the more than three months to run, and certain pupil, would tend to raise the character of the transactions in respect of such bills, were ex-profession, while he admits a few lines preernpted from the operations of the statutes re- viously, that dishonesty is a disgrace not to the lating to usury: and that it is desirable to ex- profession but the man alone; and even allow. tend such exemption :
ing that such an enquiry were to be instituted, The proposed enactment therefore is, that no where does he propose to draw the line bebill of exchange or promissory note marle pay-tween those who sbould and those who should able at or within twelve months after the date lot be adınitted as its members ? The duty of thereof, or not having more than twelve inonths the Examiners is already sufficiently arduous, to run, shall, by reason of any interest taken without imposing on them useless ones, like thereon or secured thereby, or any agreement these ; and even then, what master, I ask, to pay or receive, or allow interest in discoun- would be so cruel or so severe, as to give his ting, negotiating, or transferring the same, be pupil a character that would not only shut void, nor shall the liability of any party to any | hiin out from a profession in which perhaps bill of exchange or promissory note be affec- his livelihood depended, but which would be a ted by reason of any statute or law in force for disgrace to his connections, and brand his own the prevention of usury; nor shall any person name with a mark of infamy for ever? or persons drawing, accepting, indorsing or
E. H. signing any such bill or note, or lending or advancing money, or taking more than the present rate of legal interest in Great Britian | WESTMINSTER SMALL DEBTS COURT. and Ireland respectively for the loan of money Sir, on any such bill or note, be subject to any pe- Is a creditor to whom a debt exceeding 40s. palties under any statute or law relating to and under 51., is owing, precluded from bringusury, or any other penalty or forfeiture; any ing his action in any of the Superior Courts thing in any law or statuie relating to usury for its recovery? The intention of the act in any part of the United Kingdom to the con (s. 37), appears to have been to extend the trary notwithstanding.
jurisdiction of the County Court to debts not exceeding 51. ; but see part of s. 86, which is
as follows: SELECTIONS
“ Provided always, that nothing herein conFROM CORRESPONDENCE.
tained, shall destroy, limit, or prejudice the jurisdiction of his Majesty's Courts of Record
at Westminster or other Courts in cases where. EXAMINATION OF ATTORNEYS.
in the debts shall exceed the sum of 40s.; but To the Editor of The Legal Observer, the said Courts respectively shall have the Sir,
same powers, privileges, and jurisdiction as A correspondent in a recent number of your they had before the passing of this act." valuable periodical (p. 6,) cominents very se- Does not this section destroy the object verely, and perhaps uut less unjustly, on the which the act was intended to effect?
Superior Courts. Lord Chancellor.
the subject were collected and reviewed by Sir
Thomas Plumer in the case of Crossley v. Par. Lord Chancellor's Court.
ker,e and in Howell v. Edmunds. There was
pressure in this case, for the petitioners could PRACTICE.--COST8.- TAXATION AFTFR PAY not without the papers prosecute the suit that MENT.
was pending, and the Messrs. Goode would A suitor changed his solicitors pending the not give them up without payment of their suit, and paid their bill of costs by his new
costs. solicitors, without threat of arrest or pres
The Lord Chancellor. The client, in the sure for his papers in their possession, and case of pressure, and in order to obtain his eithout protest or reservation : Held, that | papers, might have paid the bill of costs, under the bill is not to be afterwards referred to protest, reserving to himself to take such steps be taxed, unless upon proof of errors or afterwards as he may be advised. Payment and improper charges therein, amounting to acquiesence for years, looked like a waiver of fraud.
His Lordship, on a subsequent day in giving This was a petition, praying an order of refe. I his iudgment.
his judgment, said it did not appear that there rence to the master to tax a solicitor's bill of l.
was a clear understanding in the profession of costs. The facts were :- In the year 1818,
| the rules on the question in these cases. The Messrs. Goode, solicitors, were appointed by
tea y point was of great importance, and it was deMr. Yarns, since deceased, in certain suits in
sirable that the Court should lay down some which he was a defendant, and they continued
rule, as far as it was possible to do so, for the 80 employed until Yarns' death in 1832. His
guidance of the profesion and for the benefit representatives, the present petitioners, having
of suitors. It required a strong case to be obtained administration of his estate in October
made out for sending for investigation before 1833, employed as their solicitors Messrs. Harris & Rye, who early in the year 1835, ap- I client had paid it, having had an opportunity
the master a solicitor's bill of costs after the plied to Messrs. Goode for their bill of costs of avami
costs of examining it with professional assistance. against Yarns and his representatives. A bill Th
The petitioners in this case having changed was accordingly delivered for 7901., and in the 1:
| the solicitors employed by their testator, and month of May of the same year, another bill
having appointed in their place Messrs. Har. for 201. was delivered. After an examination
ris and Rye, applied, through them, for of accounts, and allowance of sums received
the bill of costs of Messrs. Goode. The by Messrs. Goode, 5101. appeared to be due to
bills were delivered, and some weeks haring them on these bills; and that sum was paid,
passed, and an investigation of the charges and some papers in the possession of Messrs.
having been made, the balance of 5101., after Goode were delivered to the petitioners-some
some allowances, was found due to the solicitors other papers were not delivered. In the year
and was paid to thein. His Lordship, having 1836, the representatives of Yarns presented
stated the main facts as above stated, said that their petition, alleging errors and improper
improper he would not hold that in no case could a bill charges in the bills of costs, and praying that
of costs be opened after payment with prothe same might be referred to the master to be fessional assistance, but in order to open it for. taxed. The Master of the Rolls, after argu. la re-investigation, specific errors or improper ment before him, made the order as prayed
charges, amounting to fraud, must be pointed for ; and the present hearing was in the way of out and proved. It was alleged in the petition, appeal from that order.
that the bills were paid for the purpose of ob* The Solicitor General and Mr. Stinton, for | taining the client's papers; but there was no Messrs. Goode, the appellants, after stating
proof that the papers were necessary for prothe facts of the case, and reading the uf
secution of the suit-it was competent for the fidavits on both sides, submitted that the
solicitors to withhold them until their bill was order of the Master of the Rolls for the
settled ; they gave them up under the imprestaxation of a bill of costs, after examina
sion that it was formally settled, and if it was tion of it and payment by the client, with pro
then intended to have further investigation of fessional assistance, without pressure of any
the bill, the Messrs. Goode ought to have been sort, was contrary to all the leading cases. I informed of that intention at the time. The They referred to the following cases among
petition contained general allegations of errors others. Drapers' Company v. Davis ;Lang.
and improper charges, but no error or imstaffe v. Taylor ; b Plenderleath y. Fraser ;c
I proper charge was specified or proved. It was Cluttorr v. Pardon.d
not sufficient, for obtaining an order for taxaMr. Wigram and Mr. Wilcox for the pe
| tion after payment, to allege improper charges, titioners, in support of the order of the Master
but the items improperly charged should be of the Rolls, insisted that the paying of a bill
specified and proved. In order to enable the of costs, pending the suit, did not protect it
Court to act, when a party asks for an order for
taxation after he has deliberately paid the bill & 2 Atk. 295.
of costs, it is necessary for him to allege in his b 14 Ves. 242. 0 3 V. & B. 174.
e | Jac. & W. 460. d Turn. & R. 301.
1 4 Russ. 67.
Superior Courts: Lord Chancellor.
petition, and to prove specific errors or im- | out prejudice to his Hght to tax; or if he has proper charges amounting to evidence of fraud a pressing necessity for his papers out of the against the solicitors. Messrs. Goode stated solicitor's hands, he may make a deposit of in their affidavits, that when Messrs. Harris what will cover the bill and costs of taxation, asked for the client's last papers in their on which the Court will order his papers to be possession, and when they were delivered up delivered to him; but it was not intimated to to them, no intimation was then given them the solicitor in that case that the bill would be that their bill was to be taxed. Mr. Harris taxed.” None of these cases, or of the docmade an affidavit in 1836, and then for the trines so well laid down in them, could susfirst time he pointed out items in the bill that tain the claim to tax the bill in the present were paid for, and not credited to the client; case :-the ingredients required by that noble but Mr. Goode made an affidavit explaining and learned Lord to warrant an order for taxthese items, and specifying the application of ation, after payment and acquiescence, did not them. The order for taxation was made on exist_were not proved to exist in this case. the 24th of December 1836. There were Three cases were cited, two decided by Sir four cases on this subject decided by Lord Thomasy Plumer, the other by Sir John Leach, Eldon, in the first of which, Langstaffe v. at the Rolls. In Howell v. Edmunds n Sir Taylor,& he held that a special case of exorbi- John Leach granted an order for taxing a bill tant or improper charges was required for which was paid during the pendency of the referring a bill for taxation after payment suit, because he inferred from that circum. -a case made by affidavits stating special cir- stance both influence and pressure; and there cumstances, such as that the business was not was proof of an actual threat to arrest the done, or that there were fraudulent charges, client for the costs. Sir Thomas Plumer ex. in which case neither payment of the money, hausted this subject in Gretton v. Leyburne, in nor release, nor judgmeni for the demand, pre. which he refused taxation of a bill after part cented taxation. A gain in Cooke v. Settree,h payment by the client, and security for the Lord Eldon, observing that this Court ordered rest, after the termination of the suit, no other taxation eight years in one case, and twenty solicitor being employed, observing that there years in another, after actual security given was no proof of pressure; and though there for payment, when the Court saw that it was were items in the bill which might be disallowed obtained under pressure of the influence which on taxation, yet they did not amount to that the solicitor has over the client, said he would fraud which must be made out in order to subgo further, and would, after security given ject to taxation bills that were settled. The and after payment, open the whole bill for same learned Judge held properly in the case taxation, if the client could point out gross of Crossby v. Parker, that the settlement of a errors in the bill or imposition or fraud, and if bill of costs by the client during the suit, withwithout errors, imposition, fraud or pressure, oat any other professional advice than the sothe client could shew that in even subsequent licitor himself, was no bar to taxation. Nei. dealings there was any receipt of money that ther that case nor the case of Howell v. Ed. ought to go in discharge of the bill of costs, or munds, resembled the present case, in which of the security given : he would hold that to the bill was asked for, delivered, and paid, after be a ground for inquiry, though not for taxa-adjustment and allowance ; after the relation betion. The present case resembled that of tween the solicitors and client had ceased, and Cooke v. Seitre, in all respects. No specfiic other solicitors were employed, without evidence error, or improper charge was pointed out,- 1 of threat of arrest; and without any intimation none was proved there was neither imposi. on the giving up of the papers to the client that tion, fraud, or pressure of any sort proved: there was pressure for them ; or that the bill there was some loose evidence of money paid would be tared. Had the petitioners, notwithfor which credit was not given; which Lord standing, pointed out and proved specific Eldor considered would be proper ground for errors, or charges amounting to fraud, the inquiry, but not for taxation. In Plenderleath Court would grant an order for taxation; or v. Frazer, 1 Lord Eldon refused, in 1824, an or- would at least direct an inquiry ; but they der for taxing a bill which was delivered and dealt only in general allegations, pointing out paid in 1811, saying, “ that when payment was one charge as improper, and that was for time so long acquiesced in, he would not open the and expenses in going to Northampton Astaxation, unless on those grounds which were sizes to attend a trial in which a different stated in the two former cases. The next case client was concerned. But it was answered in which Lord Eldon refused an order of tax. by the appellants that the journey was underation, was Clutton v. Pardon,m after observing taken at the instance of Mr. Yarns, though that “a person does not necessarily waive his another client was equally interested, and in right to taxation by payment of his bill of pursuance of an order of this Court, which costs: he might intimate that he pays with was in the minutes, though never drawn up.
It would be going further than any of the & 14 Ves. 262.
authorities to open a bill for taxation after h i Ves. & Bea. 126.
payment, and after being examined by other | Aubrey v. Popkin, I Dick. 403.
solicitors, because one charge, improperly k Walmsley v. Booth, 2 Atk. 26. 13 Ves. & Bea. 174.
0 4 Russ. 67. m Turn. and Russ. 301.
0 1 Jac. & Walk. 46.
Superior Courts : Lord Chancellor; Vice Chancellor.
made, was specifically pointed out. That| tor in the cause, who thereupon obtained the charge of the journey and expences to North-coinmon order of course for the taxation of ainpton, was the only ground on which the the bill by the master. Master of the Rolls inade the order for taxing Nr. Jacob, on behalf of the agents, moved to the bill. His Lordship read, from the short discharge the order ; first, on the ground of hand writer's note, the Master of the Rolls' irregularity. Supposing the Court to have jurisobservation, “ that he, (the Master of the diction, he submitted that the order ought to Rolls), was to consider whether the charges have been obtained on motion, with :otice to for attendance in that trial were not prima facie the agents, and by depositing or tendering the errors," and said he differed from the Master full amount of the bill and the costs of taxa. of the Rolls : prima facie errors were not suf. tion. Ostle v. Christinn.a He contended, in ficient. To send a bill for taxation in a case the second place, that the Court hall no juris. like this, errors must be proved. When appli. diction to order taxation of an agent's bill of cation is made to open a bill for taxation, on costs. It was expressly provided by the sixth allegation of errors, the errors must be proved section of the 12 G. 2, C 13, that the 2 G.?, before the order can be made. But the jour. c. 23, which first gave the Court the power of ney to Northampton was explained : Mr. referring a bill of costs for taxation, without Goode was interested for Yarns and another ; paying or depositing the amount in Court, was and Yarns asked him to go down to the trial. The not to extend to any bill of fees and disburseorder of Court was not drawn up, but it was in ments between one attorney and another, but the minutes. The order of the Master of the he may resort to such remedy as he had before Rolls could not be supported on that point that act. The Judges of the Court of ComThe only ground for the order was, that sums mon Pleas held in a very recent case, that they were paid by the client, and not credited to had not jurisdiction either at Coiron Law, him in the bill; the petition stating gene- or under the statutes 2 G. 2, c. 23, and 12 G. rally that divers sums were not accounted, but 2, c. 13, to compel taxation of a bill for no particular transaction was referred to. The agency. Weymouth v. K’nipe. sums paid were deducted, and a balance was Mr. Knight, (with whom was Mr. Ayrton), struck and paid. Nothing arising upon these in opposing the motion, drew a distinction begeneral charges of sums paid, and not ac-tween this and the case in the Cominon Pleas, counted for, could justify the order for taxa- and insisted that this Court had always acteri tion. It was probable that the Master of the on a different principle. Lord Harricicke, in Rolls had not all the evidence before him that the case of Paget v. Nicholson, Lord Thurlow was laid before this Court; or that his atten. in the case of Corner v. Huke, and the Courts tion was not directed to those points. His of K. B. and C. P., ordered taxation of agents' Lordship then referred to disputed charges in bills, (upon the whole amount being paid into the bill, and observed that though they were Court) under the general jurisdiction of the proper matters for inquiry, they formed no suf-Courts. I Dick. 112, 285; Dixon v. Plant, ficient ground for an order for taration. But Doug. 199; Hullock on Costs, 512-513; the petitioners did not ask for inquiry, but for Tidd's Law of Costs, 73 The case of Ostle v. taxation, for which he did not think that there Christian, decided by Lord Eldun, sustained was sufficient ground. He therefore dischar- this order. ged the order, and dismissed the petition, but Mr. Jucob, in reply. The case of Corner r. would reserve the costs until he would see Hake did not sustain the case ; for Mr. Beames whether the petitioners renewed their appli- in his book on Costs, shewed that the facts of cation in another petition. If they should, that case as in the registrars' book, were difthe appellants ought to have their costs; but ferent from the statement in the report. See if not, the parties may pay their own costs, as Beames on Costs, p. 308. there appeared to be a misapprehension of the His Honour the Vice Chancellor said, he practice among the profession.
would be more inclined to follow in this Court Hurlock v. Šmith,' at Westminster, April 20the decisions of Lords Anrdwicke, Thurlow, and 21; and May 4, 1837.
and Eldon, if he should find that they decided as they were represented to have done by the reports. But it was not necessary to go into
that inquiry. Was this order regular on the Wice Chancellor's Court.
face of it? The chief objection was, that the PRACTICE.-COSTS.-TAXATION OF BILL FOR order was made in the absence of the parties AGENCY.
against whom it was directed. Any deviation An order obtained ex parte to tax an ageni's
from the circumstances of the common order, bill of costs is irregulur.
required that notice of the application be Quære, Has the Court jurisdiction to order a
given to the agents. Upon that ground there
fore, and without going into the objection as to • bill for agency to be taxed ?
the jurisdiction, his Honour ordered the order The solicitor in the cause employed other to be discharged, as irregularly obtained. solicitors, as his agents, in the prosecution of Jones v. Roberts, at Westininster, April 28, the suit. The agents retained out of the 1837. inoney recovered by them 701. in payment of their bill of costs, which was 731. 38. 4d., and
a Turn. & Russ. 321. b 3 Binglain, 387. which they sent to their principal, the solici.
c 2 Cox. 173.