Page images
PDF
EPUB

38 Notices of Books.-Publishing Proceedings of House of Commons.- Practical Points.

1. Injuries affecting personal security: the health, the reputation, &c. 2. Injuries affecting personal liberty: false imprisonment, &c. 3. Injuries affecting the relative rights of persons, as husbands, parents, guardians, masters.

making themselves acquainted with the branches of Law concisely treated of in this pocket volume.

4. Injuries to personal property in possession. THE PUBLICATION OF THE PRO

5. Injuries affecting personal property in action or breach of contract. 6. Injuries affecting real property. 7. Injuries to chattels real.

CEEDINGS OF THE HOUSE OF
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, &c. date 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 Hansorders of the House, ought to be reimard having acted in strict conformity to the bursed; and they lay down the following

The appropriate remedies for each injury are treated of in the several chapters to which they relate so that the reader will have the bane and antidote equally before him. The Second Part comprises the Injuries relieved and Protection afforded by Courts of Equity. The subjects of this part of the volume are classed under the following heads:

1. The general nature of Equity. 2. The relief afforded in Equity, as well in aid of Courts of Law as concurrently with and exclusively of them.

3. The relief and protection of infants. 4. Of wards in Chancery.

5. Of married women.

6. Of idiots and lunatics.

7. Of charities.

8. Of the specific performance of

ments.

9. Of trusts.

agree

[blocks in formation]

rules:

[blocks in formation]

"That by the law and privilege of Parliament this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure and to the punishments consequent thereon.

"That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament.”

PRACTICAL POINTS OF GENERAL
INTEREST.

BURGESSES UNDER THE NEW CORPORATION
АСТ.

UNDER the old corporation system, parties
who had an inchoate right as burgesses
were entitled to a mandamus. See Com.
Dig. Mandamus, (A).
Townsend's case,

The Fourth Part states the Remedies by Distress, the Injuries to which it applies, what may be distrained, and how the distress should be taken and disposed of. The Fifth and concluding Part relates to Arbitrations, the powers of the Arbitrator, and the grounds of setting aside Awards, &c. Besides the class for whom the work is especially designed-the Articled Clerk or Law Student-it is not improbable that it 1 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 and who may therefore be desirous of of the shilling required by the Reform Act,

New Bills in Parliament.-Selections from Correspondence.

39

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 the young attorney might possess an adethe ground that the parties had an inchoate quate knowledge of the practice of the profesright, and there was no other remedy. But sion he was about to enter? Your corresponthe Court of King's Bench refused the writ, dent submits 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. Rex v. Mayor 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 entered the profession, where alone such honesty or dishonesty can be exhibited? Besides, there are few, very few, who would entrust their affairs to an attorney, without having previously some knowledge of his general character and ability. How many actions are brought, how many suits commenced, in which each alike considers himself the aggrieved party, and each consequently entertains strong expectations of success? and he who fails invariably attributes to the solicitor the blame which in most cases, attaches solely to himself.

NEW BILLS IN PARLIAMENT.

BILLS OF EXCHANGE.

The object of this bill (proposed by Mr. Warburton) is to exempt bills of exchange and promissory notes payable within twelve months from the operation of the laws relating to usury. It recites that by the 4 W. 4, c. 98, being an act for giving to the corporation of the governor and company of the bank of England certain privileges for a limited period under certain conditions," bills of exchange and promissory 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 oral 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 preempted 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 allowtend 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 made pay-tween those who should and those who should able at or within twelve months after the date thereof, or not having more than twelve months to run, shall, by reason of any interest taken thereon or secured thereby, or any agreement to pay or receive, or allow interest in discounting, negotiating, or transferring the same, be void, nor shall the liability of any party to any bill of exchange or promissory note be affected by reason of any statute or law in force for the prevention of usury; nor shall any person or persons drawing, accepting, indorsing or signing any such bill or note, or lending or advancing money, or taking more than the present rate of legal interest in Great Britian and Ireland respectively for the loan of money on any such bill or note, be subject to any pe- Is a creditor to whom a debt exceeding 40s. nalties under any statute or law relating to and under 5., is owing, precluded from bringusury, or any other penalty or forfeiture; anying his action in any of the Superior Courts thing in any law or statute relating to usury in any part of the United Kingdom to the contrary notwithstanding.

SELECTIONS

FROM CORRESPONDENCE.

EXAMINATION OF ATTORNEYS.

To the Editor of The Legal Observer,
Sir,

A correspondent in a recent number of your valuable periodical (p. 6,) comments very severely, and perhaps not less unjustly, on the

not be admitted as its members? The duty of the Examiners is already sufficiently arduous, without imposing on them useless ones, like these; and even then, what master, I ask, would be so cruel or so severe, as to give his pupil a character that would not only shut him out from a profession in which perhaps his livelihood depended, but which would be a disgrace to his connections, and brand his own name with a mark of infamy for ever?

E. H.

WESTMINSTER SMALL DEBTS COURT.

Sir,

for its recovery? The intention of the act (s. 37), appears to have been to extend the jurisdiction of the County Court to debts not exceeding 51. ; but see part of s. 86, which is as follows:

"Provided always, that nothing herein contained, shall destroy, limit, or prejudice the jurisdiction of his Majesty's Courts of Record at Westminster or other Courts in cases wherein the debts shall exceed the sum of 40s.; but the said Courts respectively shall have the same powers, privileges, and jurisdiction as they had before the passing of this act."

Does not this section destroy the object which the act was intended to effect? J. H

[blocks in formation]

A suitor changed his solicitors pending the suit, and paid their bill of costs by his new solicitors, without threat of arrest or pressure for his papers in their possession, and without protest or reservation: Held, that the bill is not to be afterwards referred to be taxed, unless upon proof of errors or improper charges therein, amounting to fraud.

from taxation afterwards. All the cases on the subject were collected and reviewed by Sir Thomas Plumer in the case of Crossley v. Parker, and in Howell v. Edmunds. There was pressure in this case, for the petitioners could not without the papers prosecute the suit that was pending, and the Messrs. Goode would not give them up without payment of their

costs.

The Lord Chancellor.-The client, in the case of pressure, and in order to obtain his papers, might have paid the bill of costs, under protest, reserving to himself to take such steps afterwards as he may be advised. Payment and acquiesence for years, looked like a waiver of all objections.

This was a petition, praying an order of refe-his judgment, said it did not appear that there His Lordship, on a subsequent day in giving

rence to the master to tax a solicitor's bill of

The

costs. The facts were:-In the year 1818, the rules on the question in these cases. The was a clear understanding in the profession of Messrs. Goode, solicitors, were appointed by 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 so 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. the master a solicitor's bill of costs after the Harris & Rye, who early in the year 1835, ap-client had paid it, having had an opportunity plied to Messrs. Goode for their bill of costs of examining it with professional assistance. against Yarns and his representatives. A bill The petitioners in this case having changed was accordingly delivered for 7901., and in the the solicitors employed by their testator, and month of May of the same year, another bill for 201. was delivered. After an examination having appointed in their place Messrs. Harof accounts, and allowance of sums received the bill of costs of Messrs. Goode. ris and Rye, applied, through them, for by Messrs. Goode, 5101. appeared to be due to bills were delivered, and some weeks having 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 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- a 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 obThe Solicitor General and Mr. Stinton, for Messrs. Goode, the appellants, after stating proof that the papers were necessary for protaining the client's papers; but there was no the facts of the case, and reading the af-secution of the suit-it was competent for the fidavits on both sides, submitted that the order of the Master of the Rolls for the taxation of a bill of costs, after examination of it and payment by the client, with professional assistance, without pressure of any sort, was contrary to all the leading cases. They referred to the following cases among others. Drapers' Company v. Davis; Langstaffe v. Taylor; Plenderleath v. Fraser ;c Clutton v. Pardon.d

Mr. Wigram and Mr. Wilcox for the petitioners, in support of the order of the Master of the Rolls, insisted that the paying of a bill of costs, pending the suit, did not protect it

a 2 Atk. 295.
b 14 Ves. 242.
• 3 V. & B. 174.
d Turn. & R. 301.

solicitors to withhold them until their bill was settled; they gave them up under the impression that it was formally settled, and if it was then intended to have further investigation of the bill, the Messrs. Goode ought to have been informed of that intention at the time. The petition contained general allegations of errors and improper charges, but no error or improper charge was specified or proved. It was tion after payment, to allege improper charges, not sufficient, for obtaining an order for taxabut the items improperly charged should be specified and proved. In order to enable the Court to act, when a party asks for an order for taxation after he has deliberately paid the bill of costs, it is necessary for him to allege in his

e 1 Jac. & W. 460.
f 4 Russ. 67.

Superior Courts: Lord Chancellor.

41

petition, and to prove specific errors or im-out prejudice to his right 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 Thomas, Plumer, the other by Sir John Leach, Eldon, in the first of which, Langstaffe v. at the Rolls. In Howell v. Edmunds, 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 exin which case neither payment of the money, hausted this subject in Gretton v. Leyburne, in nor release, nor judgment for the demand, pre- which he refused taxation of a bill after part vented taxation. Again in Cooke v. Settree, 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. 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, out any other professional advice than the sothe client could shew that in even subsequent licitor himself, was no bar to taxation. Neidealings there was any receipt of money that ther that case nor the case of Howell v. Edought 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 Cooke v. Settre, in all respects. No specfiic error, or improper charge was pointed out,none was proved:-there was neither imposition, fraud, or pressure of any sort proved: there was some loose evidence of money paid for which credit was not given; which Lord Eldon considered would be proper ground for inquiry, but not for taxation. In Plenderleath v. Frazer, Lord Eldon refused, in 1824, an order for taxing a bill which was delivered and paid in 1811, saying, "that when payment was so long acquiesced in, he would not open the taxation, unless on those grounds which were stated in the two former cases. The next case in which Lord Eldon refused an order of taxation, was Clutton v. Pardon,m after observing that "a person does not necessarily waive his right to taxation by payment of his bill of costs: he might intimate that he pays with

g 14 Ves. 262.

h1 Ves. & Bea. 126.

Aubrey v. Popkin, 1 Dick. 403. Walmsley v. Booth, 2 Atk. 26. 13 Ves. & Bea. 174.

m Turn. and Russ. 301.

The

tween the solicitors and client had ceased, and other solicitors were employed, without evidence of threat of arrest; and without any intimation on the giving up of the papers to the client that there was pressure for them; or that the bill would be taxed. Had the petitioners, notwithstanding, pointed out and proved specific errors, or charges amounting to fraud, the Court would grant an order for taxation; or would at least direct an inquiry; but they dealt only in general allegations, pointing out one charge as improper, and that was for time and expenses in going to Northampton Assizes to attend a trial in which a different client was concerned. But it was answered by the appellants that the journey was undertaken at the instance of Mr. Yarns, though another client was equally interested, and in pursuance of an order of this Court, which was in the minutes, though never drawn up. It would be going further than any of the authorities to open a bill for taxation after payment, and after being examined by other solicitors, because one charge, improperly

n 4 Russ. 67.

o 1 Jac. & Walk. 46.

42

Superior Courts: Lord Chancellor; Vice Chancellor.

made, was specifically pointed out. That charge of the journey and expences to Northampton, was the only ground on which the Master of the Rolls made the order for taxing the bill. His Lordship read, from the shorthand writer's note, the Master of the Rolls' observation, "that he, (the Master of the Rolls), was to consider whether the charges for attendance in that trial were not prima facie errors," and said he differed from the Master of the Rolls: prima facie errors were not sufficient. To send a bill for taxation in a case like this, errors must be proved. When application is made to open a bill for taxation, on allegation of errors, the errors must be proved before the order can be made. But the journey to Northampton was explained: Mr. Goode was interested for Yarns and another; and Yarns asked him to go down to the trial. The order of Court was not drawn up, but it was in the minutes. The order of the Master of the Rolls could not be supported on that point. The only ground for the order was, that sums were paid by the client, and not credited to him in the bill; the petition stating generally that divers sums were not accounted, but no particular transaction was referred to. The sums paid were deducted, and a balance was struck and paid. Nothing arising upon these general charges of sums paid, and not accounted for, could justify the order for taxation. It was probable that the Master of the Rolls had not all the evidence before him that was laid before this Court; or that his attention was not directed to those points. His Lordship then referred to disputed charges in the bill, and observed that though they were proper matters for inquiry, they formed no sufficient ground for an order for taxation. But the petitioners did not ask for inquiry, but for taxation, for which he did not think that there was sufficient ground. He therefore discharged the order, and dismissed the petition, but would reserve the costs until he would see whether the petitioners renewed their application in another petition. If they should, the appellants ought to have their costs; but if not, the parties may pay their own costs, as there appeared to be a misapprehension of the practice among the profession.

Hurlock v. Smith, at Westminster, April 20 and 21; and May 4, 1837.

Vice Chancellor's Court.

tor in the cause, who thereupon obtained the common order of course for the taxation of the bill by the master.

Mr. Jacob, on behalf of the agents, moved to discharge the order; first, on the ground of irregularity. Supposing the Court to have jurisdiction, he submitted that the order ought to have been obtained on motion, with notice to the agents, and by depositing or tendering the full amount of the bill and the costs of taxation. Ostle v. Christian. He contended, in the second place, that the Court had no jurisdiction to order taxation of an agent's bill of costs. It was expressly provided by the sixth section of the 12 G. 2, c 13, that the 2 G. 2, c. 23, which first gave the Court the power of referring a bill of costs for taxation, without paying or depositing the amount in Court, was not to extend to any bill of fees and disbursements between one attorney and another, but he may resort to such remedy as he had before that act. The Judges of the Court of Common Pleas held in a very recent case, that they had not jurisdiction either at Common Law, or under the statutes 2 G. 2, c. 23, and 12 G. 2, c. 13, to compel taxation of a bill for agency. Weymouth v. Knipe.

с

Mr. Knight, (with whom was Mr. Ayrton), in opposing the motion, drew a distinction between this and the case in the Common Pleas, and insisted that this Court had always acted on a different principle. Lord Hardwicke, in the case of Paget v. Nicholson, Lord Thurlow in the case of Corner v. Hake, and the Courts of K. B. and C. P., ordered taxation of agents' bills, (upon the whole amount being paid into Court) under the general jurisdiction of the Courts. 1 Dick. 112, 285; Dixon v. Plant, Doug. 199; Hullock on Costs, 512-513; Tidd's Law of Costs, 73 The case of Ostle v. Christian, decided by Lord Eldon, sustained this order.

Mr. Jacob, in reply.-The case of Corner v. Hake did not sustain the case; for Mr. Beames in his book on Costs, shewed that the facts of that case as in the registrars' book, were different from the statement in the report. See Beames on Costs, p. 308.

His Honour the Vice Chancellor said, he would be more inclined to follow in this Court the decisions of Lords Hardwicke, Thurlow, 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 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.

An order obtained ex parte to tax an agent's
bill of costs is irregular.
Quære, Has the Court jurisdiction to order a
bill for agency to be taxed?

The solicitor in the cause employed other solicitors, as his agents, in the prosecution of the suit. The agents retained out of the money recovered by them 707. in payment of their bill of costs, which was 731. 38. 4d., and which they sent to their principal, the solici

against whom it was directed. Any deviation from the circumstances of the common order, required that notice of the application be given to the agents. Upon that ground therefore, and without going into the objection as to the jurisdiction, his Honour ordered the order to be discharged, as irregularly obtained.

Jones v. Roberts, at Westminster, April 28, 1837.

a Turn. & Russ. 324. b3 Bingham, 387. c 2 Cox. 173.

« PreviousContinue »