24

THE JUDGE ORDINARY directed that the fine should not be estreated, but that the costs of the application for an attachment must be paid by Mr. Mulock.

Dec. 13.-Mr. Mulock came into court, and made a long statement, the purport of which was that he declined to pay the costs as taxed.

THE JUDGE ORDINARY, referring to his judgment as given above, said, that as Mr. Mulock refused to pay the costs incurred by his conduct, he had no course but to order that the fine of 3007, be estreated. Attorney for petitioner-Rowland Miller.

COURT OF CHANCERY.

CRAVEN v. STUBBINS.-Dec. 2.

ship, and to repay the sum of 100l. to the guardian. The articles were accordingly delivered up and cancelled, and the sum of 100l. was repaid.

Mr. Settle then moved to vary so much of the order of the 19th July as directed the repayment of this sum. On the 10th November his Honor made an order on the motion, by which he refused to make any order, except that Mr. Settle should pay the costs of the application. Against this order Mr. Settle now appealed. Phear (Malins, Q. C., with him) appeared for the appellant, and contended that the Court had no jurisdiction to order the return of the premium. The appellant had been guilty of no misconduct. [He referred to Hirst v. Tolson (2 Mac. & G. 138).]

Bacon, Q. C., and Pemberton, in support of the order. The appellant was an officer of the court, which would give the Court jurisdiction. The question of juris

Jurisdiction-Solicitor-Articled clerk-Ward of Court diction was not raised in the court below. Mr. Settle

-Judge in chambers.

A ward was articled to a solicitor, under the direction of
the Court, and a premium of 300 guineas was paid.
Subsequently the ward desired to change his profession,
and proposals were accordingly, with that object, brought
before the judge in chambers. The solicitor was served
with notice of the proceedings, and attended. An order
was made, by which the articles were ordered to be
cancelled, and the sum of 100l., part of the premium,
directed to be returned by the solicitor. There was no
allegation of misconduct on the part of the solicitor:
Held, that the Court had no power to direct the return
of any part of the premium.
The practice of basing decisions in chambers upon know
ledge which the judge has, or supposes he has, and which
is not derived from facts legally evidenced before him,
observed upon.

This was an appeal from an order of Sir J. Stuart, V. C., and was presented by Mr. Joseph Settle, a solicitor, under these circumstances:-The defendant Henry Stubbins, who was a ward of the Court, had been articled to Mr. Settle, with the sanction of the Court; and by an order, dated the 18th April, 1863, the sum of 300 guineas was directed to be paid to Mr. Settle by way of premium. By the direction of the judge, Mr. Stubbins was to reside with Mr. Settle, and the sum of 1007. per annum was to be paid for his maintenance. The articles were dated the 9th June, 1863, and provided for the repayment of certain portions of the premium in the event of the death of either of the parties before their completion.

Subsequently Mr. Stubbins became desirous of putting an end to the articles, in consequence of some personal disagreement with Mr. Settle, and of a desire on his part to change his profession. On the 21st June he wrote to his uncle, the guardian, informing him that he had left Mr. Settle's house, and was then staying at the house of a friend, and begged him to do his utmost to release him from Mr. Settie's care; and saying, that if he did not interfere as guardian, he should feel it his duty to apply to the Court

himself.

The matter was accordingly brought before his Honor the Vice-Chancellor in chambers, when a proposal was submitted, that the articles should be cancelled, and that Mr. Henry Stubbins should read with a conveyancer, with a view to his being called to the bar. No affidavits were filed by Mr. Settle, but he attended at the hearing on the summons which had been served upon him. The Vice-Chancellor approved of the proposal, and an order was accordingly made, dated the 19th July, whereby the judge varied the scheme directed to be carried out by the former order, and ordered Mr. Settle, within fourteen days, to deliver up to the guardian the articles of clerkNo. 520, VOL. X., NEW SERIES.

was a party to the inquiry in chambers, and submitted
to the cancellation of the articles.

ficial to the public than the jurisdiction which is exer-
LORD CHANCELLOR.--Nothing can be more bene-
cised by the judges of this Court, in the first instance,
in chambers; but nothing is more requisite than that
bounds; and whenever it is exercised, nothing is more
that jurisdiction should be confined within its proper
necessary than that the grounds and reasons upon
which it is exercised should be stated and recorded, so
that they may be referred to, and the judge's reasons
for his decisions ascertained. Now all these parti-
culars are wanting upon the present occasion. I have
nothing to deal with but an adverse order made by
the Vice-Chancellor upon a summons in chambers.
of the Court, by which the infant was articled to Mr.
A legal contract has been made with the approbation
Settle. Upon that occasion 300 guineas were given as
a premium, and the infant was legally articled. The
infant, for some reasons-into the nature of which I
will not inquire, further than this, that there is no
evidence that the infant's conduct was justified by any
misconduct on the part of Mr. Settle-for some cause
or another, wholly exclusive of the misconduct of Mr.
Settle, desired to change his education and profession
in life. The guardian accedes to the proposal, and the
judge is requested to consider it. Inasmuch as it would
become requisite that the infant should be emancipated
from the contract with Mr. Settle, Mr. Settle is desired
to appear. He is desired to appear by a summons
served upon him to attend, for no other purpose than
the consideration of the proposed alteration of the
scheme of education; and then, being so invited to
attend, and when in that capacity he does attend, he
is not permitted to depart without an adverse order
being made against him for a return of part of this
premium. In making such an order as this the Court
had no jurisdiction, except on the ground of some mis-
conduct on the part of Mr. Settle; and of any mis-
conduct there is not a tittle of evidence. It has been
said, on the authority of counsel, that Mr. Settle sub-
mitted to the order; of that there is no trace what-
ever. There is no suggestion in the letters or in the
affidavits that Mr. Settle submitted to the jurisdiction.
The articles were cancelled, and Mr. Settle delivered
them up; but it is impossible to say that Mr. Settle
did any act which amounted to anything like a con-
sent to return any part of the premium.

I have listened to the note of the Vice-Chancellor's

judgment, which has been read by the learned counsel. In that judgment I find references to anterior circumstances, all of which were concluded by the order of the Court. I find references made to the private knowledge of the judge, which I cannot recognise as any ground for an adverse order. If the order had been made upon a matter relating to the infant, it might

Ꭹ Ꭹ

54

have been very proper that the judge's discretion | hearing might be received on the signature of a should be exercised upon evidence which may not counsel who was not engaged in the matter on the have been brought before him in the regular way; and former hearing. It appeared, that the senior counsel in that case it is very probable that I should not have in the case had declined to sign the petition, and the arrived at a different opinion from the Vice-Chancel- junior counsel had retired from the bar. lor without having more of the facts which were within the knowledge of the Vice-Chancellor. But here I have only to consider whether the Vice-Chancellor was justified in making the order that Mr. Settle was to repay this sum of 1007. This is not a matter in which I can refer to his Honor for a statement of circumstances known to his Honor, not in accordance with the ordinary rules of evidence. I think, therefore, that, in point of jurisdiction, this order ought not to have been made; but, waiving the point of jurisdiction, I do not find any circumstances in evidence which would warrant the exercise of the jurisdiction, even if it had been competent to the Court to exercise it. I must reverse the order, so far as it directs 1007. to be repaid, and direct the 1007. to be returned to Mr. Settle; and, under the circumstances, I shall abstain from saying anything as to the costs of this application.

Note for reference-1 Sid. Smith's Ch. Prac. 127.

BARING V. HARRIS.-Dec. 8 and 9.
Practice-Costs of appeal.

Where on an appeal the decision of the Court below is
reversed, the appellant is entitled to the costs of the ap-
peal.

In this case a motion by way of appeal from an order of Sir R. T. Kindersley, V. C., having been decided in favour of the appellant, and the order of the Vice-Chancellor reversed, the question was raised whether the appellant was entitled to the costs of the appeal as well as those in the court below, and the case was adjourned to afford an opportunity to look into the practice.

Glasse, Q. C., and Kay, for the appellant, contended that it was now the custom of the Lords Justices, where an appellant was successful, to give him the costs of the appeal as well as those of the Court below, and referred to Lillie v. Legh (3 De G. & J. 204-210); Ralli v. The Universal Marine Insurance Company (8 Jur., N. S., 495; 10 Weekly Rep. 280); and Collins v. Burton (4 De G. & J. 618, 619; S. C., 5 Jur., N. S., 1113); all decisions of the Lords Justices, in which this practice had been pursued. In Leidemann v. Schutz (14 C. B. 52), a court of law had also held, that in all cases the costs should abide the event.

Malins, Q. C. (amicus curia), referred to Powell v. Lovegrove (8 De G., Mac., & G. 357), another case in which the Lords Justices had followed the same

course.

Baily, Q. C., and Cotton, for the plaintiffs, admitted that the old practice had been broken into by the Lords Justices, but the Court exercised a discretion in each particular case.

THE LORD CHANCELLOR was glad to find that so wholesome a rule had been laid down, which his Lordship would follow; and in the present case the appellant must have his costs of appeal.

Note for reference-1 Sid. Smith's Ch. Prac. 725.

THE LORD CHANCELLOR said that the records of the court had been examined by the registrar, but he had been unable to find that a petition of rehearing had ever been received which had not been signed at least by one of the counsel engaged in the hearing below. In the present case, it appeared that the plaintiff had been represented by two counsel; one of whom, the junior counsel, had retired from the bar, and the other, one of her Majesty's counsel, had declined to certify that it was a proper case for a rehearing. Under these circumstances, his Lordship could not accede to the request, that the signature of a counsel not engaged in the cause in the court below should be deemed sufficient.

Note for reference-1 Sid. Smith's Ch. Prac. 719.

COURT OF APPEAL IN CHANCERY.
SMITHI v. WHITMORE.-May 31 and July 28.
Award-Jurisdiction.

An award upon a dispute between W. and S. was made
in June, 1859. In December, 1859, W. brought an ac-
tion against S. on the award, and S. pleaded na! tiel
agard. It was decided by the Court of law, in Does
ber, 1861, that under this plea the defendant could not
shew the award to have been invalid for irregularity,
and judgment was given for W. In March, 1862 &
filed a bill to set aside the award on the ground of irre-
gularity:-Held, by Sir J. L. Knight Brun, L. J.
that S. had lost his equity against the award.
Held, by Sir G. J. Turner, L. J., that S. was net loud
to make the award a rule of court, and then proceed to
set it aside at law, and was not too late to proceed in
equity.

Where a plaintiff has the right of proceeding either at brg
or in equity, he does not lose his right to proceed in equity
by not proceeding at law.

A dispute having arisen between Gilbert Smith, the plaintiff in this case, and F. Whitmore, the matter was referred to arbitration. The arbitrators made an award that 3647. was due to Whitmore, but were alleged not to have heard the parties. In December, 1859, Whitmore brought an action against Smith on the award, to which Smith pleaded nul tiel agard. A the trial a verdict was given for the defendant on the ground of the irregularity of the award, but on artal to the Exchequer Chamber, that Court decided, in December, 1861, that the irregularity of the award could not be shewn under the plea of nul tiel agard and a verdict was entered for Whitmore, the plaintif at law. In March, 1862, Smith filed a bill to set asle the award on the ground of its irregularity, and the cause came on to be heard before Vice-Chancelie Wood, who dismissed the bill, mainly on the ground that Smith might, by making the award a rule of court, have raised the same question at law. The case is fully reported ante, p. 65. The plaintiff Smith appealed. The same counsel appeared, and the same arguments were used, as before Vice-Chancellor Wood.

THEIR LORDSHIPS reserved judgment.

PARKINSON v. HANBURY.-Dec. 13. Practice-Appeal-Signature of one counsel. July 28.-Sir J. L. KNIGHT BRUCE, L. J.-The main question in this case is, whether Mr. Gilbert Smith, the An application to receive a petition of rehearing, signed by plaintiff in equity, can be relieved in equity against a one counsel, was refused, on the ground that the counsel judgment at law obtained against him adversely and had not been engaged on the hearing in the court below. regularly in an action brought against him by Whit The plaintiff in person asked that a petition of re-more, one of the defendants in equity. The original

THE JURIST.-REPORTS.

statute. So far, therefore, as the plaintiff's title to relief is affected by his not having made the agreement to refer a rule of court, or by his conduct, I do not think that this bill ought to have been dismissed; and looking still at the case, independent of autho-gage had priority over the plaintiff's, and the usual rity, I do not think that it was competent to the Court to dismiss the bill, upon the merits of the case lying behind the award. Arbitrators are judges selected by the parties to examine into the merits. If they have acted fairly and properly, their award disposes of the case; if they have acted unfairly and improperly, their award cannot stand, and the merits of the case must, as it seems to me, be as open as if they had never been appointed.

With reference to the cases referred to by the Vice-Chancellor, it does not seem to me that they warrant the dismissal of this bill. As to Cooper v. Fetherstone, the case was before Lord Eldon upon an interlocutory application to dissolve an injunction, and he dissolved it pointedly on the ground, that it ought not to have been granted in the early stage of the cause in which it had been granted. The bill appears to have been filed at a time when the agreement to refer might have been, but had not actually been, made a rule of a court of law; and the case seems to have decided no more, than that this Court ought not to interfere by injunction at a time when the plaintiff had the means of relieving himself at law, if his case were well founded. It certainly does not go the length of deciding, that where a plaintiff has the right of proceeding, either at law or in equity, he loses his right of proceeding in equity by not resorting to his right at law; and as to Chuck v. Cremer, that also was a case of injunction granted upon an interlocutory application, and I do not understand Lord Cottenham to have entered into the merits of the case, with reference to the question, whether the award was just or not. On the contrary, he distinctly disclaimed all jurisdiction over the question, whether the arbitrator was right or wrong in his decision; and, as I understand the case, he disposed of it on the merits, quite independently of the award, and examined the merits with that view only. I think it right to add, that I have felt no little difficulty upon the question, whether this award might not well have been held to have been binding on the plaintiff, and this bill, therefore, properly dismissed, upon the ground that Rotton, although termed an umpire, was, in truth, no more than an adviser of the arbitrators, and was agreed by the parties to be, and was so treated and considered; but looking at what was said in the Court of Exchequer, and at what has been said by the Vice-Chancellor, upon this point, I do not feel bold enough to concur in supporting this decree on that ground. For the reasons which I have given, I cannot concur in the dismissal of the appeal; but my learned brother agreeing in opinion with the Vice-Chancellor, that the bill ought to be dismissed, of course the decree must stand. My learned brother will say what he thinks ought to be done as to the costs of the appeal.-Appeal dismissed, without costs.

Notes for reference-Ante, p. 65; Heming v. Swinnerton (2 Ph. 79)

THOMAS 7. RAWLINGS.-Nov. 21 and 22.
Practice-Review.

In order to obtain leave to file a bill of review on new
matter, the matter must be such as would probably have
altered the judgment of the Court, and could not pos-

sibly have been used when the decree was made. This was an appeal from an order of the Master of the Rolls, giving leave to file a bill of review. The

bill in this case was for a foreclosure, and one Stubbs, who claimed as equitable mortgagee, was made a defendant. On the evidence produced at the hearing. the Master of the Rolls decided, that Stubbs's mortdecree in a foreclosure suit was made. If, however, Stubbs's mortgage had priority, it was not worth while to redeem him, and accordingly nothing further was done in the suit. Some time afterwards the clerk to the plaintiff met Perry, a former clerk of the defendant's solicitor; and from information which Perry then gave, the plaintiff came to the conclusion, that Stubbs's security was not in fact prior; and the plaintiff accordingly presented a petition for leave to file a bill of review, deposing to his belief in the evidence so produced. Perry, however, had disappeared. and could not be found to give evidence. The Master of the Rolls dismissed the petition, on the ground that the evidence was not sufficient. Subsequently Perry was discovered, and gave evidence, and also produced a document, which went to shew that the security to Stubbs was not given in 1859, when it purported to be, but in 1854. The plaintiff then presented another petition for leave to file a bill of review, and the Master of the Rolls gave leave. The defendant Stubbs appealed.

Selwyn and Cotterell, for the appellants.

Southgate and W. H. Terrell, in support of the order, contended that the case was within the 31st Consoldated Order, rule 10, which is, that “ no bill of review, or supplemental or new bill in the nature of a bill of review, shall be admitted except upon error in h appearing on the face of the decree, without further examination of matters in fact, or upon some Lew matter which has been discovered after the decree, and could not possibly have been used when the decree was made.' This order was one of Lord Bacon's, 29th January, 1618, and appeared again in the orders of 17th October, 1741, where, however, the word " sibly" was omitted. The order next appeared in the Consolidated Order as above. In Gilb. For. Rom. the word "possibly" appears in the margin. They cotended that this came clearly within the words of Lord Kingsdown, in Josking v. Terry (8 Jur. 975). [TORLY v. White (1 H. L. C. 160) and Green v. Jenkins (1 Dv G., F., & J. 454; 6 Jur., N. S., 515) were also cited.]

Sir J. L. KNIGHT BRUCE, L. J.-This case was argued here at considerable length, although the order appealed from contains nothing, except that the plaintiff be at liberty to adduce further evidence as to some matters of fact, truly or untruly alleged before the judge who made the order in the case. Ad though to discharge the order under appeal would probably do more mischief than to let it stand, I should probably discharge it on the evidence. But though I agree, I am not altogether free from doubt. My impression is, that, within the 31st Order, there has been new evidence discovered which could no have been used before decree. The evidence, if adduced, would probably cause the decree to be materially different, and at present it is impossible to p nounce it not to be true. I am not satisfied that there has been any want of due diligence on the put of the plaintiff, and the proper course will be to t the order under appeal stand.

Sir G. J. TURNER, L. J.-I am also of opinion that leave to file a bill of review has been properly givea in this case.

dum of deposit; and, looking to no more than the The decree is plainly founded on the memoran documentary evidence before us, I am satisfied tha: there is reasonable ground for saying that, had that evidence been adduced at the former hearing, it might probably, even when taken with the evidence then

Re THE EAST BOTALLACK MINING COMPANY.-Dec. 5 Stannaries Court. It has been argued, that the com