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In an action for calls upon certain shares in a railway company, under the stat. 8 & 9 Vict. c. 16, s. 26, it appeared that the defendant was not an original subscriber, but had purchased scrip certificates of the shares in question, &c., before the call was made, sent them in to the company, with a claim to be entered in their books as a shareholder thereof. His name was entered in a draft registry of shares, and a receipt for the scrip sent to him, but his name was not entered in the sealed register until after the call was made: it was held, that the plaintiffs were not entitled to recover, and, semble, that in this respect there is no difference between the case of an original subscriber and that of a transferree: (The Newry and Enniskillen Railway Company v. ·Edmunds, 17 L. J. 102, Ex.)
In the case of The Derbyshire Railway Company v. Tomlinson (Joint Stock Companies L. J. 126), it was held, that in an action by a railway company for calls, the register of shareholders produced by an officer of the company, purporting to bear the seal of the company, is admissible in evidence under 8 & 9 Vict. c. 16, S. 28, without proof that the seal was affixed at an ordinary meeting of the shareholders, as directed in sect. 9. See also on the subject of actions for calls, The Belfast and County Down Railway Company v. Strange (12 Jur. 19, Ex.; 10 L. T. 307.)
In an action for calls by a railway company, the declaration alleged that the defendants were and still are holders of certain shares, and, being such holders, were indebted to the company in the amount of calls upon them: held, that the plea of "never indebted " was not an admission that the defendants were shareholders in the company. The only register of shareholders which by 8 & 9 Vict. c. 16, s. 28, is made primâ facie evidence of a party being a shareholder in the company, is the register duly prepared and sealed under the provisions of sect. 9: (Birkenhead Railway Company v. Browrigg, 19 L. J. 27, Ex.)
The certificate of the registrar of joint stock companies incorporates a company, under 7 & 8 Vict. c. 110, s. 25, although the deed registered be a defective deed. A shareholder who has signed the deed which is registered cannot avail himself, as a defence to an action for calls, of any omissions from the deed of certain provisions required by the stat. 7 & 8 Vict. c. 110, to be inserted therein: (Banwen Iron Company v. Barnett, 19 L. J. 17, C. P.) It has very recently been determined that a holder of shares in a joint stock company formed under the 7 & 8 Vict. c. 110, who has not signed the deed of settlement, is not entitled to demand and have delivered to him by the company a certificate of proprietorship, in conformity with sect. 51 of 7 & 8 Vict. c. 110: (Wilkinson v. The Anglo-Californian Gold Mining Company, 19 L. T. 181, Q. B.)
It has also been lately held that a plea of set-off, in respect of calls on shares in a joint stock company, must either state the facts specially, or strictly pursue the form given by the 8 Vict. c. 16, s. 26; therefore a plea founded on that statute, but omitting the words "whereby an action hath accrued," &c., is bad on special demurrer (Moore v. Metropolitan Sewage Manure Company, 3 Ex. 333; 6 D. & L. 496; 18 L. J. 164.)
The most important question, however, which can arise under the above act is, whether it is intended that both these remedies, by forfeiture and action, shall be given to companies and shall be available in each case; or whether it is meant that only one of them shall be pursued for one particular default. It is laid down by Mr. Wordsworth in his Law of Railways, &c., p. 178, that "Whether calls be sued for or not, the shares may be declared forfeited after six months from the day appointed for payment. But the forfeiture does not release the shareholder from liability to pay calls made
before the forfeiture." The 8 & 9 Vict. c. 16, does, indeed, enact by s. 29, that in case of default of payment of a call, a forfeiture of a share may be declared," and that whether the company have sued for the amount of such call or not; " but nothing is here expressed which enables a company to enforce a forfeiture of shares after a judgment has been obtained for the amount of the call against the defaulting proprietor, though a forfeiture would not be prevented in consequence of an action for the same call having been commenced. The law on this point, therefore, is left as it was before. The precise terms of the deed or act of Parliament by which the affairs of each particular company are regulated, will, indeed, generally serve to determine this point. By the Edinburgh and Leith Railway Act, 6 & 7 Will. 4, c. 121, s. 49, the directors were empowered to make calls in manner therein mentioned, and to sue for them in case of nonpayment, by action of debt or otherwise, in their option, the proprietors neglecting to pay the same should forfeit all their shares for the benefit of the company; provided that no advantage should be taken of any such forfeiture until notice thereof given to the proprietor in manner therein mentioned, nor unless the same should be declared to be forfeited at some general or special meeting of the company within six months after such forfeiture should happen, which declaration should, ipso jure, be a forfeiture of the shares. To an action of debt for calls, the defendant pleaded that by reason of having neglected to pay calls on his shares, they were in pursuance of the act declared by the directors to be forfeited and the defendants exercised and declared their option, according to the act, that the same should be forfeited, and the same then became and were forfeited, of which the defendants had due notice, and acquiesced in the forfeiture. It was held, on special demurrer, that the plea was bad for not showing that the shares were declared to be forfeited at a general or special meeting of the company, according to the provisions of the act. Lord Abinger, C. B., in declaring his judgment, observed
"It is clear that the directors have no right both to declare the shares forfeited, and also to sue for the calls; the proviso in the 49th section only allows them an alternative. But the question is, whether it is sufficiently alleged in the plea that the directors have exercised their option of declaring their shares forfeited": (Edinburgh and Leith Railway Company v. Hebblewhite, 6 M. & W. 717.) In Giles v. Hutt (18 L. J. 53, Ex.) by the provisions in the deed of a joint stock company, power was given to the directors to bring actions to recover the amount of any call that might remain unpaid, or to declare the shares forfeited. The directors commenced an action and recovered judgment for the amount of two calls. The judgments were not satisfied, and the directors afterwards declared the shares forfeited. It was held that the directors could not both recover a judgment for the call and also declare the shares forfeited, and that having recovered judgment, their subsequently declaring the shares forfeited was a nullity and inoperative.
The principle of forfeiture, in our law, is of two kinds, embracing two distinct objects in separate cases: 1. Where the forfeiture is intended to operate as a punishment on a person for some offence, as in the case of forfeiture under a penal statute, or by a felon of his goods and chattels. 2. Where the forfeiture is intended to operate merely as a remedy to restore to a suffering party that to which he is entitled, and which is, in fact, the most direct mode of effecting it. Forfeiture of the former kind is in no respect applicable to the case of a defaulting shareholder in a public company; forfeiture of the latter kind is strictly so. The real principle, therefore, applicable to this case, appears to us to be as follows:
A forfeiture of shares and a sale of them by the company, so as to liquidate the whole amount due from a
shareholder for the amount of his call, and all interest and expenses on that account, will discharge the proprietor of the shares from all further liability in respect of that particular case. But, where the forfeiture and sale of the shares has proved insufficient to meet this, or where only a judgment has been obtained against the defaulting proprietor, which remains unsatisfied, the other remedy against him may be resorted to, provided there is nothing in the act of Parliament or deed of settlement regulating the affairs of that particular company, to prevent both these remedies being availed of for the recovery of the same call. The object aimed at by the 8 Vict. c. 16, is obviously this :--to give a full remedy for the recovery of unpaid calls, and all interest and costs accruing thereon; but such remedy is not intended to extend beyond this; and, until this end is effected, one or both of these remedies may be resorted to. The act, indeed, even directs that the surplus money obtained by the forfeiture and sale of shares, shall, after satisfaction of the call, interest, and expenses, be paid over to the defaulters, which clearly evinces the spirit of it, and shows that its object is only to secure the payment of a debt, and not to inflict punishment on a defaulter. In addition to this, it may be remarked that, though the act of Parliament declares that the shares may be forfeited although an action has been commenced, yet it nowhere empowers a company to bring an action after a forfeiture of shares has been resorted to, and the holder of them has ceased to be a member of the company.
members of the bar, amounting to about 2,000, the average
COUNTY COURT ADVOCATES.
TO THE EDITOR OF THE LAW TIMES.
It has been lately, indeed, held that the powers given by the Companies Clauses Consolidation Act (8 & 9 Vict. c. 16, s. 29), to declare shares forfeited for nonpayment of calls, is not an alternative remedy with the right of action for calls; and, therefore, a declaration of forfeiture cannot be pleaded in bar to, or to the further maintenance of, such action: (The Great Northern Railway SIR,-I observe the letters of two correspondents in the Law Company v. Kennedy, 4 Ex. 417.) And, in the case of Times of August 7th on this head; the one evidently from an Inglis v. The Great Northern Railway Company (19 Attorney, the other as clearly from a Barrister. The former writer L. T. 149), it was very recently determined by the is troubled at the provision prohibiting an Attorney advocate being House of Lords that it is no plea in bar to an action for employed by another attorney; the latter, the barrister, on the same subject, says, in effect, employ us in all cases, or we shall calls that the company, after bringing their action, have, take advantage of the late act, and do your work and our own too." under the power of their acts of Parliament, forfeited and Well, 'tis "a good and pleasant thing for brethren to dwell in cancelled the shares, and issued new shares in lieu unity!!" thereof, and by that means have supplied the deficient capital; but, in the event of new shares being issued, the court will stay proceedings on the defendants' paying the portion of the debt and costs beyond the value of the new shares. There is no substantial difference, as far as the shareholder's liability for calls is concerned, between the forfeiture and the cancellation of the shares in respect of which the calls are sued for.
statute, or in the general law, to prevent the client changing his
It must be remembered that under the recent act attorneys have an absolute, and not only a permissive, right to appear and be heard; and who, I should like to know, could refuse to hear an
We shall next consider the mode in which this liability Attorney appearing upon his client's express retainer? to pay calls may be discharged.
THE COMMON LAW BAR.
BEFORE the commencement of Michaelmas Term next, nearly a hundred barristers, hitherto enjoying a moderate share of practice, will have been completely removed from the opportunity of competition with their forensic brethren. We allude to the judges of the County Courts throughout England and Wales, who, up to the present moment, have not been disqualified, through their judicial position, from active practice at the bar. Under the act, however, just passed, regulating the practice of County Courts, it is no longer competent for any judge of those courts to act as a barrister or special pleader, or to be concerned, either directly or indirectly, as a conveyancer, solicitor, attorney, or notary. Many of the judges of the County Courts have long ago voluntarily retired from practice at the bar, while not a few have still continued in the strife. The recent changes in the profession-chiefly arising from the extension of the powers of those tribunals-are known to have reduced, in numerous cases, incomes of from 2,000l. to 2,500% per annum to less than 1,000l. per annum; and many gentlemen of considerable professional name have in consequence become not only ambitious of the position of County Court judge, but have even been thoroughly reconciled to the rule which debars them for ever from practice at the bar. Notwithstanding the immense number of the
Again, may not a client have two Attorneys if he please? It would be rather hard if he could not. And if he may, why ¡may not one of them get up his case, and the other advocate it?
While certain of the junior Bar (JUNIOR they must be not to perceive their interest more clearly) are constantly waging war against the other branch of the Profession, simply because the public choose to employ the latter, who can wonder that the attorneys should fortify themselves? If we are to run a race, let us have a clear course-a fair field and no favour.
If the Barrister is to do the work of the Attorney, without certificate, without admission, why then it is but common fairness that Westminster Hall and the Assize Courts be open to each competitor alike.
Mind, Sir, I deprecate this; I am for Barrister and Attorney working, pulling together; but if the Bar will not have this, but, on the contrary, in season and out of season, thrust themselves upon the public, nolens volens, then Dieu et mon droit is my motto. I am, Sir, yours, &c., Dartford, August 9, 1852. C. R. GIBSON.
TO THE EDITOR OF THE LAW TIMES.
SIR,-I addressed you last week respecting advocacy in the County Courts; but if I had merely quoted a portion of the act, interposing a few words in parenthesis, I should I think have conveyed my meaning more clearly to you. The act runs:-"That it
shall be lawful for the party to the suit or other proceeding, or for an attorney of one of Her Majesty's Superior Courts of Record, being an attorney (not the attorney, as it should read if attorney' were to be taken in immediate conjunction with 'for such party') acting generally in the action (conducted or carried on) for such party; but not an attorney retained as an advocate by such firstmentioned attorney to address the court," &c. In the last number of your paper Mr. Gibson asks what there is in this act to prevent the client employing one attorney to enter the plaint and get up the evidence, and then by special retainer to engage another attorney to appear in court for him. Now it seems to me that no judge who wishes to enforce either the letter or spirit of those words already quoted, which require that the attorney who appears in court for the client shall be the one concerned "generally in the action," will hear an attorney advocate who is expressly engaged as such, even though he may hold the client's express retainer for that purpose; and the judges will pay but an indifferent compliment to the act itself, if they allow such palpable evasions of it as Mr. Gibson suggests. I am, Sir, yours, &c.
J. FIELD ROBERTS.
2, Bedford-terrace, Clapham-rise, Aug. 16, 1852.
TO THE EDITOR OF THE LAW TIMES.
SIR,-In the Law Times of August 7, you assumed that the words in the new statute, "concerned generally in the action for such party," are restricted to those concerned generally as Attorneys of the parties, but I think the intention of the act was merely to restrict Attorney advocates, who, shortly before the trial received their instructions from some other Attorney in whose establishment they were not generally engaged. It so happens that I am in a solicitor's office, having entered into an arrangement as regards the profits of my private practice, and being in the receipt of a salary for attending to the business of the office when unoccupied with my own, and nearly all the County Court matters devolve upon me. So situated, immediately I read an outline of the late act in your columns, it occurred to me that it was not framed, either in intention or terms, so as to oblige me to obtain the client's consent to permit me to appear as his attorney in each particular action, but that my being concerned generally in the action" (though not as Attorney of the party), was sufficient guarantee to the Legislature that I had not, at the ninth hour, stepped in for the mere purpose of conducting the cause in court. About three weeks since I had occasion to make an application to Mr. Fraser, of the Wandsworth County Court, and afterwards I asked him to favour me with his opinion as to the situation in which the act placed me; and, in reply, he very kindly told me that if I appeared before him as an Attorney engaged in the establishment of the plaintiff's or defendant's attorney, and having had the conduct of the cause, he would not hesitate to hear me, although I might not directly represent either of the parties thereto. There are many in my position who will feel obliged by your influence being bestowed in seeking this construction upon the late act.
I am, Sir, yours, &c.,
2, Bedford-terrace, Clapham-rise, Aug.
J. FIELD ROBERTS. 1852.
THE PROFESSION AND THE COUNTY COURTS.
TO THE EDITOR OF THE LAW TIMES.
SIR,-The letter which appeared in the LAW TIMES of August 7, signed "Nisi Prius," is evidently written with the intention of promoting a good understanding between Barristers and Attorneys, with regard to conducting the business of the new County Courts; but it seems to me to be written from a locality (the Temple) and by an individual above such minor matters, and consequently destitute of any practical acquaintance with the subject; and with your leave I will point out one or two portions which seem to be very much open to observation.
If I am not mistaken, the general object of the writer is to procure the assimilation of the business of the new County Courts to the course of practice pursued in the Courts of Quarter Sessions, that is, for the Attorney to conduct the matter up to the time of appearing in court, and then hand a brief to the Barrister. But then it must be borne in mind, that in the Courts of Quarter Sessions (at least in all that I know of) there is a regular scale of fees, which never varies to any considerable extent, whatever may be the nature of the case. The allowance, as a general rule, is considered a fair remuneration both to the Counsel and Attorney, and finally, are paid out of the public purse; but I am afraid, unfortunately, this will afford no comparison with the general run of cases in the new County Courts, where the majority of the debts are below 107. and where not only are the costs not paid by the public, but the losing party has to pay both sides; and though as between Barristers and Attorneys they may be well satisfied with the existing regulations in the Court of Quarter Sessions, yet when a third party is brought in, namely, a private client, who has to pay out of his own pocket, that makes a wonderful difference in the matter.
One argument used by 'Nisi Prius" is, that the habitual attendance of a "Bar" would prevent irregularities and improprieties which are apt to arise in courts free from such salutary control. Well, but the County Court judge is situated very differently to the judge in Westminster Hall, because the former is a bird ever on the wing, continually traversing his circuit; and if the "Bar," who are to correct him, are to keep in his wake, I should like to know in what school they are to be trained, to confer the necessary qualifications for keeping him up to the mark; because, for my part, I can see no other teacher, under such circumstances, than the County Court judge himself, or, in other words, the very individual with respect to whom they are supposed to have the task of keeping in order.
There is another fallacy into which "Nisi Prius" has unwittingly fallen, and that is, in assuming that there is business enough in every court to maintain a Junior Bar." Why, Sir, how many dozens of places are there in which County Courts are held where the business of the court would not even maintain a solitary attorney-let alone a Junior Bar, with a host of attorneys to employ them? Sometimes, indeed, it may be, that in the courts alluded to there is a case requiring the attendance of a couple of attorneys, but very often this occurs only twice or thrice in the course of a year; and what is to become of a "Bar" in such places, I should like to know?
habitants, where courts are held once a fortnight, but where a I could mention towns containing from 30,000 to 100,000 inbarrister is not called in as much as once a year-and for this simple reason, that the cases are not of that importance to require
CROSS AND ANOTHER v. NEWMAN.
This was a summons after judgment.
Cross, for the plaintiffs, stated, the principal object in summoning the defendant before the court was to ascertain from him whether he was possessed of any landed property, and if so, as the debt and costs due to the plaintiffs were nearly twenty pounds, to remove the judgment, under 1 & 2 Vict. c. 110, s. 22, from this court into one of the Superior Courts at Westminster, that a writ of elegit might be issued and the rents and profits of the land taken until the amount should be satisfied.
The defendant stated some copyhold property had been left, by will, to his wife for her life.
Whereupon original order decreed to stand and defendant discharged.
CLERKENWELL COUNTY COURT.
June 29, 1852.
The plaintiff sought to recover 31. 3s. for printing.
The claim was not disputed, but the defendant resisted the pay
ment of costs on the ground that the plaintiff agreed to give him six months' credit, which had not expired when the summons was taken out.
The plaintiff said there was no specific agreement as to credit, and that it was upon the understanding that the defendant furnished him with a certain quantity of work every week that he gave him any credit at all.
His HONOUR could see no ground whatever for disputing the costs, and even if there were any, the defendant was not in a position to contest the question, having failed to pay the debt into Judgment for debt, and full costs.
This was an action brought by the plaintiff, Mr. James Grayson, an attorney, Great James-street, Bedford-row, to recover the sum of 30l. 11s. 10d. costs, for work done on behalf of the defendant in the Court of Common Pleas.
Metcalf appeared as counsel for the plaintiff, and Philp as attorney for the defendant.
The defence was that there was an arrangement between the parties that the costs should not exceed 10.
Mr. Evans, an attorney, of Gray's Inn, deposed that the defendant, who had been indicted, with others, upon a groundless charge of conspiracy, wished him to bring an action against the prosecutor, but which he (Mr. Evans) declined. The defendant then said he knew the plaintiff, to whom he had stated the circumstances, and who thought it a capital action, and was willing to take it up. The action was accordingly commenced, but was eventually compromised, the defendant agreeing to settle the matter for 201., clear of all costs. The plaintiff, however, without the consent of the defendant, settled the matter for 204., including costs, which sum was paid to him by Messrs. Lewis, of Ely-place, on the part of their client. The defendant and witness called upon the plaintiff, expecting that he would hand over the amount to the defendant, but the plaintiff was not within. The plaintiff and Webb, his managing clerk, subsequently called upon witness, and gave him a cheque for 21., observing that he had had a good deal of trouble in the matter, and was entitled to that sum, at least, as a trifling remuneration. He (Mr. Evans) at first objected to receive the cheque, but ultimately accepted it, and handed it to the defendant, who refused it on the ground that he was indebted to witness, and that it could go in part payment of his account. The plaintiff subsequently sent in his bill of costs, and refused to pay over any portion of the 201. to the defendant, to whom he (Grayson) wrote a letter, stating that he (defendant) had better take his remedy, if he had any. On the day that witness and defendant called at the plaintiff's office, pursuant to a letter from the plaintiff, to receive the 201., the answer was that both the plaintiff and Mr. Webb were out of town; and that very day Webb called at his (Mr. Evan's) office, and left the bill of costs.
The defendant deposed to his having called upon the plaintiff on the 24th of May, and that he told him Webb had got the money from Messrs. Lewis, and would be in shortly, and that he would settle with him. When Webb came in, he said, "We have not quite settled our matter yet; we have not got the money from Lewis's." Witness told him that Mr. Grayson had informed him that he (Webb) had got the money, to which he made no reply, and on his (witness) repeating what Mr. Grayson had informed him, Webb said, "Yes; I have got a cheque;" and Mr. Grayson said that Mr. Webb would settle, but he had never done so. The witness was cross-examined at great length by Mr. Metcalf, in reply
to whom he said he was glad to settle the action, because he believed he was in the hands of shufflers.
Mr. George Dillon Webb, managing clerk to the plaintiffs, stated that he had the conduct of the case, and most positively denied that one word ever passed about the expenses not exceeding 101. He wrote to Messrs. Lewis and Lewis, who wrote back to say that their client would give 201., to stay proceedings, but not one farthing more. This was communicated to the defendant, who said that, under all the circumstances, they had better take the 201. Not a word was said about the defendant receiving the 201; such statement was totally untrue.
His HONOUR.-The giving of the cheque for 21. was not a very creditable sort of thing, it having been done without the authority of the defendant.
Mr. Webb denied that Mr. Evans expressed any surprise when he gave him the cheque. He took it, and said not one word.
Mr. Evans observed that the witness had stated that which was
utterly at variance with truth, and the statement was a gross imputation upon his (Mr. Evans's) character.
His HONOUR said he could not help expressing his surprise. It was certainly a most unsatisfactory case to deal with, and the court could not very well deal with it without expressing something like dissatisfaction. He was disposed to think that the intention was that Honeyman was to receive the whole of the 207. But still, the case was left in doubt. It was the duty of the plaintiff to make out his case to the satisfaction of the court, and that he had not done. His Honour having gone through the various items of the plaintiff's bill of particulars gave judgment for 21. 178. 10d. for work done, irrespective of the action in the Court of Common Pleas, to which he added the 21. 2s. paid to Mr. Evans, making together a verdict for 41. 19s. 10d.
Lewis appeared for the plaintiff.
On the opening of the court,
Mr. Patten said, he dare say it would be in His Honour's recollection that at the close of the inquiry at the former hearing, it was agreed to resume the proceedings on this day. It would also be in His Honour's recollection that Mr. Clarkson, his counsel, had said, that if the Central Criminal Court were held on that day he could not possibly attend here. He was sorry to say that was the case, but however inconvenient the absence of Mr. Clarkson might be to himself, he would not throw any obstacle in the way of the proceedings, and was fully prepared to go on with it, so far as the evidence on the plaintiff's part was concerned.
After some conversation the case was then proceeded with, by the examining of Mr. Patten, and his son, Mr. Wm. Patten, but as we are still prohibited from publishing the evidence until the inquiry has terminated, we shall merely say, that witnesses were examined in support of the several allegations down to schedule No. 6, when the court adjourned until Wednesday.
WEDNESDAY.-The business was commenced by hearing one case in No. 4, which, having been disposed of, schedule No. 7 was proceded with.
During the hearing of this schedule, it appeared that Mr. Humphrey Wickham, solicitor, of Strood, who had been subpoenaed, was not in attendance.
Mr. C. Scudamore said that he had received a note from Mr. Wickham, who had been in attendance on the previous day, stating that he had an appointment in Maidstone, which he could not postpone, and he had sent the papers relative to the cases, in which he was concerned, by his clerk; but as his books contained private accounts, he must decline showing them. He had, however, sent one book. Lewis thought that Mr. Wickham had shown great contempt of court in not attending. He (Mr. L.) had had those documents in his possession on the 2nd of July, and gave them up again to Mr. Wickham on his promise to produce them when called on, and he thought his conduct to-day was, at least, irregular. He thought if Mr. Wickham should be wanted, it would be a serious thing to go forth to the public that an attorney of that court tried to throw an obstacle in the way of its proceedings. Fifteen or sixteen cases might probably depend on Mr. Wickham's evidence.
His HONOUR thought it was highly improper conduct under any circumstances, particularly for an attorney of that court. On looking at the schedule, he found nineteen cases in which Mr. Wickham was concerned. His Honour severely censured him for his nonattendance, and said if Mr. Lewis wished it he would have him called on his subpoena.
Lewis said he did not wish that, if he found that the papers sent would prove themselves.
(The clerk was then asked for some papers, but he could not produce them.)
Lewis then said, that as so many cases were stopped, owing to the absence of Mr. Wickham, he thought it was due to the dignity of the court to call him on his subpoena.
R. Hodshon, one of the sub-bailiffs, stated that he left the subpoena at Mr. Wickham's office, with 7s. 6d., on the 14th of August, and was told that he would not be home till the following evening. On the 16th he received a note, with the subpoena and 7s. 6d. returned. He then went again with it to Mr. Wickham's house, where he saw his daughter and a lady, to whom he tendered the subpoena, but they refused to take it, and he put it, with the money, on a chair, and left the house. As he was leaving, they put the chair on a step outside the door. He watched for some time to see that no person removed the subpoena, and then took it to the office and left it there. He saw Mr. Wickham receive it at half-past nine, yesterday morning.
Lewis.-This is as cool an infringement of the orders of the court, as ever I heard of.
Mr. Scudamore said, the note admitted the service.
Mr. Wickham was then called on his subpoena, but did not answer. His HONOUR.-He is fined five pounds.
Lewis said they must serve him with another subpoena, as the cases were of great importance. He then proposed to proceed with Schedule No. 8.
His HONOUR said that he was most anxious to carry out the intentions of the Lord Chancellor, as well as his own, by having the strictest and fullest investigation of every charge that can be made, in order to fully establish the purity of the proceedings of that court. But, notwithstanding that anxiety, in consequence of the objection raised, he felt a serious difficulty. This was an Inferior Court, and this action would have to be ultimately tried in a Superior Court. He might, therefore, be accused of hearing a case pendente lite in the Superior Court. Suppose he was of opinion, against Mr. Patten, on schedule 8, and the jury should afterwards give a verdict in his favour,-it would be no answer to the action, that the judge of the County Court had decided to the contrary. Mr. Dorrett said certain moneys had not been paid over to him as bailiff of the court. Now, it was clear that he might sue in that court if the amount sought to be recovered were within its jurisdiction, and if not, he might bring his action in a Superior Court. It might be argued that, under the 116th section of the act, he was bound to hear it. The objection, he would confess, had taken him by surprise, but he thought that, under the circumstances, he was not bound to hear this schedule, as an action had been brought by Mr. Dorrett against Mr. Patten, and his opinion at present was, that he could not hear it without asking the Lord Chancellor.
Lewis said he would relieve His Honour from all apprehensions on the subject, by consenting to withdraw the action on each party paying his own costs, and leave the matter of schedule 8 to His Honour's decision.
A discussion ensued upon this point, and, in reply to Mr. Lewis's proposition, Mr. Patten denied that he owed the high bailiff more than he had paid, and would only consent on the payment of all the
Lewis.-Then there is an end of the question.
His HONOUR.—I must decline going into it to day, at all events. Previous to the closing of the court, His Honour stated that he should forward a communication that night to the Lord Chancellor, stating the facts of the case, and the objection taken, and would endeavour to obtain his lordship's decision as early as possible. If his lordship thought that he ought to go into the inquiry, he should be quite willing to do so.
The court was then adjourned to Tuesday next, when it is thought the Lord Chancellor's opinion will be received, and the plaintiff's case closed. Mr. Clarkson also, it is expected, will be then present to conduct the defence.
SHERIFFS' COURT, CITY. July 29.
GRAYSON v. BROWN.
Alleged security for costs.
This was an action brought by the plaintiff in the preceding case to recover of the defendant, a master tailor, the sum of 181. odd, upon a bill of exchange, which the defendant had taken as collateral security for the payment of 177. odd, for which he became guarantee.
Mr. Patten objected to its being gone into. He had to submit to His Honour that the High Bailiff had made the charges in this schedule the cause of a civil action, and having done so before these proceedings were commenced, he had made an election of the course It appeared from the statement of Mr. George Dillon Webb, the he meant to adopt. Now, if this schedule were entered upon, his plaintiff's articled clerk, that the bill was given to the plaintiff in honour would assume the functions of a jury, and it might be pre-payment of law costs. The plaintiff's evidence was to the same judicial to him, as causing him to disclose things which ought to effect. be reserved for the trial. He would read the declaration. Lewis said there was no occasion for it, he would admit that they were the same.
Mr. Patten said the declaration had been filed on the 22nd January, before these charges had been ordered to be investigated by the Lord Chancellor-therefore, as the plaintiff had made his election, it would be unfair to proceed under this act, whilst the action was still pending. On those grounds, and, as in the course of the proceedings he might be prejudiced by testimony that may be introduced which would be detrimental to him in the action, he objected to this schedule being heard.
Lewis thought His Honour was left without any discretion in the matter. Here was a question to inquire as to malversation in office, and which he would prove. He would admit there was an action in abeyance-but although these proceedings might be good grounds for staying an action in the upper court, it was not a ground of complaint in a case which was so peculiarly in His Honour's province. This was the most serious charge of all, as it concerned the fees due to his brother officer, and he thought it would materially blemish the efficiency of that court, if it went forth that the judge would not interfere between two of his own officers; he knowing better than any jury possibly could, how to mete out justice between them.
Prentice cross-examined the plaintiff at some length. He admitted that he had never sent the defendant a bill of costs, and that he was aware of the defendant having passed the Insolvent Court, and entered him in his schedule as a creditor for 4l. 108., against which he had also entered a set-off of 21. odd, for clothes.
Prentice produced a threatening letter which the plaintiff admitted was in his hand-writing, and which was to the following effect, and written two days previous to the defendant applying for his final order: "Sir, if you do not call upon me to morrow it will be worse for you." He (plaintiff) did not oppose the defendant at the Insolvent Court.
The defence was that the bill was placed in the plaintiff's hands to sue upon and not as payment of costs.
The defendant denied in the strongest terms the statement of the plaintiff, and that of Mr. George Dillon Webb, his clerk. (defendant) instructed the plaintiff to sue upon the bill, and not wishing to be the plaintiff in the action, indorsed it "blank," at the suggestion of Mr. Grayson. All that the plaintiff had ever done for him was to write a few letters, and recover a debt in the County Court, for which for which he (defendant) considered the plaintiff was amply paid. Defendant added that he never heard any statement in his life which so much astonished him as the evidence of