128 Review: Jarman's Chancery Practice-Law of Attorneys. being in prosecution of an order, and not being for any purpose mentioned in section 30 of the Act 15 & 16 Vict. c. 80, must be served two clear days before the return (5th G. O., 16th October, 1852), except by special leave, and at the time of service the original must be produced and shown. On the return of the first Act 15 & 16 Vict. c. 80, requires that the Chamber business of the Judges shall be procceded on by summons, and, as near as may be, according to the form now adopted by the Judges of the Superior Courts of Common Law when sitting at Chambers." The next section relates to the orders of says: "When the Judge makes an order in Chambers, if he does not otherwise direct, it will be drawn up by one of his clerks; but when considered necessary, the Judge may direct any order to be drawn up by a registrar as orders made in open Court are drawn up, and for this purpose the registrars are, when required, to attend the Judges respectively at Chambers, as may be found most convenient for furthering the business of the Court, and as the Lord Chancellor, with the concurrence of the Chamber Judges or any two of them, shall from time to time by any General Order direct (15 & 16 Vict. c. 80, s. 14). By the 15th section of the Act orders made by the Judges in Chambers shall have the force and effect of orders of the Court of Chancery, and may be signed and enrolled as such; and by the 28th of the General Orders of 16th October, 1852, such orders are to be entered as and where orders made in summons, the Judge is to be satisfied, by pro- the Judge made in Chambers. The Author per evidence, that all necessary parties have been served with notice of the order, and thereupon the Judge will give directions as to the manner in which each of the accounts and inquiries is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend on the several accounts and inquiries, and the time within which each proceeding is to be taken; and a day or days is to be appointed for the further attendance of the parties, but such directions may afterwards be varied or added to as may be found necessary (18th ibid.). The proper evidence of service of notice is the record and writ clerk's certificate of a memorandum of such service being entered, and an affidavit showing that the parties so served are all who are entitled to notice. The service of the order on any party may, however, be dispensed with by the Judge, if on the hearing of the summons it appears it cannot be effected by reason of absence of the party, or for any other sufficient reason, or under similar circumstances he may direct substituted service, or notice by advertisement or other wise in lieu of service. (19th ibid.). [See also Balinhard v. Bullock, 20 L. T. 189]. If the defendants or other parties served with the summons do not attend at the return, an affidavit of service will be required." The proper forms of affidavit are next given; and the Author proceeds to state that open Court are entered. Orders appointing guardians and for maintenance and some others are drawn up by the registrars. So also are this class some are of the orders for the prosome orders made by the Judges' clerks. Of duction of documents. Orders for time to plead, answer or demur, to enlarge publication and the like, are drawn up in Chambers. To enable the registrar to draw up an order, the chief clerk will, after the summons is disposed of the order made, which being taken to the of, indorse upon his original summons a minute registrar's office will be the registrar's warrant for drawing up the order. The original summons is filed by the registrar." "If the summons first taken out, or any other summons, is not disposed of upon the return, the parties are to attend from time to time, without further summons, at such time or times as may be appointed for the consideration or further consideration of the matter to which it relates (16th ibid.). The course of proceeding in Chambers is ordinarily to be the same as the course of proceeding in Court upon motions (23rd ibid.); and notice must be ORDER FOR TAXATION WHERE RETAINER LAW OF ATTORNEYS. DISPUTED.-SUBMISSION TO PAY. It appeared that in pursuance of a meet given to all parties concerned of a party's intention to read any affidavit in Chambers (24th ibid.). What length of notice is to be given does not appear. It will be borne in mind that ing of the inhabitants, a committee was all affidavits used in the Court must be divided appointed to carry into effect a resolution into paragraphs, each paragraph being num- to apply for an Act of Parliament for the bered consecutively, and confined, as nearly as may be, to a distinct portion of the subject (15 & 16 Vict. c. 85, s. 37). Parties attending any proceeding in Chambers, without the previous leave of the Judge, are not to be allowed purpose of rating to the parochial rates the owners instead of the occupiers of small tenements in Saffron Walden, and that ten of such committee with others entered into an undertaking to pay the expenses of such any costs of such attendance unless by special application to the amount set against their counsel attending the Judge at Chambers are respective names. Mr. John Clarke, one not in any case to be allowed, unless the Judge of the committee, signed for 57., and on the certifies it to be a proper case for counsel to bill being lost, the solicitors in the matter attend (56th ibid.). The 28th section of the brought an action against him for the order of the Court (55th ibid.); and the costs of that this is a matter to which the solicitors ought to have attended, and that they ought But it is to be observed that there are a great not to have proceeded upon their bill of costs. many cases in which a solicitor is acting for a large body of persons, and it is difficult to say expressly, by whom the solicitor is retained, and it may be a fair question to bring before the Court. amount of their bill of costs, and he there- that there is no retainer at all, and all these exupon paid the 51. into Court and denied penses are unnecessarily incurred. It is said his further liability. Mr. Clarke afterwards petitioned for the taxation of the bill of costs, stating the action against him and that he had a valid defence, except as to the 51., but without any submission to pay what might be found due on taxation. An order of course was granted for the taxation, but it contained no direction to the Master to certify the amount due from Mr. Clarke. On a motion to discharge the order with costs, the Master of the Rolls said : "This was an application to discharge an order of course obtained by Clarke, for the taxation of a bill of costs. The order is in an unusual form, though not without precedent. It was obtained under these circumstances :-The solicitors brought an action against Clarke, for the amount of their bill of costs. Clarke contests his liability to pay anything, on the ground that he did not employ them as his solicitors, and also disputes the amount of the bill. If they proceed solely at law, though the question of retainer may be contested there, the question of amount can only be contested in a very unsatisfactory manner, that is, not by taxation before the proper officer, but in open Court, which is almost impossible, or by reference to some person to take an account of what is due. The defendant has obtained the order of course to enable him, in case he shall fail in his defence at law, to have the amount of the bill as certained by taxation. "But this is not the only inconvenience; there is another of a more serious description. of certain items, may, and frequently does, The Taxing Master, in determining the validity have to determine the validity of the retainer by the client in giving directions to his solicitor to do those particular acts. There are certain charges which will not be allowed unless the client directed his solicitor to incur them. This may involve, and necessarily does so, the question of retainer with respect to those charges, and this may involve the same question as at law, and the Taxing Master may come to one conclusion, and the jury upon the trial to another; and, in fact, the conclusion of the Taxing Master may determine the costs of taxation. "The result of all this is, that in my opinion the matter ought in every case to be brought specially under the attention of the Court, that the Court may be enabled to make such an order as the circumstances of the case may require, and by which means either the taxation may be postponed until the question of law is determined, or the whole question of retainer may be referred to the Taxing Master. "It appears that Lord Langdale, in a case of "In making the order I propose to do, I Re Bateman, approved of the order in the form beg to state I cannot compel Clarke to take it, in which this has been asked. It was never but what I desire is, to save the expense to both contested that that was not a proper course of parties of compelling Clarke to make an approceeding, and no application was made to dis-plication for a special order. charge the order, but upon a suggestion of the Judge himself, it stood over until after the trial of the action. The matter was never mentioned again; perhaps some compromise was made; in fact, the point was never decided. "Since that time these orders, though, of course, of rare occurrence, have been granted from time to time, but this is the first occasion upon which their validity has been contested. The whole question is one of jurisdiction in the Court to grant such an order. Upon this point I think it unnecessary to say much, because, though there may be some question upon the construction of the Act of Parliament, I am of opinion that the cases which have been decided at common law settle the question, that the Court has jurisdiction; and I entertain no doubt that I have power to make such an order as the Court thinks fit. "It cannot, however, be contended, that this form of order is not open to very considerable objection and inconvenience. In the first place, the order made is for immediate taxation, and if one-sixth be taxed off, the costs will have to be paid by the solicitors. After this has been done, it may appear upon the trial of the action, "If an application be made, I shall then make the order which I am about to pronounce; but if Clarke now refuses to take it, I shall simply discharge the order of course, but without costs, because there is sufficient authority in the office to induce the solicitors to apply for this order. "I think the proper order for me to make is the same in substance as in re Pyne, that the client shall be at liberty to question the retainer of Messrs. Thurgood, and that they shall be restrained from commencing or prosecuting any action or suit touching their demand pending the reference, and that an undertaking shall be introduced into the order for Clarke to pay what, if anything, shall be found due upon such taxation. The result will be that I shall send the whole question to the Taxing Master, and if Clarke be not satisfied with my decision, the whole question will be brought before me. "As I have already stated, I cannot compel Clarke to take the order, but if he do take it I shall direct the costs of the order to abide the result of taxation." In re Thurgood, 2 Eq. Rep. 1,152, 130 Law of Costs.-Attorney's Privilege from Arrest.-Audience of Attorney in Sup. Courts. LAW OF COSTS. WHERE RULE NISI DROPS, ON JUDGES UPON a rule nisi for the new trial of an action being obtained, the Court were equally divided in opinion, and the rule accordingly dropped. Lord Campbell said,-" In the House of Lords, when the Lords are equally divided in opinion, the respondent is successful; for a decision in his favour is made on the principle semper presumitur pro negante. But when this Court is equally divided on a rule, there is no decision, and no successful party. * * * As this is the case of a proceeding for setting aside a verdict on the ground of misdirection, the Judges being equally divided, and the rule dropping on that proceeding, there will be no costs on either side. We find an express de-a cision of the full Court, in Chilton v. London and Croydon Railway Company, (Exch.) Trin. Term, 1848, and by that we mean to abide." Dansey v. Richardson, 2 Com. Law Rep. 1467. ON APPEAL FROM CERTIFICATE OF JUS TICES STOPPING UP HIGHWAY. attendance on a certain day. The attorney went to the place appointed, believing it to be the usual magistrates' meeting-day in that town. He was arrested as he got down from the coach he travelled by. mitted that the case was the same in principle as many others that had been decided. The Mr. Pullen, who appeared for the execution creditor, was not called upon, for AUDIENCE OF ATTORNEY IN THE Held, that the 5 & 6 Wm. 4, c. 50, s. 90, which enacts that "the Court of Quarter Sessions is hereby authorised and required to The learned Baron held, that it was no pri award to the party giving or receiving notice vilege, and that the Judges were decided in of appeal such costs and expenses as shall be not extending the cases of privilege to attorincurred in prosecuting or resisting such ap-neys or counsel. peal, whether the same shall be tried or not, and such costs and expenses shall be paid by the surveyor or other party as aforesaid, at whose instance the notice for diverting and turning or stopping up the highway, either A MIDDLESEX magistrate gave possession entirely or subject as aforesaid, shall have to a landlord of premises as deserted on the been given," is imperative, and that the Court day preceding the last day of Term. Under the 11 Geo. 2, c. 19, s. 16, there is a right of of Quarter Sessions has no discretion to dis- appeal "summarily" to the "Judges" of the allow such costs in any particular case. Re- Queen's Bench or Common Pleas (not Exche gina v. Surveyors of Finchley, 2 Com. Law quer). Application having been made to Mr. Justice Cresswell at Chambers, he was clearly Rep. 1593. of opinion that the subject must go to the full Court. ATTORNEY'S PRIVILEGE FROM ARREST. A CASE recently came on before Mr. Baron Martin at Chambers, in which an attorney, arrested in a western county, claimed to be privileged, on the ground that having been previously retained by a client in a case requiring summary proceedings by a magistrate that he was privileged eundo, &c. The client, after previous consultation, had sent specially, a distance of 20 miles, requiring the attorney's Mr. Hope, the attorney for the tenant had scarcely time to get up the necessary affidavits, but a learned counsel who had previously advised on the case had promised to be in Court by four o'clock, or request a friend to make the motion. Mr. Hope was in Court with his affidavits, but neither learned counsel was in Court, and two other counsel who were invited to hold the briefs, said they would not undertake to move so novel a rule without more time to consult the Acts of Parliament relied upon. Under these circumstances, the attorney waited till the Court was about to rise, and Want of Room and Ventilation in the Courts at Westminster.—Admiralty Court Fees. 131 then mentioned to the learned Judges the position he was placed in, and pointed out that the delay of waiting till next Term to seek restitution might be as injurious to the landlord if he should relet, as the tenant who was expelled, and "The complaints made by the jury who tried the above case of the room to which they retired were doubtless well founded, but it might be supposed that having sat in the Court itself for three days, they would have been glad to escape anywhere from so foul an atmosphere. The Lord Chief Justice allowed the motion Our Courts of Common Law are admittedly to be made by Mr. Hope, as attorney for the not only inconvenient, but totally inapplicable tenant, and after reference by Mr. Justice to the purposes to which the fantastic imaginaWightman to the Statute referred to, the rule tion of the architect designed them; and in no was granted; and on the further suggestion of case has this been more fully exemplified than Mr. Hope to have the rule returnable at during the progress of the cause above reported. Chambers, Mr. Justice Erle said, the rule The thermometer was at a height which we are should be made returnable next Term, with afraid to name lest the statement should appear an intimation that it might be taken at fabulous; but this we may state, that several Chambers if the landlord consented. This persons-women particularly-had to retire rule was drawn up at the Crown Office, and oppressed by the heat and stench. But inconwe understand the matter has been amicably venient and ill-contrived as the Court is, we adjusted. I cannot but believe that much of the inconvenience might be remedied if the simple plan, WANT OF ROOM AND VENTILATION found so efficacious in the city Courts, were IN THE COURTS AT WESTMINSTER. annoyance adopted of keeping entrances for counsel, attorneys, witnesses, and others who are immediately concerned, apart from that by which the general public finds ingress. The discomfort which is endured by all is in a considerable Ir may be useful to record the and inconvenience which the Court and jury, degree experienced by those whose duty it is to and all connected with the administration of might not unreasonably hope to be permitted to report the proceedings of the Court, and who Justice, experience in Westminster Hall, in do so without being subjected to the intrusion order that when the question of new Courts of persons who have no business in the box and offices again comes before Parliament, allotted to their use. To such an extent has the evils which prevail may not be forgotten. this intrusion been carried on, that it is with On the trial of an action in the Court of the utmost difficulty that we have been enQueen's Bench on the 6th instant, the jury abled, in cases of public interest, to perform were directed by Lord Chief Justice Camp-compelled to appeal to the officer of the Court, our duties, and during the above trial we were bell to retire for the purpose of considering who courteously expresed his regret that it was their verdict, when the following appeal not in his power to remedy the grievance. We was made to the Court:must therefore hope that the matter will attract the attention of a higher authority." The Foreman.-"I hope, my lord, if we are to retire, your lordship will direct us to be shown to a better room. The room we were in is up five flights of stairs." Lord Campbell.-"I am really very sorry, gentlemen; it is very disgraceful, but I have no better room for you." The Foreman.-Up five flights of stairs, and some of us had great difficulty in getting up. There was somebody at the top of the stairs, with no candle in his hand, calling out to us, Come along, come along.' "The jury then retired, and on their return, stated they considered the total loss to be 7007., including 2007., the value of some hardwood alleged by the plaintiff to have been covered by the insurance which was denied by the defendants, and was to have depended on the construction which the Court put on the word 'therein' in the policy. "It was then agreed by counsel to split the difference,' and a verdict was entered for the plaintiff-Damages 6001. "The Court did not rise till a late hour." The reporter of the Daily News then remarks on the state of the Court follows: as The Times of the 11th December obthatserves, "The state of the Court and the inconveni ence of the arrangements for the accommodation of all persons having to frequent it have again and again, during the present sittings, been the subject of complaint. "Lord Campbell expressed his concurrence in the complaints so made, and said it was necessary that something should be done, and he hoped that some of the evils complained of would be remedied without delay." ADMIRALTY COURT FEES. HER MAJESTY has been pleased, by and that from and after the 1st day of January, with the advice of her Privy Council, to order 1855, and until her Majesty shall be pleased otherwise to direct, the fees in the schedule annexed to such order, marked from No. 1 to No. 73 inclusive, shall be substituted in lieu of the fees now payable to the Judge, Registrar, Merchants, and Marshal of the High Court o 1 132 Admiralty Court Fees-Attorneys to be Admitted Admiralty of England, and which, under the provisions of the Act of the 3 & 4 Vict. c. 66, are now carried to the Fee Fund of the said Court. And her Majesty was further pleased, by and with the advice of her Privy Council, to order that all the said fees numbered from No. 1 to No. 73, inclusive, shall, from the day aforesaid, be collected by means of stamps, whether adhesive or affixed and under such regulations as the Judge of the said Court shall direct. shall, from the said 1st day of January, 1855 be payable to the Seal Keeper of the said Court, in lieu of the fees now payable to him in respect of that office. And her Majesty was also pleased to order, that in lieu of the fees now payable to the Crier of the said Court, there shall, from the day aforesaid, be payable to him a uniform fee of 5s. on every interlocutory decree, sentence, or motion in Court, to be paid by the party whose favour such decree or sentence has been And her Majesty was also pleased to order given, or by whom such motion has been made. that the fees in the schedule annexed to such-From the London Gazette of 12th December, order marked from No. 74 to No. 76, inclusive, 1854. ATTORNEYS TO BE ADMITTED. Hilary Term, 1855. Queen's Bench. [Concluded from page 112.] Clerks' Names and Residences. Morice, George, Aberystwyth Olivier, Alfred, 24, Osnaburgh-street, Regent's- Plunkett, Henry, 30, Albert-terrace, Southwark; Rashleigh, William Boys, Horton Kirby Ravenor, Nathaniel Graham, 12, Montague-st., Rider, James, 1, Rider's-buildings, Chatham-st.; Seale, Ed. Wilmot, jun., Malmesbury-house, Selby, James Addison, 14, East-street, Lamb's- Serrell, George, 6, Mornington-road, Regent's-park Smith, John Edward, Leeds Soames, Frederick, B.A., 33, North Audley-street Stone, Samuel Francis, 3, Compton-street, East, Stott, William, 17, Wilton-place, Regent's-park, Sturt Willian, Clapham-common Tacon, Charles, jun., 23, New Ormond-street, . Thompson, T. Wathen, 3, Bedford-square York, James Neal, Wharncliffe-house, To whom Articled, Assigned, &c. in J. Hughes, Aberystwyth; F. R. Roberts, Aberystwyth F. R. Ward, Bristol; A. J. Knapp. Bristol H. E. Brown, Salters' Hall; R. H. Wyatt, Parlia ment-street H. Corser, Stourbridge J. E. Buller, Lincoln's-inn-fields G. G. Vincent, Staple-inn F. Hunt, Witney; J. Fluker, Symond's-inn F. Ferns, Leeds H. H. Poole, Bartholomew-close T. Selby, West Malling G. Pyke, Lincoln's-inn-fields S. Tripp, Argyle-street J. A. Ikin, Leeds J. Lawford, Drapers' Hall R. Ford, Crown-court; J. Galsworthy, Charlotterow; R.T. Croft, Copthall-court S. Stone, Leicester W. Slater, Manchester; N. C. Milne, Temple W. C. Sole, Aldermanbury J. C. Webster, Beccles J. Hostage, Chester A. Howard, Angel-court H. Gregson, Lancaster C. W. Squarey, Salisbury; A. T. Squarey, Liver J. Earnshaw, Kingston-upon-Hull J.J. Blake, Blackfriars-road E. Blaker, Lewes; R. Gamlen, Gray's-inn E. H. Rickards, Lincoln's-inn-fields St. John's. C. Ford, Bloomsbury-square |