258

Points in Equity Practice.--Ancient Rules and orders as to Attorneys.

on the ground of a bona fide mistake, I should have been unwilling to destroy the suit by standing on the strict practice; but at the same time, indulgence is not to be extended to such an extent, as to form a precedent which would encourage parties to proceed with a suit as negligently as they might think fit.

copyhold estate, in lots, the infant heir of the ject, and had made out a case for indulgence, intestate was admitted. The purchaser of lot 9 having paid his purchase-money into Court, presented a petition for a vesting order under the 13 & 14 Vict. c. 60. The Master of the Rolls said, that "the vendor must pay the costs, except those of the Lord of the Manor, whose consent in Court was not required. The costs must be paid out of the purchase-money of this particular lot, and not out of the fund in Court generally." Ayles v. Cox; exparte it is a great and serious inconvenience to a Attwood, 17 Beav. 584.

OF SUIT TO PREVENT EQUITABLE WASTE. A bill, filed against trustees and the tenant to prevent equitable waste, was dismissed with costs, as against the tenant, where it was not shown that he had committed or intended to commit any waste, although some had been committed by the trustees at his request. Campbell v. Allgood, 17 Beav. 623.

POINTS IN EQUITY PRACTICE.

"The plaintiffs say, that no inconvenience has resulted, or can result, from their slip, but

defendant to have a suit hanging over his head for a great length of time, in consequence of the delay of the plaintiff in its prosecution. If the motion had been properly framed, I might have been inclined to restrain the taxation of the costs of the suit until the next seal, to enable the plaintiffs to take such course as they might be advised. But the plaintiffs make no case for indulgence, although they must have expected that the defendants would oppose any application to take from them the benefit of the order. They make no case which, on a proper motion for that object,

MOTION ON BILL BEING DISMISSED FOR would have induced me to order the suit to be

WANT OF PROSECUTION.

restored, and I must therefore dismiss the motion, with costs; indeed, the plaintiffs must have paid all the costs, if the motion had been granted." Bartlett v. Hurton, 17 Beav. 479.

ANCIENT RULES AND ORDERS RE

LATING TO ATTORNEYS.

REQUIRING THEM TO BE MEMBERS OF THE
INNS OF COURT OR CHANCERY.

By a Rule of Hilary Term, 1632, the following regulation was made by the Court of King's Bench, regarding the service of a clerkship to an attorney before admission, and promember of an Inn of Court or Chancery:— viding that every attorney should become a

In a suit, the bill was filed August 25, 1845, and on July 14, 1853, an order was made, on a motion to dismiss for want of prosecution, that the plaintiffs should within one week set down the cause for hearing and serve a subpoena to hear judgment, or in default that the bill should stand dismissed with costs. On July 19, the plaintiffs set down the cause and issued a subpœna returnable on November 2, but did not serve it till September 9. The defendants' solicitor, on September 10, informed the plaintiffs' solicitor he intended to treat the suit as dismissed, and on October 29 took out warrants to tax. On a motion on November 4, to stay the taxation, except as to costs of the motion of July 14, the Master of the Rolls said :- -"When this case was opened, I was struck with the singularity of the form of the motion, which asks, that the defendant may be absolutely restrained from taxing the costs of the suit, under the order of July last, instead of only seeking to stay the taxation until he could move the Court to restore the suit, which is gone by that order. But al- "That all officers and attorneys of the though the plaintiffs knew, as early as the 10th Court be admitted of some Inn of Court or of September, that the defendants insisted on Chancery, by the beginning of Hilary Term treating the suit as dismissed, they took no admitted officers or attorneys; and be in next, or in the same Term wherein they are steps to restore it till November. If they had commons one week in every Term, and take now come here upon a motion with that ob-chambers there, or in case that cannot be

"None hereafter shall be admitted to be an attorney of this Court unless he have served a clerk or attorney of this Court by the space of six years at the least, or such as for their education and study in the law shall be approved of by the Justices of this Court to be of good sufficiency, and every of them admitted of one of the Inns of Court or Chancery."

In Michaelmas Term, 1654, a Rule of Court was made to compel attorneys to become members of an Inn of Court or Chancery:—

Ancient Rules and Orders.—Inconvenience of the Courts at Westminster.

done conveniently, yet to take chambers or dwellings in some convenient place, and leave notice with the butler where their chambers or habitations are, under pain of being put out of the Roll of Attorneys."

In Trinity Term, 1677, and Michaelmas Term, 1684, the Court of Common Pleas ordered the attorneys of that Court to be admitted of some Inns of Court or Chancery; and in Michaelmas Term, 1704, the following rule on that subject was made by the Courts of King's Bench, Common Pleas, and Exchequer :

"It is ordered, that all attorneys and clerks of the said Courts, not already admitted into one of the Inns of Court or Chancery, shall procure themselves to be admitted into one of the said Inns of Court (if those honourable societies shall please to admit them), or into one of the Inns of Chancery, before the end of Trinity Term now next ensuing."

259

And in 1825, it was further resolved:"That no recipiatur for entering into commons shall hereafter be granted to any person, whether owner of chambers or not, whose name stands on the Rolls of Attorneys or Solicitors, or who shall be engaged in any profession other than the Law, or in any trade, business, or occupation."

In Lincoln's Inn, in 1808

'It was resolved not to hear the exercises of any gentleman who has been an attorney or solicitor, until his name shall have been taken off the Roll, nor of any gentleman who acts as clerk to any attorney or solicitor; nor shall any attorney or solicitor be called to the Bar till his name shall have been taken off the Roll for two years; nor any clerk to any attorney or solicitor, till he shall have ceased for two years to act as such clerk."

And in 1828, it was further ordered :“That no person be admitted of this society Notwithstanding these Rules and Orders whose name stands on the Roll of Attorneys of the Superior Courts of Common Law, the or Solicitors, or who is articled to an attorney

Benchers of all the Inns of Court have made regulations exciuding attorneys and articled clerks from being admitted as members of those societies. At first the restriction applied only to calling attorneys to the Bar after a limited period; but subsequently they were excluded altogether from any membership, and consequently cannot, resort to the library or attend the lectures.

In the Inner Temple, in 1762, it was ordered :

"That no attorney or solicitor, or clerk in the Chancery or Exchequer, be called to the Bar till they shall have actually discontinued the practice of their former profession two years."

or solicitor."

In Gray's Inn, it was resolved :

"That no person be called to the Bar in case he shall be in deacon's orders, or under solicitor, or clerk in the Chancery or Exche 21 years of age; also if he is an attorney or of his profession for two years." quer, he must have discontinued the practice

[Extracted from the 6th Report of the Common Law Commissioners.]

INCONVENIENCE OF THE COURTS
AT WESTMINSTER.

IN the Exchequer of Pleas, at the Sittings at Middlesex, at Nisi Prius, before Mr. Baron Platt and Common Juries, on the 22nd inst., a case was suddenly brought to a standstill by And in 1789, it was further ordered :- the absence of a witness. It was suggested "That from and after the end of this present that the witness not being accustomed to atTrinity Term, 1789, no articled clerk, either tend the Courts at Westminster, might be in to an attorney or solicitor, or to a clerk in the the full Court. Mr. Bramwell said, it was so Court of Chancery or Court of Exchequer, difficult to obtain an entrance into that Court, ought to be called to the Bar until his articles the Exchequer Chamber where the Court sits shall either have expired or been cancelled for at Nisi Prius during Term,-that it was not the space of two whole years. It is now ordered by the Masters of the Bench now present, that the said resolution be confirmed and adopted as the rule of this society in all future applications of such articled clerks to be called to the Bar."

Again, in 1828, it was resolved :

"That no recipiatur for entering into commons be granted to any person whose name stands on the Roll of Attorneys or Solicitors, or who is articled to any attorney or solicitor." In the Middle Temple, in 1762, it was ordered:

"That no attorney, solicitor, clerk in Chancery or of the Exchequer, shall be called to the Bar until the end of two years, at least, after they shall have discontinued practising as such."

impossible but that not being able to hear what was going on in that confined room, the witness, even supposing that he had been able to find his way to the door, had walked away, not knowing that the cause in which he had been subpoenaed as a witness was actually proceeding in that Court. Mr. Watson was unable in any way to deny the vast difficulties of obtaining an entrance into the Court, nor the almost overwhelming inconvenience which was the lot of all persons having business there when they had succeeded in forcing an entrance into it. Mr. Baron Platt said,-"I can hear your voice, Mr. Watson, but there are so many persons between us that I cannot see you."

So limited is this part of the Court that four persons standing in the gangway totally ex

260

Inconvenience of the Courts at Westminster.

Mr. Watson repeated his remarks as to the unfitness of the Court for the purpose to which it was applied. Various messengers having been sent in search of the absent witness, returned with negative answers as to the success of their errand.

A juryman, from the "box in waiting," in the course of the day, inquired of the learned Baron whether that box was not intended for the accommodation of the jurors who were in waiting.

Mr. Baron Platt said, "Undoubtedly, the jurors in waiting had the first right to such accommodation as that confined box afforded. Why was the question asked?" The Juryman." Because there were many persons who were not jurors sitting there, while he and others who were compelled to be in attendance as jurors in waiting were obliged to

clude the two first counsel at this end of the 23rd inst., as Mr. Baron Platt was engaged in barrister's bench from being within the view trying causes, and could not quit the Court of the presiding Judge. The intruders were, without great inconvenience to many persons, upon this complaint of the learned Baron, with it was necessary that another learned Baron much difficulty made to withdraw. should go to" Chambers," Mr. Baron Alderson accordingly was about to set out on this expedition. The first obstacle the learned Judge met with was extreme difficulty in opening the door which separates the two courts, in consequence of three or four persons having taken up their station in the doorway, which, being elevated by two steps above the flooring, afforded them the better opportunity of looking over the partition, and obtaining a glimpse of the presiding Judge, the jury, and the witnesses under examination. By dint of much pressing and squeezing up into the corners of the doorway these persons made sufficient room for his lordship to pass. But his lordship had not been released from this difficulty an instant before he discovered that the passage itself was completely blocked up by counsel, solicitors, and their clerks, and several of the general public, whereupon he called out to the ushers, and having ordered them at once Mr. Baron Platt "was extremely sorry for to clear the way, complained in a loud voice the inconvenience which jurors who came that any one should be permitted to stand there to perform a public duty were made to there, for it was impossible that the Judges submit to. The Court was an utter disgrace could force their way through such a crowd; to the country. It was disgraceful that there nor should they have any impediment thrown should not be any accommodation for gentle- in their way, or be inconvenienced as they men who were summoned there to carry out were, in the act of proceeding to perform a the law of the land in the character of jurymen. portion of the public duty. The ushers with But not only was there no accommodation for much difficulty cleared the passage, and the those gentlemen, but there was no provision learned Baron wended 'his way to Chammade for witnesses and others whose duty bers" in Serjeant's Inn.-From the Times of called them there. Then there was no room 24th January. for the public, who had a right, if they chose, to attend the Courts of Law in order to see how the law of the country was administered. The arrangement of accommodation in that Court was a disgrace to the country."-From The Times of the 23rd January.

stand."

For the private convenience of the learned Judges of the Court of Exchequer, when the Exchequer Chamber was reconstructed some years since, there was a narrow passage made between the wall of the Court and the back of the bench, which, under the new arrangement, was appropriated to the members of the bar. This passage, from that period up to the present day, has been the only road by which the two junior Barons have during the hours of the sitting in the "full Court," been able to retire into the Judges' room. Such is the limited size and peculiar formation of the Court, however, that if above 20 or 30 of the public are in it, the only place of refuge for them, if they desire to hear the trials, is this passage of about two feet in width. If, too, there happens to be a larger number of the gentlemen of the long robe present than a simple dozen, and those barristers must not be of 'more than the middle scale of dimensions, the only place where they can take up their standing is in the "Judge's passage." On the

66

Again, at the sittings at nisi prius in Middlesex, on the 25th January, it appears from the report in the Times, that the limited

space in the Court was crammed with auditors. The consequence was that the Court became insufferably close, so much so as at times to produce an occasional sensation of approaching suffocation. At length Mr. Baron Platt ordered one of the ushers of the Court to open a window. This order was no sooner carried into execution than down poured a stream of cold air. About a quarter of an hour afterwards, Mr. Quain, one of the counsel engaged in the cause that was being tried, requested the usher to close the window, when he was informed that the admission of fresh air had been ordered by the learned Judge. Of course the learned counsel, in this state of things, felt himself bound to submit to the sacrifice of his own personal comfort to the convenience of the learned Baron, and the window remained open. Much further time, however, was not permitted to elapse for the continuance of the evil, for a complaint was made by the jury that they were suffering much inconvenience from the draught of wind that reached them from the window in question.

"Mr. Baron Platt-Gentlemen, this is a horrible Court, I ordered the window to be

Taxes on Administration of Justice.—Chancery Queen's Counsel.-Common Law Order. 261

opened in order that we might all be relieved, as far as possible, from the dreadfully oppressive sensation which was produced by its closeness; but as it is inconvenient to you it shall be again closed. The window was therefore shut, and the exertion of struggling against annoying stench and threatened suffocation once more commenced."

[We deem it necessary to record all these instances of the inconvenience of the Courts at Westminster,-trusting that at length the Government will remedy the evil by the construction of new Courts on the proposed site between the Temple and Lincoln's Inn.-ED. L. 0.1

TAXES ON THE ADMINISTRATION
OF JUSTICE.

COUNTY COURTS.

LORD BROUGHAM in his letter last summer to Lord Denman, thus writes on the subject of the taxes on suitors to defray the administration of justice :—

sion; the whole expense of police upon those plundered or threatered; nay, in making the poorer classes pay for the hospitals and workhouses, which they, and not the rich, use; for the nation must be just before it is generous, and the suitor has a perfect right to relief in the Courts, whereas the poor have only a claim on our charity for relief in the hospital."

[It should be observed, however, that if Parliament had been informed when these Small

Debt Courts were proposed, that they were to cost the country 270,000l. a year, no such Courts would have been established. The 57. or 101. Courts of Request would have been continued, and if rendered uniform, might have answered the purpose.]

CHANCERY QUEEN'S COUNSEL.

COURTS IN WHICH THEY PRACTISE.

THE following arrangement has been made as to the Courts in which the Queen's Counsel will practise :

Master of the Rolls.

R. P. Roupell, Esq.
E. J. Lloyd, Esq.
Roundell Palmer, Esq.
B. S. Follett, Esq.

Vice-Chancellor Kindersley.
C. T. Swanston, Esq.
C. P. Cooper, Esq.
J. G. Teed, Esq.
James Campbell, Esq.
John Baily, Esq.
W. B. Glasse, Esq.
James Anderson, Esq.

Vice-Chancellor Stuart.

"I know not, if under the head of administrative defects and abuses should be classed the grievances most complained of by the Judges and the suitors of the County Courts,-I mean the load of taxes laid upon them-270,000l. a year wrung from these suitors, when all that is paid in the Superior Courts amounts to less than the fifth part, 50,000l. That the jurisdiction of those Courts must be extended, no one can now affect to doubt. The pecuniary interest of practitioners in the Courts above can alone resist this extension. It is monstrous to think that no one can recover a legacy, or other sum due on an equitable ground if the amount is small; that there is still the same absolute denial of justice in thousands of cases which there was in hundreds of thousands before these Courts were established. But this requires a legislative proceeding; the relief from taxes may be given in an hour by the Treasury and the Secretary of State acting together. And here let me express-or rather endeavour to express-my astonishment at hearing our most able and learned friend, the Chief Justice, profess himself favourable to taxes on law proceedings, provided the produce is used only in defraying the expenses of the Court. How so acute a person could for a moment be deceived by the fallacy that it is no tax if applied to support the judicature, is to me altogether incomprehensible. If it is the bounden duty of the State to provide for the administration of justice, as much as for the public defence, the NEW COMMON LAW ORDER AS TO

J. Walker, Esq.
L. J. Wigram, Esq.
James Bacon, Esq.
R. Malins, Esq.
W. Elmsley, Esq.
R. D. Craig, Esq.

Vice-Chancellor Wood.
John Rolt, Esq.
Thomas Chandless, Esq.
John W. Willcock, Esq.
W. T. S. Daniel, Esq.
W. M. James, Esq.
Hilary Term, 1855.

FORM OF AFFIDAVIT.

provision must be made at the expense of the whole community and not of the class the least able to bear the burden, for the very reason WE would draw the attention of our that they have the greatest occasion for the readers to Order 2 of November 27 last, help provided. The self-same argument, if

argument it can be called, would justify us in which comes into operation the first day of throwing the whole expense of defending the next Term, and provides that "every affifrontiers upon those most exposed to inva- davit to be hereafter used in any cause or

262

Proposed Re-admission of Mr. W. H. Barber.-Selections from Correspondence. civil proceeding in any of the said Superior Sir F. Kelly." I would say the second day Courts of Common Law, shall be drawn up of Term, the first day in Easter Term is a in the first person, and shall be divided broken day. If your lordships would permit into paragraphs; and every paragraph shall it, I would say the second day of Easter Term, be numbered consecutively, and, as nearly I dare say the matter can then be very conas may be, shall be confined to a distinct veniently disposed of." portion of the subject." The order directs. that no costs shall be allowed for any affidavit, or part of an affidavit, substantially departing from this rule.

PROPOSED RE-ADMISSION OF MR.
WILLIAM HENRY BARBER.

Westminster Hall,
Wednesday, Jan. 31, 1855.

In the Queen's Bench.

IN RE BARBER.

(Before Lord Campbell, Mr. Justice Coleridge and Mr. Justice Crompton.)

Sir F. Kelly." My Lord, I am instructed to move for the re-admission of Mr. William Henry Barber an attorney, a gentleman whose case has been more than once before the Court; and, after the intimation formerly given by the Court, I need not say that the motion is to be made on new matter, and new matter so important that I cannot but entertain a confident hope that this motion will be successful."

Lord Campbell.-"Is it convenient to make a motion of that sort the last day of Term?"

Sir F. Kelly." Feeling that, I was about to ask your lordships to be good enough to name any time after the Term when my learned friend, Sir F. Thesiger, who, I presume, is instructed to appear, will be able to attend."

Lord Campbell.-"There must be a rule to show cause. It must be regularly moved." Sir F. Kelly." No doubt.”

Lord Campbell.-"I think it must be

weighty new matter, because the case has been most attentively considered before I had the honour of being a member of this Court, and since I have had the honour of being a member of this Court there has been a solemn adjudication, and if new matter does arise, it can never be too late for us to give due weight to it."

Sir F. Kelly." I am quite aware of all that fell from your lordships and the other members of the Court on all former occasions, and I do assure you I never would-speaking for myself personally-have appeared before the Court in this matter, unless I had felt that there was new matter."

Lord Campbell.-"Then, on the second day of next Term you will move for a rule nisi.”

Sir F. Kelly." Would your lordships permit me to say, I find, on looking into the papers, it is necessary to file an additional affidavit. Would you allow me to do that?—I would say, a month before the application."

Lord Campbell.-" You may do that at any time before you make the motion.”

Sir F. Kelly.-"We will take care to do that, and furnish copies to the other side, and also to your lordships."

[From the Shorthand-writer's Notes.]

SELECTIONS FROM CORRE-
SPONDENCE.

COSTS OF MORTGAGEE.

Sir F. Thesiger.-" I may recall to your lordship's recollection that, on a former occasion, when an application was made for the THERE seems to be an error in naming the re-admission of Mr. Barber after a prior ap-« Amicus." I presume A. B. offers the prinmortgagor and mortgagee in the query of plication had been disposed of, your lordships heard the application and took the affidavits, containing what was said to be additional evidence, into consideration, and you refused the rule: probably the same course would be the proper one to be adopted on the present occasion."

Sir F. Kelly." My Lords, I am entirely in your hands."

Lord Campbell.-"The better course, surely, would be, that you should make your motion on the first day or early in the next Term."

cipal and interest to C. D., who refers him to his solicitor-not C. D. to A. B. Is it not likely that the 41. demanded by the solicitor was owing by the mortgagee? If so, I conceive the solicitor would have a lien upon the title-deeds until paid. (See Ogle v. Story, 1 N. & M. 474.) If this is not the case, surely the mortgagee's solicitor could not justify such a P. S. demand as that named.

DULWICH COLLEGE.-BUILDING GROUND. It is alleged that competent and experienced architects and surveyors are of opinion that