10 Review: Kerr's Common Law Procedure Act, 1854. the Judge may direct, is to bind such debts in his hands (s. 62). By the original order of attachment, or by any subsequent order, the garnishee may be ordered to appear before the Judge, or a Master of the Court, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt (s. 61). the former could have refuted or explained; but he has been shut out from doing so, and was thus always at the mercy of his opponent, who had "the advantage of swearing last." The Courts, on the other hand, in the case of conflicting affidavits, have always avoided the task of determining on which side the truth lay. The only question with them was, whether the affi If the garnishee does not dispute the debt davits, on the face of them, afforded an due or claimed to be due from him to the answer to the case set up by the party judgment debtor, he ought to pay the amount applying for their intervention. If they into Court; for if he does not forthwith pay seemed to do so, the Courts would not judgment debtor, or an amount equal to the interfere. This system consequently has judgment debt, or if he does not appear upon operated as a premium to unscrupulousness the summons, the Judge may order execution in the party swearing last, knowing the imto issue, and it may be sued forth accordingly, possibility of his being contradicted. There without any previous writ or process, to levy was one farther inconvenience in the system the amount due from the garnishee towards hitherto in operation; a party requiring the satisfaction of the judgment debt (s. 63). evidence of an unwilling witness had no means of obtaining it: no person (with the single exception of an officer of the Court) could be compelled to give evidence by affidavit as he might be to give it orally in Court. into Court the amount due from him to the If, however, the garnishee disputes his liability, he ought to appear upon the summons; and the Judge, instead of making an order for execution, may order that the judgment creditor be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit (s. 64). The proceedings upon such suit are to be the same, as nearly as may be, as upon a writ of revivor issued under "The Common Law Procedure Act, 1852.' Payment made by or execution levied upon the garnishee will be a valid discharge to him as against the judgment debtor to the amount paid or levied (s. 65). A debt attachment book is to be kept at the Master's Offices, and copies of any entries made therein may be taken by any person (s. 66). The costs of an application for an attachment of debts are in the discretion of the Court or of the Judge (s. 67). SUMMARY PROCEEDINGS. These defects have been removed by the following enactments :— Upon motions founded upon affidavits either party may, with the leave of the Court or a Judge, make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits (s. 45). Neither party can now be sure of "the advantage of swearing last.” An unwilling witness can no longer withhold his testimony: For any party requiring the affidavit of a person who refuses to make an affidavit, may apply by summons for an order to such person to appear and be examined before a Judge or Master, as to the matters concerning which he has refused to make an affidavit (s. 48); and the Judge may, if he think fit, make such order for the attendance of such person for examinaOn questions, arising in the progress of tion, and for the production of any writings or an action, which are brought before the documents (s. 48). The examination is to be Court for decision, the evidence is submit- conducted, and the depositions taken down and ted in the form of voluntary affidavits. The returned, in the mode now used in vivá voce Commissioners justly observe that the tes-examinations of witnesses (s. 49). timony thus adduced is often most unsatis- It has frequently happened that the infactory, there being no cross-examination or the usual means of testing the veracity of the deponent, or his knowledge of the matters deposed to. Mr. Kerr also remarks, that hitherto the party seeking the intervention of the Court has been limited to the evidence adduced by him in the first instance, and been precluded from filing fresh affidavits in answer to those produced by his opponent. The latter might set up new facts, which tervention of the Court has been refused, because, in the opinion of the Court at the time, no sufficient ground was shown for its interference. This has involved a fresh application on amended affidavits, but often at great cost and delay. for upon the hearing of any motion or sumSuch delay or expense may now be avoided; mons, the Court or the Judge, at their or his discretion, and upon such terms as they or he think reasonable, may, from time to time, order Review: Kerr's Common Law Procedure Act, 1854. such documents to be produced, and such witnesses to appear, and be examined vivá voce, either before the Court or Judge, or before the Master, as they or he think fit; and upon hearing such evidence, or reading the report of such Master, the Court or the Judge may make such rule or order as may be just (s. 46). 11 Lords (s. 43). A judgment affirmed in either 4. As to the revivor of suits.-The Common Law Procedure Act, 1852 (s. 131), provided a new procedure in lieu of the writ of scire facias, for the revival of judgments and other proceedings, by and against persons not parties to the record. The writ of revivor is The Court or the Judge may, by such rule directed to the party called upon to show cause or order, or any subsequent rule or order, com- why judgment should not be awarded; and mand the attendance of the witnesses named calls upon him to appear, and gives notice therein, for the purpose of being examined, that, in default of appearance, execution may or the production of any writings or other do- be issued, as in the case of a writ of summons. cuments (s. 47). The Court, or the Judge, The proceedings after appearance are the same or the Master, may adjourn the examination as those in an ordinary action. In the case of from time to time as occasion may require; proceedings against executors, upon a judgand the proceedings upon it are to be conducted, ment of assets in futuro; such proceedings are and the depositions taken down, as nearly as now to be had and taken in the manner promay be, in the mode now in use with respect to vided by the Common Law Procedure Act, the viva voce examination of witnesses upon in- 1852, as to writs of revivor (s. 91). terrogatories (s. 47). AMENDMENTS IN PROCEDURE. 1. As to new trials. - In the event of a document which is tendered in evidence being thus objected to, the Judge must decide on the objection. If he holds that the document, not being stamped, requires a stamp, or being stamped, that it is insufficiently stamped, this ground of objection may be immediately removed. The Judge may, however, hold that the document tendered in evidence does not require a stamp at all, or if stamped, that it is already sufficiently stamped. If he does so, the evidence is at once admitted. Hitherto if the Judge decided erroneously in either case, a new trial would be granted, if the document had been given in evidence; but now no new trial can be granted by reason of the ruling of the Judge, that the stamp upon any document is sufficient (which must be his ruling if the document be stamped at the trial), of that the document does not require a stamp (8. 31). 2. As to the costs of an abortive trial, it is enacted, that when a new trial is granted on the ground that the verdict was against the evidence, the costs of the first trial shall abide the event (s. 44). When a new trial was granted for misdirection by the Judge, the costs of the first trial followed the event of the second; but when a jury took a wrong view on a question of fact, and a new trial was granted, the payment of the costs of the first trial was a necessary preliminary. Now the party will no longer be punished for an error committed by the jury, any more than he has hitherto been for one committed by the Judge. 5. In regard to the abatement of actions.The proceedings under the Common Law Procedure Act, 1852, for the revival of judgments and other proceedings by and against persons not parties to the record, were framed to meet those cases in which writs would otherwise abate, by the death, marriage, or bankruptcy of one of the parties to the action. But no means were afforded to a surviving defendant, or to the representative of a sole defendant who had died, of compelling the plaintiff in an action to proceed therein, so as to bring the proceedings to a close. This omission has now been applied. Where an action would have abated by reason of the death of either party, the defendant, or the person against whom the action may be continued, may now apply, by a summons at Chambers, to compel the plaintiff, or the person entitled to proceed with the action in the room of the plaintiff, to proceed according to the provisions of the Common Law Procedure Act, 1852 (s. 92). If the Judge at Chambers makes an order on the plaintiff, or person entitled to proceed with the action, that he do proceed therein, he must do so within such time as the Judge orders. In default of his proceeding in terms of the order, the defendant, or person against whom the action may be continued, will be entitled to enter a suggestion of the default, and of the representative character of the person by or against whom the action may be proceeded with, and to have judgment for the costs of the action and suggestion against the plaintiff, or against the person entitled to proceed in his room, as the case may be (s. 93). This summary proceeding to compel the continuance or abandonment of an action, in case of the death of one of several plaintiffs or defendants, or of a sole defendant, may be adopted in the other cases of abatement provided for by the Common Law Procedure Act, 1852. 3. A trial de novo is awarded when, owing to some irregularity or defect in the proceedings, themselves, the proper effect of the first venire had been frustrated. It is enacted that upon an award of a trial de novo, upon matter appearing on the record, error may be brought 6. In actions of ejectment. - The Courts (s. 43). If the Court of Exchequer Chamber sometimes interfered to stay proceedings in the awards a trial de novo, error may alike be action, until security for the costs of it was given brought on their judgment in the House of by the unsuccessful claimant. They are now to 12 Review: Kerr's Procedure Act.-Points in Equity Practice.-Law of Attorneys. do so by express enactment. For if any person brings an action of ejectment, after a prior action of ejectment, for the same premises as had been unsuccessfully brought by such person against the same defendant, the Court or a Judge may, on the application of the defendant, at any time after he has appeared to the writ, order the plaintiff to give to the defendant security for the payment of the defendant's costs, and that all further proceedings in the cause be stayed until such security be given (s. 93). POINTS IN COMMON LAW AMENDMENT OF DECLARATION UNDER 8. 222 OF PROCEDURE ACT, 1852. In an action upon a judgment recovered by the plaintiff against the defendant, the declaration alleged such judgment to have been recovered on Dec. 28, 1848, whereas it appeared, upon the record being brought into Court on the trial of an issue of nul tiel record, that the true date was Dec. 23. The Court amended the declaration under the 15 & 16 Vict c. 76, 8. Noble v. 222, by inserting the true date. Chapman, 14 C. B. 400. 7. As to writs of execution.-Writs of execution issued since the former Procedure Act became law, have only been in force for a year, but are capable of being kept in force by being renewed from time to time. A somewhat similar enactment has been made with reference to writs of execution issued previously to the Common Law Procedure Act, 1852, coming into operation. Such writs, if still unexecuted, will not now remain in force for more than six months after the 24th October, 1854, unless renewed in the same manner as writs may the discretion of the Judge at Nisi Prius as to be renewed under the Common Law Procedure the amendment of the record in an action. Act, 1852, s. 124. Morgan and another v. Pike, 14 C. B. 473. There are various formal clauses, such as s. 89, providing that any person giving false evidence upon any examination, or in any affidavit, shall be liable to the penalties of wilful and corrupt perjury:-s. 90, enacting that writs DISCRETION OF NISI PRIUS JUDGE AS TO Held, that the Court will not interfere with LAW OF ATTORNEYS. TOR AND CLIENT AS TO BILL OF COSTS. of execution to fix bail may now be tested and SPECIAL AGREEMENT BETWEEN SOLICYbe made returnable in vacations. 96, authorising amendments to be made in terms analogous to those of s. 222 of the former Procedure Act; and ss. 97 and 98, provide that rules and orders, for the effectual execution of the Act and of the intention and object thereof may be made, and new and altered writs and forms of proceedings issued by the Judges. We have thus laid before our readers a fall analysis, with several extracts from Mr. Kerr's Introductory Treatise on this important Statute. The various alterations which have been effected are stated clearly but concisely, accompanied by such explanatory references to the previous state of the law as were necessary to elucidate the change. The work certainly forms a valuable edition of the Act, and we shall yet have occasion to notice some of Mr. Kerr's notes on the effect and legal construction of some of the sections which, like most other elaborate Statutes, seem not altogether free from doubt or difficulty. Nevertheless, our conviction is, that there are few legislative measures so beneficial and free from imperfection as the Common Law Procedure Act of 1854." IT appeared that Mr. Bainbrigge, claiming to be entitled to certain real estates, had, between the years 1829 and 1844, entered into very extensive litigation respecting his claim, in which he had employed Mr. Moss as his solicitor, and that becoming tired of this litigation, he had, on July 21, 1845, relinquished all his right to his brother, and in the following November he agreed with Mr. Moss that if the suit failed, one-third was to be taken in full discharge of his bill of costs, but that if it succeeded, the whole should be paid. The litigation was successfully brought to a conclusion in 1851, and Mr. Moss, upon the balance not being paid, brought an action for the same. On a petition for the usual order for a delivery and taxation of the bills and to stay the action, the Master of the Rolls said :-- "This is, in fact, an application to set aside an agreement entered into between Thomas P. Bainbrigge and John Moss, on the 18th of November, 1845. "At the time when the petitioner entered into the agreement, he was perfectly well aware that Moss had a claim against him on bills of costs for 9,3771., and that a considerable part of this sum was for costs out of pocket. At this time, Mr. Moss might have enforced pay ment of the amount due on those bills, when on Mr. Moss; and I can have no doubt whatever he thought fit; and it is admitted that it ever, that if before that verdict, Mr. Moss had would have been very inconvenient to the pe-turned round and insisted that the agreement titioner to have then paid the amount. On the other hand, the petitioner might, undoubtedly, have obtained an order to tax the bill; but on the amount being ascertained, he would have been liable to pay it, and would have been subject to the usual compulsory process (which is very summary) to compel payment of it. was not binding on him, and that he was entitled to enforce payment of the whole bill, the petitioner would then have strenuously insisted, that it was a perfectly good and valid agreement. "In that state of things, Mr. Thomas P. "In that state of circumstances, after this Bainbrigge enters into an agreement with Mr. lapse of time, and after what I must consider a Moss, to pay him 3,500l.,-1,500/. in money settlement of the bill, of which the petitioner and 2,000/. by a bill,-which it is agreed shall | completely and entirely exonerate Mr. Thomas has taken the benefit, I am asked, on the ground P. Bainbrigge from all future claim in respect of the existence of the relation of solicitor and of the bills of costs, whatever their amount client, to set aside the agreement, when the might be, if the estate should not be recovered. solicitor may have lost his vouchers, may have But if the estate should be recovered, then he parted with the very things, which eight years ago would have enabled him to sustain and prove the propriety of his bill. was to remain liable to Mr. Moss for the balance. The petitioner being well aware that more than 3,500l. was due, for more than that was claimed for costs out of pocket, enters into an agreement, by which, on payment of 3,500, Mr. Moss, in case of failure in the litigation, agrees to forego all further claim against him; but, in the event of success, is to be entitled to the balance of that bill. Nothing is said as to interest on balances, far less of compound interest, and it is for a Court of Law, and not for me, to determine whether Mr. Moss could or could not claim anything beyond interest from the time when the balance became due, that is, from the time the estate was recovered. The result, however, is that the petitioner gets this great advantage from the agreement: he is exonerated entirely from all the risks of the contest; and under no circumstances will have to pay more than 3,500, unless the balance payable to Mr. Moss should exceed the amount payable by his brother under the agreement between them. In the uncertainty of the case, even if the petitioner had been carefully advised by a competent person on the subject, and had been "I go to the full extent of the authorities quoted by Mr. Prior ;' but there is this great distinction between the case of an agreement between a solicitor and client pending a litigation (when a client cannot, without the greatest inconvenience, part with his solicitor, who alone is fully aware of all the circumstances and bearings of his case), and the present, where, although the relation of solicitor and client existed, still the litigation as regarded Thomas P. Bainbrigge was in fact at an end, because he had determined to go on no longer, and the only question was how to liquidate and discharge the costs then already incurred. "Looking at this case in every possible view, and without referring to any question of jurisdiction, I am of opinion that this is a binding contract between the parties, which the petitioner cannot set aside; and if it be a binding contract, then it is admitted that the petitioner cannot tax the bill. 66 "I express no opinion as to the rights between the two brothers, or whether William recommended to enter into that contract and no other, it appears to me that it was a wise and prudent agreement to have entered into; and that whatever might be its effect as regarded his brother, the petitioner himself was gaining a considerable advantage by entering into it. It is true, that after six years' litiga-H. Bainbrigge may, or may not, have a right, tion, it has been ascertained by the verdict that under the third party clause, to ascertain the the petitioner was entitled to recover the es- amount to be charged on his estate, but I tate; and, no doubt, if persons could foresee suppose as they are brothers, they will settle future events, they would enter into very difthat between themselves. ferent arrangements from those which they do enter into when their knowledge of future events is altogether uncertain. "The petition, in my opinion, wholly fails, and must be dismissed with costs." In re Moss, 17 Beav. 340. "The result, however, is, that after a lapse of eight years the petitioner comes to set aside Saunderson v. Glass, 2 Atk. 297; Nokes a contract, when it is totally impossible for the v. Warton, 5 Beav. 448; Coleman v. Mellersh, Court to replace the parties in the same situa- 2 MN. & G. 314; Crossley v. Parker, 1 Jac. tion as they were in at the time when they & W. 460. entered into it. If the contract was not bind ing on Mr. Bainbrigge, neither was it binding 14 Law of Costs.-The Meeting at Leeds and the Press.--Auction Deposits on Sales. LAW OF COSTS. OF ADMINISTRATOR RETAINING BALANCES. AN administrator was allowed his costs of an administration suit, although he had unnecessarily retained a balance of 3,7007. in his hands for three years, but he was charged interest thereon. Holgate v. Haworth, 17 Beav. 259. OF VENDOR IN SPECIFIC PERFORMANCE action on the public. Our professional publications are therefore amongst those which it is essential to invigorate and extend. 2nd. Whether the mode of action should be by a new publication, or through existing ones, is a question on which no opinion was expressed at the meeting; nor is the time yet come for usefully discussing it. The point for discussion at present is-not what shall be the mode of action, but whether the Profession shall act at all; and on this point the only distinction (which can hardly be called a difference) between the Law Times and myself is, that what the Law Times admits to be an "object of in dubitable excellence," I conceive to be a matter In a suit by a vendor for a specific performance, costs were given him, although both parties were in the wrong as to the only point in contest, namely, as to interest on the purchase money, a good title hav- of vital necessity. When the Profession has ing been shown prior to the institution of determined to act, it will, without much diffithe suit, and it appearing that the conduct culty, decide on the most eligible mode of of the purchaser had prevented the completion down to that time. "As to the frame and scope of the bill," observed the Master of the Rolls, "I shall give the direction which I invariably give the Taxing Master, that if he shall find that the bill is too prolix, he may reduce and moderate the costs of it." Sherwin v. Shakespeare, 17 Beav. 267. THE MEETING AT LEEDS AND action. I by no means expect or wish for a new publication, if those now in existence are able and willing to do us justice. But, if not, I think the Profession ought not to shrink from the difficulties of a new one; and, in that event 3rdly. I should not fear abuse or ridicule, which, properly encountered, are apt to recoil on their authors; nor should I at all despair of such a publication (which, if conducted with ability, candour, and discretion, I would be one of the most valuable periodicals of the day) obtaining at least as many readers as are found sufficient to support other periodicals, and taking its proper place amongst the organs that influence public opinion. I am, Sir, yours obediently. JOHN HOPE SHAW. To the Editor of the Legal Observer. SIR,-The courteous but erroneous comments, in the last Number of the Law Times, on my remarks respecting THE PRESS, at the Leeds Meeting of the Metropolitan and Provincial Law Association, induce me to request a little space in your columns, not for the pur- AUCTION DEPOSITS ON SALES OF pose of argument (in which respect I have no wish to add to what was said at the meeting), but to remove misconceptions. The Law Times appears to assume-1st. That the desideratum is to act only on public, not on professional, opinion. And 2ndly. That the contemplated mode of action is through a new journal. On these assumptions, the Editor maintains-3rdly. That such a journal would either not be read, or would be overwhelmed by abuse and ridicule, and in either case would have no influence. On these three points, I beg to remark :1st. That an action on public opinion, though the chief, is not the sole desideratum. A greatly improved action on professional opinion is an indispensable accompaniment to any beneficial ESTATES. THE Council of the Incorporated Law Society have transmitted to the London Auctioneers of Estates the following regulation, which they have thought it right to recommend to the general body of Solicitors for adoption in all cases of sales of estates by auction in London : "That all Deposits on account of Purchasemoney on Sales of Estates by Auction in London, be paid to the Auctioneer, who shall immediately after the Sale pay the same into a Bank, to be named by the Vendor in the Conditions of Sale, in the joint names and subject to the joint order of the Vendor and Purchaser, or their nominees, and at the Vendor's risk." |