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Questions at the Examination.-Admission of Solicitors.—Analytical Digest.
murder, manslaughter, burglary, housebreak-|
ing, riot, and conspiracy.
Under what age is an infant considered in law absolutely incapable of committing felony, and up to what age is he presumed to be so incapable?
What is the meaning of a principal in the first and in the second degree? and of accessaries before and after the fact? Can there be accessaries in any other offence than felony?
If goods are stolen in one county and carried by the thief into another, in which county may he be indicted?
Where goods of a person who has died intestate are stolen, in whom should the property be laid, and is there any and what distinction in that respect whether the property be stolen before or after the granting of letters of administration?
Upon what principle are the dying declarations of a murdered person received in evidence, and subject to what limitation?
What is the nature of an inducement which will render the confession of a prisoner inadmissible in evidence against him?
In what cases is it necessary that an offence should be proved by more than one witness? On an indictment for felony, what is the effect of a previous conviction for felony? In what manner and at what period of the trial must such previous conviction be proved?
In what cases is a defendant in an indictment found at the assizes or sessions entitled to traverse such indictment, and to what period in either case?
Where several persons are indicted for a joint misdemeanour, and one or more desire to take their trials immediately and others to traverse, what is the practice with respect to the time of trial?
Under what circumstance can an order of justices be procured for the removal of a pauper from one parish to another?
Can a wife residing with her husband in a parish be separately removed from thence in any case?
At what sessions must an appeal against a poor-law order of removal be preferred and tried?
What constitutes such a residence in a parish as will confer a settlement there?
ADMISSION OF SOLICITORS.
THE Master of the Rolls has appointed Wednesday, May 5th, at the Rolls Court, Chancery Lane, at a quarter past three in the afternoon, for swearing solicitors.
Every person desirous of being sworn on the above day must leave his Common Law Admission or his Certificate of Practice for the current year at the Secretary's Office, Rolls Yard, Chancery Lane, on or before Tuesday, May 4.
ANALYTICAL DIGEST OF CASES,
REPORTED IN ALL THE COURTS.
Law of Attorneys.
ADMISSION IN INFERIOR COURT.
Roll of the court.-The Lord Mayor's Court in London is an inferior court within the meaning of the 6 & 7 Vict. c. 73, ss. 2 & 27, and therefore an attorney of any of the superior courts may claim to be admitted as an attorney of that court, on signing the roll thereof. The fact that the Lord Mayor's Court has no roll does not exempt it from the operations of the statute.
The obligation to have a roll is, under the 6 & 7 Vict. c. 73, s. 2, imperative on all the inferior courts of the kingdom. The Queen v The Mayor and Corporation of the City of London, 33 L. O. 502.
And see Articled Clerk.
1. A barrister cannot qualify as such.-A person who has served an attorney under articles of clerkship, being at the same time a barrister, cannot claim to be admitted an attorney in virtue of such service, although he has been disbarred before making the application. Bateman, exparte, 6 Q. B. 853.
Case cited in the judgment: Exparte Cole, 1
2. Notice.-When a party had given regular notices of his intention to apply to be admitted as an attorney on the first day of Hilary Term, and it appeared that on the second day of Michaelmas Term an offer of partnership from the London agents of the firm to which he was articled had been made, provided he could get admitted by the last day of that term, the court, on motion, on the fourth day of Michaelmas Term, ordered, that on his giving fresh notices referring to the former notices and the present rule, he should be examined, and if of ability, admitted the last day of that term. Cuncliffe, exparte, 3 D. & L. 348.
See Taxation, 2.
BILL OF COSTS.
It is not necessary that an attorney's bill should be entitled in a cause or court, if from ascertained in what court and cause the busithe bill taken altogether, it can be reasonably ness has been transacted. Martindale v. Falkner, 3 D. & L. 600.
Cases cited in the judgment: Lewis v. Prim-
32nd Order, 1845.-The court will not appoint the solicitor of the wife guardian for her husband under this order; nor give any direc
Analytical Digest of Cases: Law of Attorneys.
tions for his being employed as the solicitor for the husband. Biddulph v. Lord Conroys, 32 L. 0. 372.
Production of documents.-One of two defendants, who, by their answer, admitted that documents were in their possession, having, with his partner, as solicitors, a lien on those documents for costs, the court declined to order the defendants to pay those costs in order to facilitate the production of the documents. Wroughton v. Barclay, 33 L. O. 477.
See Taxation, 6.
NEGLIGENCE OF SOLICITOR.
A bill will not be allowed to be amended after great delay, on the ground that the delay was owing to the negligence of the solicitor, and the plaintiff had in consequence changed his solicitor. Clarke v. Mayor, &c., of Derby, 33 L. O. 165.
NOTICE OF ADMISSION.
See Articled Clerk, 2.
PAYMENT TO SOLICITOR.
The sum of 691. stock and 87. cash stood to the account of a certain party who was resident abroad; and on an application on his behalf, the money was paid to his solicitor, the solicitor and another undertaking that the same should be properly applied. Armstrong v. Stocken, 33 L. O. 405.
See Production of Documents.
PRODUCTION OF DOCUMENTS.
Professional confidence.-A solicitor cannot refuse to produce papers to a party originally interested in them, on the ground of the professional confidence subsisting between himself and a third party also interested in those
A letter written to a solicitor inclosing another letter which the writer requests the solicitor to send in his own name to a third party is not protected by the professional confidence subsisting between the solicitor and the writer. Reynell v. Spry, 33 L. O. 210.
And see Lien.
See Taxation, 10.
ROLL OF ATTORNEYS.
SHERIFF'S COURT. Attorney.-Witness.—Where an attorney conducts a civil cause at a trial before the undersheriff, as advocate, and makes a speech to the jury on behalf of his client, he cannot give evidence in the cause, and if he does, the court will grant a new trial. Stones v. Biron, 33 L. O. 141.
SIGNED BILL OF COSTS.
Under the Solicitors' Act, (6 & 7 Vict. c. 73,) the client may obtain an order for the taxation of a solicitor's bill which has been delivered without signature, &c.
In general, it is an objection to an order of course for taxation, that it contains a direction, on payment of the bill which the order itself directs to be taxed, to give up more papers than the solicitor is bound to give up. But, under the peculiar circumstances of this case, such an order was held not irregular. Pender, in re, 8 Beav. 299.
STRIKING OFF THE ROLL.
The court will entertain an application to strike an attorney off the roll for alleged professional misconduct, although the facts adduced in support of the charge disclose evidence sufficient to sustain an indictment. In re 33 L. O. 141.
1. Agreement to pay costs.-A person liable to pay a solicitor's bill under a general agreement to pay all the costs of a certain transaction, may have the bill taxed under a common order. Principle on which taxation must be conducted where the solicitor was not employed by the person applying to tax the bill. In re Wallace, 33 L. O. 112.
2. Attachment.-Where an attorney obtains an order for the taxation of his bill of costs, under the 6 & 7 Vict. c. 73, s. 43, he cannot proceed by attachment without first obtaining an order for payment of the amount certified to be due. Woodhouse, in re, 2 C. B. 290.
3. Disability of outlaw to tax.-An outlaw cannot, for his own benefit, move to have his attorney's bill taxed.
So held, where the outlaw was administrator, with the will annexed, by which all the personal estate was bequeathed to him, subject to payment of the debts, &c., and one of the bills which he sought to tax related to business done for himself and the testatrix jointly, and the other to business done for the testatrix alone. Mander, in re, 6 Q. B. 867.
4. Irregularity.-A solicitor was employed by two persons, A. and B. An order of course for taxation was obtained by A. alone, on the allegation that the solicitor was employed by A. It was discharged for irregularity. Perkins, in re, 8 Beav. 241.
5. Joint liability.-Where three parties are jointly liable to a bill of costs, and a judgment is obtained for the amount in an action against one, the other two are not precluded by such judgment from obtaining an order to tax. In re Hare, 33 L. O. 550.
6. Jurisdiction.-Costs.-To obtain the taxation of a bill of costs after payment, the petitioner must allege and prove specific items of overcharge, even if the payment has been made under protest and upon pressure. Upon a petition for taxation, the court has no jurisdiction to determine the construction of a disputed special contract as to the costs.
The court, though it refuses the prayer of a
Analytical Digest of Cases.—Superior Courts: Lord Chancellor.
petition for taxation, does not always give the costs. Thompson, in re, 8 Beav. 237.
7. Lower Scale.-Directions to the officers.In an action for damages necessarily unliquidated, the costs cannot be taxed on the lower scale given by the directions to the taxing officers, Trinity Term, 7 Vict., though the plaintiff, at the sittings or assizes, recover less than 201. Walther v. Moss, 7 Q. B. 189.
8. Order of course.—Third party.-Under ordinary circumstances, an order for taxation may be obtained as of course by third parties "liable to pay." Bracey, in re, 8 Beav. 338. 9. Payment under protest.-Payment of a bill of costs under protest, or the circumstance of there being overcharges, is not alone sufficient to induce the court to order a taxation after payment; nor is it a sufficient ground that the bill contains charges which would not be allowed between a mortgagor and mortgagee, if they are proper charges as against the mortgagee. In re Harrison, 33 L. O. 404.
10. Retainer.-Order of course.- Costs.-In equity the client, in prosecuting the common order for taxation, may object, on the ground of want of retainer, to any items of the bill, except those as to which he has admitted the retainer by his petition. The practice is different
A party applying for a special order for taxation, in a case in which he might have obtained the common order, must pay the costs, though he succeeds. Bracey, in re, 8 Beav. 266.
for costs out of pocket. Subsequently, another summons to review the taxation was taken out, and heard before the same judge, who dismissed it: Held, that the attorney had a right to appeal from this decision to the court. Stretton, in re, 14 M. & W. 806; S. C. 31 L. O. 150; 32 L. O. 226; 3 D. & L. 278.
1. Where an attorney arranged terms for the settlement of an action, and in pursuance thereof drew up a promissory note for the amount of the debt and costs, which the defendant signed, and also gave his own undertaking to guarantee the payment of the note with interest: Held, that this was an undertaking given in his character of attorney, although he was not the attorney in the action, and it was sworn by him that he was not acting as attorney for the defendant, and that he had not made any charge, or been paid anything for his services. Fairthorne, in re, 3 D. & L. 548.
Case cited in the judgment: In re Gee, 2 D. &
2. It is no objection to a rule calling on an
Case cited in the judgment: Rigby v. Edwards, in Beames on Costs, p. 382, (1st ed.), and 255, RECENT DECISIONS IN THE SUPE(2nd edit.)
11. Retrospective effect of Solicitors' Act.The jurisdiction as to taxation given by the Solicitors' Act, extends only to the ascertainment by the ordinary rules of practice, of the quantum payable by one party to the other. It does not authorize the court to determine whether a special agreement exists as to the mode of taxation, or the manner in which the costs, charges, and expenses are to be settled and paid.
Retrospective operation of the Solicitors' Act to make taxable bills not previously liable to taxation, incurred before, but remaining unsettled at, the time of the passing of the act. Rhodes, in re, 8 Beav. 224.
12. Undertaking. An attorney, on being retained to conduct a cause, gave his client, the following undertaking:-" Should the damages or costs not be recoverable in an action, I shall charge you costs out of purse only." The plaintiff obtained a verdict, with damages and costs, but the defendant obtained his discharge under the Insolvent Debtors' Act, and the plaintiff only received a dividend of about 7s. in the pound on the amount of his judgment: Held, that the attorney was not, under these circumstances, limited by his undertaking to costs out of pocket only.
The Master having taxed the attorney's bill, allowing him costs out of pocket only, a summons was taken out and heard before a judge at chambers, who directed the taxation to be
REPORTED BY BARRISTERS OF THE SEVERAL
Lewis v. Hinton. March 26th, 1847. VACATING INROLMENT OF DECREE.
The proper course to prevent the inrolment of a decree is to enter a caveat; in the absence of which the inrolment will not be vacated upon the grounds of concealment, surprise, and undue haste.
Mr. J. Parker, with whom was Mr. Bird, applied on behalf of the defendant to vacate the inrolment of a decree made by the Vice-Chancellor of England, on the 27th of Feb. last, and remarked that this was an original application, as his lordship alone possessed the necessary jurisdiction. As soon as the decree was made out, to facilitate which the plaintiff had borrowed the defendant's briefs, the former procured it to be inrolled, although aware that the latter intended to appeal to his lordship. The defendant, after his brief had been returned, lost no time in presenting a petition for a rehearing, and then for the first time ascertained that the decree had been enrolled. Under these circumstances, it was submitted that the inrolment would be vacated. Stevens v. Guppy, Turn. & Russ. 178; Wright v. Wright, &ported as Anon. 1 Ves. (sen.) 325.
Superior Courts: Lord Chancellor
Mr. Rolt and Mr. Glasse contended, that the grounds suggested were not sufficient to support the application. The plaintiff had acted according to practice, and had not misled the defendant by any communication. They cited Balguy v. Chorley, 1 Mil. & K. 640; Wardle v. Carter, 1 Myl. & K. 283; Barnes v. Wilson, 1 Russ. & Myl. 486; Dearman v. Wych, 4 Myl. & Cr. 550.
the order to amend which the present motion
Mr. Turner and Mr. Heathfield contrà.
Lord Langdale said, that he thought the order was irregular; for although the motion upon which the order was made was a special The Lord Chancellor, after hearing Mr. one, the Vice-Chancellor had refused it, so far Parker's reply, said, The principle is, that each as any thing special was asked, and made only party is justified in using dispatch to procure the order which the parties had a right to obinrolment of a decree. It is open to the other tain as of course, and which, therefore, must be party to enter a caveat. Each has a regular treated as an order of course. Then the obcourse of proceeding. In many cases the taining a second order as of course was irregucaveat is not entered; but if anything passes lar. The parties should have asked specially which induces the party not to enter it, the for an enlargement of the time limited for court will not permit the inrolment to stand. amending, by the first order. The order must Nothing took place here but a knowledge of an be discharged with costs, except in so far as the intention to appeal, and the fact of borrowing motion sought to have the amendment taken off briefs to forward an object common to both the file, as to which he had no jurisdiction, the parties. The plaintiff's solicitor said nothing case being before the Vice-Chancellor Wigram. of his intention to inrol the decree; indeed, if he had he would have defeated his client's interest. The adverse party cannot, therefore, say that he was misled; consequently, there are no grounds for vacating the inrolment, and the application must be refused.
Edge v. Duke. Jan. 28th, 1847.
AMENDMENT OF BILL.-ORDER OF COURSE.
An order to amend which the plaintiff is en-
(Before the Four Judges.)
Hunter v. Caldwell. Hilary Term, 1847. ATTORNEY. FILING RETURN OF WRIT. —
Under the 2 W. 4, c. 39, s. 10, which says, that the writs therein mentioned "shall be returned non est inventus, and entered of record," an attorney is bound to make the return of non est inventus, and to bring the writ, with such return, to the proper officer of the court to be by him filed of record. The word "returned" in the statute includes filing so far as an attorney can file
In an action against an attorney for negli gence, the declaration alleged, "that the defendant did not nor would file the said writs." Held, that if there was any sense THIS was a motion to discharge, for irregu- of the word file in which an attorney could larity, an order to amend, obtained as of course, be liable to perform that duty, the declarawith costs, and to take the amendments off tion would after verdict be good; that in the file. The alleged irregularity was, that the this case there was such a sense of that plaintiff had previously obtained an order to word, as he was bound to bring the writ to amend, and therefore could not obtain a second the proper officer in order to be filed of order to amend as of course. The facts of the record. The judge having received evidence case were as follow:-An injunction had been of what was the practice in this respect, diobtained in the cause, which the defendants rected the jurors, that the omitting to act made a motion before the Vice-Chancellor in accordance with an established practice Wigram, in July last, to dissolve. A cross was negligence, and he left it to them to say motion was made by the plaintiff for leave to whether that practice had been so well unamend, without prejudice to the injunction. derstood that the plaintiff had been guilty His Honour dissolved the injunction, but gave of gross negligence. Held, no misdirection. the plaintiff leave to amend generally. The de- THIS was an action on the case for neglifendants appealed to the Lord Chancellor for gence, brought against an attorney for omitting his Honour's judgment, but unsuccessfully, to file certain writs in compliance with the 2 W. and pending the appeal, the order to amend 4, c. 39, s. 10, to prevent the operation of the dropped. They afterwards obtained as of Statute of Limitations, by reason of which course, and acted upon the order complained omission the plaintiff was deprived of the proof, and now contended that the order made by ceeds of a judgment obtained against one the Vice-Chancellor Wigram was not an order of course, inasmuch as it was made upon a special motion after notice, and therefore, that
Hicks. The case has been twice tried, and a verdict given for the plaintiff on each trial. A new trial on the former occasion was granted on
Superior Courts: Queen's Bench.
the pleadings, his lordship said :-The learned judge is alleged to have been wrong in holding that filing the return was necessary by the statute, or that it was included in the word return used in the section, and in leaving the question of negligence to the jury when the
the ground of misdirection with respect to the ment. After stating the facts of the case and question of negligence. The last trial was before Coleridge, J., in Middlesex. The declaration alleged the retainer of the defendant by the plaintiff; that it became the duty of the defendant to exercise proper care and diligence, &c.; but that the defendant did not nor would file the said writs with the said officer accord- jury ought to have been directed by him on the ing to the practice of the court, by reason of question of negligence as on a matter of law. which conduct the proceedings became void There are two things required by the statute to and of no effect. Evidence as to the practice be performed within a limited time,― the return of the court was given that it was the duty of of non est inventus, and the filing that return of an attorney to bring the writs to the proper record. This latter act is to be done by the officer, and then it was the duty of the officer officer of the court, but as his duty is limited to enter them of record. The defendant had to entering such returns as are brought to him, neglected to bring the last two writs to the the duty to bring them is that of the attorney. office within the time prescribed by the act of Since the passing of the statute the whole obparliament, so that they might be entered of ject of suing out the writ and indorsing the record. The learned judge told the jurors, date upon it will be defeated, unless the writ is that in order to find a verdict for the plaintiff in due time returned into the office. The atthey must be satisfied that the defendant had torney has the custody of the writ, and knows been guilty of gross negligence; and that in the time when this is to be done. A negligence his opinion the act of filing, although not men- to do what was necessary to keep alive the suit tioned in the statute, was included in the words was in this case especially wrong, since the "returned non est inventus;" and it was for particular object of his being retained was that the jury to say whether the practice was so he might do what was necessary to keep alive well understood that the defendant had been the right of action. Then it is objected that guilty of gross negligence in omitting to bring the learned judge treated filing as included in the writs so that the proper officer might under the word return. But the declaration make the return and enter them of record. A says, 'filing according to the necessary and rule nisi had been obtained either to correct the proper practice of the court." The judge told judgment on the ground of the insufficiency of the jury that filing would be the act of bringing the declaration, or for a new trial on the ground the return to the officer, and in that sense it of misdirection. was part of the attorney's duty to file the writ. We do not see any objection to that direction, and are of opinion that the duty of bringing it to the office for the purpose of filing may be included under the word "return." Merely writing the words non est inventus is not sufficient. The writ ought to be delivered to the proper officer. The attorney must do that which would be sufficient to warrant the issue of another writ. It was not contended that filing was the duty Mr. Knowles and Mr. Rawlinson contrà. of the attorney in any other sense than this. Filing these writs is not necessary for barring The other kind of filing is part of the duty of the Statute of Limitations. Full effect would the officer. Then as to the alleged misdirecbe given to this statute by returning non est tion-the question of negligence or no negliinventus and entering the writs and return of gence was a question of fact for the jury, record. Hunt v. Coxe, Harris v. Woolford, Taylor v. Hipkins. But assuming that filing is necessary, then, upon the authority of numerous cases, the learned judge should have told the jury that this was a matter of such doubt and ambiguity as to negative anything like gross negligence. Baikie v. Chandless, Bulmer v. Gilman, Elkington v. Holland.s And without gross negligence such an action as the present is not maintainable. Purves v. Landell.h
Mr. Crowder, Mr. Watson, and Mr. Ball, appeared in support of the verdict. The ruling of the learned judge is correct. The word filing only means bringing the writs to the proper office in order that full effect may be given to them. The filing a declaration or the filing an affidavit are terms in constant use, and merely mean bringing them to the proper office..
Lord Denman, C. J., now delivered judg
a See a report of this case, 29 Legal Observer,
though, like many others which turn on matters of law, it was necessary to direct the jury properly upon it. The judge was to say what was the sort of negligence for which an attorney was responsible. Having done that, he was right in leaving it to the jurors to say whether the attorney had performed his duty, and whether, in the case of non-performance of it, that non-performance was culpable or venial in the sense in which it would or would not sustain this action. The learned judge has done this, and as to the manner in which he may have done it, we think that nineteen days delay, when the attorney was specially retained to keep the action alive would warrant the judge in making strong remarks.
It is said that the judgment ought to be arrested, because it is not the duty of an attorney to file a writ. But we think that if there is any sense of the word filing in which he can be said