F.C. 1898 RIDER v. little, if any, limejuice in the bottle; he is asked in crossexamination whether he will swear that there is no limejuice, and he says he will not swear that there is not any. The purchaser, therefore, did not get the article which he demanded. He got something which was simply rubbish, and not limejuice Williams, J. at all. That fact gets rid of the authorities cited, and shows that the sale was to the prejudice of the purchaser. Then, as to the second point, under sec. 46, that is disposed of by the evidence, for to protect the seller the label must state the nature or composition of the mixture. The label does not do that at all; it consists really of a series of advertisements, and to regard these as a statement of the "nature and composition" of the article would be obviously wrong. The only further matter for notice is that the evidence shows that the ingredients were not added fraudulently to increase the bulk of the article, or to conceal its inferior quality (see sec. 43, sub-sec. 1). But in the view we take of the case these questions are immaterial, whether in relation to sec. 43 or sec. 46. Sec. 43 requires that the purchaser should get the article he asks for, and the evidence shows that he did not get it. He got something quite different. The order will be made absolute, with costs, and the case will be remitted to the justices for re-hearing. Solicitors for complainant Rider: Herald & Roberts. Solicitor for complainant Canty: Guinness, Crown Solicitor. FREEBODY. R. H. C. 1898 September 30. Hood, J. [IN CHAMBERS.] IN RE A. D. MICHIE, A SOLICITOR. Solicitor-Taxation of Costs-Bill of costs - Withdrawal-Condition. A solicitor when delivering his bill of costs to a client is not entitled to withdraw the bill if not paid and to send in a corrected account unless he at the time of delivery of the first bill makes clear to the client that the charges in the delivered bill are not enforceable. In re Thompson (30 Ch. D. 441) applied. APPLICATION on summons for an order that the bill of costs delivered by Archibald Donnelly Michie, a solicitor, to Ellen Turner, a client, be referred for taxation. It was stated by the solicitor that the reason why he desired to withdraw the bill of costs if taxation were insisted upon was that he considered that one of the charges made by him in it was too low, the charge being made thus with a view to amicable settlement. The further material facts may be gathered from the judg ment. C. J. McFarlane for the applicant-A solicitor delivering a bill is not entitled to withdraw it unless it is accompanied by a distinct intimation that some of the items are not taxable. In re Thompson (a); In re Hopkins (b). Hopkins (b). His letter accompanying the bill is a covert threat that if they insist upon taxation he will charge more money. Eagleson for the solicitor-In In re Hopkins the delivery of the bill was unconditional. In In re Thompson payment within eight days was required. The letter meant that if the clients did not consider themselves bound by the bill another would be delivered. [HOOD, J. It does not explain that the charges made are not enforceable. The statement is one which is not a condition. It says in effect "There is my bill; it is not for taxation."] No case of hardship to the client has been shown. (a) [1885] 30 Ch. D. 441. (b) [1891] 17 V.L. R. 85. HOOD, J. On 6th September of this year the solicitor sent in his bill of costs to his client accompanied by a letter in which occurs the following passage:-" As desired I send complete costs, including everything up to 27th July. The whole thing is made out on the basis of settling without disputes of any kind, or of the necessity of bringing others in, in which case more expense will be incurred. If my costs are to be taxed I reserve the right to withdraw the costs now sent, and send in a proper account." The whole question is whether a solicitor may impose these conditions, and I think the matter is completely covered by the authority referred to in argument: In re Thompson (c). A solicitor, unlike an ordinary creditor, is not at liberty to send in a corrected account. He sends in his bill of costs, and is bound by it. But he may impose fair conditions. He could have said, as was suggested in the case referred to, "There is my bill. It is a bill which cannot be taxed because it includes items I cannot enforce against you. If you pay these items I am willing to take the amount of that bill." The client then, understanding his exact legal position, can say "Yea!" or " Nay!" But a solicitor is not entitled to say 'There is my bill of costs! If you do not pay it I shall send in a larger bill for taxation." That being so, summons will be allowed with costs. It may be a hard case, but with that I have nothing to do. The costs of this application to be costs in the reference. the 1898 In re MICHIE. Hood, J. Summons allowed. Solicitor for applicant: C. J. McFarlane. (c) 30 Ch. D. 441. R. H. C. 1898 October 19. Hodges, J. [PRACTICE COURT.] GILL v. RYAN. Practice Affidavit--Commissioner-Deponent's solicitor-Instruments Act 1896 (No. 1423), s. 7. The affidavit required by sec. 7 of the Instruments Act 1896 was sworn before plaintiff's solicitor as commissioner. Defendant gave no notice of defence, but at the hearing objected to the affidavit. The Court of Petty Sessions then heard evidence, and made an order in complainant's favour. Held, that the affidavit was irregular. Held also that, the order being based upon the evidence taken in Court and not upon the affidavit in question, was good. ORDER TO REVIEW. Henry Rhodes Gill issued a summons under sec. 7 of the Instruments Act 1896 in the Court of Petty Sessions at Dunolly to recover from Helena Ryan the sum of 28l. 10s. for money due on a promissory note made by the latter. The affidavit in support of the summons was sworn by Gill before Edward S. Herring, who acted as his solicitor in issuing the summons. The summons was returnable on the 10th August, 1898. The defendant gave no notice of defence. At the hearing the defendant's solicitor appeared and objected to the summons on the ground that the affidavit was sworn before the complainant's solicitor. The complainant did not appear. The justices adjourned the case in order to obtain the attendance of a police magistrate. On the 15th August 1898 the case was again heard, both parties appearing, and the same objection was taken by defendant to the affidavit. The Court disallowed the objection, and ordered the case to proceed. Evidence was then given in support of the complainant's case. No evidence was called by the defendant. The Court made an order for the amount claimed, with 1l. 68. costs. An order nisi to review this decision was obtained on the ground that the affidavit on which the summons in the matter was issued was sworn before the solicitor for the complainant. Schutt to move the order absolute. Wasley to show cause-Evidence was given to prove the complainant's case. Order XXXVIII., r. 16, of the "Rules of the Supreme Court 1884" does not apply; but assuming that it does, the Court of Petty Sessions virtually disregarded it. The ordinary procedure under sec. 59 of the Justices Act 1890 has been followed. The summons follows Form 34, Schedule ii., which is the same as that required by sec. 7 of Act No. 1423, with the exception of an additional indorsement. Sec. 7 is not mandatory Coppel v. Blacklow (a). [HODGES, J. I do not think that decision affects the present case. It means that one of two courses may be taken-that the procedure is optional, and that the section does not direct that course.] (Counsel was stopped.) Schutt in reply-An affidavit sworn before a solicitor interested for the party swearing it has always been held inadmissible. The rules as to admissibility of evidence in courts of petty sessions are the same as in any other court. [HODGES, J. There is no doubt about that. The swearing of an affidavit in this manner is irregular, but does not nullify the proceedings. Suppose no affidavit be filed and the defendant appear and defend ?] Courts of law and equity have laid down the rule that such affidavits are not to be read: to be read: In re Hogan (b); Rex V. Wallace (c); Hopkinson v. Buckley (d); Ross v. Shearman (e); In re Gray (f); Tidd's Practice (9th ed.), vol. i., 494. It is not merely an irregularity. As to the contention that this case was heard on its merits [HODGES, J. The affidavit was no part of the complainant's case the justices decided outside it.] The summons is founded upon it, and is therefore bad. If the summary procedure was abandoned, the whole proceeding was nullified. No notice of defence was given. [HODGES, J. Both parties were present when the Court heard the case. There is no absolute rule that the affidavit is not admissible: Vernon v. Cooke (g). The sole effect of it is that complainant may get judgment if the other party is absent.] (a) [1898] 23 V.L.R. 514. (b) [1754] 3 Atk. 812. (c) [1789] 3 T.R. 403. (d) [1817] 8 Taunt. 74. (e) [1847] Cowp. Rep. 172. 1898 GILL v. RYAN. Hodges, J. |