for him in any other manner, it might have been good. But I am satisfied upon the affidavits in this case, that the witness acted as attorney for both; and that, I am of opinion, is contrary to law." The same point was determined in Todd v. Gompertz, 6 Dowl. P. C. 296, and in Cocks v. Edwards, 2 Dowl. N. S. 55. Sanderson v. Westley, 6 M & W. 98, shews how strictly the rule is acted upon. Parke, B., there says, "We are all of opinion that Goddard was the attorney of the plaintiff prior to his being employed by the defendant, and was his attorney in this transaction. If so, the act is not complied with; since it requires that there should be a separate attorney employed by the defendant to take care of his interests only. With respect to the case of Haigh v. Frost, there was no wrong decision in point of law, because there was no attorney for the plaintiff, and it is not necessary that he should have an attorney present on his behalf." Here, the defendant cannot be said to have had a separate attorney to take care of his interests only. In Pryor v. Swaine, 2 Dowl. & L. 37, it was held that the London agent of the plaintiff's attorney, whose name had been suggested by the plaintiff's attorney, was not a good attesting witness to a warrant of attorney, although the defendant of his own free choice adopted him as his attorney,-where it appeared that he was also acting for the plaintiff's attorney in the transaction. CRESWELL, J. (a). I am of opinion that this rule should be made absolute. The question depends upon the sufficiency of the attendance of an attorney for the defendant at the execution of the warrant of attorney, to satisfy the 9th section of the 1 & 2 Vict. c. 110. That section provides that no warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person, shall be of any force, unless there shall be (a) Jervis, C. J., was attending the Privy Council. 1852. COOPER v. GRANT. 1852. COOPER v. GRANT. present some attorney of one of the superior courts on behalf of such person, expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed; which attorney shall subscribe his name as a witness to the execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes, as such attorney. I do not find anything in the statute requiring the presence of an attorney for the person to whom the warrant of attorney is given. But the same attorney cannot act on both sides. All the cases agree in that. The question, therefore, in this case, is, whether Slocombe can be considered as having attended solely on the part of the defendant. I am of opinion that he certainly cannot. Upon the defendant's affidavit, I should assume that Slocombe attended as the plaintiff's attorney. But, even taking the facts as they appear upon the plaintiff's affidavit, I should come to the same conclusion. I agree with Mr. Brown that we must deal with the matter as we would have done on the day after the execution of the warrant of attorney. But, in so doing, we may still look at the subsequent conduct of the parties. It appears that the defendant, being desirous of borrowing a sum of money from the plaintiff, the latter introduced him to Slocombe; that Slocombe afterwards conferred with the plaintiff, and then told the defendant he must give a warrant of attorney. Waiving all question as to the conversation alleged to have taken place at Slocombe's office, it appears that a memorandum and warrant of attorney were prepared by Slocombe; and I do not find any statement that the memorandum was ever handed over, nor does it appear in what capacity Slocombe held it. I do not mean to impute anything intentionally wrong to Slocombe: he meant, no doubt, to act correctly; but he has failed to do so. It may be that this statute, which was designed to guard against fraud, may sometimes be turned into an engine of oppression on the part of the defendant. Still he has a right to come before us and complain that the provisions of the act have not been duly complied with. I think there cannot be any moral doubt that Slocombe was acting for both parties; and this, upon all the decisions, is quite contrary to the spirit of the act. TALFOURD, J. I am of the same opinion. I agree that nothing wrong was intended or done by Slocombe, except that he has failed to observe strictly the direction of the statute. I think it is impossible to say that he attended exclusively as attorney for the defendant. Rule absolute. Brown then suggested, that, under the circumstances, the court would restrain the defendant from bringing an action. [Cresswell, J. We cannot do that. If you have done wrong in point of law, you must take the consequences.] Costs are entirely in the discretion of the court; and it is not unusual for the court to refuse to give costs on setting aside a writ for irregularity, or the like, unless the defendant will undertake not to bring any action. CRESSWELL, J. I can very well understand, that, where a party comes to ask the court to exercise its summary discretion, it is competent to the court to impose terms. Here, however, the statute gives the defendant a right; and we cannot say that he shall only obtain it at his own expense. There might be cases where the party has so conducted himself as to justify the court in refusing him costs. But I do not think this is a case of that description. Rule absolute, with costs. 1852. COOPER v. GRANT. 1852. April 28. The duty imposed upon rail way companies by the railways clauses consolidation act, 1845, 8 & 9 Vict. c. 20, s. 68, as to the making and repairing of fences between their railways and the adjoining lands, is not more extensive than that imposed upon ordinary tenants by the common law. Therefore, where the RICKETTS V. THE EAST AND WEST INDIA DOCKS AND THIS was an action upon the case. The first count of the declaration stated, that, before and at the time of the committing of the grievances by the defendants aftermentioned, and after the passing of a certain act of parliament called "the railway clauses consolidation act, 1845" (a), and after the passing of a certain other act of parliament called "The East and West India Docks and Birmingham Junction Railway act, 1846" (b), the defendants were the owners and proprietors of a certain railway, to wit, a railway from the East and West India Docks, at Poplar, in the county of Middlesex, to the London and North-Western Railway, at the Camden Town station of the said London and North-Western Railway, in the parish of St. Pancras, in the county of Middlesex; which said railway of the defendants, during all the time aforesaid ran, and still runs, upon and over certain land taken for the use of the same railway, under the provisions of the statutes in such cases made and provided; and which said railway of the defendants, during all the time aforesaid, was used for the propulthe defendants' sion, drawing, and driving thereon, at great speed, of engines, carriages, and waggons, and upon and over and along which said railway, during all the time aforesaid, divers and very many trains of carriages and waggons propelled, drawn, and driven by locomotive steamengines, passed and repassed daily and every day, divers times a day, at great speed: That, before and at the time of the committing of the grievances by the defendants (b) 9 & 10 Vict. c. cccxcvi. plaintiff's sheep escaped from his close, through his own defect of fences, and, getting into the intervening close of a third party, escaped thence on to railway, and were killed : Held, that the company were not liable. (a) 8 & 9 Vict. c. 20. 1852. RICKETTS v. THE EAST AND WEST INDIA DOCKS &C. RAILWAY Co. thereinafter mentioned, he the plaintiff was lawfully possessed of divers, to wit, fifty sheep, the property of the plaintiff, of great value, to wit, 1507.; which said sheep, before and at the times of the committing of the grievances by the defendants thereinafter mentioned, were depasturing and lawfully being in and upon certain lands, which last-mentioned lands during all the time aforesaid were, and still are, situate, lying, and being, adjoining to and abutting upon the said railway of the defendants, and to and upon the said land so taken for the use thereof: That, after the passing of the said several acts of Allegation of duty. parliament, and after the taking of the said land for the use of the said railway of the defendants, and after the making of the said railway upon and over the said lastmentioned lands so taken for the use thereof, and whilst the said railway of the defendants was being used for the propulsion, drawing, and driving thereon of trains of carriages and waggons propelled, drawn, and driven by locomotive steam-engines, at great speed as aforesaid, it became and was the duty of the defendants to make and erect a sufficient fence in and upon the said land so taken for the use of the said railway of the defendants, or adjoining to the same railway, for protecting and preventing cattle or sheep depasturing or being in or upon the said lands so adjoining to and abutting upon the defendants' said railway, from straying or escaping out of or off or from the said adjoining lands to or upon the said railway: Yet that the defendants, not regarding their Breach. duty in this behalf, did not nor would, after the passing of the said several acts of parliament, or after the taking of the said lands for the use of their said railway, or after the making of the same railway, or whilst the said railway was so being used for the propulsion, drawing, and driving thereon of trains of carriages and waggons propelled, drawn, and driven by locomotive steam-engines, at great speed as aforesaid,—although a |