[*405 *COCKBURN, C. J.-I am of opinion that we cannot afford the shareholder the indulgence which he asks. If this had been an application for execution against him, the case might have been different. But, inasmuch as he may plead the matters suggested by way of answer on the scire facias, I see no reason why the rule should not be made absolute. The rest of the court concurring, Rule absolute. (a) (a) In Shedden v. Patrick, it was held, that, where a judgment has been obtained by fraud, and more especially by the collusion of both parties,—such judgment, although confirmed by the House of Lords, may, even in an inferior tribunal, be treated as a nullity. But the allegations of fraud and collusion must be specific, pointed, and relevant, otherwise they cannot be admitted to proof. POWIS v. HARDING, Official Manager of THE ROYAL BRITISH BANK. April 28. Upon a rule for execution against a shareholder of a joint stock bank, under the 7 & 8 Vict. c. 113, the question raised presenting some difficulty, the court declined to decide it upon motion, but directed a special case to be stated. BEALLEY, on a former day in this term, obtained a rule calling upon Henry Butler and Charles Walton, executors of Charles Walton, to show cause why execution upon the judgment recovered by the plaintiff in this cause for the sum of 5761. 18. 6d. should not be issued against the property and effects of the said Charles Walton, deceased, as a shareholder in the Royal British Bank, *in the hands of the [*406 said Henry Butler and Charles Walton as his executors, to satisfy the plaintiff in the sum of 1307. 138. 8d., the balance remaining due in respect of the said judgment, pursuant to the statute 7 & 8 Vict. c. 113, with costs. Phipson showed cause, referring to the various sections of the statute 7 & 8 Vict. c. 113, and to the cases of Ness v. Angas, 3 Exch. 805, Ness v. Armstrong, 4 Exch. 21,† and Fell v. Burchett, 3 Jurist, N. S. 388, and contending that the 21st section did not, at all events, apply to the case of an executor. It appeared that the judgment was recovered against the bank after the death of the testator and before the executors had come in and proved the will. COCKBURN, C. J.-The question raised here is far too important and difficult to decide upon motion. The better course will be to state the facts in the form of a special case, when it can be more solemnly argued and decided, and, if necessary, taken to a court of error. 66 The rest of the court concurring, the rule was drawn up as follows:Upon reading, &c., it is ordered that a special case be stated between the said parties for the decision of this court, and that the same be set down for argument accordingly; and that the matters of the said rule do depend upon the decision of this court upon the said special case."(a) (a) The case now (Michaelmas Vacation, 1857) stands for argument. *407] *FRY v. HARDING, Official Manager of THE ROYAL Upon a rule for execution against a shareholder of a joint stock bank, under the 7 & 8 Vict. c. 113, the question raised presenting some difficulty, the court declined to decide it in a summary way, but directed that a sci. fa. should issue and a special case be stated. BEASLEY, on a former day in this term, obtained a rule calling upon George Russell to show cause why execution upon the judgment recovered in this cause for 75l. 178. 7d. debt, and 57. 78. 4d. for costs, should not be issued against the person, property, and effects of the said George Russell as a shareholder of the Royal British Bank, to satisfy the plaintiff in the said sums of, &c., pursuant to the 7 & 8 Vict. c. 113, with costs. Milward showed cause, commenting upon the various sections of the statute 7 & 8 Vict. c. 113, and citing Thompson v. The Universal Salvage Company, 3 Exch. 310,† Brettell v. Dawes, 7 Exch. 307,† King v. The Parental Endowment Assurance Company, 11 Exch. 443,† Hill v. The London and County Assurance Company, 1 Hurlst. & N. 398,† Nixon v. Brownlow, 1 Hurlst. & N. 405,† Henderson v. The Official Manager of the Royal British Bank, 3 Jurist, N. S. 111, and Baily v. The Universal Provident Life Association, 3 Jurist, N. S. 269. The substantial question was, whether a shareholder who had regularly transferred his shares to a third person who had been duly registered as the holder of them in the books of the bank before the commencement of the action, but whose name still remained on the last-filed return, was liable to execution. COCKBURN, C. J.-I feel very reluctant to decide a case of this sort upon motion. I think the better course will be to state a case. *CRESSWELL, J.-The parties must so state the case as to try *408] the real merits, whether one who has sold and transferred his merits,-whether shares is liable as a shareholder, his name remaining upon the list returned to the stamp office. WILLES, J.-The better course will be to issue a scire facias, to which the shareholder will appear, and then state a special case for the opinion of the court. The rule was accordingly drawn up as follows:"That a writ of scire facias on the judgment obtained by the plaintiff in this cause for 751. 178. 7d. debt, and 57. 78. 4d. for costs, be issued forth against the said George Russell as a shareholder of the said bank, to enable the plaintiff to have execution upon the said judgment to satisfy the plaintiff in the said sums of 751. 178. 7d. for debt, and 57. 78. 4d. costs, recovered by the said judgment, and still unpaid, and that the said George Russell do appear thereto; and that a special case be stated, &c., for the decision of this court, and that the same be set down for argument accordingly; and that the said rule, and the costs thereof, together with the costs of and occasioned by the application, do abide the event of the decision upon such special case."(a) (a) The special case was argued in Michaelmas Term, 1857, and the court took time to consider their judgment. A similar course was adopted in a case of Edwards v. The Kilkenny and Great Southern and Western Railway Company, Ex parte Butterfield; but the special case has not yet (Michaelmas Vacation, 1857) been set down. There, the party had executed the subscription contract as holder of twenty-five shares, for which he had scrip, in "The Galway and Kilkenny Railway Company;" but, on the change of the name and course of the projected railway, he declined to send in his scrip for registration, and had taken no step since. *MEUX and Others v. LLOYD. May 5. [*409 Excessive and extortionate charges in a bill of costs as between attorney and client, form no ground for a summary application against the attorney, in the absence of evidence of wilful fraud, the suitor being sufficiently protected by the taxation of the bill. Nor is it any ground for calling upon the attorney to answer the matters, that he is unable to pay the amount found due from him to his client on such taxation. PRIDEAUX, on a former day, obtained a rule calling upon A. B., one of the attorneys of this court, to show cause why he should not answer the matters contained in the affidavit. The ground of the application was, that defendant had employed the attorney to defend him in this action, and in other matters, upon the express understanding that he was to be charged only costs out of pocket, and that, in the event of his succeeding in the action, the attorney would refund any moneys which might be advanced by the defendant in the course of the proceedings; that the defendant having succeeded in the action, the attorney, having got the costs from the other side, sent in to the defendant a bill of costs as between attorney and client, containing very gross overcharges; that, upon an order to tax the bill,—the attorney denying the agreement alleged, the master proceeded with the taxation, and made his allocatur in favour of the defendant for 571. 78. 8d.; that, on the 16th of January last, a judge's order (since made a rule of court) was made directing the attorney to pay to the defendant the sum of 671. 5s. 4d., that the defendant should be at liberty to sign judgment against him for that sum, with costs, and that the attorney should deliver up all deeds, &c., in his possession, custody, or power belonging to the defendant; that an execution had issued against the attorney upon the judgment so signed, but that no fruits could be obtained, his goods having already been collusively taken in execution at the suit of another creditor; and that it was believed he kept out of the way to avoid being served with the allocatur. Lush now showed cause upon an affidavit of the *attorney, *410] admitting that he was indebted to the defendant in the amount stated and that he was unable to pay it, but denying that he had been guilty of any of the misconduct imputed to him, or of any wilful evasion of service of the allocatur and demand, as alleged. This is a vindictive and improper attempt to use the stringent process of the court for the purpose of enforcing a mere money demand. There has been no professional misconduct. The client has obtained an order to sign judgment, and has done so: he has not proceeded to execution, because he apprehends that it will be fruitless. That surely is no ground for such a proceeding as this. Prideaux, in support of his rule.-The mere denial of the attorney is not enough. In the case of In re Crossley, 6 T. R. 701, it was held, that, if an attorney required to answer the matters of an affidavit, swear in his exculpation to an incredible story, the court will grant an attachment against him, though he positively deny the malpractices imputed to him. [COCKBURN, C. J.-How can we attach the man, when he has answered the charges? He admits the debt, but says he is unable to pay.] He does not venture to deny that he is keeping out of the way to avoid service of the allocatur and demand of payment. COCKBURN, C. J.-I am of opinion that this rule should be discharged. It was moved upon three grounds,-first, that an agreement was entered into between the attorney and the client that the former should pay back any advances he might receive during the progress of the proceedings, and that, in any event, he would charge the client only the costs out of pocket, and that that agreement has been violated, secondly, that the bill of costs delivered by the attorney to his client contains overcharges so gross as to amount to fraud,— thirdly, that the attorney has evaded service of the allocatur *and *411] demand of payment by abruptly quitting the masters' office when the allocatur was made, and by keeping out of the way since, and that he has procured a sham execution to be levied upon his goods in order to frustrate the client's remedy by execution. The case has been completely answered by the affidavits as to the first and last grounds. With regard to the alleged exorbitant charges in the bill delivered, if that had been the only ground of complaint, the rule would not have been granted. The taxation is a sufficient protection to the suitor in that respect. I therefore think the rule should be discharged with costs. It is obviously important that officers of the court should be kept under wholesome control with reference to their conduct and dealings with their clients. But, on the other hand, it is equally important that they should not be unduly prejudiced in their professional character by being brought before the court upon light grounds. As, however, it is admitted that the money is due, I think the costs of this application should be set off against the client's demand. CRESSWELL, J.—I am entirely of the same opinion. An attorney is always amenable to the court, where he has been guilty of professional misconduct but the court is equally bound to protect him against false and unfounded charges. This rule undoubtedly would not have been granted on the mere ground of the reduction of the bill on taxation, unless it could have been shown that the charges were so wilfully and outrageously excessive as to amount to fraud. Nor, I apprehend, would it have been granted merely on the ground of the attorney having quitted the masters' office before he could be served with the allocatur. The substantial grounds were, that the attorney had agreed to be content with taxed costs from the plaintiffs in the event of success, and with costs out of pocket in the event of failure, *and to return [*412 any moneys that might have been advanced to him for the purpose of the suit; and also that the attorney, for the purpose of defeating the client's remedy, had kept out of the way, and caused a sham execution to be levied on his goods. These grounds are completely answered, and therefore I agree with my Lord that the rule should be discharged, and with costs, to be set off as suggested. CROWDER, J.-I will only add, that, as regards the alleged overcharges, the attorney seems to me to have given a reasonable excuse. I therefore think he has answered the whole application. WILLES, J., concurred. Rule discharged accordingly. WOOTTON v. DAWKINS. April 18. The plaintiff entered the defendant's garden at night, and without his permission, to search for a stray fowl, and whilst looking closely into some bushes, he came in contact with a wire, which caused something to explode with a loud noise, knocking him down and slightly injuring his face and eyes:-Held, that the defendant was not liable for this injury at common law, nor, in the absence of evidence that it was caused by a spring-gun or other engine "calculated to inflict grievous bodily harm," under the statute 7 & 8 G. 4, c. 18, s. 1. THE declaration contained two counts,-the first, founded upon [*413 the statute 7 & 8 G. 4, c. 18, s. 1,(a) for *unlawfully setting a (a) Which, reciting that "it is expedient to prohibit the setting of spring-guns and man-traps, and other engines calculated to destroy human life or inflict grievous bodily harm," enacts, "that, if any person shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanour." The 5th section excepts guns, &c., set from sunset to sunrise in a dwelling-house, for the protection of the same. |