4 Practice at the Old Bailey Bar.-Costs under the Small Debts Act. of the individual. A hasty or ill-founded section, however, enacts, "that any person reproof administered under such circum-imprisoned under the act, who shall have stances amounts to a judicial indiscretion, paid or satisfied the debt or demand, or the and may be productive of greater injury than could have been intended or designed. COSTS UNDER THE SMALL DEBTS instalments thereof payable, and costs remaining due at the time of the order of imprisonment being made, and all subsequent costs, shall, upon entry of payment indorsed on the order of imprisonment, be discharged." The proceeding before the commissioner, upon an application for an A JUDICIAL opinion has been given by order for payment, was necessarily attended Vice-Chancellor Sir Knight Bruce, as to with some expense, and when an order the proper construction to be put upon the was made to pay by instalments, that order 3rd section of the Act "for the better se- disregarded, and a warrant of commitment curing the Payment of Small Debts," in issued and executed, the costs were proreference to a matter on which great doubt portionably increased. The question, thereand uncertainty has hitherto prevailed. fore, arose in various cases, whether a conAs under the late act, 10 & 11 Vict. c. 102, tumacious debtor, committed to prison the Small Debts Act is in future to be ad- under the commissioner's warrant, was ministered by the Commissioners of the bound to pay any, and if any, what, proporInsolvent Court, and the judges of the tion of those costs, under the words of the several County Courts throughout the 3rd section. The Bankrupt Commiskingdom, it is desirable that our readers sioners, although frequently appealed to should be in possession of the learned upon the subject, did not feel themselves Vice-Chancellor's views upon a question called upon to decide what was the true admitted to be one of some difficulty. construction of the 3rd section, and no The 1st section of the Small Debts Act judicial opinion appears to have been proprovides, that if any person is indebted in nounced upon it, until the case of Exparte a sum under 207., besides costs of suit, by Shuckard, in re Archer, came before Sir force of any judgment, the creditor may J. L. Knight Bruce. In that case, a warobtain a summons from any Commissioner rant was issued, and threatened to be enof Bankruptcy for the district in which the forced, unless a sum of about 71. was paid debtor lives, and the debtor appearing be- for costs, upon which the debtor (Shuckard) fore the commissioner shall be examined, paid the sum demanded under protest, to &c.; and it shall be lawful for the commis- avoid being sent to gaol, and applied for sioner to make an order on the debtor for redress to the Court of Review. It does the payment of his debt by instalments or not appear from the report, that any quesotherwise, and if he shall not pay the same tion arose as to his Honour's jurisdiction to at such time as the commissioner shall determine a matter arising under the Small order, the commissioner may order the Debts Act, and both parties agreed to treat debtor to be committed to gaol for any the matter as an application to tax the term not exceeding 40 days. In this costs claimed by Mr. Archer, the solicitor section, it will be observed, that no men- of the judgment creditor. The principle tion is made of any costs other than the upon which the bill should be taxed, with "costs of suit," which are the costs in- reference to the language of the 3rd curred in the action, and ascertained be- section, was discussed, however, and the fore final judgment is signed. The 3rd Vice-Chancellor (after consulting Mr. Commissioner Fane) expressed his opinion By the act of last session, (10 & 11 Vict. that the words "costs remaining due at c. 102,) the jurisdiction of the Courts of Bank- the time of the order of imprisonment ruptcy under this act is transferred to the In- being made," meant the costs mentioned in solvent Court, where the debtor has resided for the commissioner's order for payment, and six calendar months within any parish the which were incurred before the application church of which is not more than 20 miles for such order; and that the words, "all from the General Post Office, and to the a County Courts, in all cases where the debtor subsequent costs," meant, the costs inresides elsewhere, and has resided for six calen-curred by reason of the debtor's default in dar months next immediately preceding the payment pursuant to the order made by time of the application in the district of the County Court to which the plaintiff shall apply. See the statute, section 6, 34 L. O. 311. Reported 16 Law Jour. p. 6, Bankruptcy Cases. Superior Courts -Rolls.-V. C. Knight Bruce. 9 Kenyon thought it necessary to strike out from I was not assignable, and that the office would court. Rolls Court. Ottley v. Gray, Dec. 1, 1846, and Aug. 3, 1847. this deed, in which assignment, and trust, and COSTS. Where a suit was prolonged for the sake of the costs, after the question in dispute between the parties had in effect been decided, the court refused to give costs on either side. added, he thought the suit might have been mortgage were combined, the concurrence of instituted on this foundation. the executor was unnecessary, and the suit was It was clear, however, the bill was filed in error, for the original claim was given up, and a supplemental bill was filed making the executor a party. Then it was said, the plaintiff refused THIS suit was instituted for the purpose of to give an indemnity on the ground of its bindobtaining payment of the amount due upon a ing up the assets; but there could be no such policy of insurance effected in the Protector In-binding up if there were no risk. .His lordship surance Office, on the life of the plaintiff's brother, and which had been assigned to the plaintiff by way of security. The policy was effected in July, 1836, and in February, 1842, the plaintiff gave notice to the office of its being August 2nd. Lord Langdale, after recapitudeposited with him, and shortly afterwards the lating the facts of the case, said, that when the assignment was made, by which it was declared supplemental bill was filed to bring the executhat the receipt of the plaintiff should be a full tor before the court, the question between the discharge for any monies that might become parties was really at and end. The subsequent payable in respect of the policy, and that it continuance of the suit was only for the sake of should not be necessary for the office to have victory and for costs. He had deferred judgthe concurrence of any other party for any ment for a long time, in the hope that the payments that might be made by the directors parties would come to some arrangement, but on account of it. In May, 1843, the brother as they had not done so, he should order paydied, having left a will and appointed an ment of what was due on the policy, and give executor, and in about a month afterwards the no costs on either side. plaintiff applied for payment of the amount due on the policy, and at the same time furnished the office with a copy of the assignment. Vice-Chancellor Knight Bruce. Several letters then passed between the solici- Parker v. Constable, Same v. Sturgis. July 15, tors for the plaintiff and the office, and ultimately the office refused to satisfy the claim without having a discharge from the executor, whereupon the present suit was instituted. At first the executor was not made a party, but he was afterwards brought before the court by supplemental bill, and the objection made by the office being thus removed, the only question was, upon whom the costs of the suit should fall. Mr. Kindersley and Mr. Heathfield, for the plaintiff, insisted, that as a full copy of the assignment was furnished to the office, and that contained an absolute discharge for any payment they might make in respect of the policy, there was no pretence for their requiring the concurrence of the executor. Mr. Turner and Mr. Stevens, contrà, urged, that as the policy was a mere chose in action, it 1847. 10 Superior Courts: V. C. Knight Bruce.-Queen's Bench. Mr. Swanston and Mr. Steere, for the plain- | effect indicated: whereas, in point of fact, tiff, stated, that the defendant, Constable, be- Wallis knew nothing of any such admission, came insolvent on the 19th of April, 1845; and had never led Mr. Macey or any other that she had been continued a defendant ever person to suppose that he could proveany since, being the executrix of the testator; and such admission. At the time that the matter that Mr. Kirk was then, and had acted came before the court, Mr. Macey could not throughout, as her solicitor; that witnesses recall to his mind the quarter from whence he had been examined, and that the causes were derived the information upon which he had set down to be heard on the 21st of May, 1847, acted, and was, therefore, silent on that point publication having passed in all the causes on in the affidavit put in in exculpation; and conthe 19th of June, 1847. The defendant's siderable stress was laid by Lord Denman counsel produced the appointment, on parch- upon that silence. ment, of Mr. Kirk as assignee, in the place of Mr. Sturgis. 3 Since that period Mr. Macey had been enabled to place the matter in a very different Mr. Russell and Mr. Taylor, for the defend-point of view. Mr. Pyne, for many years of ant, the insolvent debtor, in answer to an application by the plaintiff's counsel and the inquiry of the court, declined to appear for Mr. Kirk, without a supplemental bill being filed against him. Sir J. L. Knight Bruce, V. C., said, he considered that appointments of this kind were exceptions to the ordinary rule. The legal estate must be considered as having passed to Mr. Kirk, and, in his opinion, a supplemental bill was necessary. The costs of the day must stand over. Queen's Bench. In re Macey. STRIKING ATTORNEY OFF THE ROLL. Having reported the judgment of the court by which Mr. Macey was ordered to be struck off the Roll in Trinity Term last," it is but an act of justice to state the grounds of the application on his part to review the decision, although the court has not yet determined the question. the firm of Pyne and Richards, who had been dangerously ill, but having recovered, had now come forward and deposed to facts to the effect following:-That Pyne and Richards were solicitors to the late Earl of Portarlington; that the noble earl wished him (Mr. Pyne) to undertake the case relative to these bills, stating that Wood was the proprietor or keeper of a gaming-house in St. James's; but as personal exertion was necessary, and Mr. Pyne having been threatened with paralysis, he recommended the noble earl to employ Mr. Macey; that Wallis, at the time spoken of, was managing common-law clerk to Pyne and Richards, and, as such, would be necessarily cognisant of all the business of that kind coming into the hands of the firm. That the noble earl told deponent at the time, five or six years ago, that the consideration for the bills was a gambling transaction; and that the plaintiff himself had made an admission, in Pyne and Richards's office, to the same effect, in the presence of Wallis. These facts had been communicated to Mr. Macey by Mr. Pyne, and, of course, had made a due impression, except that Mr. Macey did not, when taken at a nonplus, recollect their source. Sir Fitzroy Kelly said, that Macey was attorThe court would therefore perceive that ney for the defendant in the case of "Wood v. however open that gentleman might be to the the Earl of Portarlington," an action for the imputation of forgetfulness, or even negligence, recovery of the amount of two acceptances by he had done no wrong in making the proposal the late earl, given some years ago to the plain-to Wallis, inasmuch as he had reason to think tiff. It was alleged that Mr. Macey, while that that person could help his client to an efbreakfasting at Brighton with one Wallis, in fective defence to the action. In addition to the presence of the attorney for Wood, just the affidavits to these facts he also had others before the cause came on for trial at Lewes, from persons of great respectability, setting put into Wallis's hand a written paper, con- forth that the deponents had known Mr. Macey taining a suggestion that he, Wallis, had for a number of years, and that he had always heard the plaintiff admit that the conside-borne a high character for integrity, &c. As ration for the bills was a gambling trans- to the memorandum of the 51. at the bottom of action; and that at the bottom the sum of 57. the paper, Mr. Macey deposed that he did not was mentioned, so as to imply that that amount know why it had been put there, or what it of money would be given for evidence to the meant. Lord Denman.-The memorandum was, * Publication was enlarged several times by" Query. 5.” Have you anything on this the Master, and ultimately he made it a condi- point? tion that the plaintiffs should be at liberty Sir F. Kelly.-Only that Macey swears he to set down the cause notwithstanding. In never intended to make any offer of money for consequence of the rapidity with which the business of the court was transacted, the cause came into the paper before the depositions could be obtained. See 34 L. O. 328. improper swearing. Under all these circumstances I trust your lordships will see reason to re-consider this painful case. Mr. Pyne is quite ready to be examined in any way the court ma think proper, and so are the other Superior Courts: Queen's Bench. Lord Denman.-The court think that it is not advisable to make any remarks on the case at this moment, though many suggest themselves to the mind. It will be proper to look at the affidavits before coming to a determi 11 parties. It is quite right that the profession Lord Denman appears to me to have been should be guarded from dishonour, but that quite correct. It is assumed that the plaintiff task may be safely left to the Incorporated had the whole of the 31st of May within which Law Society. Certainly Mr. Macey has shown to appoint a referee, and that no part of that very strong reasons why he ought to be re- day could be required to be employed by him lieved from the terrible consequences of the for any other purpose. But in my opinion he court's decision. had the whole of that day to appoint the referee in a complete manner, and the appointment was not complete without being notified to the other party. Suppose both parties had chosen the same referee, opportunity ought to have been given for a change of choice; or suppose there had been just and well-founded objections to the referee chosen by either party, surely the other party ought to have had the opportunity to object to him. No such opportunity was given him. The appointment was therefore incompletely made, and the direction was right, and the finding cannot be disturbed. The other judges concurred. Rule refused. nation. Dew v. Harris. M. T. 1847. AGREEMENT.-TIME.-APPOINTMENT OF An agreement to appoint referees on a day The Queen v. The Inhabitants of Hartpury. PRACTICE.-SESSIONS.-SPECIAL CASE. Where a writ of certiorari has been granted to bring up an original order of removal, and also a special case from the Court of Quarter Sessions, the court will not permit any other objections to be taken than those reserved by the special case, although it was mentioned to the court when the writ was moved for, that it was intended to make such other objections to the order, and although the rule upon which the argument took place was to show cause why the original order, as well as the order of sessions, should not be quashed, the points reserved by the special case not applying to the original order at all. THIS was an action on an agreement for the sale of a cropping of grass. The value of the cropping was to be ascertained by referees and umpires. The agreement stated that the plaintiff and defendant severally undertook to nominate and appoint a referee on the 31st of May, and that the referees were to choose an umpire between that day and the 3rd of June, on which latter day they were to proceed to a valuation. The cause was tried at the last assizes at Warwick before Lord Denman, when one of the issues being whether the plaintiff had nominated and appointed a referee within the meaning of the agreement, it was proved that the plaintiff had made the nomination on ON appeal against an order of two justices the 31st of May, but that it was not commu- for the removal of a pauper from the parish of nicated to the defendant till the 1st of June. Monmouth, in the county of Monmouth, to the Upon this proof being given, Lord Denman parish of Hartpury, in the county of Gloucester, told the jury that in his opinion nominating the quarter sessions confirmed the order, subject and appointing a referee within the meaning of to the opinion of this court on a case. this agreement included the giving notice of Mr. Greaves, in the following Term, moved such nomination, and that consequently the for a writ of certiorari to bring up the original plaintiff had not complied with the terms of order of justices, and also the special case, and the agreement, and on this issue the verdict mentioned to the court, as was done in Regina must be for the defendant. The jury accord-v. Heyop, certain objections which appeared ingly found a verdict for the defendant on the on the face of the original order of removal, issue in question. but which were not reserved by the case. The Mr. Whitehurst now moved for a rule to order and the case having been brought up in show cause why the finding should not be en- Trinity Term following, he obtained a rule tered for the plaintiff, notwithstanding the ver- calling upon the prosecutor to show cause why dict. He contended that upon this point there the original order, and also the order of had been a misdirection of the jury. The sessions, should not be quashed. plaintiff had the whole of the 31st of May, Mr. Keating and Mr. Smythies now showed within which to nominate the referees, and he cause. The applicants are not entitled to be could not be required to do anything besides making the nomination on that day, for if so he would then be deprived of a part of the day which otherwise ought to be entirely at his disposal for the purpose of making the appoint ment. heard on any points which are not reserved by the special case. The rule is in the usual form. [Lord Denman, C. J. It gives notice of an Mr. Justice Coleridge.-The direction of 270. 31 L. O. 577, and 2 New Sessions Cases 12 . Superior Courts : Queen's Bench.-Queen's Bench Practice Court. withdrawn. objection to the original order; the point re-appeal, the court of quarter sessions might served by the case does not apply to any ob- have refused to grant a case on the facts, unless jection to the original order.] The objection the objections to the form of this order were to the order was fully discussed before the sessions, but they declined granting any case ón it, and only reserved a point on the sufficiency of the examinations and grounds of appeal. Mr. Greaves, contrà. The proper course has here been adopted. The objection to the order was mentioned to the court when the writ of certiorari was moved for. The Master certified that the motion was correct, and the writ was granted in open court. An objection arising on the face of the order need not be reserved by a special case. It is only necessary for the sessions to reserve objections which do not appear on the face of the order. This case is distinguishable from Regina v. St. Anne's, Westminster, because there no mention was made of the other points at the time of moving for the certiorari, but the rule was for quashing the order on a ground in addition to, and independent of, the grounds reserved in the case. Wightman and Erle, J.s, concurred. Queen's Bench Practice Court. (Before Mr. Justice Patteson.) Exparte Barnes. Michaelmas Term. Nov. 2, 1847. ATTORNEY.-RENEWAL OF CERTIFICATE. An attorney took out a certificate to practise for the first year after his admission; he afterwards neglected to do so for about ten years, during a great part of which time he acted as managing clerk in an attorney's office; he then gave the proper notices for the renewal of his certificate, under the rule of Easter Term, 1846, on the last day of the present Term, an application being now made under special circumstances for him to be permitted to take out his certificate at once. Held, thut the court had no power to interfere and enable him to do so, but that he must wait until the last day of Term to make his application. Lord Denman, C. J. We must treat this case on general principles. When the sessions have decided a point, and granted a case, the writ of certiorari issues for the sole purpose of bringing the case up, that we may decide the question which is asked by the sessions, and Unthank moved that Mr. Barnes, an attorthat our answer may assist them in giving their ney of this court, be at liberty forthwith to decision. It is quite inconsistent with all prin- take out a stamped certificate to enable him to ciple that we should enter into any other ques- practise without waiting until the last day of tion than the one reserved by the case. If the present Term. The application was made otherwise, all the proceedings would be unra- on affidavits which stated that Mr. Barnes had velled, and long arguments founded upon them, been admitted an attorney about eleven years by which the time of the court would be en- since, and had then taken out a stamped certitirely taken up, and the channels of justice ob- ficate for one year; since that time he had not structed. I think when a certiorari has issued taken out any certificate, but had for a great to remove a case, that the points reserved by part of the last ten years been engaged as a the case alone are before us; and that though managing clerk in an attorney's office; he was the original order is mentioned in this rule, yet now anxious to be allowed to renew his certifias no point upon it is reserved by the special cate, having the offer of a business at Stockcase, we ought not to permit any objection to port. He had given his notices, and they were be now taken to it; and that the rule has been all regular, for an application to the court on improperly drawn up, and ought only to have the last day of the present Term, pursuant to been granted on the points reserved by the the rule of Easter Term, 1846; and the present This practice must be put an end to, application was one made to the court under and we will adhere to the rule laid down by the peculiar circumstances of the case, which Lord Ellenborough, C. J., in Rex v. Guildford.e were that the business which Mr. Barnes was Patteson, J. I am of the same opinion. anxious to take was that of a solicitor very reThere has been some doubt as to the practice cently deceased, and therefore it was of great on this point. When a case has been reserved, importance that Mr. Barnes should be enabled it is not competent to go into any other points than those mentioned in the case: but it is said to be competent to take objections arising on the face of the original order. I think that this practice, which has only prevailed for a short time, is bad, and ought to be put an end to. We will only consider the points reserved by the case for this reason,-that if this point had been relied upon at the sessions, as it might have been under one of the grounds of case. d33 L. O. 305, and 2 New Sessions Cases, 517. 2 Chitty R. 284. to enter upon it at once. Under these circumstances it was submitted that the court in its discretion would dispense with the applicant's waiting until the last day of Term until his notices had expired, but would give him permission to take out his certificate at once. Patteson, J.-Have I any authority to do this? Unthank. I have not been able to find any direct authority in point, but the rule 5 Reg. Gen. H. T. 6 W. 4, which requires the notices to be given "three days at least before the commencement of the term," by persons seeking to be admitted under that call, has been |