The Benchers of the Inner Temple and Mr. Hayward.-Notes on Equity. 253 would be promoted by your introduction was an opposition to encounter; and it is a amongst us. I do most sincerely regret this doubtful doctrine at the best. Comfort and state of things. If I have any personal feel- harmony may be desirable, things in such a ings upon the subject, they are in your favour. body, but justice and fair dealing, with the I consider your character as perfectly unexcep- public and professional confidence inspired by tionable, as I did the moment I felt pleasure them, are still more so: and even comfort and in seconding your nomination; but I could harmony are best preserved by never suffering not permit the course I have pursued to be personal feelings or private considerations of subject to misconstruction; and I have there- any sort to interfere with the public trusts and fore endeavoured to explain to you my real real purposes of the institution.” sentiments, which, although they may not be perfectly satisfactory to you, will, I trust, re- discussion of this case and the decision of The only practical result arising from the lieve me from the charge of inconsistency, and | will serve to assure you that, though tempora- the judges thereupon, was a resolution of rily annoyed at some passages of your conduct, the Benchers of the Inner Temple, in Hilary I have the same kind disposition towards you Term, 1847, which is said to have been which I had from the first, and the same regret unanimously come to, "That in future no that you should be placed in so very painful a one shall be elected to the Bench of the situation. "Believe me, dear Hayward, "Yours very sincerely, After an assurance that Sir F. Thesiger was mistaken as to each of his supposed causes of dissatisfaction, Mr. Hayward concludes his pamphlet as follows: "If petty grievances are to be treasured up in this manner, the very least the unconscious offender is entitled to, is to be informed when the cup is full. Why, when I wrote to Sir F. Thesiger to ask whether I might state on his authority that he had seconded me, was I not informed that I might mention the fact, but must no longer infer from it (or act upon the supposition) that he was my friend? Inner Temple, unless he obtain the votes of the majority of the existing Benchers, and that four black balls shall be sufficient to exclude." How far this resolution can be fairly considered a substantial compliance with what the judges so strongly recommended, we shall take an early opportunity of considering, and shall now only add that we fear, in whatever light it may be viewed, Mr. Hayward's case and its incidents cannot be deemed to reflect additional lustre on the benchers, or to entitle the constitution and government of the Inns of Court to increased respect from the profession or the public. NOTES ON EQUITY. PRIVILEGED COMMUNICATIONS OF A CLIENT. "With all this upon his mind (that is, with a personal feeling against me which formed an additional ground for his declining the case,) he proceeded to consider the call made upon him by the benchers. The distinction he draws between the question it was, and the DECISIONS relating to the disclosures question it was not, consistent with his cha- which as well the parties in a suit, as their racter of seconder to support (thus admitting solicitors, are compellable to make, are of that this character does inpose some restric- great practical importance to the profession; tion) may be logically just; but, in the first and we have, therefore, to call the attention place, he did not abide by it; and, in the se- of our readers to a recent decision of Vicecond place, it would not strike the majority of persons, who hear simply that a man of Sir Chancellor Knight Bruce, relating to the F. Thesiger's professional eminence has, from disclosures which a client is compellable to being my supporter, become my leading oppomake., nent. The bencher who was first appointed to replace Sir Charles Wetherell, declined. Upon a question of title between vendor and purchaser, it was held that the vendor was not compellable, at the instance of the purchaser, to state his motive for making a certain appointment, or to disclose confisolicitor and counsel respecting the prodential communications made by him to his Mr. Serjeant Talfourd's argument (ante, 93) is incorrectly described as an argumentum ad hominem. He was simply contending that the rejection in the first instance was not the act of the Bench, and it is no answer to say that an ex post facto disqualification has been created by my questioning the absolute nature perty, although such communications were of their authority. Sir F. Thesiger knew very made merely on behalf of the consulting well that the main object of my appeal was to person singly, and were not made during a protect my honour; and his comfort and harmony' doctrine might have been spared till • Pearse v. Pearse, 1 De Gex & Smale, p. 12. I again became a candidate. It does not come These reports are in continuation of Mr. gracefully from one who knew, when he vo- Collyer's Reports of the Decisions in Vicelunteered to become my seconder, that there Chancellor Knight Bruce's Court. suit, during a dispute, or after the threat of honest man, so changing his situation, might a suit. It is well known that a solicitor cannot be required to disclose the communications made to him by his client, and it seems also that the client is not compellable to disclose any confidential communication between him and his solicitor or counsel which his solicitor or counsel would be privileged in refusing to disclose. In the course of his judgment, the ViceChancellor said, communicate a fact, appearing to him to Again, said the Vice-Chancellor, "That cases laid before counsel on behalf of a client stand upon the same footing as other professional communications from the client to the counsel or solicitor, or to either of them; bility to discover communications between and that, as far as any discovery by the solicitor or counsel is concerned, the question of the existence or non-existence of any suit, claim, or dispute, is immaterial, the law providing for the client's protection in each state of circumstances, and in each equally.” Cromack v. Heathcote," his honour said, was now universally acceded to, and the doctrine of this court was correctly stated by Lord Lyndhurst, in Herring v. Clobery, when he said— "I lay down this rule with reference to this cause, that, where an attorney is employed by a client professionally to transact professional business, all the communications that pass between the client and the attorney, in the course and for the purpose of that business, are privileged communications; and that the privilege is the privilege of the client, and not of the attorney." Whether laying or not laying stress on the observations made by the late Lord Chief Baron in Knight v. Lord Waterford, the Vice-Chancellor said, himself and his counsel or solicitor, after litigation commenced, or after the commencement of a dispute ending in litigation; at least, if they relate to the dispute or matter in dispute. Upon this I need scarcely refer to a class of authorities to which Hughes v. Biddulph Nias v. Northern and Eastern Railway Company before the present Lord Chancellor in his former chancellorship, and Holmes v. Baddeley," decided by Lord Lyndhurst, belong. "But what, for the purpose of discovery, is the distinction in point of reason, or principle, or justice, or convenience, between such communications and those which differ from them only in this, that they precede instead of fol lowing the actual arising, not of a cause for dispute, but of a dispute, I have never been able to perceive." The Vice-Chancellor further said: "A man is in possession of an estate as owner, he is not under any fiduciary obligation, he finds a flaw in his title, which it is not, in point of law or equity, his duty to disclose to any person; he bel eves that the flaw or supposed defect is not known to the only person who, if it is a defect, is entitled to take advan"I confess myself at a loss to perceive tage of it, but that this person may probably any substantial difference in point of reason, or possibly soon hear of it, and then institute or principle, or convenience, between the lia- a suit or make a claim. Under this apprehenbility of the client and that of his counsel sion he consults a solicitor, and through the or solicitor to disclose the client's com- solicitor lays a case before counsel on the submunications made in confidence profession-ject, and receives his opinion. Some time afally to either. True, the client is or may terwards the apprehended adversary becomes be compellable to disclose all that, before he an actual adversary, for coming to the knowconsulted the counsel or solicitor, he knew, ledge of the defect or supposed flaw in the believed, or had seen or heard; but the ques- title, he makes a claim, and, after a preliminary tion is not, I apprehend, one as to the greater correspondence, commences a suit in equity to or less probabilities of more or less damage. enforce it; but between the commencement of The question is, I suppose, one of principle, the correspondence and the actual institution one that ought to be decided according to the of the suit, the man in possession again conrules of jurisprudence; nor is the exemption sults a solicitor, and through him again lays a of the solicitor or counsel from compulsory case before counsel. According to the rediscovery confined to advice given or opinions spondent's argument before me on this occa stated. It extends to facts communicated by sion, the defendant, in the instance that I have the client. Lord Eldon has said: "The supposed, is as clearly bound to disclose the case might easily be put, that a most first consultation and the first case, as he is 2 Brod. and Bing. 4. Notes on Equity.-Right to Recover on a Lost Bill of Exchange. 255 The plaintiff's counsel submitted, that clearly exempted from discovering the second commenced or the plea was pleaded, the consultation and the second case. I have, I holder or possessed of the bill. The plainrepeat, yet to learn that such a distinction has tiff, by his replication, admitted the facts any foundation in reason or convenience." stated in the plea, but added that he was The discovery, and vindication, and es- the holder of the bill until the loss; that tablishment of truth, are main purposes the bill was not indorsed by him, or transcertainly of the existence of courts of jus- ferrable by delivery, or capable of being put tice: in suit or enforced by any other person "Still (said his Honour,) the obtaining than the plaintiff; and that the defendant of those objects, which however valuable and had notice of the premises before and at the important, cannot be usefully pursued without commencement of the suit. To this replimoderation, cannot be either usefully or cre- cation the defendant demurred, and the ditably pursued unfairly, or gained by unfair substantial question argued was, whether, means, not every channel is or ought to be upon the facts stated in the pleadings, the open to them. The practical inefficiency of plaintiff was entitled to recover? torture is not, I suppose, the most weighty objection to that mode of examination, nor probably would the purpose of the mere dis- the general rule, founded on the custom of closure of truth have been otherwise than ad- merchants, was, that the holder of a bill vanced by a refusal on the part of the Lord should present the instrument at its matuChancellor in 1815 to act against the solicitor, rity to the acceptor, demand the amount, who, in the cause between Lord Cholmondeley and, upon receipt of the money, deliver up and Lord Clinton, had acted or proposed to the bill; but that to one who should refuse act, in the manner which Lord Eldon thought or be unable to produce the bill, the acit right to prohibit. Truth, like all other good things, may be loved unwisely-may be purceptor is not bound to pay the amount, for sued too keenly-may cost too much. And that he is entitled upon such payment to surely the meanness and the mischief of prythe possession of the instrument for his own ing into a man's confidential consultations security, as a voucher and discharge in acwith his legal adviser, the general evil of in- count with the drawer. The authority fusing reserve, and dissimulation, uneasiness, chiefly relied upon in support of this view and suspicion and fear into those communications which must take place, and which unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." RIGHT TO RECOVER ON A LOST BILL OF EXCHANGE. a was a case of Hansard v. Robinson, in which the late Lord Tenterden is reported to have laid it down, "that if, upon an offer of payment, the holder should refuse to deliver up the bill, the acceptor might retract his offer or retain his money;" for that the holder had no right by his own negligence or misfortune to cast a burthen on the ac ceptor by compelling him to pay a bill which A QUESTION was discussed and deter- the former could not give up. The plainmined in a case very recently reported, tiff's counsel admitted the general rule of which has probably on some occasion enlaw to be as laid down by Lord Tenderden in the case cited, but contended that cases gaged the attention of almost every professional man with clients engaged in trade or were excepted from its operation in which commerce, viz., whether the payee of a bill the plaintiff's inability to deliver up the bill of exchange who loses the instrument be- resulted from his having lost it whilst it refore it comes to maturity, and is therefore mained payable to his own order and was unable to produce it, is entitled to recover not indorsed. The authority chiefly relied against the acceptor? In the case referred upon in support of this proposition was the to the point arose upon the pleadings. The case of Rolt v. Watson, where it was held plaintiff sued as the drawer of a bill payable by the Common Pleas, that the acceptance to his own order, and accepted by the de- of a lost bill not indorsed was not a defence fendant. The defendant pleaded, that after to an action for the price of goods, for which the bill had been accepted. acceptance and before action, the plaintiff lost the bill, that it remained lost, and that the plaintiff was not, at the time the suit a Ramuz v. Crowe, 1 Exch. R. 167. It may be observed that the Exchequer Reports are a new series in continuation of Meeson and Welsby's Reports, The court, after taking time to consider its judgment, was of opinion that the decision in Hansard v. Robinson, in which all the previous cases were brought under the consideration of the Court of King's Bench, b 7 B. & Cres. 90. © 4 Bing. 273. 256 Lost Bill of Exchange.-Report of the Commissioners in Lunacy. governed the present case. That case over- commissioners intimated an intention, as soon ruled those supporting the exception now contended for by the plaintiff's counsel, and established the rule that, by the custom of merchants, the acceptor of a negotiable bill was not bound to pay, unless the party demanding payment produced and offered to deliver up the instrument itself. This court now considered the rule as laid down in Hansard v. Robinson was correct, and as the bill accepted by the defendant was negotiable, and the plaintiff by reason of his loss of it was unable to produce it to the defendant, the court held, that the defendant could not by the law of merchants be compelled to pay the amount. Upon these grounds, judgment was entered for the defendant on the demurrer. as practicable after the first year of their labours should have terminated, and they should have obtained ampler materials, to make a more minute report of all such matters coming under their cognizance as they should consider worthy of especial notice. Many circumstances beyond the control of the commissioners conspired to prevent their making this further or minute report as early as they had contemplated. They were desirous that it should include all material facts relating to the existing state of lunacy and lunatic asylums; and for this purpose they had to seek and await information on several points from various parties. Amongst other things, they endeavoured to obtain accurate returns from all the unions and parishes in the kingdom, of the number of their lunatic poor. These numbers, which had previously been in some desioners have now obtained; but the endeavour gree the subject of estimate only, the commisto obtain them involved an extensive and most protracted correspondence with the officers of all the various unions and parishes, from whom alone the information could be derived. ascertaining the medical treatment now in use in all the principal receptacles for lunatics in England, in order that the same might be made public, for the benefit of all persons interested in the alleviation of insanity. Two of the three courts of law having pronounced concurrent judgments on this question, it may now be considered as settled, and the obligation on a party who has lost a bill to give the acceptor who is willing to pay the amount a satisfactory in- The commissioners were also desirous of demnity against being called upon to pay the lost bill a second time, is established beyond doubt. The question, however, remains, whether upon the tender or offer of an indemnity which a reasonable man would To obtain this information, it was necessary consider satisfactory, the acceptor can be to issue various questions to the several supercompelled by any form of proceeding to pay intendents and medical officers of all those the amount of a bill which the party demanding payment cannot produce? The importance of this question is evident, and it will be surprising if the extensive use of negotiable instruments does not soon suggest the necessity of having it answered by some of our legal tribunals. establishments, and to await their answers, some of which have been only recently, although all were eventually freely given; and these answers now form, as the commissioners are disposed to think, a valuable body of information on the subject to which they relate. Other circumstances were from time to time occurring, and facts of various kinds were made known; all which the commissioners wished to embrace in their report, either be cause they were, apart from the general subject, intrinsically important, or because they tended to illustrate or render more accurate the statements or computations which they thought it expedient to enter into. The whole informa tion thus obtained is now embodied in the On behalf of the Commissioners, REPORT to the Lord Chancellor, under the 8 & 9 Vict. c. 100, s. 88, of the number of Visits Made, the number of Patients Seen, Visits to the Old Lawyers.-Hilary Term Examination. and the number of Miles Travelled by the several Commissioners in Lunacy, during the six months ending on the 4th of August, 1847. Dr. Turner Visits Patients Miles 257 Next came, in Nov. 1797, John Singleton Copley, and devoted a year to special pleading. His splendid course as an advocate, a judge, and thrice Lord Chancellor, history wil record. In June, 1801, we select the present Lord High Chancellor, Charles Christopher Pepys. Made. Seen. Travelled. He remained for two years with Mr. Tidd. 167 8,270 3,877 THE LATE MR. TIDD'S PUPILS. WE have been favoured with the perusal of some curious statements regarding the pupils of the venerable Mr. Tidd, which show the great esteem in which he was held by the pro- | fession. The late and present Lord Chancellor, the Lord Chief Justice of. England, and a recent Lord Chancellor of Ireland, with several learned judges, will be found in the illustrious roll. In 1785, the well-known "Sam. Marryat" entered as a pupil, and continued a year. Here he laid the foundation for those "Causes which produce Effects," indulging his taste for law books, and eschewing all others. In 1786, Mr. Reader entered and continued his studies for two years, preparatory to that large practice as a junior which he afterwards attained. In 1789, we find the name of Samuel Comyn, who prolonged his stay for five years, and doubtless prepared the materials for the useful works which.he afterwards compiled. In 1792, Randall Jackson, well known for many years in East India business, studied for a year. In 1794, the name of William Elias (afterwards Mr. Justice) Taunton occurs: he remained two years. During the same year we notice the celebrated Mr. (afterwards Sir James) Mackintosh. A year was all he could spare to special pleading. In 1796, we find the name of Joseph Chitty, who studied for two years, and prepared himself to rival his master in the number of his pupils, and still more in the number of his legal works. From the memoranda of 1797 we extract the names of two learned serjeants, viz., Robert Henry Peckwell and Edward Vitruvius Lawes. The former continued three, and the latter no less than five years. Both of these dignitaries were distinguished for their solid attainments. Then came, in Easter Term, 1802, the distinguished Chief of the Queen's Bench, Thomas Denman. And in January, 1804, "plain" John Campbell, who pursued his learned course for three years. In 1805, we find the names of Henry William Tancred and John James Wilkinson, each of whom remained two years. To the latter we are indebted for many valuable works. For the Opera of the other learned gentleman Iwe refer to Sir G. Rose. In April, 1806, came Mr. (afterwards Justice) Coltman, who devoted two years to chamber practice. In 1807, we notice Mr. (now Commissioner) Shepherd. In 1809, Mr. (afterwards Commissioner) Law, who continued three years. In 1810, Oct. 27, Thomas Joshua Platt, now Mr. Baron Platt, commenced his legal studies, and remained with his venerable preceptor two years. HILARY TERM EXAMINATION. THE Examiners have appointed Monday, the 24th inst., at half-past nine in the forenoon, at the Hall of the Incorporated Law Society, in Chancery Lane, to proceed on the examination which will commence at 10 o'clock precisely. The articles of clerkship and assignments, if any, with answers to the questions as to due service, according to the regulations approved by the judges, must be left with the Secretary, on or before Tuesday the 18th instant. Where the articles have not expired, but will expire during the Term, the candidate may be examined conditionally, but the articles must be left within the first seven days of Term, and answers up to that time. A paper of questions will be delivered to each candidate, containing questions to be answered in writing, classed under the several heads of Law, and Practice of the Courts. 3. Convey2. Common and Statute -1. Preliminary. ancing. 4. Equity, and Practice of the Courts. 5. Bankruptcy, and Practice of the Courts. 6. Criminal Law, and Proceedings before Jus tices of the Peace. Each candidate is required to answer all the Preliminary Questions (No. 1.); and it is expected that he should answer in three or more of the heads of inquiry,-Common Law and Equity being two thereof. |