Parliamentary Returns.

Pleas of Lancaster, for the spring circuit of CLERK AT CHAMBERS AND CRIER ON THE 1846, the sum of 291. 7s. 5d., after deducting the income tax, paid by the Receiver-General of the county Palatine.

364

To the marshal

Parliamentary Returns. -The Case of " Buron v. Denman."

To the clerk and crier
To the second clerk

To the marshal's man, on circuit
To the bailiff, on circuit -

£3,707 1

The sums received by the several clerks and officers arose wholly from fees. They have no salary.

5 & 6.-Amount paid into the Consolidated

Fund:-Nil.

MARSHAL AND ASSOCIATE TO THE LORD

CHIEF JUSTICE.

1.-Description and amount of fees, see Table
of Fees, 1 Vict. c. 36.
2.-Aggregate amount received in respect of
such fees:-About 1,5721.

3 & 7.-By whom received, &c. :

£107 15 0 | unjust to himself. These proceedings were com 1,868 14 10 menced long before he (the Attorney-General) 1,717 4 had the honour to hold his present office; and 318 o on the 5th of June, 1844, Sir F. Kelly argued 9 9 6 a demurrer on behalf of the plaintiff. No step was then taken until November, 1846, when a 8 motion, which was made in the Court of Exchequer, was not conducted for the plaintiff by Sir F. Kelly, but by Mr. M. D. Hill. When the case was about to be tried, some short time back, he (the Attorney-General) was informed by his honourable and learned friend the counsel to the Admiralty, that Sir F. Kelly was in the case, and directions were given for a brief to be handed to him; and upon an application made to him (the Attorney-General) by the Lords of the Admiralty, he advised them not to release Sir F. Kelly from his obligation to advocate the case on behalf of the crown. The course thus adopted has led to the presentation of a petition complaining of The court fees, amounting to about 4587. as what was thus done, and to some newspaper marshal and 4801. as clerk at the sittings of articles attacking Sir F. Kelly and himself (the nisi prius, are received in London and Middle- | Attorney-General); and he had felt it his duty sex by the cryer of the court at nisi prius. to write to that gentleman a note in these The fees for the entry of causes received by terms:Lord Denman's clerk, at chambers, amounted: "From what I know of the circumstances, to 1797. 12s. The remanet fees, amounting to I believe that you are free from blame in this 205l., and the office fees of the clerk at the matter, but I shall be glad to receive any comsittings of nisi prius, amounting to 187. 16s., munication you may have to make upon this are received by the clerk at the marshal's office; subject, and have only to add, that I am wiland the several fees on the circuit, amounting ling, upon the part of the crown, to release to 2311. for the Home and Oxford circuit, are you from your engagement to the crown, received by the cryer of the Lord Chief Justice, should you think that under the circumstances on circuit. An additional fee of 1s. is paid to you ought to hold a brief for the plaintiff, or the marshal's man on circuit, for the entry of to decline to act for either party." every cause, and 3s. to the trainbearer of the Sir F. Kelly replied as follows:Lord Chief Justice in London and Middlesex for every cause tried, which nominally pass through the marshal's hands, and are, with 6s. 8d. for every cause entered, collected as if they were part of his fees.

THE CASE OF "BURON . DENMAN."

In answer to a question from Mr. Urquhart in the House of Commons on the 8th inst.,

"Temple, Jan. 21, 1848. "My dear Attorney-General,-I am favoured with your letter on the subject of the actions by Buron and others against Captain Den

man.

"The power of the crown to require the services of the Queen's counsel at all times is not disputed; and as in this country every Queen's counsel is known to be under an oath to plead for the crown at its pleasure, I conceive that he accepts every retainer from a subject under as plainly implied a reservation that he may be withdrawn by the crown as that he may be incapacitated by sickness or death. This power may, indeed, be exercised so as to do injustice to individual suitors; and the question now is, whether it has been so exercised in this particular case.

In the first place I must exonerate you from any responsibility. Mr. Hay's petition seems to imply that I had acted as counsel for the plaintiffs, except during a short interval, until the month of May last, and that you then The Attorney-General said he believed the required my services. The fact is, that I have question related to the subject of a petition not so acted in any way since the month of which had been presented to the house with June, 1845; and that in the following month reference to the employment of Sir F. Kelly of July (1845), having been appointed Solifor the defendants in the case of " Buron v.citor-General, I was almost immediately called Denman," and was glad of the opportunity of upon to advise and assist the ministers of the correcting a misapprehension somewhat to the crown upon certain measures (which became prejudice of his learned friend, and somewhat law under the act of the 8 & 9 Vict., c. 92,)

The Case of" Buron v. Denman."-Notes of the Week.

involving the consideration of the whole system of the slave-trade on the coast of Africa, of the conduct of our naval commanders there, and of our relations with the Court of Brazil. It was obvious that I could not, after communications of this nature, and upon these subjects, with the ministers of the crown, assist plaintiffs in these causes, as their leading counsel, after the defence was taken up by the government. It was probably this consideration that induced the then Attorney-General to require my services, and at least restrain me from appearing against the crown upon the trial. You, as Attorney-General, when the causes seemed about to be tried a few months ago, merely abstained from interfering with the decision of your predecessor; and, as far as regards the mere loss of my assistance, there could be no hardship or injustice, for the whole bar was open to the plaintiffs for the selection of a leading counsel to supply my place.

365

CHANCERY SITTINGS IN LINCOLN'S INN.

expressed, before a committee of the House of Commons, opinions strongly favourable to the removal of the sittings to the vicinity of Lincoln's Inn.

"But it is urged that, after having been consulted and trusted with the case by the THE Memorial of Chancery Barristers was plaintiffs, I at least ought not to appear as counsel against them. And certainly, if I personally presented by Mr. Lovat to the Lord possessed a knowledge of any facts imparted Chancellor, a few days ago. It had appended to to me by the plaintiffs, which I might in a it, the signatures of 253 gentlernen practising at moment of inadvertence disclose, or the con- the outer bar of the Court of Chancery. The sciousness of which could in any way affect Lord Chancellor, the Master of the Rolls, and my conduct in the cause, I should feel it my the Vice-Chancellor of England, have severally duty to request your authority, not indeed to act as counsel for the plaintiffs, for my communications with the crown while I was Soli citor-General render that impossible, but to retire from the case altogether. And, as you allude to imputations in the newspapers, or elsewhere, of undue motives, I must be perA memorial for a similar purpose has since mitted to observe, that if any counsel, circum- been presented to his lordship from the Incorstanced as I am, could be influenced by per- porated Law Society, and another from a nusonal considerations at all, he would do his best to obtain the license of the crown to act merous body of solicitors at Manchester, who as counsel for the plaintiffs. If actuated by are interested in the question on behalf, not the love of fame, he would seek to be the lead-only of their London agents, but of themselves ing counsel for the subject (generally the when in London, and at all times in the furpopular party) rather than the third or fourth therance of equity business. counsel for the crown. If by the love of money, his interest would equally point the same way; for as you and I well know, the fees paid by the crown are always on a far lower scale than those of individual suitors. In almost the last case in which I was opposed to the crown, my fees were more than nine RAILWAY COSTS.-TAXATION AFTER PAYtimes the amount of the then Solicitor-General's; and in these very cases they would have been four or five times the amount of even yours, as leading counsel for the crown.

A petition to the same effect, for the signature of London solicitors, will be found at the Hall of the Incorporated Law Society.

MENT OF AN AGREED SUM.

An appeal came before the Lord Chancellor, on the 8th instant, from an order of Vice

“But, whatever may be my own inclina- Chancellor Knight Bruce, relating to the taxations, or my interest, I have no grounds upon tion of the costs of Sir George Stephen, which I can claim indulgence; for, having

only held some consultations upon the plead- amounting to 28,0007. which had been paid to ings many years ago, and argued a demurrer, him as an agreed sum, upon his delivering over I think early in 1845, I have not the slightest various valuable papers and documents. The recollection of a single fact communicated to Lord Chancellor held that the payment had me on the part of the plaintiffs, upon which been made under pressure, and made the usual I can found a claim to be excused from appearing as counsel for the crown. order for taxation.

"Whether from the plaintiffs being foreign

RECENT DECISIONS IN THE SUPERIOR COURTS,
REPORTED BY BARRISTERS OF THE SEVERAL COURTS.

Rolls Court.

Child v. Clive. Dec. 15, 1847.

RECEIVER.-PARTNERSHIP.-AFFIDAVITS.
-COSTS.

The court refused to appoint a receiver of
partnership property, though after a disso-
lution, where there was no allegation of
mismanagement or waste, and the effect of
the appointment would be to hinder the
business being carried on according to the
original agreement on which the partnership
was founded.

The costs of affidavits filed by a defendant in opposition to affidavits filed by the plaintiff after answer, and therefore inadmissible, ordered to be borne by the plaintiff.

was

Mr. Turner and Mr. Pitman, for the motion, relied on the general practice of the court to appoint a receiver of partnership property, where the partnership had been dissolved and referred to, Crawshay v. Maule, 1 Swans, 495.

Mr. Kindersley and Mr. Haldane, contrà.

THIS was a motion for the appointment of a Lord Langdale said, that when a partnership manager and receiver of certain mines, alleged was dissolved it was generally for the advanto belong to Mr. Child, who had formerly been tage of all parties, that the property should be in a partnership with Mr. Clive, which sold, and each partner should receive his share; dissolved in June, 1846, and to restrain the and if either excluded the other, or took any present manager of the mines from working But here there was no bad management, no unfair advantage, the court would interfere. them. It appeared that there were three mines, sign of waste, and the effect of what was asked the first called the Clangway Mine, which was the principal one; the second called Sneads could only be to prevent the concern from Mine, and the third Newfield Mine. Clangway it should be. He thought it was not a case being carried on as the parties originally agreed Mine could be worked only by means of a drain made through Newfield and Snead's which the court should interfere. Mines, and that on the original formation of A question then arose as to the costs of certhe partnership in 1815, Mr. Child had pur-sition to affidavits filed by the plaintiff, which tain affidavits filed by the defendants, in oppochased the latter mines, it being agreed between could not be used because they had been filed after the answer.

himself and Clive that he should be entitled to a rent upon the coals raised out of the mines. The capital for working the mines had been supplied by Clive, who had the management of the works, and claimed to set-off the interest upon the capital so advanced against the rent due to Child, as well as a lien for money expended by him in making the culvert to carry off the water from the Clangway Mine. No ac

in

Lord Langdale said, the costs must be borne by the plaintiff, for he had begun to file the affidavit might be in fact useless, therefore the affidavits, and it did not follow that because an other party was bound to leave it uncontra

dicted.

Superior Courts: Rolls.-Vice-Chancellor.

Manners v. Furze. Dec. 22, 1847.

RECEIVER.-MASTER.

The court, with the consent of all parties, will appoint a receiver without a reference to the Master.

In this case, reported at p. 171, Mr. Chandless applied, on the authority of Ridout v. The Earl of Plymouth, 1 Dickens, 68, with the consent of all parties, to obtain the appointment of a receiver on his own recognizance, without a salary and without any further reference to the Master.

Lord Langdale made the order.

The court will not, as a matter of course, without evidence as to the merits, refer it to the Master to inquire which of two suits instituted on behalf of an infant, and both ready for hearing, is most for his benefit. In this case there were two causes on behalf of an infant.

Mr. Malins moved for the usual reference to inquire which was most for his benefit, but

Lord Langdale refused to make the order, upon the ground that both causes were in the paper, and that the application was not supported by any evidence as to the merits.

Vice-Chancellor of England.

Thomas v. Lewis. January 21, 1848. DEPOSITIONS OF WITNESSES. -PASSING PUBLICATION.-ORDERS OF MAY, 1845.

Replication was filed in a cause in January, 1816, and a subpœna to rejoin issued in February, 1816. Since then nothing was done until April, 1847, when the court refused to allow the plaintiff to withdraw the old replication and file a new one, after which the plaintiff examined witnesses. Held, that publication had not passed in the cause, and that the depositions were regular.

367

that they had been examined after publication had passed in the cause.

Mr. Bethell and Mr. Terrell, for the defendants, contended that the depositions ought to be suppressed on the ground of their being irregular both under the old and the new practice. Under the old practice, by the 17th Order of 3rd of April, 1828, after replication had been filed, service of a subpoena to rejoin was required as a necessary preliminary to the examination of witnesses: that had not been done, consequently the depositions taken were irregular. When the Orders of May, 1845, came into operation they did away with the necessity of a subpoena to rejoin, and by the 44th Article of the 16th Order, and by the 11th Order of May, 1845, "publication was to pass without rule or order on the expiration of two months after the filing of the replica tion;" therefore, if the case came within the new orders, as replication had been filed so long ago as 1816, publication had passed, and the depositions taken subsequently were consequently irregular. The only course left for the plaintiffs, in order to examine witnesses, was to obtain the express leave of the court, and for that purpose an application was made for leave to withdraw the old replication and file a new one, but refused by the court, and that being so, the depositions which had since been taken must necessarily be irregular.

Mr. Stuart and Mr. Renshaw, contrà. The new orders of May, 1845, do not apply: in order to bring the case within their operation there must be a replication filed under the new orders. The replication spoken of in them means exclusively that to which the 93rd Order refers. Wheatley v. Wheatley, 7 Beav. 577. It is headed "Joining issue," "No subpœna to rejoin is hereafter to be issued," &c. This does not invalidate the old mode of putting the cause at issue. The word used is hereafter. All subpoenas to rejoin antecedently are therefore left just the same as they were then. The old practice therefore applies, and if so, the old practice must be pursued throughout, under which the cause is at issue; that is admitted, for our application to file a new replication was refused on that ground. Rules have been granted under the old practice, and publication will pass on the 28th of January: the present application must therefore fail, it being founded on the ground that publication has passed. The cases of Lovell v. Blew, 13 Sim. 492, and Spencer v. Allen, 4 Hare, 455, were also cited.

In this case replication had been filed in a suit on the 23rd of January, 1816. A subpœna to rejoin issued on the 15th February, 1816. Nothing was then done by either party until April, 1847, when plaintiffs served a notice of motion that they might be at liberty The Vice-Chancellor. My view of the case to withdraw the old replication and file a new is clear. I am satisfied that that which has one. This the court refused, and the defend- been adopted ought to be the rule. After the ants immediately made a cross motion to time when the Orders of May, 1845, came into dismiss the bill for want of prosecution. This operation, the steps in a cause must be conthe court also refused, but ordered that the ducted according to the rules prescribed by cause shonld be set down for hearing on the the orders. I admit that if the effect of the 15th February, 1848. On the 18th of January, Order of 1845 had been that where a cause the plaintiffs proceeded to examine two wit- had been at issue they then were to operate as nesses in the cause, and a motion was now a publication (to use the words of the notice of made that their depositions taken before the motion); if that were the true construction, Master might be suppressed, on the ground the witnesses ought not to have been examined