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Analytical Digest of Cases : Law of Arbitration.-Mercantile Law. should pay a certain sum to the plaintiff, and owner of cargo.- Perils of the seas.-Therethat, upon payment of that sum, the plaintiff fore, where the master of a ship, damaged by should execute and deliver to the defendant a perils of the seas, hypothecated at a foreign general release : Held, that the award was suf-port, by one bottomry bond, for necessary ficiently final, and disposed of all the matters repairs, the ship, freight, and cargo, amongst in difference referred.
| which were the plaintiff's goods, and the ship The Court, however, refused to make an and freight having realised less than the sum order on the defendant to pay the sum borrowed, the plaintiff was obliged to contriawarded, pursuant to the 1 & 2 Vict. c. 110, bute towards the difference, and also to pay 8. 18,--the case not being one in which they his proportion of the costs of a suit instituted would have granted an attachment. Creswick in the Court of Admiralty by the obligee of the v. Harrison, 10 C. B. 441.
bond : Held, on error, in the Exchequer ChamCase cited in the judgment: Birks v. Trippet, 1 ber (affirming the judgment of the Court of Wms. Saund. 33, a.
Exchequer), that the plaintiff might maintain 9. Authority of arbitrator. — “Request.”—
an action against the owner of the ship on an
implied promise to indemnify him; and that a The declaration stated, that a certain difference had arisen and was depending between A. and
plea, stating that the bond was executed by the B. touching certain railway shares which d.,
"master without express authority from the de
A fendant, and that, when the same was executed, at the request of B., had purchased for B., and 1 for which A. had paid 1221. ; that, for putting ship and freight, and, as soon as the defendant
Da the cost of repairs exceeded the value of the an end to the said difference, A. and B. sub- had notice. he ahanda
10 had notice, he abandoned the ship and freight, mitted themselves to the award of C. to be and never did not
be and never did ratify the act of the master, was made between them of and concerning the said hed on several de
the salabad on general demurrer. difference; that B. promised to perform the award; that C. made his award of and con
Held, also, that the non-delivery of the
goods was not, under the above circuinstances, cerning the said difference, and did thereby award that he decided in favour of A., and
occasioned by “ perils of the seas," so as to be
within the exception of the bills of lading. that 501., which had been deposited by A. with
with Also, that a plea to a count on the bills
Also, that a B., was in part payment of the said 20 shares, lof ladino
res, of lading, stating the hypothecation of the and A. by his award did then request B. to pay
pay ship, freight, and cargo for repairs, that a
hin free the balance of the account forthwith; and that prudent owner would not have repaired, that
refused to pay A. the balance of the said the Master acted without authority and the account, amounting to 721., according to the
owner never ratified his act, and that the ship tenor and effect of the award.
and freight were of less value than the Held, that the arbitrator's authority to make
amount mentioned in the bottomry bond, the award sufficiently appeared, although the whereby it was out of the power of the defende nature of the difference was not specifically ant to deliver the goods, was bad after verdict. stated; and that the “request” to pay amount-' Benson v. Duncan, 3 Exch. R. 644. ed to a direction, But, semble, that the direction to pay " the
CHARTER-PARTY. balance of the account," would have been objectionable, if pointed out as cause of special! 1. Construction of.-Condition precedent to demurrer. Smith v. Hartley, 10 C. B. 800. accepting cargo.-Assumpsit on the following
10. Rule for payment of money.--Filing or charter-party :-“It is mutually agreed be depositing original award. Before a rule for tween E. O., agent for the owners of the payment of money in pursuance of an award / 'Lydia,' new ship, now on the stocks, of the can be drawn up, the award must be filed or measurement of 1,100 tons, or thereabouts, deposited in the Rule Office. In re Davis, 1 , now at Quebec, to be launched and ready to L. & M. 11.
receive cargo in all May, guaranteed to sail in 11. Practice on drawing up rule for payment all June, and F. & Co. merchants, that the of money where award in hands of third party.-- ship shall proceed to, &c., and there load a Where an award is deposited by way of se. cargo of timber,” &c. : Held, that the readiness curity in the hands of a third party, the to receive the cargo in all May was a condition officers in the Rule Office, on drawing up a precedent to the plaintiff's right to recover for rule nisi for payment of money under the not loading a full cargo; and that a plea award, will receive it as a deposit from the stating that the ship was not ready to receive å holder, to be returned to him as soon as the cargo in all May was good on general derule is disposed of. In re Davis, i L. & M. 11. murrer. Oliver v. Fielden, 4 Exch. R. 135,
Cases cited in the judgment: Glaholm v. Hays, MERCANTILE LAW.
2 M. & G. 257 ; Ollive v. Booker, 1 Exch. R. BOTTOMRY.
416. 1. Master acting as owner's agent.--A master! 2. Ballast.-A shipowner is entitled to take of a ship, who borrows money on bottomry, merchandise for freight as ballast on board.de for the repairs of the ship, acts exclusively as chartered vessel, provided the merchandise the agent of the owner, Benson v. Duncan, 3 occupies no more space than ballast woul Exch. R. 644.
have done. Towse v. Henderson, 4 Exch. R. 2. Shipowner's implied promise to indemnify 890.
The Legal Observer,
DIGEST, AND JOURNAL OF JURISPRUDENCE.
SATURDAY, JANUARY 29, 1853.
COMMENTS ON THE NEW COM. the plaintiff to deliver a declaration within MON LAW RULES.
the time limited by the rule. The practice
of obtaining rules to declare as of course is [Continued from p. 224.]
now abolished by Rule 7, which declares We resume the consideration of the ha General Rules of the Common Law Courts, “No side-bar rule for time to declare shall with the more immediate intention of di- be granted.” recting attention to such as introduce any We apprehend that it will still be compenovelty in practice. The Rules new in tent for a plaintiff who has any good reason form, but embodying what has heretofore for delaying to deliver a declaration, to obtain been considered as established in practice, la Judge's order, on summons, for time to dewill be more conveniently deferred to a clare, but such order will not be granted as future Number.
of course. APPEARANCE for co-DEFENDANTS.
PARTICULARS OF DEMAND OR SET-OFF. The mode of appearance, by or on behalf of a defendant, to a writ of summons, is re
The Rule which rendered it in some gulated by the Common Law Procedure sense obligatory upon a plaintiff to deliver Act, sect. 31, and does not differ from the
“particulars of demand " in certain actions, form prescribed by the Uniformity of 15
ofis modified and adapted to the change in Process Act (2 Wm: 4, c. 39), except that
het procedure introduced by the Act of 1852, when a defendant appears in person he
and as regards the delivery of particulars, a must now give his address. It has been
defendant pleading a set-off is now, for the heretofore usual, when an attorney appeared
first time, placed upon a similar footing to for several co-defendants to make a separate
a plaintiff declaring in assumpsit or in debt memorandum for each defendant, but it is..
Jon simple contract; for, although a plainnow directed by Rule 2, that,
tiff might obtain a Judge's order for par
ticulars of set-off, there was no rule making “If two or more defendants in the same ac. lit incumbent on the defendant to deliver tion appear by the same attorney and at the such particulars with his plea. The prac. same time, the names of all the defendants so l tine appearing shall be inserted in one appearance.”
tice is now provided for by the following
6. Rule, numbered 19 :TIME TO DECLARE.
“ With every declaration (unless the writ When the plaintiff was unprepared to has been specially indorsed under the provi. declare during the Term after the defend- sions contained in the 25th section of the ant's appearance, and was desirous to pre- Common Law Procedure Act, 1852), delivered vent judgment of non pros, it was usual to or filed, containing causes of action such as obtain successive side-bar rules to declare, those set forth in Schedule B. of that Act, and each of which extended the time for declar- numbered from 1 to 14, inclusive, or of a like ing for a month : but if the defendant was nature, the plaintiff shall deliver or file full
particulars of his demand under such claim, unwilling to let the delivery of a declara
where such particulars can be comprised within tion be postponed, he might serve the plain-three folios; and where the same cannot be tiff with what was called a “peremptory comprised within three folios, he shall deliver rule to declare,” which in general obliged or file such a statement of the nature of his
Vol. XLV. No. 1,299.
Comments on the New Common Law Rules. claim, and the amount of the sum or balance delivery of such particulars, the party in which he claims to be due, as may be com- default is to be allowed no costs in respect prised within that number of folios ; and with of the summons for such order, or the par. every plea of set-off containing claims of a ticulars delivered under it. As heretofore. similar nature as those in respect of which al. plaintiff is required to deliver or file particulars,
it is the duty of the plaintiff's attorney to the defendant shall in like manner deliver par
po annex to the record a copy of the particuticulars of his set-off. And to secure the lars of demand and set-off. delivery or filing of particulars in all such
WARRANT OF ATTORNEY AND COGNOVIT. cases, is ordered, that if any such declara. tion shall be delivered or filed, or any plea of By Statute 3 Geo. 4, c. 39, warrants of set-off delivered without such particulars or attorney and cognovits not filed within 21 such statement as aforesaid, and a Judge shall days after execution are inoperative against afterwards order a delivery of particulars, the the assignees of a trader who afterwards plaintiff or defendant, as the case may be, shall becomes bankrupt, and also by Stat. 1 & 2 not be allowed any costs in respect of any vict
Vict. c. 110, s. 60, against the assignees of summons for the purpose of obtaining such order, or of the particulars he may afterwards insolvents.
wards insolvents. If the warrant of attorcey or deliver ; and a copy of the particulars of the cognovit was not filed under the Statute, it demand, and set-off, shall be annexed by the has been the practice to file the one or the plaintiff's attorney to every record at the time other before signing judgment. The prac. it is entered with the proper officer.”
tice is now embodied in Rule 25, which To understand the application of the first
directs that: part of this Rule, excepting from its opera- “No judgment shall be signed upon any tion cases in which the writ of summons cognovit or warrant of attorney, without such has been specially indorsed, the reader is cognovit or warrant being delivered to and referred back to the section of the Proce- filed by the Master, who is hereby ordered dure Act which authorises a plaintiff into file the same in the order in which it is actions for liquidated demands, to indorse te
received." on the writ the particulars of his claim in al The Rule which follows (R. 26) provides form specified by the Act, and provides that for a modification of the existing practice such « indorsement shall be considered as with respect to entering up judgments on particulars of demand, and no further or warrants of attorney more than a year old. other particulars need be delivered, unless Leare to enter up judgment on a warrant of ordered by the Court or a Judge." In cases, attorney above one and under ten years' however, where the plaintiff has not availed old, could only be obtained by a motion in himself of the liberty given to indorse par- Term, or a Judge's order in Vacation; and, ticulars on the writ, and which fall within if ten years old or more, upon a rule to the descriptions of action contained in show cause. R. H. 2 W. 4, s. 73. The Schedule B. to the Act (numbered from 1 practice by motion and rule in such cases to 14 inclusive), the plaintiff is required to is now abolished, and it is declared that, deliver such a statement of the nature of his claim, and of the sum or balance due,
“Leave to enter up judgment on a warrant as may be comprised within three folios.:
'l of attorney above 1 and under 10 years old,
• is to be obtained by order of a Judge made The causes of action numbered 1 to 14 in
m erparte, and if 10 years old or more, upon a the Schedule of the Act 15 & 16 Vict. c.
summons to show cause." 76, as referred to in the Rule, comprehend actions for, goods sold, work and materials. When the warrant is under ten years' moneys lent, paid, and received, upon an old, therefore, a Judge will make an order, account stated for an estate sold, for the upon a proper affidavit, without summons, use of a house and land or fishery, for copy- and if the warrant was not given within ten hold fines, for the hire of goods, and for years, the order may be obtained at Chamfreight and deinurrage. In these various bers either in Term or Vacation. An old descriptions of action, unless particulars rule of the 42 Geo. 3, directed, that the have been indorsed on the writ of summons, defeasance should be written on the same they should be delivered with the declara- paper or parchment on which the warrant tion. So where the set-off includes claims of of attorney was written, and this is now a similar nature, the plea of set-off should more explicitly required by R. 27, which be accompanied by the like particulars. If provides that, plaintiff or defendant omit to deliver par- « Every attorney or other person who shan ticulars, in cases to which the rule is ap- I prepare a
ich the rule is ap- prepare any warrant of attorney to confess plicable, and a Judge afterwards orders the judgment, which is to be subject to any de
Comments on the New Common Law Rules.- Remuneration of Solicitors. 243 feasance, shall cause such defeasance to be payment into Court, and as the officers at written on the same paper or parchment on the Masters' Office could not be supposed which the warrant is written, or cause a memo-l to have any knowledge of the handwriting randum in writing to be made on such warrant, of the winnt
of the client, it was supposed that the
it w containing the substance and effect of such defeasance."
plaintiff's handwriting must be verified by
affidavit. Rule 11 of the new series seems This Rule, it will be observed, does not to place this matter in the discretion of the specify the consequence of disobedience to Master, as it declares that, the direction contained in it, nor does it indicate whether a deviation from the pre
| “No affidavit shall be necessary to verify scribed form is to be regarded as affecting the
led as affenting the plaintiff's signature to the written authority the validity of the instrument.
to his attorney to take money out of Court, un
I less specially required by the Master.” . JUDGE'S ORDER FOR JUDGMENT. | In practice, it may be supposed that the As most of our readers are aware, the affidavit will be dispensed with, unless the Bankrupt Law Consolidation Act (12 & 13 Master has some reason to suppose that the Vict. c. 106, s. 137), puts a Judge's order written authority is not genuine, or has not for judgment by consent, given by a trader been properly obtained; but why it was defendant, upon the same footing as a war- necessary to establish any new practice in rant of attorney or cognovit, by directing this matter is not very apparent. It is that the order should be void, unless filed quite clear, that a personal reference to the within 21 days. It has since been deter- client for his written authority, whenever mined that this enactment is limited in its money is paid in, will be attended with operation to assignees and creditors under a delay and inconvenience, and it is hardly to bankruptcy, and that a Judge's order not be presumed that the attorney would profiled within the provision does not thereby ceed in the action after the payment of become void against a trader who is not money into Court, until he had ascertained bankrupt.2 It had been usual, however, that his client was not satisfied with the for the plaintiff's attorney to insert in his sum paid in. bill the costs of filing the Judge's order for It seems to have been forgotten, too, that judgment, but such practice is now regu- the attorney has a lien for his costs upon lated by R. 28, which provides that, - the money paid into Court, and that neither
"The costs for filing a Judge's order for Statute nor Rules provide any protection judgment against a trader defendant under the that the money paid in may not be received Bankrupt Act, shall not be allowed unless by the plaintiff, without the knowledge or specially ordered by the Judge.”
consent of his attorney, and without any TAKING MONEY OUT OF COURT. regard to his lien. The Common Law Procedure Act (s. 72) made a considerable change in the practice
REMUNERATION OF ATTORNEYS as to payment of money into and taking it
AND SOLICITORS. out of Court. Under that section, no rule or Judge's order is necessary to authorise We mentioned, some time ago, that a the payment, but the proper officer, upon New Scale of Attorneys' Costs was under taking the money, gives, as before, a receipt the consideration of the Judges, assisted by in the margin of the plea, and the section the Masters of the several Common Law provides, that “the said sum shall be paid Courts. It will be satisfactory to the to the plaintiff, or to his attorney, upon a Practitioners to know that, under the diwritten authority from the plaintiff, on de- rections of the Judges, the Masters sent mand.” Before the passing of this Act, the proposed Scale of allowances to the the plaintiff's attorney gave a day's notice Council of the Incorporated Law Society, that he required the money, and upon pro. and that the Common Law Committee of ducing the plea with the receipt, received a that Society had several meetings and cheque from the Master for the amount. It made various suggestions, many of which is now indispensably necessary that the at- were adopted by the Masters as just and torney should, in every case, produce a proper. written authority from the client before re- On the remaining points, a deputation ceiving the sum paid in under a plea of attended three of the Judges, appointed by
their brethren from each Court. A Master, Bryan v. Child, 5 Exch. 368.
also, from each Court attended. The reFarrow v. Mazy, Q. B. May, 1852,
1 . See the Scale of Costs, pp. 251-8, post.
244 Remuneration of Solicitors.-Attorneys Certificate Duty.- New Order in Chancery. sult, we trust, will be deemed right and law, cheapen it by reducing the fees of just, as between the Suitor and the Attorney. office, not by increasing them as has been
It is a very important step in the consi- lately done. deration of the changes which have been effected and are still in progress, that the REPEAL OF THE ANNUAL CERTI. Judges afford an opportunity to the repre
FICATE DUTY, sentatives of the Attorneys and Solicitors to be heard on the effect of the proposed al- We understand that the Council of the terations in the practice and course of pro- Incorporated Law Society have presented a ceeding in the Courts.
memorial to the new Chancellor of the Ex
chequer, stating concisely and forcibly the On the subject of the costs in Equity, sro
grounds on which the Attorneys, Solicitors, which are also under consideration at the ang
the and Proctors claim relief from the unjust Incorporated Law Society, it may not be and unequal tax annually imposed on them. inappropriate to quote the language of Lord
nonace of Lord Lord Robert Grosvenor, also, has been Erskine's Order, in 1806, on the increase
solicited to arrange a meeting when the of the fees at that time :
Finance Minister may be attended on the
subject by a deputation from the Law So“ That by the great alteration of the times ciety, headed by Lord R. Grosvenor and and the heavy stamp duties and various taxes other members of Parliament favourable to and other heavy charges and expenses of late, years imposed--the present fees and rewards the
made the remission of the tax. now allowed and taken by the solicitors of this. It may happen, as heretofore, that no Court, are greatly inadequate to the duties to more than a civil promise may be given to be performed by them, and to the support and take the subject into careful consideration ; maintenance of the practisers of a liberal Pro- but, at all events, the interview will be fession. And it being for the benefit of the useful in “affecting the Government with suitors that skilful, attentive, and proper per- notice” of the intention strenuously to resons should be encouraged in the due and faithful discharge of the business and employ
new the application ; and it may, perhaps, ment of solicitors, entrusted to their care by the
be ascertained, in some degree, what is the suitors, by a reasonable recompense and re- feeling of the Treasury on the subject. It ward for their services; and a schedule of it be intended altogether to exclude the reincreased fees hereunder written, subscribed by peal of the tax from the Budget, the Prothe sworn clerks and waiting clerks (and who by fession will know what to do, and the virtue of their offices are also entitled to act as sooner they prepare for the conflict the solicitors of the Court), having been sub- better. mitted,” &c., an order was made thereon. Notice has already been given by the
The framers of scales of costs, both at noble Member for Middlesex to bring in Law and in Equity, should bear in mind the Bill on an early day after the present that a large proportion of the business recess. The proposed meeting in Downing transacted in town comes from the Country, Street may, perhaps, not take place till and is done through a London solicitor as nearly the time of re-assembling of Parliaagent, who has to defray all the payments ment, as but few members are yet in to counsel and officers of the Court, besides London. The subject, however, has already the expenses of offices and clerks, and to been urgently brought to the notice of the divide the profit (if he can find any) be- Chancellor of the Exchequer in full time to tween himself and the attorney in the take it into his consideration in reference to country. The agent runs the risk of bad the details of his Budget. debts, of protracted payments, and the honesty of clerks. Then there is the in. / NEW ORDER OF THE COURT OF terest of capital to be considered, and in the
CHANCERY. result, in many cases, the agency account shows a positive loss.
January 10, 1853. The end of all this cheapening of law will! WHEREAS the Right Honourable Sir George be, that it will not answer the purpose of James Turner, Knight, hath reeigned his office an attorney of capital and integrity to follow of Vice-Chancellor of the Court of Chancery: that portion of his Profession, and conse
And whereas the Honourable Sir William Page
Wood, Knight, bath been appointed by her quently the business niust fall into the Majesty Vice-Chancellor of the said Court of hands of a lower class of attorneys. The chancéry: And whereas it is necessary to public will then discover the value of cheap make provision for the hearing of the causes law. But if the suitor is to have cheap and matters which, at the time of such resig: