Analytical Digest of Cases: Law of Arbitration.—Mercantile Law.

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 his 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 would

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

MON LAW RULES.

[Continued from p. 224.]

WE resume the consideration of the General Rules of the Common Law Courts, with the more immediate intention of directing attention to such as introduce any novelty in practice. The Rules new in form, but embodying what has heretofore been considered as established in practice, will be more conveniently deferred to a future Number.

APPEARANCE FOR CO-DEFENDANTS.

he

the plaintiff to deliver a declaration within the time limited by the rule. The practice of obtaining rules to declare as of course is now abolished by Rule 7, which declares that

"No side-bar rule for time to declare shall be granted."

We apprehend that it will still be competent for a plaintiff who has any good reason for delaying to deliver a declaration, to obtain a Judge's order, on summons, for time to declare, but such order will not be granted as

of course.

66

PARTICULARS OF DEMAND OR SET-OFF.

The mode of appearance, by or on behalf The Rule which rendered it in some of a defendant, to a writ of summons, is regulated 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 is modified and adapted to the change in Process Act (2 Wm. 4, c. 39), except that procedure introduced by the Act of 1852, when a defendant appears in person 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 on simple contract; for, although a plaintiff might obtain a Judge's order for parnow directed by Rule 2, that, ticulars of set-off, there was no rule making it incumbent on the defendant to deliver such particulars with his plea. The practice is now provided for by the following Rule, numbered 19:

"If two or more defendants in the same action appear by the same attorney and at the same time, the names of all the defendants so appearing shall be inserted in one appearance."

TIME TO DECLARE.

"With every declaration (unless the writ When the plaintiff was unprepared to has been specially indorsed under the provideclare 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 unwilling to let the delivery of a declara- particulars of his demand under such claim, tion be postponed, he might serve the plaintiff with what was called a "peremptory rule to declare," which in general obliged VOL. XLV. No. 1,299.

where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver or file such a statement of the nature of his

242

Comments on the New Common Law Rules.

claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios; and with every plea of set-off containing claims of a similar nature as those in respect of which a plaintiff is required to deliver or file particulars, the defendant shall in like manner deliver particulars of his set-off. And to secure the delivery or filing of particulars in all such cases, is ordered, that if any such declaration shall be delivered or filed, or any plea of set-off delivered without such particulars or such statement as aforesaid, and a Judge shall afterwards order a delivery of particulars, the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars he may afterwards deliver; and a copy of the particulars of the demand, and set-off, shall be annexed by the plaintiff's attorney to every record at the time it is entered with the proper officer."

delivery of such particulars, the party in default is to be allowed no costs in respect of the summons for such order, or the particulars delivered under it. As heretofore, it is the duty of the plaintiff's attorney to annex to the record a copy of the particulars of demand and set-off.

WARRANT OF ATTORNEY AND COGNOVIT.

By Statute 3 Geo. 4, c. 39, warrants of attorney and cognovits not filed within 21 days after execution are inoperative against the assignees of a trader who afterwards becomes bankrupt, and also by Stat. 1 & 2 Vict. c. 110, s. 60, against the assignees of insolvents. If the warrant of attorney or cognovit was not filed under the Statute, it has been the practice to file the one or the other before signing judgment. The prac tice is now embodied in Rule 25, which directs that::

received."

The Rule which follows (R. 26) provides for a modification of the existing practice with respect to entering up judgments on warrants of attorney more than a year old. Leave to enter up judgment on a warrant of attorney above one and under ten years' old, could only be obtained by a motion in Term, or a Judge's order in Vacation; and, if ten years old or more, upon a rule to show cause. R. H. 2 W. 4, s. 73. The practice by motion and rule in such cases is now abolished, and it is declared that,

To understand the application of the first 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 in to file the same in the order in which it is actions for liquidated demands, to indorse on the writ the particulars of his claim in a form specified by the Act, and provides that such indorsement shall be considered as particulars of demand, and no further or other particulars need be delivered, unless ordered by the Court or a Judge." In cases, however, where the plaintiff has not availed himself of the liberty given to indorse particulars on the writ, and which fall within the descriptions of action contained in Schedule B. to the Act (numbered from 1 to 14 inclusive), the plaintiff is required to Ideliver such a statement of the nature of his claim, and of the sum or balance due, as may be comprised within three folios. The causes of action numbered 1 to 14 in the Schedule of the Act 15 & 16 Vict. c. 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 demurrage. 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,

"Leave to enter up judgment on a warrant of attorney above 1 and under 10 years old, is to be obtained by order of a Judge made exparte, and if 10 years old or more, upon a summons to show cause."

plaintiff or defendant omit to deliver par- "Every attorney or other person who shall ticulars, in cases to which 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- to have any knowledge of the handwriting randum in writing to be made on such warrant, of the client, it was supposed that the containing the substance and effect of such defeasance."

This Rule, it will be observed, does not specify the consequence of disobedience to the direction contained in it, nor does it indicate whether a deviation from the prescribed form is to be regarded as affecting the validity of the instrument.

JUDGE'S ORDER FOR JUDGMENT.

plaintiff's handwriting must be verified by affidavit. Rule 11 of the new series seems to place this matter in the discretion of the Master, as it declares that,―

“No affidavit shall be necessary to verify the plaintiff's signature to the written authority to his attorney to take money out of Court, unless specially required by the Master."

It is

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. that the order should be void, unless filed within 21 days. It has since been determined that this enactment is limited in its operation to assignees and creditors under a bankruptcy, and that a Judge's order not filed within the provision does not thereby become void against a trader who is not bankrupt.2 It had been usual, however, for the plaintiff's attorney to insert in his bill the costs of filing the Judge's order for judgment, but such practice is now regulated by R. 28, which provides that,

"The costs for filing a Judge's order for judgment against a trader defendant under the Bankrupt Act, shall not be allowed unless specially ordered by the Judge."

TAKING MONEY OUT OF COURT.

quite clear, that a personal reference to the client for his written authority, whenever money is paid in, will be attended with delay and inconvenience, and it is hardly to be presumed that the attorney would proceed in the action after the payment of money into Court, until he had ascertained that his client was not satisfied with the sum paid in.

It seems to have been forgotten, too, that the attorney has a lien for his costs upon the money paid into Court, and that neither Statute nor Rules provide any protection that the money paid in may not be received by the plaintiff, without the knowledge or consent of his attorney, and without any regard to his lien.

AND SOLICITORS.

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 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 to the plaintiff, or to his attorney, upon a written authority from the plaintiff, on demand." Before the passing of this Act, the plaintiff's attorney gave a day's notice that he required the money, and upon producing the plea with the receipt, received a cheque from the Master for the amount. It is now indispensably necessary that the attorney should, in every case, produce a written authority from the client before receiving the sum paid in under a plea of

1 Bryan v. Child, 5 Exch. 368.
ง Farrow v. Mazy, Q. B. May, 1852,

Courts. It will be satisfactory to the Practitioners to know that, under the directions of the Judges, the Masters sent the proposed Scale of allowances to the Council of the Incorporated Law Society, and that the Common Law Committee of that Society had several meetings and made various suggestions, many of which were adopted by the Masters as just and proper.

On the remaining points, a deputation attended three of the Judges, appointed by their brethren from each Court. A Master, also, from each Court attended. The re

* See the Scale of Costs, pp. 251-8, post.

244

Remuneration of Solicitors.-Attorneys Certificate Duty.-New Order in Chancery.

REPEAL OF THE ANNUAL CERTI-
FICATE DUTY.

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 Judges afford an opportunity to the representatives of the Attorneys and Solicitors to be heard on the effect of the proposed alterations in the practice and course of proceeding in the Courts.

On the subject of the costs in Equity,

which are also under consideration at the

Incorporated Law Society, it may not be inappropriate to quote the language of Lord Erskine's Order, in 1806, on the increase of the fees at that time :

"That by the great alteration of the times and the heavy stamp duties and various taxes and other heavy charges and expenses of late years imposed the present fees and rewards now allowed and taken by the solicitors of this Court, are greatly inadequate to the duties to be performed by them, and to the support and maintenance of the practisers of a liberal Profession. And it being for the benefit of the suitors that skilful, attentive, and proper persons should be encouraged in the due and faithful discharge of the business and employment of solicitors, entrusted to their care by the suitors, by a reasonable recompense and reward for their services; and a schedule of increased fees hereunder written, subscribed by the sworn clerks and waiting clerks (and who by virtue of their offices are also entitled to act as solicitors of the Court), having been submitted," &c., an order was made thereon.

WE understand that the Council of the Incorporated Law Society have presented a memorial to the new Chancellor of the Exchequer, stating concisely and forcibly the grounds on which the Attorneys, Solicitors, and Proctors claim relief from the unjust and unequal tax annually imposed on them. Lord Robert Grosvenor, also, has been solicited to arrange a meeting when the Finance Minister may be attended on the subject by a deputation from the Law Society, headed by Lord R. Grosvenor and other members of Parliament favourable to the remission of the tax.

It may happen, as heretofore, that no more than a civil promise may be given to take the subject into careful consideration; but, at all events, the interview will be useful in "affecting the Government with notice" of the intention strenuously to renew the application; and it may, perhaps, be ascertained, in some degree, what is the feeling of the Treasury on the subject. If it be intended altogether to exclude the repeal of the tax from the Budget, the Profession will know what to do, and the sooner they prepare for the conflict the better.

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 interest of capital to be considered, and in the result, in many cases, the agency account shows a positive loss.

NEW ORDER OF THE COURT OF
CHANCERY.

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 resigned his office an attorney of capital and integrity to follow of Vice-Chancellor of the Court of Chancery: And whereas the Honourable Sir William Page that portion of his Profession, and conse- Wood, Knight, hath been appointed by her quently the business must fall into the Majesty Vice-Chancellor of the said Court of hands of a lower class of attorneys. The Chancery: 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