Review: Atkinson on the Sheriff Law. 279 We take it to be quite clear, therefore, appoint a deputy. 3 & 4 Wm. 4, c. 99, s. that an attorney may now lawfully continue 5. The relation in which he stands to the his professional practice whilst holding the Court is thus described by the Author :office of under-sheriff. The learned Serjeant next states the law relating to the sale of the office of undersheriff, and the security to be given to the sheriff : "By the 3 Geo. 1, c. 15, s. 10, after reciting, that the office of under-sheriff, and other offices and places in the disposal of the high sheriff, had, of late years, been frequently sold, and let to farm, contrary to the several Statutes theretofore made, for restraining sheriffs from such practices, and contrary to the oath, and duty of a sheriff; for remedy thereof it was enacted that it shall not be lawful to or for any person or persons whatsoever to buy, sell, let, or take to farm the office of under-sheriff, deputy-sheriff, seal-keeper, county-clerk, shireclerk, gaoler, bailiff, or any other office or place pertaining to the office of high sheriff of any county or shire in England or Wales; or to contract for, promise, or grant for money or other reward or benefit, the said offices or places or any of them; nor to give, take, promise or receive any other consideration whatsoever for the said office, or any of them, directly or indirectly, by themselves or any person in trust for them, or for their use,' under the penalty of 500l., recoverable in qui tam action, such action, being commenced within two years after the offence committed. But this Act did not, in this respect, extend to London and Middlesex, Durham, or to the sheriffs of any city or town being a county of itself. But by the 5 & 6 Anne, c. 31. s. 8, it was declared that no sheriff of London and Middlesex shall accept, demand, take, or receive of his or their under-sheriff directly or indirectly, either by himself or any person or persons in trust for him or them, any sum or sums of money, gratuity, or present whatsoever for the execution of the place of under-sheriff. Formerly, it was doubted whether the high sheriff could take a security from his under-sheriff, to indemnify him from escapes, and the like; but, in Norton v. Simmes, it was held, that he might do so. If the high sheriff (says Dalton) will sleep quietly, and take his repose in safety, he shall do well and wisely to look for and to take good security from his under-sheriff, before he do trust him with his office. Indeed, since the 3 Geo. 1, c. 15, s. 8, which provides, in case of the death of the sheriff, that the security given by the undersheriff and his pledge shall stand as a security to all persons, it seems to be no longer optional whether a security is to be taken or not. There is the like provision in 2 & 3 Vict. c. 59, as to the under-sheriff's security to a militia officer called out into active service." 66 "The under-sheriff is not an officer of the Superior Court, except when he is acting as quasi high sheriff under the 3 Geo. 1, c. 15, s. 8, or under the Mutiny Acts. He is the deputy of the high sheriff for all ministerial, and, by Act of Parliament, for some judicial, purposes. He does all things in the name of his principal; and his principal is civilly answerable for his defaults, neglects, and the like, As a general rule, the high-sheriff only, who is the officer of the Court, is chargeable, and not the under-sheriff; but some Acts of Parliament make the under-sheriff expressly liable for his own acts. The power to make bailiffs and precepts is a necessary consequence of his deputation, although the high sheriff does not acquaint him therewith. The high-sheriff cannot appoint two deputy sheriffs extraordinary. All writs, &c., directed to the sheriff, are usually delivered, at once, to the undersheriff, to make out the proper warrants thereon, which, as we have seen, he may do by force of his deputation. He is obliged to receive them in any place, and at all times, within the county, without anything other than such fees as the law allows; and to make out warrants thereon. The delivering out warrants, before he has the writ in his custody, subjects him to a penalty of 107. Under the like penalty, every warrant must have the same day and year set down thereon, as shall be set down on the writ itself.1 By the Stat. of 42 Edw. 3, c. 9, it was enacted that no sheriff, under-sheriff, nor sheriff's clerk, abide in his office above one year; but, by 1 Vict. c. 55, s. 1, the above is repealed, as relates to the time during which under-sheriffs and sheriffs' clerks may abide in their respective offices." With the exception to which we have referred, we think the learned Serjeant has ably and accurately stated the law and practice relating to the office of sheriff, under-sheriffs, and deputies, and their various rights, liabilities, and duties. Com. Dig. Tit. Viscount. 5 Ante, p. 19. Fagg, 10 Mod. 288; Drake v. Sykes, 7 T. R. 6 Parker v. Kett, 1 Salk. 96; Kitten v. 113; Bac. Abr. Tit. Sheriff: Com. Dig. Tit. Viscount. 7 Parker v. Kett, suprà. 8 Denny v. Trepnell, 2 Wil. 378. necessity of having a deputy resident within 9 See 3 & 4 Will. 4, c. 42, s. 20, as to the one mile of the Inner Temple Hall for all such purposes. 16 Geo. 1. c. 21, ss. 53, 54, Hall v. Roche, It may be added, that in case of the death of the high sheriff, the under-sheriff be-8 T. R. 187. comes quasi high sheriff, and he may then 280 Law of Attorneys and Solicitors. LAW OF ATTORNEYS & SOLICITORS. of the 2 Geo. 2, c. 23, there was no power ΤΑΧΑΤΙΟΝ OF COSTS AGAINST REPRESENTATIVE OF DECEASED SOLICITOR OF CO-EXECUTORS. Ir appeared that Mr. Vines had acted as the solicitor of the testator, Mr. Newell, from 1811 to 1816, and also on behalf of his co-executors until the year 1831, upon being appointed to such office on Mr. Newell's death in 1816. His son, in favour of whom he relinquished business, then acted as the solicitor of the executors. Mr. Vines was chief acting executor, and died in January, 1841, and Mr. Shackell, the sole surviving executor, died in June, 1850, intestate, and his widow administered to his estate, and in October, 1851, obtained the usual order at the Rolls for delivery by Mr. Vines, jun., and by Messrs. Vines and Hobbs of fees and disbursements claimed to be due from the year 1811 to the year 1848 inclusive, and for taxation thereof. On an appeal from this order, Lord Cranworth, L. J., said, "The question is now brought before us by way of appeal, and with additional evidence beyond that which was laid before the Master of the Rolls ;. so that what we have to decide is, not what order should have been made at the Rolls, but what order we ought now to make on all the evi dence before us.. "The bills of which taxation is sought relate to several distinct periods of time: 1st, there are the bills of costs which became due from Mr. Newell to Mr. Vines, sen.; 2ndly, the bills that became due from Mr. Newell's executors to Mr. Vines, sen., from the death of Mr. Newell, in 1816, up to the year 1831, when Mr. Vines, sen., ceased to act as solicitor; 3rdly, the bills which became due from the executors to the present Mr. Vines during the life of his father; 4thly, the bills which have become due from the executors, first to Mr. Vines alone, and then to Messrs. Vines and Hobbs from the death of Mr. Vines, sen., other than the four bills already delivered. "With respect to the first two sets of bills: those which became due to Mr. Vines, sen., first from Mr. Newell himself and afterwards from his executors, it is to be observed that the jurisdiction in this case, if there is any jurisdiction, must rest wholly on the Statute of the 6 & 7 Vict. c. 73, s. 37. The relief sought is not relief asked in any cause pending in the Court, nor relief asked against any person by reason of his being an officer of the Court; the relief is asked against the executor of a deceased solicitor, and though it happens in this case that the executor is himself a solicitor, yet that is obviously an accident which cannot found any jurisdiction against him. The right of the Court to interfere, therefore, depends solely upon the statute. Now it was distinctly decided that, under the former statute to order taxation against the executor of a so- "The next class of bills consists of those * * 1Lee v. Knight, Barnes, 119; Chapple v. Chapman, ib. 122; Wallis v. Nicholson, Andrews, 276; Gregg's case, 1 Salk. 89, Sed. vide Weston v. Pool, 2 Str. 1056; Penson v. Johnson, 4 Taunt. 727, in which a taxation was directed, but a bill need not have been delivered by an executor before commencing an action: Spink v. Hare, 1 Barnard, 433; Barret v. Moss, 1 C. & P. 3. Law of Attorneys and Solicitors.-Law of Costs. reference be made within 12 calendar months after payment. Now here the application has not been made until more than 10 years after the last of such payments, and no reason is given for the delay, except such as suggests itself from the relation in which the solicitor stood to the acting executor. This is certainly not enough to justify us in acting on this petition, upon which we have no jurisdiction so far as relates to this class of bills, except that derived from the statute; for it is not suggested that, during the period now in question, Mr. Vines possessed any part of the testator's assets or became accountable to the executors. We do not forget that the expression in Clacey's affidavit is, that the bills in the lifetime of Edward Vines, the father, were all paid or allowed in account; but this does not vary the case. The bills were all properly made out and delivered. Specific receipts were given on each settlement. Under these circumstances, whether each bill was discharged by a specific payment, or by a credit given to the son by the father in any accounts subsisting between them, is not material: in either case there was payment of the definite ascertained amount of the bill. The mode of making the payment was mere matter of arrangement between the father and the son. The only remaining bills are those, first of Mr. Vines, and afterwards of Messrs. Vines and Hobbs, for the period subsequent to the death of Mr. Vines, the father. There is no statement that those bills were ever delivered LAW OF COSTS. 281 SECURITY ON PLAINTIFF GOING ABROAD. IN Blakeney v. Dufaur, 2 De G. M'N. & G. 771, which was an appeal from the decision of the Master of the Rolls, directing a plaintiff to give security for costs, upon his going to Jersey pending a suit, : Lord Cranworth, L. J., said :—" It is a proposition upon which there is no doubt, that a man cannot institute a suit, if resident abroad, without giving security for costs; and the same rule holds where a plaintiff goes abroad, with the intention of permanently residing there. Whenever security is asked for, the question arises, whether the party is resident abroad or not within the meaning of the rule, and the answer to that question depends in each case upon the interpretation to be put upon the phrase resident' or 'permanently resident' abroad. If it is supposed that any case lays down this proposition: that a person is not to give security for costs unless it is shown that he intends to end his days abroad, I should entirely dissent from such a decision. That is not the meaning of the rule. If a plaintiff goes to reside abroad, under circumstances rendering it likely that he will remain abroad for such a length of time, that there is no reasonable probability of his being forthcoming when the defendant may be entitled to call upon him to pay costs in the suit, that is sufficient. to the parties chargeable. Clacey, indeed, says, in reference to some of them, that they were duly made out according to the custom of Messrs. Vines & Hobbs' office; but there is no evidence that when so made out they were ever delivered to Mr. Shackell, the surviving executor, so that he might, if he had been "A case of this sort is not to be dealt with minded so to do, have submitted them to the by laying down a general rule; it is impossible consideration of others. Considerable sums of to define satisfactorily what extent of stay money were from time to time paid to Messrs. Vines and Hobbs, on account of their bills of costs. Clacey says, that Mr. Vines, after his father's decease, received and paid various sums on behalf of the surviving executor. The fair inference from the whole evidence seems to us to be, that after the death of the elder Mr. Vines, there never was any regular settlement of the bills of costs; though the solicitors from time to time, with the assent of Mr. Shackell, the executor, retained money in liquidation of their amount. We do not forget that Mr. Shackell is said to have sworn, as to some of the bills, that he had paid them; but considering that there is no proof of their having been delivered, we do not think that this payment is shown to have been more than a retention by the solicitors or by Mr. Vines, of money for which he was bound to account to the estate. We are therefore of opinion, that Mrs. Shackell is entitled to have an order for delivery and taxation abroad is necessary in every case, to render the rule applicable. In the report of the case before Lord Loughborough in Hoby v. Hitchcock, 5 Ves. 699, a gentleman having property in the West Indies had gone there, and the Lord Chancellor, inferring, I presume, that he had gone merely with the temporary object of seeing to his affairs, and intended shortly to return, refused to order security to be given. When I was a Judge at Common Law the Courts constantly refused to require security to be given where the absence abroad of the party appeared to be for a purpose only temporary. It is obvious that, considering the modern facilities for travelling, such orders, if made in those cases, would be a gross oppression. The party must intend to remain abroad of all bills of costs for business done subsequently to the death of Mr. Vines, the father, permanently, or for so long a time as to render on the ground that there never has been a de- it improbable that he can return within the livery or payment." In re Vines and another, time when he is likely to be called upon for ezparte Shackell, 2 De G., M'N. & G. 842. 282 Construction of Statutes.-Proposed Half-Holiday on Saturdays. costs in the suit. If, for instance, it were shown that he had gone abroad for some object which would keep him there for ten years, he would probably be held to be obnoxious to the rule." Bruce, L. J.—“ It is not suggested that this gentleman is or was in any public service, civil or military. He left London for Jersey in May last. He arrived there early in June; we are now in November, and there is no evidence that he has at any time since been in any other place. I am of opinion that, within the meaning of the rule, there has been a permanent change of residence to a place out of the jurisdiction. The appeal must be dismissed with costs." CONSTRUCTION OF STATUTES. EQUITY JURISDICTION IMPROVEMENT ACT. ORDER TO REVIVE AT INSTANCE OF CREDITOR. HELD, that an order of revivor of a creditor's suit, under the 15 & 16 Vict. c. 86, s. 52, may be made at the instance of a creditor to whom a debt is found due by the Master, and where the report has been confirmed. Lowes v. Lowes; Same v. Ives, 2 De G., M'N. & G. 784. days, the close of the day for transacting legal "That your Memorialists, from day to day, also observe a growing disposition on the part of the mercantile and trading community of London to cease from business at mid-day on cial point of view, apart from personal consideSaturdays, with a view to consult in an esperations, the health and position of clerks and assistants in their employ. The Memorialists therefore pray: "That the Council of the Law Society of the United Kingdom will take steps forthwith, by application to the Lord High Chancellor of Great Britain and the Judges of the Realm, or otherwise, as they shall deem expedient, for establishing that the hour of two o'clock on Saturdays shall be considered henceforth to be the close of that day for conducting legal business in all its branches." *Crowder & Maynard | Wm. Hy. Withall Clarke & Morice Tilleard, Sons, & Free man Maltby, Robinson, & * Mason & Withall Austen & De Gex Freeman & Bothamley COUNSEL ON HEARING WITH ASSISTANCE Tatham, Upton, Up OF COMMON LAW JUDGE. Upon the hearing of an argument with the assistance of a Common Law Judge under the 14 & 15 Vict. c. 83, s. 8, only one counsel can be heard on each side. Jones v. Beach, 2 De G., M'N. & G. 886. PROPOSED HALF-HOLIDAY ON THE Memorial of the undersigned Attorneys and Solicitors of her Majesty's Courts at Westminster, on behalf of themselves and all other Attorneys and Solicitors of the United Kingdom, presented on Thursday, the 3rd August, to the Counil of the Incorporated Law Society of the United Kingdom, states: "That for many years past the members of the Legal Profession have felt that the time hitherto recognised as the business hours of the Profession amounts almost to an exclusion of every other pursuit, whether of a literary, social, or domestic character. "That your Memorialists observe with satisfaction that a limited relaxation from business has for some time past been observed in Scotland by making two o'clock, P.M., on Satur ton, & Johnson Chatfield & Hart Prudence & Stables, Burn, & Ware Bolton, Merriman, & Saml. Fisher. Hollams & Proposed Half-Holiday on Saturdays.—Returns relating to Courts of Law. Hawkins, Bloxam, & Tippetts & Son Hawkins. H. & C. Hall *Currie, Woodgate, & Lee & Pemberton Smith Fredk. T. Spiller Grover & Coare Raven & Bradley Sturmy, Simpson, & Chilton, Bousfield 283 F. Smith, Stenning, & Johnson & W. O. & W. Hunt & Danl. S. Bockett cock Boys & Tweedie Winter, Williams, & Harrisons Co. *W. H. & C. J. Palmer sell Boyce ton John Francis Keddell & Smith Holmer & Robinson Shaw Saml. Gale Jenkinson, Sweeting, Combe & Wainwright Swift & Wagstaff tison Pickering, Smith, & & Pearse Edw. Leigh Pemberton Jas. Taylor & Mason Ridsdale & Craddock & bourne & Vickerman Newbon & Evans Tatham & Procter Woodhouse & Parkin son M'Leod & Stenning Dimmock and Burbey Scott, Tahourdin, & Mawe & Son Criminal Informations Tried. 372 371 451 1 1 |