Law of Attorneys and Solicitors.

cellor seems to have considered that the agree ment in that case could not be put higher than payment of the bill; and that if payment had been extorted by such pressure, the client who had paid the bill, under such circumstances, would have been entitled to tax it. In fact, in that case, the very existence of the company seems to have depended on obtaining possession of the documents in the custody of the solicitors, and submitting to their terms.

"But I see nothing in that case to countenance the opinion that, provided the transaction be open and fair and without pressure, a solicitor and his client may not agree that a fixed sum shall be paid to the solicitor, in liquidation of his bill of costs, even though that bill of costs has not been delivered, and even though the object of the arrangement is to enable the solicitor to escape the trouble of making out his bill.

183

to consider the matter, he believed, and stated his belief at the time, that the bill of costs could not amount to so large a sum. But admitting such to be the case, provided the disproportion was not so great as to amount to fraud, I am not prepared to say that the amount really due would not be a sufficient consideration to support an agreement for the payment of a larger sum of money, depending on a contingency over which the solicitor had no control, which possibly might never arise, or if it ever did arise, would probably be at a distant period of time. It is next to be observed, that the defendant has had the full benefit of the agreement; he obtained the papers, he prosecuted his claim, and he succeeded.

"It is true that there is frequently a great difference between directing an instrument to be delivered up and compelling the parties to make it effectual; but in the view I take of "I am also of opinion, that the circumstance this case, that difference does not exist here. that the money is to be paid at a future time, If I am right in the construction which I, sitdoes not alter the case, or make it, on that acting in Equity, put on this agreement, the plaincount alone, more invalid, than if a sum of tiff could recover upon it at law. If he cannot, money had been paid at the time. I adopt the it must be owing to the use of an accidental observation of Lord Langdale in the case of Whitcombe, 8 Beav. 144:- An agreement like this between a solicitor and client, for taking a fixed sum in satisfaction for all demands for costs, is an agreement which may be perfectly good; but this Court, for the protection of parties, looks at every transaction of this kind with great suspicion."

expression in it, which, confessedly, was not intended by either party, at the time of its execution. I think, therefore, that I must consider how this case would have stood, if an action had been brought on this agreement, and the defendant had instituted a suit to set it aside, and had applied for an injunction to restrain the prosecution of the action. If that "Looking at this transaction, therefore, with case were before me, I should have to consider, great suspicion, I proceed to consider whether whether I could restore the parties to it to the I ought to act upon and enforce it. The first position in which they were when it was entered question to be considered is, was it obtained into. This is manifestly impossible; as I have by pressure on the client? The solicitor re- already observed, the defendant has had the fused to give up the papers unless this agree- full benefit of it, and cannot restore to the ment was signed; he had a perfect right to plaintiff what he obtained from him. The keep the papers until his bill was paid; and lapse of time is another circumstance in favour on the other hand, the client, the defendant, of the plaintiff. It is true, that the evidence might at any time have taxed the plaintiff's respecting the plaintiff's books and the record bill and have obtained possession of the papers, kept of the defendant's services is so unsatisif he had been in a position to pay the amount factory, that I am induced to believe, that the found due on taxation. I am of opinion, in plaintiff would have found it extremely difficult this case, that the defendant has not made out to have made out his bill of costs in December, such a case of pressure. That he required the 1844: still this difficulty must be increased papers is certain, and that he could not prose- and made totally insuperable after the lapse cute his claim without them is probable; and of nine years, and some weight is to be given he certainly could not, without a considerable to this consideration, although not to the exoutlay, obtain new ones, if he failed in obtain- tent that would be proper in an ordinary case, ing these. But I do not find that the want of where the custody of previously existing them was urgent, or that the defendant would vouchers might reasonably have been neglected have been prejudiced by the delay in obtaining by a person who considered the matter to be them, even though that delay should have settled. amounted to several weeks or even months. The success of his claim did not depend on his obtaining immediate possession of them, as was the case in the matter of Stephens. That is a material difference, not to attend to which would be, in many cases, to defeat the value of the solicitor's lien. It is true that the defendant had no professional assistance in this matter, but I do not find that he was ignorant of what he was about. He was conversant "I am of opinion that the plaintiff is entitled with legal matters, he understood the agree to the benefit of this agreement, on the grounds ment fully; he did not apply for further time I have already stated, and which may be shortly

"In addition to these considerations, I am not satisfied that the defendant has not himself had the benefit of this claim of the plaintiff, in the sums allowed him for expenses by his coclaimants, if I may use such an expression. On this point, however, the evidence is too uncertain to enable me to come to any conclusion without further inquiry: these, however, are minor matters.

184

Law of Costs.-Notes on Recent Statutes.Copyhold Enfranchisement.

recapitulated to be these:-that it does not ap- 101, to bring on the cause at the ensuing pear to me that it was obtained by fraud or by assizes, the commission day of which was undue pressure; that the defendant has had March 18. the full benefit of it; that I cannot restore the parties to the position they were in, if I were to set it aside, or to refuse to act upon it; and that if I left the plaintiff to his remedy at law, I might possibly enable the defendant to succeed on a technical point, in the wording of the agreement, which confessedly was not intended by either party at the time of its execution, and which does not appear to me to be

On a rule having been obtained to expunge a suggestion entered under the above section that the plaintiff had failed to proceed to trial though duly required to do so, on the ground that 20 days' notice before the time for giving notice of trial should have been given. Lord Campbell, C.J., in discharging the rule said,"After service of 20 days' notice to the plain"The result is, that in my opinion, the plaintiff to bring the issue to trial at the sittings or tiff is entitled to a decree for specific performance of the agreement, and payment of the money secured by it. No costs." Stedman v. Collett, 17 Beav. 608.

its true construction.

LAW OF COSTS.

OF INDICTMENT FOR NON-REPAIR OF HIGH-
WAY ON REMOVAL BY PROSECUTOR.

THE prosecutor had removed by certiorari into the Court of Queen's Bench an indict

ment ordered by justices, under the 5 & 6 Wm. 4, c. 50, s. 95, against the inhabitants of a parish for non-repair of a highway. The case was tried on the nisi prius side at the assizes, when a verdict was given for the Crown, and Wightman, J., indorsed on the record an order that the costs of the prosecution should be paid out of the rate made and levied in the parish in pursuance of the above Statute. A side bar rule was afterwards obtained referring it to the coroner and attorney of this Court to tax the costs.

On a motion for a rule nisi to set aside the Judge's order for costs and the side bar rule, held that the prosecutor was entitled to his costs, although the proviso in the section only referred to the removal by a defendant, and that the order directing the costs to be paid out of "the rate made and levied" in the parish according to the Statute, was not for that reason bad. Regina v. Inhabitants of Eardisland, 3 Ellis & B. 960.

NOTES ON RECENT STATUTES.

COMMON LAW PROCEDURE ACT, 1852.-SUG-
GESTION ON NOT PROCEEDING TO TRIAL.

-NOTICE UNDER S. 101.

assizes next after the expiration of the notice, the plaintiff is to be in the same position as he would have been formerly had he given a peremptory undertaking to try at that sitting or assizes." Judkins v. Atherton, 3 Ellis & B. 987.

COPYHOLD ENFRANCHISEMENT.

MANOR OF KENNINGTON.

of a tract just published, containing transcripts SIR,-I have been favoured with the perusal of the various petitions to the Crown, the Legislature, and Prince Albert, the Chief Steward, praying for the enfranchisement of Copyholds within the manor. A strong and unanswerable

case appears to be made out.

The first petition to her Majesty, presented in May, 1836, shows that the copyholders offered voluntarily to relinquish their rights on Kennington Common, estimated at some fifteen-sixteenths of the entire common, on receiving the inadequate and imperfect quid pro quo of an enfranchisement of their estates. It does not appear that any answer was given to this petition, except that disclosed in an Act the entire valuable common was vested in Comof the Legislature passed in 1852, by which missioners to constitute a park, freed and discharged from all rights of common and other rights. Whereas when a similar measure lately passed in relation to Battersea, some 1,500l. tion of their rights. was given to the persons interested in satisfac

As it would be unreasonable to expect Parliament to repeal the Kennington Common Act, the copyholders have at all events a fair claim to compensation on reasonable terms. In the adjoining manor of Lambeth, belonging to the see of Canterbury, three and a half years' purchase is taken, whereas in Kenningaccording to the rack-rents, although the ton a compensation is outrageously demanded ground is let on building leases under the sanction and with the licence to demise of the

It appeared that the plaintiff had given no-lord of the manor. I would particularly draw tice of trial for two successive assizes, but had the attention of your readers to the admirable letter of "M. A.” in your Number of 29th not proceeded to trial at either, and the defendJuly last. ant accordingly, on February 21, 1854, gave Appended is a statement of the fine de him notice under the 15 & 16 Vict. c. 76, s.manded of Sir William Clayton, Bart., for the

Copyhold Enfranchisement.-Inns of Court.

renewal of his lease of the demesnes of the manor amounting to no less than 64,000l., and subjoined is a tabular statement issued in 1848, circulated by the steward of the manor under the authority of the Council, showing the fines which will be demanded on land let on building leases, utterly regardless of the contract with the lord in the licences to demise.

185

liver during the ensuing Educational Term a Course of Nine Lectures on the Doctrine of the COURT of CHANCERY respecting TRUSTS in REAL and PERSONAL PROPERTY, including the Subject of VOLUNTARY CONVEYANCES and ASSIGNMENTS-on the RIGHTS of MARRIED WOMEN exclusively recognised by the COURT, and on the JURISDICTION under the SIGN MANUAL in LUNACY.

The compiler considers the only ultimate The Reader on Equity will deliver his Public and equitable adjustment of this much vexed Lectures at Lincoln's Inn Hall on Thursday question is by the Copyhold Commissioners in each week during the Educational Term, being authorised to settle the compensation commencing at Two o'clock P.M. (The first either by payment of a sum in gross or by an Lecture to be delivered on the 18th January, annual rent-charge, redeemable according to 1855.) The Reader will receive his Private the Act on certain fixed terms. This he states Classes on Monday, Wednesday, and Friday to be the natural solution of the difficulty, and evenings, from Seven to Nine o'clock, in the the only one under which the tenants can look Benchers' Reading Room at Lincoln's Inn for reasonable protection and redress. It is Hall. stated that the Commissioners have already intimated their willingness to undertake it.

INNS OF COURT.

OMICRON.

PROSPECTUS OF THE LECTURES

To be delivered during the ensuing Educational Term, by the several Readers appointed by the Inns of Court.

Constitutional Law and Legal History. The Public Lectures to be delivered by the READER on CONSTITUTIONAL LAW and LEGAL HISTORY will comprise the following subjects:

Law of Real Property, &c.

The READER on the LAW OF REAL PROPERTY, &c., proposes to deliver, in the ensuing Educational Term, a course of Nine Public Lectures on the following subjects :

I. THE ACCUMULATION ACт. (39 and 40 Geo. III. c. 98). Construction of the second section with reference to portions.-Accumulation independent of the Statute.

II. TITLE BY PRESCRIPTION-At Common Law-By Statute 2 & 3 Will. IV. c. 71; Will. IV. c. 10; Tithes, Moduses, and ExRights of Common, Way, and Light; 2 & 3 emptions.

III..-TITLE BY NON-CLAIM-3 & 4 Will. Advowsons-sec. 3; Estates in Possession c. 27-sec. 29; Church Property—sec. 30, 31; 5; Estates in Reversion-sec. 16; Savings sec. 28; Mortgagor and Mortgagee-sec. 3, from Disabilities-sec. 25, 27; Trusts and Equitable Interests-sec. 40; Money Charged Will. IV. c. 42, sec. 3. upon Land; Legacies; Judgments-3 & 4

Causes of the Revolution of 1688-State of Parties at that Period-Review of the Constitutional Law; Declaration of Rights; Bill of Rights-State of the English Church; Jacobite Intrigues; Proceedings against Sir John Fenwich; Law of Treason. Triennial Act. Peace of Ryswick; Conduct of Parliament; Dismissal of Foreign Troops; Impeachment of Lord Somers; Corruption of Public Men; Veto of the Crown; Toleration Act; Liberty c. 106. of the Press; Improvements in the Constitution.

If these subjects do not fill up the Term, the Reader will proceed to the Reign of Queen Elizabeth.

IV.-TITLE BY DESCENT at Common Law; alterations introduced by 3 & 4 Will. IV.

V. ASSIGNMENT OF SATISFIED TERMS -8 & 9 Vict. c. 112.

The Lectures to be delivered to the Private Classes will comprise the following subjects:For the Senior Class, the text of Sugden on The Works to which the Reader refers will Powers (chap. iii. sect. 1, chap. 18), will form be:-Rapin (continued), Millar's Constitu- the basis of the Lectures; and the latest decitional History, Somerville's History, Somers sions illustrating the principles there laid down Tracts, Dalrymple's Memoirs, Hardwicke will be examined and commented on. In the Papers, Statute Book, State Ttrials, Parlia- Junior Class, the subject of the Lectures will mentary History, and Foster's Crown Law. be " Remainders," and the Text Book, 2 The Reader on Constitutional Law and Cruise, Dig. tit. XVI. Legal History will deliver his Public Lectures The Public Lectures will be delivered at at Lincoln's Inn Hall, on Wednesday in each Gray's Inn Hall, on Friday in each week, at week (the first Lecture to be delivered on the Two P.M. (The first Lecture to be delivered 17th of January, 1855). commencing at Two on the 19th of January, 1855.) The Private P.M. The Reader will receive his Private Classes will be held in the North Library of Classes on Tuesday, Thursday, and Saturday Gray's Inn, on Monday, Wednesday, and mornings, at half-past Nine o'clock, in the Friday Mornings, from a quarter to Twelve to Benchers' Reading Room, at Lincoln's Inn a quarter to Two o'clock. Hall.

Equity.

The READER on EQUITY proposes to de

Jurisprudence and the Civil Law.
The READER on JURISPRUDENCE and the

186

Inns of Court.-Notes of the Week

CIVIL LAW will, in the course of the ensuing and Oral-Analysis of a Simple Contract-the Educational Term, deliver Nine Public Lectures on the following subjects:

I.-ON SOVEREIGNTY. The nature, limits, and criteria, of Territorial Sovereignty-The history of the Conception, and its importance in Theories of Jurisprudence-On some complex forms of Sovereignty, with reference, more particularly, to the United States of America and to the Germanic Confederation.

II.-On the LAW OF PERSONS. On some peculiarities in the Condition of early Societies, and the durable effects which they have produced on Ancient and Modern Jurisprudence -The Power of the Father, and the Tutelage of Women and Pupils-On the Original Character and Objects of these Institutions, and the Agencies by which they were progressively modified-On Legal Fictions and their place in Jurisprudence-On the Prætorian Equity, and the principles descended from it to Mo

dern Law.

Request-the Consideration-the Promise. Lecture VII.- Of Contracts void on the ground of illegality, and of fraud.

Lectures VIII. and IX.-The capacity of Contract-how affected by Infancy, Coverture, Mental Imbecility, or otherwise.

With his Private Class the Reader on Com mon Law proposes to discuss the Law of Contracts according to the plan above indicated, The Books to be principally made use of during this Course will be Smith's "Lectures on Contracts," Chitty "on Contracts,” Woodfall's "Landlord and Tenant."

The Lectures on Common Law during the ensuing Educational Term will be delivered, and the Private Classes will meet, in the Hall of the Inner Temple as under:

The Public Lecture on Monday in each week, at Two P.M. (The first Lecture to be delivered on the 15th January, 1855.)

The Private Class on Tuesday, Thursday, and Saturday mornings, from a quarter to Twelve to a quarter to Two o'clock. By Order of the Council, EDWARD RYAN, (Signed) Chairman, pro, tem. Council Chamber, Lincoln's Inn, 22nd December, 1854.

Note.-The Educational Term commences

on the 11th January, and ends on the 30th March, 1858.

The several Readers will receive their respec

With his Private Class the Reader proposes to discuss the Roman Law of Contracts, Testaments, and Legacies, employing as his Textbook the Institutiones Juris Romani Privati of Warnkönig. It is desirable that Students should provide themselves with the text of tive Classes on the appointed days, commencJustinian's Institutes, and of the Commentaries ing Monday, the 15th January. of Gaius; and also, if possible, with the Explication Historique des Instituts of Ortolan, or with the English Edition of the Institutes by Sandars. Copies of the entire Corpus Juris will be found in the Lecture Room.

The Public Lectures will be delivered in the

Hall of the Middle Temple on Tuesday in each week, at Two P.M. (The first Lecture of

the course on Tuesday, Jan. 16th, 1855.)

The Private Classes will assemble at the Class-room in Garden Court on Tuesday, Thursday, and Saturday evenings, from 7 to 9

o'clock.

NOTES OF THE WEEK.

COMMENCEMENT OF REAL ESTATE
CHARGES' ACT.

In our last Number we pointed out the state of the law on this subject up to the 31st Dec., 1854, and the change effected under the 17 & 18 Vict. c. 113, on the 1st instant; but in one part of the Article (p. 153, col. 2, line 20) the date is given as 31st Dec., 1855, instead of 1854. The mistake was obvious, and we scarcely need repeat that in preparing new The READER on COMMON LAW proposes wills, or adding codicils to those already exeto deliver, during the Educational Term com- cuted, the Solicitors will bear in mind this almencing the 11th January, 1855, a Course of teration in the law, and provide expressly for Nine Public Lectures on the LAW of CON- the payment of mortgage-money out of the TRACTS, the subjects to be treated in which will be as under :

Common Law.

personal estate, where it is not intended to be

Lecture I.-Remarks as to Contracts gene-chargeable on the property mortgaged. rally-their obligatory force, and classification. Lectures II. and III.-Contracts of Record and by Specialty examined-Inquiry as to the

LAW APPOINTMENTS.

William Digby Seymour, Esq., M. P. for Newcastle-upon-Tyne.

operation of the doctrine of Merger, and of Sunderland, has been appointed Recorder of Estoppel.

Lectures IV. and V.-Of Contracts between Landlord and Tenant.

Mr. Frederick Baker, of Derby, has been appointed Clerk to the Burial Board for the Lecture VI.-Of Simple Contracts, Written parishes of All Saints, St. Alkmund, St. Mi

Notes of Week.-Superior Courts: Lords Justices.-V. C. Kindersley.-V. C. Stuart. 187

chael, St. Peter, St. Werbugh, Hitchwich, and Little Chester, in the county of Derby.

Mr. William Rogers has been appointed Clerk to the County Court of Calne, in the room of Mr. Samuel Hawkes Gabriel, resigned.

The Queen has been pleased to appoint Nathaniel Forte, Esq., Barrister-at-Law, to be a member of the Council of the Island of Barbadoes.

Her Majesty has also been pleased to appoint John Henry Finniss, Esq., to be Receiver of

Registration Dues and Conservator of Mortgages for the Island of Mauritius.-From the London Gazette of 26th Dec.

NEW QUEEN'S COUNSEL.

Henry Ridgard Bagshawe, Esq., M.A., of the Chancery Bar has been promoted to the rank of Queen's Counsel. Mr. Bagshawe was called to the Bar by the Honourable Society of the Middle Temple, on the 25th Nov., 1825.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lords Justices.

Haggitt v. Stiff. Dec. 21, 1854.

AFFIDAVIT SWORN IN FOREIGN COUNTRY.
NOTARIAL CERTIFICATE.

VICE-CONSUL.

CONSUL OR

On appeal from Vice-Chancellor Kindersley, order on the clerk of records and writs, to file an affidavit which had been sworn before a notary-public in the town of Geneva, Ontario County, New York, in the United States, to which there was appended a certificate of her Majesty's consul at New York, verifying the official character of the notary.

THIS was an application by way of appeal from Vice-Chancellor Kindersley, refusing to make an order on the clerk of records and

Vice-Chancellor Kindersley.

In re Bailey's Settlement. Dec. 14, 1854. MOTION TO EXPUNGE SCANDAL FROM AF

FIDAVITS AFTER ORDER ON PETITION.

An order having been made by consent for the appointment of new trustees on petition under the 13 & 14 Vict. c. 60, held that a motion would not be granted to expunge certain parts of the affidavits which had been filed as being scandalous and irrelevant.

tees' Act, 1850 (13 & 14 Vict. c. 60), for the It appeared on this petition under the Trus

Teed now moved to expunge certain parts of the affidavits which had been filed as being scandalous and irrelevant.

writs to file an affidavit, which had been sworn before a notary-public at Geneva, Ontario County, State of New York, United States (re-appointment of new trustees, that an order had ported ante, p. 150). It appeared that there been accordingly made with consent. was appended a certificate signed by her Majesty's consul at New York, that the signature of the notary in question was entitled to credit in all judicial proceedings in the United States, and the United States' consul in this country The Vice-Chancellor said, that although had informed the solicitor in the cause that some portions were scandalous, yet after what notaries-public were authorised by law to ad- had taken place they could not be expunged, minister oaths in law proceedings in the United but the motion would be refused without costs.

States. The Vice-Chancellor held, that the affidavit must be sworn before a consul or viceconsul, under the 15 & 16 Vict. c. 86, s. 22.1

1 Which enacts, that "all pleas, answers, disclaimers, examinations, affidavits, declarations, affirmations, and attestations of honour in causes or matters, depending in the High Court of Chancery, and also acknowledgments required for the purpose of enrolling any deed in the said Court, shall and may be sworn and taken in Scotland or Ireland, or the Channel Islands, or in any colony, island, plantation, or place under the dominion of her Majesty in foreign parts, before any Judge, Court, notarypublic, or person lawfully authorised to administer oaths in such county, colony, island, plantation, or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions; and the Judges and other officers of the said Court of Chancery shall take judicial notice of the seal or signature, as the case may be, of

Selwyn, contrà.

Vice-Chancellor Stuart.

Alexander v. Hammond. Dec. 21, 1854. AGREEMENT FOR ALLOWANCE OF MOIETY OF MONEYS CLAIMED BY NEXT OF KIN TO PLAINTIFFS.-CHAMPERTY.

The defendant agreed to give the plaintiffs one-half of a sum of money to be recovered at Calcutta in consideration of their bearing all the costs of prosecuting his claim as next of kin of an intestate. The defendant's claim was established, but he repudiated the agreement: Held, allowing a demurrer for want of equity to a bill filed to

any such Court, Judge, notary-public, person, consul, or vice-consul attached, appended, or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or other documents to be used in the said Court."