218 Review: Humphreys' Manual of Civil Law.-New Orders in Lunacy. luded to as a generally recognised fact by the and income of every lunatic, and with the Roman writers; and that, although the state- scheme approved and the allowance made ments of Livy and Dionysius relating to cer- for his maintenance. tain occurrences have been impugned, those II. That the medical visitors of lunatics statements refer to the very early periods of do on each occasion of visiting any lunatic, Roman history, which, like the earliest periods of all other histories, are confessedly legend- inquire and examine whether such lunatic ary and fabulous. It may be said, therefore, is maintained in a suitable and proper manthat, both sides of the question being imparti- ner, having regard to the then existing ally considered, the fact of the commission amount of the allowance ordered to be paid, may be regarded as established upon very sufficient evidence. Again, even granting that the Twelve Tables perished in the general ruin of the city, it would be absurd to suppose that, of the numbers of intelligent men who have made those laws their study, there were not several who could transcribe them correctly. penalties for various offences; the rates of money, with some sumptuary and other enactments; and all these ordinances were regarded as the basis of Roman jurisprudence until the compilation of the Theodosian Code.” and the then existing scheme approved of for the maintenance of such lunatic; and also, whether having regard to the then fortune and income of such lunatic, it appears expedient that any and what addition should be made to his comforts, or any and what alterations should be made in the scheme for or manner of his maintenance. "The matters of which the laws of the Twelve Tables treated were: the rights, privileges, and exemptions of Roman citizens; the III. That if the said visitors shall on power of creditors over debtors; trials involv- such inquiry and examination consider that ing rank, liberty, and life; the regulations of the lunatic is not maintained in such suitinheritances, guardianships, and ownership; able and proper manner as is aforesaid; or that the allowance provided for his maintenance is not duly applied; or that any provision in the scheme for his maintenance, either for his personal comfort or enjoyment or otherwise, is not duly observed; or that any addition to the comforts, or any alteration in the manner of the maintenance of the lunatic should be made, which his then fortune or income is capable of providing, they shall forthwith make a special report, stating such their opinion, and the grounds thereof to the board of visitors. NEW ORDERS IN LUNACY. MAINTENANCE OF LUNATICS. 12th January, 1855. I, ROBERT MONSEY, Baron Cranworth, Lord High Chancellor of Great Britain, intrusted, by virtue of her Majesty the Queen's Sign Manual, with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, do with the advice and assistance of the Right Honourable Sir James Lewis Knight Bruce, and the Right Honourable Sir George James Turner, the Lords Justices of the Court of Appeal in Chancery, also being intrusted as aforesaid, and by virtue and in exercise of the powers or authorities in this behalf vested in me by the Lunacy Regulation Act, 1853, and of every other power or authority in anywise enabling me in this behalf, order as follows:: I. That the Masters in Lunacy do from time to time furnish the visitors of lunatics, with abstracts of their reports as to the fortune, income, and maintenance of each lunatic, and of the orders confirming such reports, and inform the said visitors of any increase which may have accrued in the fortune of, and of any change which may have been made in the allowance or scheme for the maintenance of any lunatic, so that at all times the said visitors may be fully acquainted with the amount of the fortune IV. That the board of visitors shall proceed to consider such report of the medical visitors at their next meeting, and shall if they think fit refer the same to the Masters in Lunacy, to take such other steps thereon as may appear to them to be expedient. V. That the Masters in Lunacy shall on any such report as aforesaid being referred to them by the board of visitors proceed to investigate the matters thereby reported upon, and may if they deem it expedient, summon the committee of the person or estate to attend before them to give expla nations thereon; and the said Masters shall then make such report, if any, on the said matters to the Lord Chancellor as the said Masters may deem proper. VI. That the medical visitors do in the annual report made by them to the Lord Chancellor in the case of each lunatic, pursuant to the Lunacy Regulation Act, state the result of the examination and inquiry as to the maintenance of each lunatic to be made by them pursuant to the foregoing order, and do also in any case in which Order Appointing Examiners.-Common Law Courts.-Incorporated Law Society. 219 they shall have made any special report to aminers shall conduct the examination of J. L. KNIGHT BRUCE, L.J. manner and to no further extent. [We are glad to publish these just, humane, and excellent provisions for the comfort of the unfortunate persons to whom they relate, and shall have some remarks to make on them in our next Number.-ED. L. O.] ORDER OF THE MASTER OF THE 10th January, 1855. WHEREAS by an Order made by the Right Honourable the Master of the Rolls, on the 13th day of January, 1844, it was amongst other things ordered, that every person who has not previously been admitted an attorney of the Courts of Queen's Bench, Common Pleas, and Exchequer, or one of them, should, before he be admitted to take the oath required by the Statute 6 & 7 Vict. c. 73, to be taken by persons applying to act as solicitors of the High Court of Chancery, undergo an examination touching the fitness and capacity to act as a solicitor of the said Court of Chancery; and that 12 solicitors of the same Court, to be appointed by the Master of the Rolls in be Examiners for the year, of purpose examining and inquiring touching the fitness and capacity of any such applicant for admission as a solicitor; and that any five of the said Examiners shall be competent to conduct the examination of such applicant: each (Signed) JOHN ROMILLY, M. R. COMMON LAW COURTS. APPOINTMENT OF EXAMINERS. Hilary Term, 1855. IT is ordered that the several Masters for the time being of the Courts of Queen's Bench, Common Pleas, and Exchequer respectively, together with Benjamin Austen, Edward Savage Bailey, Alfred Bell, William Loxham Farrer, Bartle John Laurie Frere, John Swarbreck Gregory, George Herbert Kinderley, Germain Lavie, Joseph Maynard, Edward Rowland Pickering, Charles Ranken, William Stephens, Edward White, Edward Archer Wilde, William Williams, and John Young, Gentlemen, Attorneys-atLaw, be, and the same are hereby appointed, Examiners for the present year to examine all such persons as shall desire to be admitted attorneys of all or either of the said Courts, and that any five of the said Examiners (one of them being one of the said Masters) shall be competent to conduct the said examination, in pursuance of, and subject to, the provisions of the Rule of all the Courts made in this behalf in Hilary Term, 1853. INCORPORATED LAW SOCIETY. NOTICE TO CANDIDATES FOR EXAMINATION. THE Candidates will be admitted into the Hall until 10 A.M. on the day appointed for the Examination. Information as to the result of the examination will be given in the clerks' office, to which there is a separate entrance from Chancery Lane, at and after four o'clock on the day after the Examination, and no inquiries can be an Now, in furtherance of the said Order, the Right Honourable the Master of the Rolls is hereby pleased to order and appoint that Benjamin Austen, Alfred Bell, William Loxham Farrer, Bartle John Laurie Frere, John Swarbreck Gregory, George Herbert Kinderley, Germain Lavie, Joseph Maynard, Edward Rowland Pickering, Charles Ranken, William Stephens, and John Young, solicitors, be Examiners until the 31st December, 1855, to examine every person (not having been previously admitted an attorney of the Courts of Queen's Bench, Common Pleas, and Exchequer, or one of The Library will be reserved for the sole use them), who shall apply to be admitted a of Members of the Society on the day of Exasolicitor of the said Court of Chancery mination, and will not be open to Subscribers touching his fitness and capacity to act as a on that day. solicitor of the said Court. And the Master The Candidates cannot remain in the vestiof the Rolls doth direct that the said Ex-bule or passages of the Hall after they have swered till then. 220 Incorporated Law Society.-Law of Attorneys and Solicitors. left the Hall on delivering in their papers; and strict orders have been given to exclude all strangers. NOTICE TO MEMBERS. The Hall, being occupied for the purposes of the Examination, will be closed to the Members on the day of Examination until six o'clock, when it will be re-opened. The newspapers, Parliamentary papers, and notices will be placed in the Library, which will be open for the use of the Members until six o'clock P.M. Pendleton, for the sum of 3001. The in terest was irregularly paid, and the property was not more than a security for the principal amount charged. In the month of October, 1852, the mortgagor employed Messrs. Stockley and Thompson, as his solicitors, to pay off the mortgage. They applied to the mortgagee and his solicitor, Mr. Barrow, who expressed Mr. Pendleton's willingness to be paid off. The account was rendered, and the bill of costs of Mr. Barrow, the mortgagee's solicitor, was delivered at the same time, and which amounted to the sum of 231. 78. 7d. The mortgagor's solicitor took exceptions to this bill, and referred it to taxation, the result of which was, that more than one-sixth of it was taxed off. When the amount due on the bill had been ascertained by taxation, and in November, 1852, the solicitor of the mortgagor wrote to Mr. Barrow, and proposed then to pay the amount due for principal and interest and the costs so taxed. On the 18th of November, Mr. Barrow wrote a letter, as follows:-"Re Abram. I shall be ready at any time to receive the costs herein, when you may please to pay them. As to anything further in respect of this person, I am sorry that owing to his own improper course of conduct, I do not feel at liberty to say any thing on behalf of the mortgagee to you." The mortgagee, in the same month, refused to receive his principal and interest, which were offered to him, and the result was, that notice of an assignment of the equity of redemption to the petitioner and of an intenOn the occasion referred to, there must tion to pay off the mortgage, was served have been many persons who had no right to on the petitioner on the 28th December, enter or remain in the outer hall and passages; 1852, which notice expired on the 28th and the throng at the entrance was calculated June, 1853. On then applying to pay off to excite the curiosity of the idle, and perhaps the mortgage, a fresh bill for 201. was deto induce less harmless persons to join it. It livered by Mr. Barrow, the mortgagee's is useless for the Candidates to remain after solicitor, which was proposed to be paid they have delivered in their papers, because the Examiners cannot finish their labours till the next day; and four o'clock has been fixed Some inconvenience occurred at the Examination in last Michaelmas Term, in conse quence of a crowd of persons coming into the outer ball of the Society during the Examination, and also on the following day. The Candidates are admitted between half-past nine and ten o'clock, when the Hall door is closed. The answers to the questions are not received till one o'clock, but may be brought up from that time till four o'clock. There is other business of the Society to be transacted during the day, and the Members of the Society are constantly resorting to the Library, especially as they are excluded from the Hall during the Examination. It is, therefore, inconvenient that a crowd of persons should assemble and remain in the outer hall, through which the Members have to pass to the Library. The above regulations have, therefore, been made. to enable the Candidates to communicate with their friends in the country by the post of that evening. LAW OF ATTORNEYS AND TAXATION OF BILL OF COSTS AFTER PAY MENT.-FRAUDULENT ITEMS. It appeared that in the Month of December, 1846, Henry Abram, a pavior at Liverpool, mortgaged two houses to John under protest. Mr. Barrow refused so to receive it, and offered to take the principal and interest due on the mortgage, and to retain the deeds until the amount on the bill could be ascertained and settled. This was refused, and ultimately the bill was paid on June 30, 1853, the protest having been withdrawn, and immediately after, Mr. Barrow was informed that it would be taxed, and the petition for that purpose was presented within a few weeks. The Master of the Rolls said : "This is an application to tax a solicitor's bill, amounting to the sum of 201. after payment. It requires a very special case to induce the Court to make such an order. The * Law of Attorneys and Solicitors. * * 221 been paid his full interest due up to the last day of payment; there was no arrear, and nothing was due to him in respect of interest. At that time, also, it is but reasonable to suppose, he intended to refuse, as he did a few weeks afterwards actually refuse, to receive the principal and interest due to him; he had thought proper to give notice to the tenants to pay their rents to him, and he had, against the wish and in spite of the opposition of the mortgagor, received 10s. 5d. from one of the tenants, on the 18th of October, and 107. 10s. on the 19th or 20th of that month, although, as I repeat, nothing was due for interest at that time; all this being after the letter of the 13th of October, informing Mr. Barrow that his bill would be taxed. Mr. Abram, the mortgagor, resists this proceeding with the tenants, and distrains on the tenants. cases are very numerous on the subject, and it authority and proceedings. The rights so inmay be said, that they lay down as the rule, terfered with were these:-Mr. Pendleton had that there must be pressure on the person paying, and overcharges in the bill, or else that there should be items in the bill itself, of such a nature as to amount to what is somewhat vaguely called fraud. There was, in my opinion, sufficient time to ascertain and consider the objections to the bill before it was paid. In fact, the bill is not only a short one, but it is evident that the whole of the objections to the bill were well understood before the bill was paid. Nor does there, in my opinion, exist, in this case, what can properly be called pressure. In coming, therefore, to the conclusion which I have arrived at, that it is my duty to make an order for taxation, I have done so mainly upon consideration of the items contained in this bill, connected, as they are, with the other circumstances of the case. I think it desirable to state this distinctly, in order that if, as is probable, this case should go further, the grounds on which I proceed may be clearly understood, and that I may not be supposed to be infringing on the rule I have hitherto followed, with relation to taxation after payment. The items which have principally influenced me are items to this effect : "To taking instructions, &c., to file a bill of foreclosure.' [His Honour stated the items, which amounted to 10l. 14s. 8d.] by Abram, on the 30th of October, I at once submitted instructions to counsel to prepare a bill or other proceedings in Chancery, as circumstances might justify, in order to enforce and protect the rights of the mortgagee.' "This is the account given of this transaction by Mr. Barrow :- On the 18th of October Í had, against the opposition of Henry Abram, received from the tenant 10s. 5d. for rent, being the first sum of any kind I received on account of the said interest; and on the 30th of the same month, Abram distrained on the said tenant for the said rent so paid by him, and notwithstanding the threats and remonstrances of the tenant, he enforced payment of the said rent, as he also, in like "In order to form a just opinion respecting manner, did on two subsequent occasions, the costs so incurred, it is necessary to recur namely, in the months of November and to the situation of the parties, during the time December following, though the mortgagee when this bill of foreclosure must have been was still in the receipt of the rents.' He conprepared. In October, 1852, the mortgagee, tinues,-"In consequence of the said distress Mr. Pendleton, under the advice of Mr. Barrow, was willing to receive his principal, interest, and costs; the payment is delayed by the taxation of Mr. Barrow's first bill; at this time there was no arrear of interest due to the mortgagee; on the contrary, the mortgagee had distrained and received a sum in advance, beyond the interest due. The evidence convinces me that he and his solicitor not only had reason to believe, but that they did believe, that the money was ready to pay him off. The date of the preparation of the bill of foreclosure is not given in the bill of costs more precisely than Michaelmas, 1852,' but the items occur in the bill between the 2nd and the 18th of November, 1852; and the affidavit of Mr Barrow says, that instructions were given at once, in consequence of Mr. Abram's conduct in distraining on the 30th of October. It was therefore pending these transactions, certainly after the order to tax the first bill was obtained, and probably during its taxation, that instructions are given to prepare a bill of foreclosure, which was never filed, and which I cannot ascertain that it was intended to file, and an expense of half the bill, between 10%. and 117. is incurred in so doing. "The reasons given in the affidavits for this proceeding are wholly unsatisfactory. They are, that the mortgagor was interfering with the rights of the mortgagee, and opposing his "It is not alleged that these costs were incurred because the mortgagee thought that his mortgage-money was in peril, nor if so alleged could it be true, consistently with the facts admitted, to which I have already adverted. On the contrary, Mr. Pendleton, in his second affidavit, says, That on the second proposal to pay off the mortgage without notice being made to me, I did not, for various reasons, feel disposed to receive the same, mainly in consequence of the said Henry Abram's misconduct in resisting my powers as mortgagee, as already stated, and for other reasons connected with the said Henry Abram; and accordingly my solicitor wrote to Messrs. Stockley and Thompson, in answer to their letter, that owing to the misconduct of Henry Abram, my solicitor was not at liberty to say anything on my behalf relating to Abram.' "These are certainly not sufficient reasons to justify the taking of such a step as the preparation of the bill of foreclosure, and I am compelled reluctantly to come to the conclusion, that an ingredient in the incurring of these costs was a desire to prove to the mortgagor what a foolish and inexpedient proceed 222 Law of Attorneys and Solicitors. ing it was, to take so hostile a step as to tax the bill of costs of the mortgagee's solicitor. It is true, that the bill of costs and the items themselves are inconsiderable in amount, but it is of the greatest importance, that this Court should protect a client from costs wantonly and wholly unnecessarily incurred. "I have already stated, that in my opinion, the expression used in these cases of items being fraudulent' is vague; and it is undoubtedly difficult to define accurately the costs which should come within the description of those which should be sufficient to induce this Court to tax a bill after payment. "In the ordinary sense of the words, these items may not be fraudulent, but I understand the expressions and judgments of Lord Langdale in the reported cases to mean this:-that if business be transacted bona fide, with a view to benefit his client, the items detailing it cannot be considered fraudulent, even though they be overcharged in the bill of costs, but that if it appear that the bill of costs, or a large portion of it, is for business which, in the exercise of an honest and fair discretion, ought never to be transacted at all, then, that such items come within the class of items which will induce this Court to tax a bill, even though there was no serious amount of pressure at the time when the bill was paid. can be more vague or unsatisfactory than the affidavits on the subject of the instructions said to have been given to Mr. Barrow to take these proceedings. The time specified is immediately after the 30th of October, 1852. Mr. Barrow says, that he did it at once,' in consequence of Abram having distrained. No interview with Mr. Pendleton is mentioned previously, nor does the expression in Mr. Barrow's affidavit allege or imply, that he took such instruction from Mr. Pendleton. The bill of costs does not contain one entry of attendance upon the mortgagee for this purpose, and the words of Mr. Pendleton's affidavit are not that he directed such proceedings to be taken, but that they were taken with his 'knowledge and authority.' The words are these :— Abram was again behind with his interest in June, 1852, and as I did not feel satisfied to allow the interest to accumulate, my solicitor, by my wish, took steps to obtain the same, at first, principally by writing to and calling upon the said Henry Abram, but without success; afterwards, by serving the tenant, Mr. Bentham, with notice to pay his rent to an agent on my behalf, and as the interest was still not paid, and no rent forthcoming from the tenant, by finally distraining on Abram, in respect of the house occupied by him; and again, on the next half-year's interest becoming due, it was necessary to proceed to make another distress, but which was not accomplished, and also pending the before-mentioned events and proceedings, it became necessary, owing to the opposition of Abram to my authority as mortgagee, by enforcing rent from the tenant after he had paid the same, or was liable to do so "It is urged, no doubt correctly, that I must look at this bill, not as a bill between Mr. Barrow and the mortgagor, but as a bill between Mr. Barrow and his own client, Mr. Pendleton, the mortgagee, and further, that it appears by the evidence that the mortgagee expressly sanctioned and directed Mr. Barrow to take this step, and to incur those costs; to myself, to institute proceedings against the and then, it is contended, that although this might be an item to be disallowed, in taking the account between the mortgagor and mortgagee, still as between the mortgagee and Mr. Barrow, he is liable to pay this amount to Mr. Barrow, and that therefore the mortgagor must be so liable in this proceeding. 66 Admitting the premises, I differ with the conclusion. In the observations I have made, I have treated and considered the bill in this light, viz., whether Mr. Barrow could compel Mr. Pendleton, his client, to pay it, upon the assumption that he, from any circumstances, such as the insufficiency of the property, had been unable to obtain the amount due to him from the mortgagor. I am of opinion that the mortgagee, Mr. Pendleton, could not have been so compelled. I concur with the decision In re Clark, 1 De G., M'N. & G. 43, and I am of opinion that in taxing bills of costs, these costs of proceedings, which it is impossible that the client could have directed his solicitor to take, if he had received proper advice from his solicitor, ought to be disallowed. I consider, therefore, here, whether Mr. Pendleton could, if Mr. Barrow had properly instructed and advised him as to his position, have directed such proceedings to have been taken, and I am of opinion that he could not. "But the case does not rest here; nothing said Henry Abram in the Court of Chancery, for the protection and enforcement of my rights as mortgagee.' He proceeds to say, that all the acts and proceedings of his solicitor were taken not only of my general authority and retainer, but also with my special knowledge and authority on the occasions, and for my interest and safety; the receipt of the rent and distresses, in consequence of his refusal to pay the interest, and the proceedings or bill in Chancery, in consequence of Abram's opposition to the reasonable exercise of my powers and authority as mortgagee." "The person who makes this affidavit seems to be a tradesman residing at Prescot, who acted throughout under the advice of his solicitor, and only as he directed. "The question is, whether payment ought, in these circumstances, to preclude the taxation of this bill? No doubt payment is a most material ingredient in these cases. This Court is always reluctant to open a matter deliberately settled between the parties to the transaction. Payment assumes, that the matter is settled between the parties, and the solicitor, so treating it, naturally takes less care of his vouchers and evidence; although no particular inconvenience can be alleged by Mr. Barrow in this case, inasmuch as he was informed, immediately after the settlement, that |