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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.

Some inconvenience occurred at the Examination in last Michaelmas Term, in conse quence of a crowd of persons coming into the outer hall 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. On the occasion referred to, there must have been many persons who had no right to enter or remain in the outer hall and passages; and the throng at the entrance was calculated to excite the curiosity of the idle, and perhaps to induce less harmless persons to join it. It is useless for the Candidates to remain after they have delivered in their papers, because the Examiners cannot finish their labours till the next day; and four o'clock has been fixed to enable the Candidates to communicate with their friends in the country by the post of that evening.

LAW OF ATTORNEYS AND
SOLICITORS.

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

Pendleton, for the sum of 3001. The interest 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 ther in respect of this person, I am sorry please to pay them. As to anything furthat 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 intention to pay off the mortgage, was served 1852, which notice expired on the 28th on the petitioner on the 28th December, June, 1853. On then applying to pay off the mortgage, a fresh bill for 201. was delivered by Mr. Barrow, the mortgagee's solicitor, which was proposed to be paid 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 :—

bill, amounting to the sum of 201. after pay"This is an application to tax a solicitor's ment. It requires a very special case to induce the Court to make such an order. The

Law of Attorneys and Solicitors.

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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.]

"In order to form a just opinion respecting the costs so incurred, it is necessary to recur to the situation of the parties, during the time when this bill of foreclosure must have been prepared. In October, 1852, the mortgagee, 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

221

authority and proceedings. The rights so interfered with were these:-Mr. Pendleton had 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.

"This is the account given of this transaction by Mr. Barrow :-"On the 18th of October I 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 manner, did on two subsequent occasions, namely, in the months of November and December following, though the mortgagee was still in the receipt of the rents.' He continues,-" In consequence of the said distress 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.'

"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

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Law of Attorneys and Solicitors.

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"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.

No

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. 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 al

"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 can-low the interest to accumulate, my solicitor, by not 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.

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.

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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

Common Law Practice.-Applications for admission and Renewal of Certificates.

the bill would be taxed, and the petition for that purpose was presented in the course of a few weeks after the transaction occurred. If the Court were to refuse taxation in such a case as the present, it appears to me that it would put a mortgagor entirely at the mercy of the solicitor of his mortgagee. In this case, for instance, what course could the mortgagor have adopted? If he had adopted the offer of Mr. Barrow and paid the principal and interest without getting the title-deeds, he might have been put to expensive proceedings before they could have been recovered. If he had adopted the course he took in October, 1852, and applied for an order to tax Mr. Barrow's bill, the same course might have been repeated, and a fresh bill of costs brought in again at the end of six further months, together with the unavoidable imputation, that, in truth, his money was not ready, and that he was adopting these steps for the purpose of delay.

"I certainly have shown no disposition to open a settled account, or to refer to taxation the bill of a solicitor once paid. I have thought that the doctrine of pressure ought not to be extended, and that, without it, mere overcharges, even though gross, which the client might have detected before payment, should not induce the Court to take this course, and, above all, I have considered, that it is incumbent on the petitioner to come speedily; but when I find a bill containing a series of items which, in my opinion, are not mere overcharges, but charges for a whole class of business which ought never to have been done at all, the case appears to me to fall within the principle laid down by Lord Langdale, when he said, that the nature of the items might be such as to require this Court to direct the tax

ation of the bill.

"I shall, therefore, in this case, make the usual order for taxation." In re Barrow, 17 Beav. 547.

POINTS IN COMMON LAW
PRACTICE.

MOTION TO SET ASIDE NONSUIT.

223

PER Cresswell, J. :-"If the Judge tells the plaintiff's counsel that he will nonsuit him on a point of law, the latter does not by mere acquiescence lose his right to move; but if the Judge says he will nonsuit the plaintiff because there is no evidence to leave to the jury, that is a very different case; counsel, if they mean to object, should insist upon going to the jury, or they cannot afterwards complain.

*

In strictness, no doubt, the Judge has no right to nonsuit the plaintiff, where But, unless the there are several issues. counsel insist on the issues going to the jury, if the circumstances are such that the Judge ought, as matter of law, to have directed a verdict for the defendant, the nonsuit, though in invitum, ought to stand." Hughes v. Great Western Railway Company, 14 Com. B. 637.

ADDITIONAL AFFIDAVITS ON APPEAL FROM
COUNTY COURT JUDGE.

A summons was taken out before Alderson, B., at Chambers, for an order allowing the plaintiff his costs, on the ground that it was a case in which the Superior Court had concurrent jurisdiction-as the plaintiff and the defendant dwelt more than 20 miles apart, but the Judge, on the facts, refused to make the order. Upon a like application to the Court, held that

affidavits in addition to those read at Cham-
bers
Sanderson v. Proctor, 10
be used.
may
Exch. R. 189.

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224 Admission and Renewal of Certificates.-Superior Courts: Lord Chancellor.

Courtenay, Richard, Lewisham
Cox, William, Daventry
Crickmore, Willam, Scole

Crockett, Richard Singleton, Brighton; and
Croydon

Dawson, John Huntingdon, 2, Spring Ter.,

Wandsworth Road

Drake, John, Launceston

Moore, H., Shelsley Beauchamp; Plymouth; Guernsey; Cherbourg; and Boulogne

Olive, Joseph, Twyford Buildings, Lincoln's

Inn Fields

Phelps, Isaac, South Brent

Powell, Frederick, Knaresborough
Remington, Reginald, Rochdale

Roberts, Richard, of Langefni, Anglesea;

Durant, Benjamin Chandler, 14, Belgrave and Cape Town, Cape of Good Hope.

Street; Poole

Gooday, John Francis, Sudbury
Greatwood, Robert, Birmingham

Griffith, Thos. Aubrie, 15, Philpot Lane, City
Hallett, Frederick Hughes, Ashford; and
Canterbury

Harding, James Nott, Amwell Street, Pentonville; and Exeter

Ionn, William, 44, Upper Winchester Street, Islington.

Julius, Herbert A. H., Paul's Road, Camden Town; Warwick Court

Kingdon, Joseph Francis, Barnstaple
Lane, Theophilus, Hereford

Lee, Edw. Alphonso, Kingston-upon-Hull
Milner, Christian Splidt, 17, Lincoln's Inn
Fields.

Sanderson, William Barker, Leeds
Sawkins, George, 3, Manor Terrace, North
Chelsea; Stanley St.; and Charlwood St.
Stanley, C., 5, Millman Street, Bedford Row;
and London and Middlesex Debtors' Prison
Stutely, Henry Octavius, 3, Bowater Place,
Blackheath; and Chancery Lane
Vyner, Charles James, Nantwich
Walker, George, Spilsby

Walker, George H., Newbold Grange, Rugby; Bombay; and the High Seas

Williams, Thomas Caredig, 47, Queen's Rd.,
Notting Hill

Whytehead, John, Kirby Moorside
Windsor, O. Richard, 25, Baker Street,
Lloyd Square

Wright, Egerton Leigh, Wigan.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lord Chancellor.

Thornhill v. Thornhill. Jan. 11, 1855. COSTS ON CONTEMPT BY INDUCING MARRIAGE OF WARD OF COURT. INJUNCTION.

contempt. It was a fallacy to treat the motion for an injunction as a separate proceeding, as it was only a step in the relief sought from the Court. The costs of the affidavits on the motion for an injunction come therefore withThe guardians of a ward of Court had ob-costs of the contempt, and the report of the in the scope of the order for payment of the tained an injunction to restrain C. from Master in that respect must be reviewed. As inducing her to contract a marriage with to the other items disallowed, the Master was him, and afterwards he was committed for the contempt. Upon his release on an unright. dertaking to pay the costs occasioned by his contempt, held that the costs of the motion for an injunction were included in

such costs.

In re Hodges. Jan. 12, 13, 1855.
MAINTENANCE OF

INFANT OUT OF FUND PAID IN UNDER TRUSTEES' RELIEF ACT. Held, that a Judge at Chambers has not ju risdiction under the 15 & 16 Vict. c. 80, s. 26, to make orders as to the maintenance of an infant out of a fund which has been paid into Court, under the 10 & 11 Vict. c. 96,

without a petition being presented. THIS was an application, by direction of Vice-Chancellor Wood, on the question whether an allowance for the maintenance of an infant, out of a fund which had been paid into Court under the Trustees' Relief Act, 10 & 11 Vict. c. 96, could be continued without a petition being presented.

THIS was an application for a direction to the Taxing Master. It appeared that an injunction had been obtained to restrain Mr. Chichester from inducing a ward of Court to contract a marriage with him, and that afterwards he had been committed for contempt, but was subsequently released on expressing his contrition and on an undertaking to pay the taxed costs occasioned by his contempt forthwith. The Master, upon the taxation, had disallowed the costs of the affidavits on which the injunction was obtained as not falling within the costs of the contempt, and also the costs of serving Lady Ferrers, and of Miss Thorn- By the 15 & 16 Vict. c. 80, s. 26, it is enhill's journey to London to see the Lord Chan-acted, that "the business to be disposed of by cellor. the Master of the Rolls and Vice-Chancellors respectively, while sitting at Chambers, shall consist of such of the following matters as the Judge shall from time to time think may be more conveniently disposed of in Chambers than in open Court, viz.," "applications as to the guardianship and maintenance of infants." Turner and Roupell, jun., for the several parties. Cur, ad. vult.

Baily and Renshaw for the guardians; Cairns and Rowcliffe for Mr. Chichester.

The Lord Chancellor said, the charge against Mr. Chichester was, of having endeavoured clandestinely to remove Miss Thonrhill from the custody of her guardians with the view to a private marriage, and motions had been made to restrain such removal, and to commit for

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