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The Law Magazine. efforts now are, and will unquestionably still be “the substance ” of a paper read before the be required; but, from the contents of the Juridical Society on December last. Any noFebruary Number, just published, it may be tice of this distinguished lawyer is of course seasonably doubted if they can or will be interesting ; but as the "paper" of which it made, or, if made, be successful. That the is “the substance” will in due time appear Lar Magazine has vastly fallen away from its among the publications of the society, which former high position is matter of notoriety in has already printed several valuable contributhe Profession. Whether anything has been tions from its members, it is difficult to see done or attempted, which is likely to arrest the why twenty-seven pages of “strenuous efforts" progress of its decay, the Profession will de- should be directed to giving the readers of the cide. Mueh, on the contrary, is to be found Magazine the “substance.” in its last Number, calculated to facilitate the The “strenuous efforts” of the Editor are final dissolution of this Quarterly Review of not confined, seemingly, to a wholesale approJurisprudence.
priation from the records of the Juridical Sa It has often been said, and the assertion ciety,-those of another learned body are laid seems not unreasonable, that the Legal Pro- under contribution. Twenty-two pages are fession neither require on the one hand, nor devoted to a reprint of the “ Report by the have any right on the other, to be represented Statute Law Committee of the Law Amendment by a “Quarterly.” The admitted decadenee Society as to the best means of Consolidating of the two legal periodicals, which still linger the Statutes.” This paper is no doubt of great on from quarter to quarter, is a proof that this value as a contribution to the pending discusopinion is gaining ground. The Law Review sions on this most important subject; but is has appeared, it is said, for the last time, and that suficient reason for its reproduction in a perusal of the last Number of the Law Ma- the pages of a Quarterly Review ? Such a regazine, which has produced this communica- publication can only be justified, where the tion, may serve to strengthen conviction on paper is not only of value and importance in this subject.
itself, but cannot be readily obtained by the Can any reader fail to be painfully struck Profession or the Public. It is notorious; howwith the begging petition addressed to pub- ever, that all the Reports of the Law Amendlishers, which is prefixed to the “Short Notes ment Society may be procured at its rooms for of New Books ?” Can any other periodical a few pence, such being one of the means be mentioned which has condescended to make which the society adopts, for furthering its such an intimation? When a book is forward. views, and inviting discussion on its proceeded by a publisher to an editor, it is supposed ings. The purchasers of the last Number of to be a graceful acknowledgment of the dignity, the Law Magazine may possibly object to pay, and a respectful homage to the hitherto much at a high rate, for what may be obtained for a prized and firmly asserted independence of the few pence, and without strenuous efforts of literary critic; for no publisher has ever en- any kind, editorial or otherwise. tirely escaped, and many have severely felt the
What, again, have the Professional or other censure of the reviewer. If a notice be held readers of the Magazine to do with a reprint of out as an inducement to forward books, which the subjects of the Lectures, delivered at the is what is done by the Law Magazine, it seems Inns of Court, or the Questions propounded to convert the promised review into a pur- to the Students for the Bar ? Every one sees chased advertisement, and what is much worse, the former screened in all the libraries and in the previous promise cannot but involve, on the halls,—the latter may have puzzled a few the part of the reviewer, a sacrifice of all in- dullards, and they have served their purpose; dependence, and an entire abnegation of the yet other twelve pages of the Quarterly Recritic's right to speak the truth even when it is view of Jurisprudence are thus occupied. likely to be disagreeable. What value can be But it is not all reprint. Ten pages of placed on the opinion of an editor, expressed original writing are devoted to a review of on works sent to him on this eleemosynary Stephen's Lush's Practice, a work publishprinciple, the reader can judge for himself. ed, it may be observed, by the publishers of
Turning to the pages of the Magazine, the the Law Magazine. Dr. Johnson was obligFirst Article--"Sir Samuel Romilly as an Ad-ed to eat broken victuals behind a screen pocate, a Jurist, and a Legislator"-purports to in the shop of his employer, but times are
The Law Magazine.-On the Choice of Counsel by Attorneys.
321 changed, it is to be hoped, since the Great | ON THE CHOICE OF COUNSEL BY Essayist and the immortal Goldsmith were
ATTORNEYS. compelled by stern necessity to obey the orders of the bookseller. Their sense of the degrada- “ ERRAS SJ ID CREDIS."-- Terence. tion was blunted, if not destroyed, not only by
The remedy I saw alluded to in your their own anxieties, but by the “ practice” of Journal of Jan. 26, for the slow advancement of the day. To what is to be attributed, however, young Barristers,-namely, that it should no so long a review of our New Common Law longer be necessary for them to receive briefs Procedure, apropos solely of Lush’s Practice. and cases through the medium of Solicitors, The new edition of Chitty's Archbold's Practice, and that the bar being removed they should the ninth edition of which has just appeared, — be allowed to run over the whole province of ably, carefully, admirably edited by Mr. Prentice Barrister and Attorney,—is a virtual amalga
- seems to be unknown to, if it is not inten-mation of the two Professions; and is but the tionally ignored by, the reviewer. The latter proposal of those who have not sufficiently course, indeed, would seem to have been considered the subject or the results to the adopted, for while in a list furnished of the noble community of the Bar. Were the bar different editions of the two Procedure Acts, removed, thus stands the case :-Mr. Vainthe editors of works, which have fallen still-labour, now in briefless destitution, is deborn from the press, are enumerated, the name lighted that A., B., and likewise C., should be of one author, and of the only one whose clients, who “ostia pulsant.” This is perhaps works have reached a second edition and are well for the present; but does. Mr. V. renow out of print, is entirely omitted. If this nounce all the ideas of future eminence ? and, be the result of ignorance, the reviewer is evi- looking along the vista of his hopes, does no dently not qualified for the duty he presumes silk gown in alluring sleekness shine ? Doth to undertake ; if it be intentional, the critic is no Judge appear? is it not bounded by utterly unfitted for the office he thus dese- the Woolsack, and embellished with a world crates. The first qualification of a reviewer is of wigs? Has he never followed Eldon on the the same as that of a Judge,-perfect impar- upward course, or pondered over Brougham ? tiahty. It is not intended to charge the Law If he voluntarily extinguishes these brilliant Magazine, with wilfully ignoring the merits of prospects which glow in such vivid colours any author, whose labours have received the before him,-a rainbow, the promise that inapproval of the Profession ; and it is not im-dustry and talent shall not go unrewarded, possible, that an explanation of the omission nor be overflooded by interest. If he prefers alluded to may be offered in a future Number. mediocrity in probability to eminence and disTill the appearance of its next Number (if any tinction in possibility, let him still continue to next Numher ever appears), the reader may Solicitorize and Barristerize--he can do a fairly suspend his judgment, on the animus of small portion of both- but thus competition the reviewer.
is lessened, and he lowers the dignity of his At all events, if the editorial labour of cor- own Profession. But it is not with these recting the proofs of reprints be a specimen of views that the prime of our youth enter at the “the practised revision and superintendence” Bar. If he does not, he will not be able, in of the new Editor, who (as announced by the full practice, to superadd the labours of a Sopublishers) has been "long recognised as a licitor to those of the Bar, already acknowleading writer on the science and practice of ledged sufficient for any mortal brain. How the law,” what will be the results of the “stre- then : will he now repulse those who helped nuous efforts," when they come to be made, him to the pedestal he now stands on, and that are to“ render the periodical more worthy when his chamber door “mane salutantùm than heretofore of confidence and support"? totis vomet aditus undam,” shall he not still We may await them without fear. Meantime act as their Solicitor,—“Should auld acquaintlet us hope, that another opportunity, will ance be forgot.” present itself for discussing the claims to con- This system would also abolish of nefidence and support so confidently put forth cessity that most salutary rule of the Bar by the Law Magazine.
that Counsel receive only honorary fees. Of course, as the Daily News says, “a man must have a start;" but how? Silverspoon was
322 On the Choice of Counsel by Attorneys.- Law of Attorneys an i Solicitors. born Silverspoon ;-his father or uncle toiled strides will be less numerous, and why does and acquired the practice that feeds him ;-he he not consult some Attorney on whom he can was born with an interest in their patronage. depend, -and to deny that there are many This is his birthright, nor can you begrudge such, on the soundness of whose judgment, it him more than any one else, -Lord H. or and on whose ability and integrity the greatest Sir Henry B.,—the gallant deeds, exalted reliance can be placed, shows only the bittertalents, or industrious disposition of whose ness of envy or wilful malignity. Again,fathers and forefathers won them their present The layman being now at his Solicitor's position. How then is the start to be had. mercy,” it is thenceforth by the Daily Nexes For those who imagine others always on the proposed to put him at his Barrister's ditto. look out to give them a start without any Has it been proved that the bowels of the reason, or who picture to themselves ideal latter are more enlarged than that of the Solicitors wandering through Lincoln's Inn former? “A client becomes a prey to an in eccentric search after possible Broughams ignorant man;"—his own fault- let him find and not unlikely Erskines, are “ listening with a clever one. American customs cannot be credulity to the whispers of fancy, and pursu- pleaded; and, moreover, in the Supreme Court ing with eagerness the phantoms of bope." of Washington "ils ont changé tout cela," at We are humbly of opinion that Solicitors are the commencement of the present century; better engaged. How then for the start. “ In- for it is decreed that Counsellors may be advenienda via est qua me quoque possim tollere mitted Attorneys, but in that case they shall humo.” They must make a pedestal to stand not continue to act as Counsellors. You might on. Solicitors will not give briefs to the also just as well plead the custom of electing “great unknown” ones. They must, ere they Judges, which prevails in some parts there, enter at the Bar, take a good class at Oxford. and put the Judgeship of the Oxford Circuit Nor can they expect, after idling away a couple up to vote. of years in a Barrister's chambers, without any To sum up :-there are the two Professions, great perseverance or study, to emerge by a and, as we used to learn in the Latin 'grammar legal-electro-platism covered with fees and in the third form,—“Utrum horum mavis achonours. Let them work then, first having cipe,”—but don't, oh! don't hanker after both. considered whether they are fit for it;—for be
S. D. it known there are some on whom did it rain legal honours as thick as hail, none would LAW OF ATTORNEYS AND SObecome them,-their talent is of a different
LICITORS. nature. The cause of the extreme difficulty in rising to eminence at the Bar is this:-the TAXATION, WHERE RETAINER DISPUTED higher the talents of the order in which you
AND ACTION AT LAW. wish to excel, the more ability and persever
It appeared that the Mayor of Saffron ance is required to do so. Nor can you ex- Walden convened a meeting of the inhabitpect in a moment to rise to distinction in a
ants to take into consideration the propriety profession which is with us as Meyer said of the owners of small tenements in lieu of the
of applying to Parliament for an Aet to rate it in France, that "it is as dificult as honour
occupiers. A resolution was passed in able.” And though a patient attendance in favour of the proposition, and a committee "a building just up by the sky” will not was appointed to carry it into effect, con. bring eit
a shower of briefs in at the win- sisting of the members of the town council, dow, nor the eager tap of the anxious Solicitor the two churchwardens, the two overseers, at the door of his elevated tenement, yet let the board of surveyors, the guardians of young Barristers know that in their profession the parish (of whom the petitioner, John talent, perseverance, and health rarely or never Clarke, was one), and eight other persons. fail in the end, and that the tide wave will Soon after, and before applying to Parliacertainly reach them, though it reach other ment, it was suggested that a guarantee
fund should be raised to meet the shores first.
expenses, To conclude.—The Daily News says,- the following form of guarantee was accord
in case of failure in obtaining the Act, and “Who shall fathom the mysteries of a law. ingly drawn up :-“We, whose names are yer's bill, or know if he take ten steps instead hereunto subscribed, undertake to pay such of one.” We ask, who shall say his Barrister's sum, not exceeding the amount set against
Law of Attorneys and Solicitors.
323 our names, as may be required towards de- dale, it stood over, and a compromise was fraying the expenses of the Rating of Tene- entered into. Since then orders have been ments Bill, for the parish of Saffron Wal- granted as of course in this form, and have den, for which application will be made in not been disputed. the ensuing Parliament, if the same should of the Court to make such an order, I think it
“ With respect to the jurisdiction and power not pass into law.” This was signed for unnecessary to say much. I entertain no doubt sums amounting in the whole to 1441. by of the power, notwithstanding there may have 15 persons, 10 of whom, including Clarke, been some questions and some words in the who signed for 51., were members of the Act which are ambiguous, for the cases at committee. Clark in his affidavit alleged, Common Law have, I think, settled the point that this was communicated to the mayor,
that the Court has jurisdiction. It cannot, who expressed himself satisfied, and said however, be denied, that this form of order is that his sons, W. Thurgood and Richard order compels immediate taxation, and directs
open to great objection and inconvenience. The D. Thurgood, who had been appointed that if one-sixth be taken off, the expenses of solicitors, would go on; but that he (Clarke) taxation are to be borne by the solicitor; but did not consider himself liable for more after this, it may appear on the trial of the than 51.
action, that there was no retainer, and no porUpon the Bill being rejected by the tion of the bill may be due, and all this expense House of Lords, Messrs. Thurgood de- will have been unnceessarily incurred. It is livered their bill of costs, and subsequently ought to have attended to himself, but there
said that this is a matter which the solicitor commenced actions against Clarke and Thomas Smith, both of whom had signed a body of persons has no doubt he is acting
are many cases, in which a solicitor acting for the guarantee. Mr. Clarke defended the for all of them, and his only remedy is by action and afterwards obtained an order of action at law. course to tax the bill, which had been de- “ Another inconvenience may arise from the livered as a bill against him jointly with Taxing Master having to determine the validity other parties.
of retainer, in cases where no directions have The petition stated that Messrs. Thur.
been given by the client to do a particular good had brought an action against the pe- items cannot be allowed; this may involve the
thing, without which the charges for certain titioner, that he disputed his liability, and same question as that determined at law, and had a valid defence to the action, except as the Taxing Master may come to one conclusion to 5l. paid into Court, that he intended to and the jury may arrive at a different result, defend the action, and was not desirous of and yet the costs of taxation depend on this restraining it, but neither the petition nor question. All this shows that to remedy the the order contained any submission to pay matter ought to be brought specially to the
evils and inconvenience on both sides the what should be found due on taxation. On the motion of Messrs. Thurgood to an order suited to the circumstances of the
attention of the Judge, so that he may make discharge or vary the order,
case, by which means, either the taxation here The Master of the Rolls said,
may be postponed until the question at law is “This was an application to discharge an determined, or the whole question of retainer order to tax, obtained in a form which is un- may be referred to the Taxing Master. usual, although not without precedent, under
In this case, I think that I ought to make these circumstances:
the same order as that In re Pyne, 5 Com. B. “The solicitor brought an action against 407. The order should be amended, by insertMr. Clarke for his bill of costs. The client ing therein, that the client shall be at liberty contests both his liability to pay anything, on to question the retainer of Mr. Thurgood, and the ground that he did not employ him as his that Mr. Thurgood be restrained from comsolicitor, and he also disputes the amount of the mencing or prosecuting any action or suit bill
. If the matter proceeds solely at law, al- touching his demand pending the reference, though the question of retainer may be decided, and an undertaking by the client to pay what, yet the question of amount can only be decided if anything, shall be found to be due on such in the most unsatisfactory manner, i.e., not by taxation. The result will be, that I shall send taxation before the proper officer, but either in the whole matter to the Tasing Master. Court or by a reference to take the account.
“I cannot compel the client to take this Mr. Clarke bas obtained this order to enable order, but if he refuses and prefers to try the him, in case he shall fail in the defence to the action, I shall then discharge the order of action, to have the amount of the bill properly course, without costs, as I think that he was ascertained here by the proper officer.
justified in the state of the practice in applying to remedy this inconvenience that Lord Lang- for it. If he takes this order, I shall make the dale settled and approved of an order in this costs of the order abide the result of the taxaform, but he never decided that this was right; tion.” In re Thurgood, 19 Beav. 541. an application to discharge the first order was made, but, on the suggestion of Lord Lang
Law of Costs.-Notes on Recent Statutes.
enacts that “error may be brought upon a judg.
ment upon a special case in the same manner ON SPECIAL CASE, WHERE ERROR AND as upon a judgment upon a special verdict,
JUDGMENT BELOW REVERSED. unless the parties agree to the contrary' (and A SPECIAL case was stated for the opinion they have not done so in this case); "and the of the Court, under the 15 & 16 Vict. c. 76, s. proceedings for bringing a special case before 46, in which the question was, whether the the Court of Error shall, as nearly as may be, plaintiff had any right or title to sell to the be the same as in the case of a special verdict; defendant certain tenant's and trade fixtures. and the Court of Error shall either affirm the On the hearing in Michaelmas Term, 1954, the judgment,'—and there is not,— or shall reCourt differed in opinion, but the majority was verse the judgment,'—but it is,- or give the of opinion that the plaintiff .vas entitled to sell same judgment as ought to have been given in the trade but not the tenant's fixtures, and the Court in which it was originaly decided.' judgment was given for the plaintiff for the In this case, unless there is some record to the value of the former, and for the defendant as contrary, it must be presumed that the Court to the latter (reported 10 Exch. 496). No of Error has given the same judgment as agreement having been entered into as to the ought to have been given by this Court, and costs, the Court on a subsequent application the rule may, therefore, be absolute; but, of held, that the plaintiff was entitled to the ge- course, the Master will tax the costs according neral costs of the cause, subject to the deduc- to the judgment of the Court of Error, for ve tion of any costs incurred by the defendant in have no power over them.” Elliott v. Bishop, respect of the part of the case on which he 11 Exch. 321. succeeded (reported 10 Exch. 522). The Master taxed the defendant's costs at ill. odd,
NOTES ON RECENT STATUTES. which he deducted from the plaintiff's costs,
COMMON LAW PROCEDURE ACT, 1854. amounting to 45l., and gave an allocatur for the difference, which was indorsed on the judg- AFFIDAVIT OF MERITS FOR INTERROGAment roll as the plaintiff's costs in the cause.
TORIES IN EJECTMENT. The defendant afterwards brought error, when Held, that the affidavit in support of an the Exchequer Chamber not only affirmed the application by a plaintiff for leave to deliver judgment for the plaintiff as to the trade fix- interrogatories to the defendant under the 17 tures, but also adjudged him entitled to the & 18 Vict. c. 125, s. 52, must show that he tenant's fixtures (reported 11 Exch. 113), but has a good cause of action upon the merits. made no mention of costs.
Therefore, in an action of ejectment, by Upon a rule nisi obtained on a reference of reason of the forfeiture of a lease by the the parties to the Court by Platt, B., at Cham- breach of the covenant to insure, an affidavit bers, for the allowance of the plaintiff's, and which merely stated that the plaintiff believe disallowance of the defendant's costs, Parke, ed there was a good cause of action for the B., said :
breach of covenant above mentioned, was held “The question now is, whether the costs insufficient, inasmuch as by a waiver of the ought to be taxed, by the Master of this Court, forfeiture the plaintiff's right to maintain the for the plaintiff on that part of the claim on action would be gone. May v. Hawkins, 11 which he failed in the Court below. We are Exch. 210. of opinion that this Court has no power over the subject-matter, and that it ought to be de- RIGHT OP COUNSEL TO SUM UP EVIDENCE. termined by the Court of Error. By the rule of the Common Law, when error was brought
Held (per Pollock, L.C.B., Parke and Mar. by the defendant below, the Court of Error, in of the party who begins, to sum up the evi
tin, BB., dissentiente Platt, B.), that the right ordinary cases, could only reverse the judg- dence at the trial, under the 17 & 18 Vict. c. ment simpliciter ; but on a special verdict, they might give such judgment as the Court
125, s. 18, is confined to the case where the below ought to have given. The 32nd section
Judge holds that there is evidence to go to of the Common Law Procedure Act, 1854,
the jury. Hodges v. Ancrum and another, 11
Exch. 214. which for the first time makes a special case the subject of appeal to a Court of Error,