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Review.-Rules and Regulations of the Judicial Committee.

465 mind, as it has too often happened that the humbly setting forth that the Lords of the Julunatic has been visited with the heaviest re- dicial Committee have taken into consideration sponsibility for acts committed during such the practice of the Committee with a view to intervals, which, previous to the first attack of greater economy, despatch, and efficiency in the disease, he would have shrunk from with the appellate jurisdiction of her Majesty in horror.'"

Council, and that their lordships have agreed The following is a remarkable instance of pedient that certain changes should be made in

humbly to report to her Majesty that it is exfeigned insanity by a criminal, which re- the existing practice in appeals, and recomminds us of the recent attempt of a mur- mending that certain rules and regulations derer to escape the punishment due to his therein set forth should thenceforth be observoffence :

ed, obeyed, and carried into execution, provided “* A case is recorded of a young shepherd,

her Majesty is pleased to approve the same:

Her Majesty, having taken the said report named Specht, of previous good health, lively into consideration, was pleased, by and with manners, and great intelligence, residing at the advice of her Privy Council, to approve Hegelensheim, on the Upper Danube, who, thereof, and of the rules and regulations set having violated and shot a young girl, avowed forth therein, in the words following; videlicet, his crime, and declared that the devil had incited him to do it. Next day, when brought Majesty's Prívy Council notwithstanding, an

1. That any former usage or practice of her before the magistrate, he seemed to have lost appellant who shall succeed in obtaining a reevery physical and mental faculty; he could versal or material alteration of any judgment, not stand without a great effort, and only an- decree, or order appealed from, shall be enswered in incoherent and isolated words. He titled to recover the costs of the appeal from pretended to be deaf, and to have lost his me- the respondent, except in cases in which the mory, could recognise no one, and afforded no Lords of the Judicial Committee may think fit satisfactory answer to any interrogatory., MM. otherwise to direct. Windler and Zinc, the experts employed to ex

2. That the registrar or other proper officer amine into the state of his mind, were both of having the custody of records in any Court of opinion that the condition was simulated, inas, special jurisdiction from which an

ppeal is much as the degree of imbecility he pretended brought to her Majesty in Council be directed to exhibit could only be congenital, and there to send by post, with all possible dispatch, one was no example of a person of such excellent certified copy of the transcript record in each parts as he possessed, prior to the occurrence, cause to the registrar of her Majesty's Privy becoming suddenly imbecile : for imbecility Council, Whitehall; and that all such transthat is not congenital only comes on and in- cripts be registered in the Privy Council Office, creases gradually. The prisoner was watched with the date of their arrival, the names of the for 14 months, and various plans tried. He parties, and the date of the sentence appealed still continued the same. The medical men from; and that such transcript be accompanied maintained their opinion. He was then sen- by a correct and complete index of all the tenced to three years' imprisonment, and, on papers, documents, and exhibits in the cause; returning to his cell, he threw off the impo- and that the registrar of the Court appealed sition, and leaped for joy. He had been ad-from, or other proper officer of such Court, be vised to feign insanity by a fellow prisoner.' directed to omit from such transcript all merely

This remarkable instance confirms the opinion formal documents, provided such omission be of Ray, who differs from the authorities last stated and certified in the said index of papers; quoted, in the assertion that ' nothing requires and that especial care be taken not to allow any a severer exercise of a physician's knowledge document to be set forth more than once in and tact, than a case of simulated insanity.' such transcript; and that no other certified For the detection of such cases, the same prin copies of the record be transmitted to agents ciple of successive observation, which seems in England by or on behalf of the parties in to have so truly guided the opinions of MM. the suit; and that the fees and expenses incurWindler and Zinc, promises the surest safe- red and paid for the preparation of such tranguard against error.

script be stated and certified upon it by the

registrar or other officer preparing the same. RULES AND REGULATIONS

3. That when the record of proceedings or evidence in the cause appealed has been printed

or partly printed abroad, the registrar or other JUDICIAL COMMITTEE. proper officer of the Court from which the ap

peal is brought shall be bound to send home ORDER IN COUNCIL.

the same in a printed form, either wholly or so WHEREAS there was on the 13th June, 1853, far as the same may have been printed, and read at the Board a Report from the Right Ho- that he do certify the same to be correct, on nourable the Lords of the Judicial Committee of two copies, by signing his name on every the Privy Council, dated the 30th May last past, printed sheet, and by affixing the seal, if any,

of the Court appealed from to these copies, ? Dr. Combe's Observations on Mental De- with the sanction of the Court. rangement, p. 241.

And that in all cases in which the parties in

OF THE

466 Rules and Regulations of the Judicial Committee.-Law of Attorneys. appeals shall think fit to have the proceedings i prevent the Lords of the Judicial Committee printed abroad they shall be at liberty to do from ordering the full discussion of the whole 80, provided they cause 50 copies of the same case, if they shall so think fit; and that in to be printed in folio, and transmitted, at their order to promote such arrangement and simexpense, to the registrar of the Privy Council, plification of the matter in dispute, the registrar two of which printed copies shall be certified of the Privy Council may call the agents of as above by the officers of the Court appealed the parties before him, and having heard them, from; and in this case no further expense for and examined the transcript, may report to the copying or printing the record will be incurred committee as to the nature of the proceedings. or allowed in England.

And her Majesty is further pleased to order, 4. That on the arrival of a written transcript and it is hereby ordered, that the foregoing of appeal at the Privy Council Office, White- rules and regulations be punctually observed, hall, the appellant or the agent of the appellant obeyed, and carried into execution in all approsecuting the same shall be at liberty to call peals or petitions and complaints in the nature on the registrar of the Privy Council to cause of appeals brought to her Majesty, or to her it, or such part thereof as may be necessary heirs and successors, in Council, from ber Mafor the hearing of the case, and likewise all jesty's colonies and plantations abroad, and froin such parts thereof as the respondent or his the Channel Islands or the Isle of Man, and agent may require, to be printed by her Ma- from the territories of the East India Company jesty's printer, or by any other printer on the whether the same be from Courts of Justice or same terms, the appellant or his agent engag- from special jurisdictions, other than appeals ing to pay the cost of preparing a copy for the froin her Majesty's Courts of Vice-Admiralty, printer at a rate not exceeding ls. per brief to which the said rules are not to be applied. sheet, and likewise the cost of printing such Whereof the Judges and officers of her Marecord or appendix, and that 100 copies of the jesty's Courts of Justice abroad, and the same be struck off, whereof 30 copies are to be Judges and officers of the Superior Courts of delivered to the agents on each side, and 40 the East India Company, and all other perkept for the use of the Judicial Committee; sons whom it may concern, are to take notice and that no other fees for solicitors' copies of and govern themselves accordingly. the transcript, or for drawing the joint appen

W. L. BATHURST. dix, be henceforth allowed, the solicitors on both sides being allowed to have access to the At the Court at Buckingham Palace, the 31st original papers at the Council Office, and to

day of March, 1855. extract or cause to be extracted and copied such parts thereof as are necessary for the pre

PRESENT: paration of the petition of appeal, at the sta

| THE QUEEN'S MOST EXCELLENT MAJESTY tioner's charge, not exceeding ls. per brief

IN COUNCIL. sheet.

Whereas doubts have arisen with reference 5. That a certain time be fixed within which to the power of the Judicial Committee of the it shall be the duty of the appellant or his Privy Council to suspend or relax, under ceragent to make such application for the printing tain special circumstances, the regulations in of the transcript, and that such time be within appeal causes established by her Majesty's the space of six calendar months from the ar-Order in Council of the 13th June, 1853: her rival of the transcript and the registration Majesty, by and with the advice of her Privy thereof in all matters brought by appeal from

Council, is pleased to order, and it is hereby her Majesty's colonies and plantations east of ordered, that in appeal cases in which a petition the Cane of Good Hope or from the territories of appeal to her Majesty shall have been lodged, of the East India Company, and within the and referred by her Majesty to the Judicial space of three months in all matters brought Committee, the said regulations shall be subby appeal from any other part of her Majesty's ject to any order or direction which, in the dominions abroad; and that in default of the opinion of the Lords of the Judicial Committee. appellant or his agent taking effectual steps the justice of any particular case may seem to for the prosecution of the appeal within such require. time or times respectively, the appeal shall

C. C. GreviLLE. stand dismissed without further order, and that a report of the same be made to the ju

LAW OF ATTORNEYS AND dical committee by the registrar of the Privy Council at their lordships' next sitting.

SOLICITORS. 6. That whenever it shall be found that the decision of a matter on appeal is likely to turn PRODUCTION OF CASES AND OPINIONS OF exclusively on a question of law the agents of COUNSEL BY TRUSTEES IN SUIT BY CESthe parties with the sanction of the registrar of TUIS QUE TRUSTENT. the Privy Council, may submit such question of This bill was filed by certain parties inlaw to the Lords of the Judicial Committee in terested in a testator's estate against the the form of a special case, and print such parts only of the transcript as may be necessary for

administratrix of the surviving trustee and the discussion of the same : 'provided that no others, praying an account, and for a decree thing herein contained shall in any way bar or against the assets of the trustees for what

467

Law of Attorneys and Solicitors.-Law of Costs. should be found due from them in respect that this rule ought to be discharged. The thereof or of any breach of trust

, or of any case is distinguishable from that of a deed or loss by reason of their delay in selling the of any other document, which has been lost real estate as directed by the will.

for a considerable period of time, and where The administratrix stated in her answer I think, that, if the night before a cause is com

all that is known of it is merely that it is lost. that she remembered her husband, who ing on to be tried, the clerk of the plaintiff's died in 1846, say he was a trustee of the attorney, who has the care of the papers, burns will in question; but that otherwise she a bill of exchange, which is required as evi. knew nothing whatever of the matters men- dence in the cause, by lighting his pipe with tioned in the bill until August, 1849, when the bill, such act of the attorney's clerk, ought certain applications were made to her, and not to create any additional expense to the deshe claimed as privileged from production him, may have righteously defended the action, to the plaintiffs, any of the cases for the in relying upon a point which made it a fit and opinion of counsel, or copies thereof, on the proper cause to be tried. And, I think, that ground that the same were stated and taken, in such a case it would not be just to make the either by the trustees or by her, in refer- defendant pay the expenses incurred by bringence to the matters in question in the suit, ing a witness down to the assizes, to tell the and in anticipation of the pending proceed - story of his having destroyed the bill of exings, and with a view to their defence from change, by his own negligent act. Here the such proceedings. It appeared, however, bill was destroyed after the cause was in prothat one was dated in 1841, and that all gress, and when that instrument had become a the others, with one exception, were before great care should have been taken of it; and,

most important document, and consequently August, 1849.

I think, that the plaintiff cannot cast upon the Ön a motion for their production, the defendant the expenses arising out of the neMaster of the Rolls said, that all the cases gligence either of the plaintiff himself, or of his and opinions must be produced, except the attorney, or of the attorney's clerk, for the one taken in or since August, 1849.' De conduct of both of whom the plaintiff himself vaynes v. Robinson, 20 Beav. 12.

is responsible. Upon these grounds I am of opinion, that, in such a case as this, the Mas

ter is bound to go into the question, whether LAW OF COSTS.

the expenses were properly incurred in the course of the cause, and under such circum

stances as to make the defendant responsible

DE- for them. Mr. Phipson says, that notwithSTROYED BY CLERK TO PLAINTIFF's AT- standing the disallowance of these costs as beTORNEY.

tween party and party, the attorney may bring In an action by the drawer against the ac

an action against his client for the recovery of ceptor of a bill of exchange, the defendant and I do not see why we should extract these

them. But he may not succeed in the action ; pleaded non-acceptance, and on the trial the costs from the defendant's pockets, on the plaintiff being unable to produce the bill, called ground that the plaintiff's attorney may bring as witnesses two clerks to his attorney, who an action for them against his own client. If proved that during the progress of the action client, I should say that the expenses ought to

the question were now between attorney and his attorney had sent the bill to the London fall upon the attorney himself, and that he agents for the purpose of production, under a could not recover for an expense occasioned notice to admit; that it was afterwards in by the avowed negligence of his clerk, for whose closed in an envelope and laid on a desk in the acts he is himself responsible. On this ground,

I think, that these expenses could not be replaintiff's attorney's office by one of his clerks, covered as expenses in the cause. If the plain, and that the other supposing the envelope tiff had lost the cause instead of gaining it, and empty, took it up and threw it into the fire. the plaintiff and his attorney had to settle the Secondary evidence of the bill was received, have been called upon to pay these expenses,

bill between them, and if the plaintiff could not and the plaintiff obtained a verdict.

à fortiori, the defendant cannot be called upon On the taxation, the Master disallowed the to pay them to the plaintiff. I therefore think, costs of these witnesses, and this rule was ob- that the Master was bound to enter into the tained to review his taxation.

inquiry, and acted rightly in disallowing these

costs.” The learned Barons differed in opinion, L. C. B. Pollock and Martin, B., holding that Alderson, B., said, "I differ in opinion the Master was right, Alderson and Platt, BB., from my Lord Chief Baron. I think that this contrà. The judgments are as follow :

rule ought to be made absolute, on the prin

ciple that the Master had not the power under Pollock, L. C. B., said, "I am of opinion the discretion entrusted to him, to try the ques

OF SECONDARY

EVIDENCE

OF BILL

468

Law of Costs. tion of negligence. By entrusting the Master attorney is responsible for it? It seems to me with such a power, he would be constituted the that this is not the proper way of trying the sole judge of questions which ought to be de- question of negligence. I am not sure that the cided by a jury and the Court. What is the attorney could not recover these expenses from true criterion for the allowance of costs? It is his client, but that is a question for a jury. Is this : the plaintiff is entitled to such costs as the Master to take upon himself the functions were incurred by the proof of everything that of the Judge, jury, and Court, because it is was necessary to be given in evidence at the supposed-for it is not certain what the fact trial, to entitle him to recover from the defend-was-that the envelope, when thrown into the ant, who, by the hypothesis, was originally in fire, contained the bill of exchange? The dethe wrong, by unjustly refusing to pay that fendant, in improperly defending the action which he was by law bound to pay. The de- which the plaintiff brings to recover his debt, fendant was bound to pay all those expenses is bound to pay the costs to which he has newhich, under the circumstances, were neces- cessarily put the plaintiff. I think the plaintiff sarily incurred to support the plaintiff's case. I is entitled to recover all such costs, and that The loss of the bill by the plaintiff's attorney the question between attorney and client has has nothing to do with the plaintiff's rights as nothing to do with the question between party against the defendant. The plaintiff is not to and party. The case should be put upon the lose his right through his attorney's careless. same footing as if the client had placed a sum ness. The Judge and jury are bound to de- of money in his attorney's hands prior to the cide the case upon the evidence before them. suit, for the purpose of carrying it on, in which Secondary evidence is given because primary case the plaintiff might say that he had necesevidence cannot be obtained; but if the ques. sarily expended this particular sum in carrying tion as to the way in which the primary evi- on this suit, and that he could not have recodence was lost,—whether it was destroyed by vered the debt due to him without it. I con. fire, or whether it was lost by being carelessly fess that I do not feel the slightest doubt upon taken away from a desk,-is to be gone into the question of the plaintiff's right to recover before the Master, he would have the duty im. these costs." posed upon him of trying all possible questions of negligence. The plaintiff was clearly entitled Martin, B., said, "I think that the rule to give this evidence on the investigation of ought to be discharged. It seems to me clear, his cause at the proper time, and before per- that a party is not entitled to costs which are sons competent and authorised to go into it; occasioned by his own negligence. The quesand I think that he ought not to have that tion is, what are the costs to which the piaintiff right affected by the disallowance of expenses is entitled ? And I am of opinion that he incurred in the production of that evidence ought to be indemnified against all such costs which was necessary for his case. I therefore and expenses as have been reasonably incurred think that he ought to be paid for it.

in carrying on the suit, and nothing more. At

Common Law, a plaintiff was only liable to his - Platt, B., said, "I am also of opinion that attorney for costs, and for such costs only as the rule ought to be made absolute. These were properly incurred; but a defendant was costs were necessarily incurred in support of not liable to the plaintiff for any costs. And the issue, and that being so, the question is, if the attorney had sued the plaintiff in this whether any other matter can be gone into be- case for these costs, and I had been on the fore the Master on the taxation of costs. I do jury, I should not have given them, as they not agree as to the application of the suggested were occasioned by the attorney's negligence. case of an attorney who arrives at the assizes Now the Statute of Gloucester entitles a plainwithout the documents necessary for the trial, tiff to indemnify himself as to his costs, by reand who therefore has to return to town for covering the amount of them from the defend. them. If the attorney were, on his journey to ant; but that means, as I think, such costs as the assize town, to go out of the road or be are reasonably incurred. Mr. Phipson says, yond the place, such extra expenses would not that a jury might give these costs; but I do be allowed. But such a case has no applica- not see how that bears upon the question, tion to the present, where the plaintiff's right whether the costs are now to be taxed by an to costs is founded on their necessity for his officer of the Court. I think that I exercise proof. Now, suppose that, instead of the at the soundest discretion by not imposing upon torney's clerk having made this mistake in a defendant costs for which the plaintiff himburning the bill of exchange, the housemaid, self is not responsible. I understand that all whose duty it was to take care of the attorney's the Masters of all the Courts were consulted chambers, and set things to rights, had placed upon the matter, and that they were unanithe papers on a wrong shelf, so that this docu- mously of opinion that these costs ought not ment could not be found on the day of the to be allowed. I am glad to be supported in trial, the costs of the evidence to show that the the view I take by the opinions of so many document was lost would be allowed. Suppose gentlemen who are peculiarly conversant with a document is destroyed in the attorney's house, the subject.” Matthews v. Livesley, 11 Exch. which has been burnt down, would evidence be 221. admissible before the Master to show that the fire was occasioned by negligence, and that the

Easter Term Examination.-Complaint against Chancery Solicitors.Notes of Week. 469 EASTER TERM EXAMINATION. COMPLAINT AGAINST CHANCERY

SOLICITORS. The Examiners of Candidates for admission on the Roll of Attorneys, have appointed Tues- Vice-Chancellor Stuart, in the cause of Booth

It is reported in one of the newspapers that day, the 29th inst., at half-past nine in the foreSociety, in Chancery Lane, to take the exami- terested, complaining of the gross

delay on the noon, at the Hall of the Incorporated Law v. Ellington, on the 8th instant, said, he had Society, in Chancery Lane, to take the exami- received a letter in that case from a party innation.

part of Solicitors in instructing Counsel, and The Articles of Clerkship and Assignment, if his Honour said that it really became intoleany, with answers to the questions as to rable; they appeared to endeavour to do all due service, according to the regulations ap- in their power to play with the Court

. Mr. proved by the Judges, must be left on or be- Malins assured his Honour that no such intenfore Tuesday, the 22nd inst., at the office of tion existed; but the Vice-Chancellor (with the Law Society.

some warmth) said he could not suffer the

Court to be played with in this manner. If a Where the articles have not expired, but will Solicitor wished to be upon the Rolls, and to expire during the Term, the Candidate may be practise in this Court, he must not thus wanexamined conditionally; but the articles must tonly trifle with it. He could not shut his eyes be left within the first seven days of Term, and to the attempt on the part of the Solicitors to answers up to that time. If part of the Term baffle him. He should put himself in commuhas been served with a Barrister, Special nication with the Lord Chancellor upon the Pleader, or London Agent, answers to the subject; he had been told, and indeed he could questions must be obtained from them, as to perceive, that there was a manifest disposition the time served with each respectively. on the part of the Solicitors to trifle with the

Court. A Paper of Questions will be delivered to each Candidate, containing questions to be It does not appear by the report, from which answered in writing, classed under the several these extracts are made, whether the censure heads of-1. Preliminary. 2. Common and thus pronounced from the Bench applied only Statute Law, and Practice of the Courts. 3. to the Solicitors in the cause then before the Conveyancing. 4. Equity, and Practice of the Courts. 5. Bankruptcy, and Practice of the Court. In the first part of the statement it Courts. 6. Criminal Law, and Proceedings would seem that the complaint related only to before Justices of the Peace.

that cause; but in the latter part of the ani. Each Candidate is required to answer all madversions the Solicitors in general are comthe Preliminary Questions (No. 1); and also prehended. We trust that whoever may be to answer in three of the other heads of in the practitioners to whom blame is attached, quiry, viz. :-Common Law, Conveyancing, and will be able to explain their conduct. A cause Equity.

wss to be heard and Counsel were not “inThe Examiners will continue the practice of structed.” Perhaps the Solicitor was not supproposing questions in Bankruptcy and in plied with the means of paying the fees, or Criminal Law and Proceedings before Justices of the Peace, in order that Candidates who may perhaps some unavoidable accident prevented bave given their attention to these subjects, him from delivering his br efs. Would it not may have the advantage of answering such be preferable on such occasions that the Court questions and having the correctness of their should direct one of its officers to send the answers in those departments taken into consideration in summing up the merit of their Solicitor a copy of the letter which the Judge General Examination.

had received, and call upon him to explain his

conduct ? Under the new Rules of Hilary Term, 1853, it is provided that every person who shall have

NOTES OF THE WEEK. given Notices of Examination and Admission, and “who shall not have attended to be examined, or not have passed the Examination, or RETIREMENT OP A COMMON PLEAS MASTER. not have been admitted, may within ONE WEEK

EDWARD GRIFFITH, Esq., one of the Masafter the end of the Term for which such No ters of the Court of Common Pleas, formerly tices were given, renew the Notices for Exami- one of the Secondaries of that Court and apnation or Admission for the then next ensuing pointed a Master under the Common Law Term, and so from time to time as he shall Officers Act, 1 Vict. c. 30, recently tendered think proper ;” but shall not be admitted until his resignation, and has been awarded a penthe last day of the Term, unless otherwise or- sion by the Lords of the Treasury equal to his dered. This Rule has been made in order to full salary. He retires from office with the reavoid the practice of giving double Notices. spect of the Profession in general.

John Gordon, Esq., of the Oxford Circuit, who was called to the Bar by the Honourable

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