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Review.-Rules and Regulations of the Judicial Committee.
mind, as it has too often happened that the lunatic has been visited with the heaviest responsibility for acts committed during such intervals, which, previous to the first attack of the disease, he would have shrunk from with horror.'" 2
The following is a remarkable instance of feigned insanity by a criminal, which reminds us of the recent attempt of a murderer to escape the punishment due to his offence :
humbly setting forth that the Lords of the Judicial Committee have taken into consideration the practice of the Committee with a view to greater economy, despatch, and efficiency in the appellate jurisdiction of her Majesty in Council, and that their lordships have agreed pedient that certain changes should be made in humbly to report to her Majesty that it is exthe existing practice in appeals, and recommending that certain rules and regulations therein set forth should thenceforth be observed, obeyed, and carried into execution, provided her Majesty is pleased to approve the same:
into consideration, was pleased, by and with Her Majesty, having taken the said report the advice of her Privy Council, to approve thereof, and of the rules and regulations set forth therein, in the words following; videlicet, Majesty's Privy Council notwithstanding, an 1. That any former usage or practice of her appellant who shall succeed in obtaining a reversal or material alteration of any judgment, decree, or order appealed from, shall be entitled to recover the costs of the appeal from the respondent, except in cases in which the Lords of the Judicial Committee may think fit otherwise to direct.
"A case is recorded of a young shepherd, named Specht, of previous good health, lively manners, and great intelligence, residing at Hegelensheim, on the Upper Danube, who, having violated and shot a young girl, avowed his crime, and declared that the devil had incited him to do it. Next day, when brought before the magistrate, he seemed to have lost every physical and mental faculty; he could not stand without a great effort, and only answered in incoherent and isolated words. He pretended to be deaf, and to have lost his memory, could recognise no one, and afforded no satisfactory answer to any interrogatory. MM. Windler and Zinc, the experts employed to ex2. 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 appeal 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.' This remarkable instance confirms the opinion of Ray, who differs from the authorities last quoted, in the assertion that nothing requires a severer exercise of a physician's knowledge and tact, than a case of simulated insanity.' For the detection of such cases, the same principle of successive observation, which seems to have so truly guided the opinions of MM. Windler and Zinc, promises the surest safeguard against error.'
RULES AND REGULATIONS
ORDER IN COUNCIL.
WHEREAS there was on the 13th June, 1853, read at the Board a Report from the Right Honourable the Lords of the Judicial Committee of the Privy Council, dated the 30th May last past,
2 Dr. Combe's Observations on Mental Derangement, p. 241.
directed to omit from such transcript all merely formal documents, provided such omission be stated and certified in the said index of papers; and that especial care be taken not to allow any document to be set forth more than once in such transcript; and that no other certified copies of the record be transmitted to agents in England by or on behalf of the parties in the suit; and that the fees and expenses incurred and paid for the preparation of such transcript be stated and certified upon it by the registrar or other officer preparing the same.
3. That when the record of proceedings or evidence in the cause appealed has been printed or partly printed abroad, the registrar or other proper officer of the Court from which the appeal is brought shall be bound to send home the same in a printed form, either wholly or so far as the same may have been printed, and that he do certify the same to be correct, on two copies, by signing his name on every printed sheet, and by affixing the seal, if any, of the Court appealed from to these copies, with the sanction of the Court.
And that in all cases in which the parties in
Rules and Regulations of the Judicial Committee.—Law of Attorneys.
appeals shall think fit to have the proceedings printed abroad they shall be at liberty to do so, provided they cause 50 copies of the same to be printed in folio, and transmitted, at their expense, to the registrar of the Privy Council, two of which printed copies shall be certified as above by the officers of the Court appealed from; and in this case no further expense for copying or printing the record will be incurred or allowed in England.
prevent the Lords of the Judicial Committee from ordering the full discussion of the whole case, if they shall so think fit; and that in order to promote such arrangement and simplification of the matter in dispute, the registrar of the Privy Council may call the agents of the parties before him, and having heard them, and examined the transcript, may report to the committee as to the nature of the proceedings.
And her Majesty is further pleased to order, and it is hereby ordered, that the foregoing rules and regulations be punctually observed, obeyed, and carried into execution in all appeals or petitions and complaints in the nature of appeals brought to her Majesty, or to her heirs and successors, in Council, from her Majesty's colonies and plantations abroad, and from the Channel Islands or the Isle of Man, and from the territories of the East India Company whether the same be from Courts of Justice or from special jurisdictions, other than appeals from her Majesty's Courts of Vice-Admiralty, to which the said rules are not to be applied.
4. That on the arrival of a written transcript of appeal at the Privy Council Office, Whitehall, the appellant or the agent of the appellant prosecuting the same shall be at liberty to call on the registrar of the Privy Council to cause it, or such part thereof as may be necessary for the hearing of the case, and likewise all such parts thereof as the respondent or his agent may require, to be printed by her Majesty's printer, or by any other printer on the same terms, the appellant or his agent engaging to pay the cost of preparing a copy for the printer at a rate not exceeding 1s. per brief sheet, and likewise the cost of printing such record or appendix, and that 100 copies of the same be struck off, whereof 30 copies are to be delivered to the agents on each side, and 40 kept for the use of the Judicial Committee; and that no other fees for solicitors' copies of the transcript, or for drawing the joint appendix, 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 extract or cause to be extracted and copied such parts thereof as are necessary for the preparation of the petition of appeal, at the sta- THE QUEEN'S MOST EXCELLENT MAJESTY tioner's charge, not exceeding 1s. per brief sheet.
Whereof the Judges and officers of her Majesty's Courts of Justice abroad, and the Judges and officers of the Superior Courts of the East India Company, and all other persons whom it may concern, are to take notice and govern themselves accordingly. W. L. BATHurst.
day of March, 1855.
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 Cape 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 stand dismissed without further order, and that a report of the same be made to the judical committee by the registrar of the Privy Council at their lordships' next sitting.
C. C. GREVIlle.
LAW OF ATTORNEYS AND
COUNSEL BY TRUSTEES IN SUIT BY CES-
THIS bill was filed by certain parties in
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 the parties with the sanction of the registrar of the Privy Council, may submit such question of law to the Lords of the Judicial Committee interested in a testator's estate against the the form of a special case, and print such parts administratrix of the surviving trustee and only of the transcript as may be necessary for the discussion of the same; provided that noothers, praying an account, and for a decree thing herein contained shall in any way bar or against the assets of the trustees for what
Law of Attorneys and Solicitors.—Law of Costs.
should be found due from them in respect thereof or of any breach of trust, or of any loss by reason of their delay in selling the real estate as directed by the will.
The administratrix stated in her answer that she remembered her husband, who died in 1846, say he was a trustee of the will in question; but that otherwise she knew nothing whatever of the matters mentioned in the bill until August, 1849, when certain applications were made to her, and she claimed as privileged from production to the plaintiffs, any of the cases for the opinion of counsel, or copies thereof, on the ground that the same were stated and taken, either by the trustees or by her, in reference to the matters in question in the suit, and in anticipation of the pending proceedings, and with a view to their defence from such proceedings. It appeared, however, that one was dated in 1841, and that all the others, with one exception, were before August, 1849.
Ön a motion for their production, the Master of the Rolls said, that all the cases and opinions must be produced, except the one taken in or since August, 1849. Devaynes v. Robinson, 20 Beav. 42.
In an action by the drawer against the acceptor of a bill of exchange, the defendant pleaded non-acceptance, and on the trial the plaintiff being unable to produce the bill, called as witnesses two clerks to his attorney, who proved that during the progress of the action his attorney had sent the bill to the London agents for the purpose of production, under a notice to admit; that it was afterwards inclosed in an envelope and laid on a desk in the plaintiff's attorney's office by one of his clerks, and that the other supposing the envelope empty, took it up and threw it into the fire. Secondary evidence of the bill was received, and the plaintiff obtained a verdict.
On the taxation, the Master disallowed the costs of these witnesses, and this rule was obtained to review his taxation.
The learned Barons differed in opinion, L. C. B. Pollock and Martin, B., holding that the Master was right, Alderson and Platt, BB., contrà. The judgments are as follow :—
Pollock, L. C. B., said,-"I am of opinion
that this rule ought to be discharged. The case is distinguishable from that of a deed or of any other document, which has been lost for a considerable period of time, and where think, that, if the night before a cause is comall that is known of it is merely that it is lost. ing on to be tried, the clerk of the plaintiff's attorney, who has the care of the papers, burns a bill of exchange, which is required as evi dence in the cause, by lighting his pipe with the bill, such act of the attorney's clerk, ought not to create any additional expense to the dehim, may have righteously defended the action, fendant, who, though the verdict be against in relying upon a point which made it a fit and proper cause to be tried. And, I think, that in such a case it would not be just to make the defendant pay the expenses incurred by bringing a witness down to the assizes, to tell the story of his having destroyed the bill of exchange, by his own negligent act. Here the bill was destroyed after the cause was in progress, and when that instrument had become a most important document, and consequently great care should have been taken of it; and, I think, that the plaintiff cannot cast upon the defendant the expenses arising out of the negligence either of the plaintiff himself, or of his attorney, or of the attorney's clerk, for the conduct of both of whom the plaintiff himself is responsible. Upon these grounds I am of opinion, that, in such a case as this, the Master is bound to go into the question, whether the expenses were properly incurred in the course of the cause, and under such circumstances as to make the defendant responsible for them. Mr. Phipson says, that notwithstanding the disallowance of these costs as between party and party, the attorney may bring them. But he may not succeed in the action; an action against his client for the recovery of and I do not see why we should extract these costs from the defendant's pockets, on the ground that the plaintiff's attorney may bring an action for them against his own client. If client, I should say that the expenses ought to the question were now between attorney and fall upon the attorney himself, and that he could not recover for an expense occasioned by the avowed negligence of his clerk, for whose I think, that these expenses could not be reacts he is himself responsible. On this ground, covered as expenses in the cause. If the plaintiff had lost the cause instead of gaining it, and the plaintiff and his attorney had to settle the have been called upon to pay these expenses, bill between them, and if the plaintiff could not à fortiori, the defendant cannot be called upon to pay them to the plaintiff. I therefore think, that the Master was bound to enter into the inquiry, and acted rightly in disallowing these
Alderson, B., said, "I differ in opinion from my Lord Chief Baron. I think that this rule ought to be made absolute, on the principle that the Master had not the power under the discretion entrusted to him, to try the ques
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. 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 confire, 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 to give this evidence on the investigation of his cause at the proper time, and before persons competent and authorised to go into it; and I think that he ought not to have that right affected by the disallowance of expenses incurred in the production of that evidence which was necessary for his case. I therefore think that he ought to be paid for it."
Platt, B., said, “I am also of opinion that the rule ought to be made absolute. These costs were necessarily incurred in support of the issue, and that being so, the question is, whether any other matter can be gone into before the Master on the taxation of costs. I do not agree as to the application of the suggested case of an attorney who arrives at the assizes without the documents necessary for the trial, and who therefore has to return to town for them. If the attorney were, on his journey to the assize town, to go out of the road or beyond the place, such extra expenses would not be allowed. But such a case has no application to the present, where the plaintiff's right to costs is founded on their necessity for his proof. Now, suppose that, instead of the attorney's clerk having made this mistake in burning the bill of exchange, the housemaid, whose duty it was to take care of the attorney's chambers, and set things to rights, had placed the papers on a wrong shelf, so that this document could not be found on the day of the trial, the costs of the evidence to show that the document was lost would be allowed. Suppose a document is destroyed in the attorney's house, which has been burnt down, would evidence be admissible before the Master to show that the fire was occasioned by negligence, and that the
Martin, B., said, “I think that the rule ought to be discharged. It seems to me clear, that a party is not entitled to costs which are occasioned by his own negligence. The question is, what are the costs to which the plaintiff is entitled? And I am of opinion that he ought to be indemnified against all such costs and expenses as have been reasonably incurred in carrying on the suit, and nothing more. At Common Law, a plaintiff was only liable to his attorney for costs, and for such costs only as were properly incurred; but a defendant was not liable to the plaintiff for any costs. And if the attorney had sued the plaintiff in this case for these costs, and I had been on the jury, I should not have given them, as they were occasioned by the attorney's negligence. Now the Statute of Gloucester entitles a plaintiff to indemnify himself as to his costs, by recovering the amount of them from the defendant; but that means, as I think, such costs as are reasonably incurred. Mr. Phipson says, that a jury might give these costs; but I do not see how that bears upon the question, whether the costs are now to be taxed by an officer of the Court. I think that I exercise the soundest discretion by not imposing upon a defendant costs for which the plaintiff himself is not responsible. I understand that all the Masters of all the Courts were consulted upon the matter, and that they were unanimously of opinion that these costs ought not to be allowed. I am glad to be supported in the view I take by the opinions of so many gentlemen who are peculiarly conversant with the subject." Matthews v. Livesley, 11 Exch. 221.
Easter Term Examination.-Complaint against Chancery Solicitors.—Notes of Week. 469 EASTER TERM EXAMINATION. COMPLAINT AGAINST CHANCERY SOLICITORS.
The Articles of Clerkship and Assignment, if any, with answers to the questions as to due service, according to the regulations approved by the Judges, must be left on or before Tuesday, the 22nd inst., at the office of the Law Society.
THE Examiners of Candidates for admission It is reported in one of the newspapers that on the Roll of Attorneys, have appointed Tuesday, the 29th inst., at half-past nine in the fore-Vice-Chancellor Stuart, in the cause of Booth noon, at the Hall of the Incorporated Law. Ellington, on the 8th instant, said, he had received a letter in that case from a party inSociety, in Chancery Lane, to take the exami terested, complaining of the gross delay on the part of Solicitors in instructing Counsel, and his Honour said that it really became intolerable; they appeared to endeavour to do all in their power to play with the Court. Mr. Malins assured his Honour that no such intention existed; but the Vice-Chancellor (with some warmth) said he could not suffer the Court to be played with in this manner. If a Solicitor wished to be upon the Rolls, and to practise in this Court, he must not thus wantonly trifle with it. He could not shut his eyes to the attempt on the part of the Solicitors to baffle him. He should put himself in communication with the Lord Chancellor upon the subject; he had been told, and indeed he could perceive, that there was a manifest disposition on the part of the Solicitors to trifle with the Court.
Where the articles have not expired, but will expire during the Term, the Candidate may be examined conditionally; but the articles must be left within the first seven days of Term, and answers up to that time. If part of the Term has been served with a Barrister, Special Pleader, or London Agent, answers to the questions must be obtained from them, as to the time served with each respectively.
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. Conveyancing. 4. Equity, and Practice of the to the Solicitors in the cause then before 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.
Each Candidate is required to answer all the Preliminary Questions (No. 1); and also to answer in three of the other heads of inquiry, viz. :-Common Law, Conveyancing, and Equity.
that cause; but in the latter part of the animadversions the Solicitors in general are comprehended. We trust that whoever may be the practitioners to whom blame is attached, will be able to explain their conduct. A cause 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 have given their attention to these subjects, may have the advantage of answering such questions and having the correctness of their answers in those departments taken into consideration in summing up the merit of their
Under the new Rules of Hilary Term, 1853, it is provided that every person who shall have given Notices of Examination and Admission, and "who shall not have attended to be examined, or not have passed the Examination, or not have been admitted, may within ONE WEEK after the end of the Term for which such Notices were given, renew the Notices for Examination or Admission for the then next ensuing Term, and so from time to time as he shall think proper;" but shall not be admitted until the last day of the Term, unless otherwise ordered. This Rule has been made in order to avoid the practice of giving double Notices.
him from delivering his br efs. Would it not be preferable on such occasions that the Court should direct one of its officers to send the Solicitor a copy of the letter which the Judge had received, and call upon him to explain his conduct?
NOTES OF THE WEEK.
RETIREMENT OF A COMMON PLEAS MASTER.
EDWARD GRIFFITH, Esq., one of the Masters of the Court of Common Pleas, formerly one of the Secondaries of that Court and appointed a Master under the Common Law Officers Act, 1 Vict. c. 30, recently tendered his resignation, and has been awarded a pension by the Lords of the Treasury equal to his full salary. He retires from office with the respect of the Profession in general.
John Gordon, Esq., of the Oxford Circuit, who was called to the Bar by the Honourable