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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. 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 bis 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 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 defendthem. 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
It is reported in one of the newspapers that day, the 29th inst., at half-past nine in the fore-ViceChancellor Stuart, in the cause of Booth 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,
terested, complaining of the gross delay on the
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. 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. 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.
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 Equity.
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, 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 OF 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
470 Notes of the Week. - Superior Courts : Lord Chancellor.–V. C. Stuart. Society of the Middle Temple, on the 20th | Thomas Worthington Barlow, Esq., to be the November, 1846, has been appointed a Master Queen's Advocate for the Colony of Sierra of the Court of Common Pleas. He reported, Leone. From the London Gazette of April 4. with Mr. Hurlstone, the cases decided in the The Hon. William Henry Draper, C. B., one Courts of Exchequer and Exchequer Chamber. of the justices of her Majesty's Court of Queen's Mr. Gordon will rank next after Mr. Park, Mr. Bench in Upper Canada, has been appointed Cancellor, and Mr. Methold. It is expected Chief Justice of the Court of Common Pleas that Mr. Airey will be the fifth Master. in Upper Canada.
The Hon. Archibald MLean, one of the NEW QUEEN'S COUNSEL.
Justices of her Majesty's Court of Common C. J. Selwyn, Esq., has been appointed a Pleas in Upper Canada, has been appointed a Queen's Counsel. Mr. Selwyn was called to
Justice of the Court of Queen's Bench in the Bar by the Hon. Society of Lincoln's Inn, Upper Canada, with precedence from Decemon the 27th January, 1840.
ber, 28, 1837. H. M Calmont Cairns, Esq., M. P., has also
John Hawkins Hagarty, Esq., Barrister-atbeen appointed a Queen's Counsel. Mr. Cairns Law, in Upper Canada, has been appointed was called to the Bar 26th January, 1844, by one of the Justices of the Court of Common the Hon Society of the Middle Temple.
Pleas in Upper Canada.
G. M. Dowdeswell, Esq., Barrister-at-Law, COUNTY COURTS.
has been appointed Recorder of Newbury, in It has been ordered by her Majesty in Coun- of the Metropolitan Magistrates of Police.
the room of H. S. Selfe, Esq., appointed one cil, that from and after the 31st day of May, 1856, County Courts shall be holden at Aber- Judge of the Vice-Admiralty Court of the
Sir William á Beckett has been appointed dare and Newbridge, in the County of Glamor-colony of Victoria. gan, for the parishes and places thereunto ad
J. D. Pinnock, Esq., has been appointed Rejacent.
gistrar of the Vice-Admiralty Court of Victoria. LAW APPOINTMENTS.
-From The Observer. Jonathan Christian, Esq., Q. C., has been T. C. S. Kynnersley, Esq., has been appointappointed Solicitor-General for Ireland. Heed Stipendiary Magistrate of Birmingham. was called to the Bar in 1834, and appointed a This day (4th April) the Right Hon. Sir Queen's Counsel in 1846.
Lawrence Peel, Knight, was, by her Majesty's M. Prendergast, Esq., Q.C., has been ap- command, sworn of her Majesty's most Hopointed Judge of the Sheriffs’ Court of London, nourable Privy Council, and took his place at in the room of Russell Gurney, Esq., elected the Board accordingly.–From the London Common Serjeant. Mr. Prendergast was Gazette of 8th April. called to the Bar by the Honourable Society Mr. Edward Press, Solicitor, of Norwich, of Lincoln's Inn, on the 20th Nov., 1820. He has been assigned the Norwich district and an is of the Norfolk Circuit and Recorder of additional coroner is to be appointed for the Norwich.
Lynn district; the county of Norfolk having, The Queen has been pleased to appoint John under the Act for "amending the Law respectLucie Smith, Esq., to be the Attorney-General ing the Office of County Coroner," been difor the Colony of British Guiana.
vided into two districts for the purposes of the Her Majesty has also been pleased to appoint' said Act.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Hawker v. Hallewell. April 4, 1856. 1856.
CREDITOR.-CONTINGENT COSTS OF INSOLVENCY, WHERE SUBSEQUENT
E., by insolvency order, paid the plaintif vency were ordered to be paid, in a credi
2501. and took his bond conditions for paytor's suit instituted to administer the estate ment of 1,000l. contingent on his surviving of the insolvent who had subsequently died.
two other persons. The plaintiff after
wards became insolvent and inserted E's It appeared that certain costs, amounting to 4821., had been incurred in an inselvency, and
name in his schedule, who, however, did not that upon the insolvent's subsequent death a
: Held, that the 1&2 creditor's suit had been instituted to admi
Vict. c. 110, ss. 75, 80, had not the effect nister his estate. The question now arose, whe
of discharging E.'s debt, and that those this amount should be paid to Mr. Topping,
sections applied only to debts in præsenti, the assignee in insolvency.
but payable in futuro. The chief clerk's W. H. Terrell and Bevir for the respective
certificate was accordingly affirmed includparties.
Cur. ad. vult.
ing E's name in the schedule of creditors The Lord Chancellor said, he had no discre
in respect of the 1,0001, interest and costs,
ecree a suit to carry out a deed tion in the case, and ordered the money to be
of trust for the benefit of the plaintif's paid accordingly.
DEBTS.-DISCHARGE FROM BY INSOL-
Superior Courts : V. C. Stuart.
471 This was a motion to vary the certificate of such creditor or creditors, excepting as respects the chief clerk, including the mame of Mr. such prisoner's discharge under this Act.”. Edwards in the schedule of creditors, as being Bacon and Freeling, for the defendants, were entitled as a creditor for 1,000l., together with not allowed to be heard in support. interest and costs, under a deed dated in Aug. The Vice-Chancellor (without calling on 1853, whereby certain moneys were conveyed Cairns and amphlett for Mr. Edwards) said, in trust for the plaintiff's creditors, and to pay that it was obvious from the language of the the balance to the plaintiff, and which deed Act it referred to the case of debitum in prewas directed to be performed by a decree made senti, but solvendum in futuro, but that in the in Dec. 1853. It appeared that Mr. Edwards present instance from the very terms of the had, in the year 1835, paid the plaintiff, who obligation there was at the time of the insolwas in embarrassed circumstances, a sum of vency no existing debt at all, since on the hap2501.
, as consideration for the bonds in ques- pening of a certain event the obligation was to tion, and that the 1,0001, was to be paid if the cease. Mr. Edwards was not therefore a creplaintiff survived two other persons, and that ditor who could go in and prove his debt in 1842, before the contingency took place, the under the insolvency, and the chief clerk had plaintiff had taken the benefit of the Insolvent properly certified that he was a creditor for Act, and inserted the name of Mr. Edwards in 1,0001. on the bond. The motion would achis schedule, but that he had not proved bis cordingly be refused, with costs to be paid by debt thereunder.
the plaintiff personally. Malins and Roxburgh for the plaintiff in support, referred to the 1 & 2 Vict. c. 110, 8. 75, which enacts, that “after such examination James v. Gwynne. April 7, 1856. of any such prisoner as hereinbefore directed,
MASTERS' ABOLITION ACT.-DELAY IN PROit shall be lawful at such hearing or adjourned
SECUTING DECREE.-CHIEF CLERK'S CERhearing as aforesaid, for the Court or Commissioner or justices, upon such prisoner's swearing to the truth of his schedule, and executing A bill was filed in 1844, and a decree made in such warrant of attorney as hereinafter directed, December, 1853, directing accounts. Neto adjudge that such prisoner shall be dis- gociations for a compromise were entered charged from custody, and entitled to the be- into but without effect, and in December, nefit of this Act, at such time as the said Court 1855, the plaintiff took out a summons, but or Commissioner or justices shall direct, in pur
which was adjourned to complete his evisuance of the provisions hereinafter contained dence. On March 10 last, the chief clerk in that behalf, as to the several debts and sums certified the plaintiff's default under the 15 of money due or claimed to be due at the time & 16 Vict. c. 80, and on that day the plainof making such vesting order as aforesaid from tiff tendered his evidence. A motion to such prisoner to the several persons named in vary the certificate and for leave to proceed, his schedule as creditors, for the same respec
was dismissed with costs. tively, or for which such person shall have This bill was filed in 1844 to establish a given credit to such prisoner before the time deed, and by the decree dated in December, of making such vesting order as aforesaid, and 1853, it was declared valid, and certain acwhich were not then payable,” &c.; and to s. counts were ordered to be taken and direc80, which provides, that " the discharge of any tions given for the amount found to be due, such prisoner so adjudicated as aforesaid shall together with the costs to be raised by sale or and may extend to any sum or sums of money mortgage of the lands comprised in the deed. which shall be payable by way of annuity or Negociations for a compromise were subseotherwise, at any future time or times, by virtue quently entered into, but without result, and of any bond, covenant, or other securities of in December last a summons was taken out by any nature whatsoever, and that every person the plaintiff which was adjourned to complete and persons who would be a creditor or cre-his evidence. No further steps had been ditors of such prisoner for such sum or sums taken, and on March 10 last the chief clerk of money, if the same were presently due, shall certified under the provisions of the 15 & 16 be admissible as a creditor or creditors of such Vict. c. 80, that the plaintiff had made default prisoner for the value of such sum or sums of and had not produced the evidence to enable money so payable as aforesaid, which value the him to answer the inquiry and take the acsaid Court shall; upon application at any time count directed by the decree. It appeared that made in that behalf, ascertain, regard being the plaintiff, at the meeting on that day, had had to the original price given for such sum or tendered his evidence and offered to proceed, sums of money, deducting therefrom such and on the chief clerk refusing to receive the diminution in the value thereof as shall have same, this application was made to stay the been caused by the lapse of time since the certificate and for leave to prosecute the ingrant thereof to the time of making such vest- quiry on such terms as the Court might think ing order as aforesaid; and such creditor or just. creditors shall be entitled in respect of such Southgate in support; Bacon, Gisborne, and value to the benefit of all the provisions made Freeling, contrà. for creditors by this Act, without prejudice, The Vice-Chancellor said, that the applicanevertheless, to the respective securities of tion could not be tolerated, particularly in the
PAYMENT OF DEBTS AND LEGACIES OUT OF
REAL AND PERSONAL ESTATES RATE-
Superior Courts :-). C. Stuart. Court of Insolvency. present practice of the Court, which required
Court of Eusolvency. the rights of parties to be adjusted as speedily (Coram Mr. Commissioner Murphy.) as possible, and the motion was accordingly
In re Aaron. April 8, 1856. refused with costs.
INSOLVENT ACT.-ALLOWANCE FROM CRE
plication for an allowance from the detain-
applied to all the members of his family Devise and gift of all the testator's real and
and exhausted every means to support himpersonal estate to trustees in trust, to pay
This was an application under the 1 & 2 the mourning for his servants to be paid for Vict. c. 110, s. 86, for an allowance whilst out of his personal estate : Held, that the under imprisonment for 15 months for fraud, debts and legacies were payable by the real at the suit of Messrs. Shoolbred and Co., and and personal estate rateably.
Messrs. Halling, Pearce, and Smee.
Section 86 enacts, that “in all cases where The testator, by his will, after directing such prisoner shall, upon such adjudication as mourning to be provided for his servants, aforesaid, be liable to further imprisonment at which was to be paid for out of his personal the suit of his creditor or creditors, or any or estate, gave certain legacies, and then gave and either of them, it shall be lawful at any time devised all his real and personal estate to trus- for the said Court, on the application of such tees in trust to pay all his debts and legacies, prisoner, to order the creditor or creditors at and subject thereto as therein mentioned. The question was, whether the debts and legacies such prisoner such sum or sums of money, not
whose suit he shall be so imprisoned, to pay were payable out of the personalty, or rateably exceeding the rate of 4s. by the week in the out of the real and personal estate.
whole, at such times and in such manner and Smythe, De Ger, and Brodrick for the re, in such proportions as the said Court shall spective parties, citing Boughton v. Boughton, 1 direct, and that in failure thereof, as directed H. of L. Cas. 414. The Vice-Chancellor said, that the debts and by the said Court, the said Court shall order
such prisoner to be forthwith discharged from legacies were payable rateably out of the real custody at the suit of the creditor or creditors and personal property.
so failing to pay the same.”
The Court said, that as the affidavit did not
set forth whether the insolvent had applied to SUIT BY SPECIFIC LEGATEE. — costs of the members of his family and exhausted every
means to support himself, the application must In a suit for a specific legatee for payment of be refused, but it might be renewed on a pro
his legacy, inquiries were directed as to per affidavit.
ALLOW pense of such inquiries were payable out of
ANCE OF COSTS TO, OF CHANCERY SUIT. his legacy, and the general costs of suit
Held, that an attorney and solicitor who was rateably between the two legatees--there being no general estate.
appointed assignee in an insolvency, is en
titled to his costs as an attorney as well as This was a suit by a legatee to obtain pay- the usual allowance as assignee. ment of a legacy under the will of a testatrix, It appeared that in this insolvency an attorand by the decree certain inquiries were di- ney and solicitor had been appointed assignee rected as to whether another specific legatee and had instituted proceedings in Chancery on (Matthew Gooch) was alive. It appeared that behalf of the estate and had realised considerhe had been ultimately found to be in Austra- able property. The question was, whether he lia, and the question now aruse, on further di- was entitled to his costs out of pocket only as rections, how the costs of such inquiry, which a trustee, or to the usual costs. were considerable, should be borne, as there Nicholls for the attorney; Sargood, contrà. was no general estate,-whether rateably or by The Court said, that an assignee was only a Gooch alone.
trustee sub modo, and that he was entitled to Karslake for the plaintiff; Field for Gooch; his costs when necessarily employed as an atBagshawe, jun., for the defendant and executrix. torney. The assignee was allowed 25 per cent.,
The Vice-Chancellor said, that the costs of besides the costs of his attorney, and the Court the inquiry for Gooch must come out of his had power to give remuneration to a person for legacy, and the general costs of the cause be getting in the estate. Che costs as an attorney paid rateably by both legatees.
would therefore be allowed.
AND INQUIRIES FOR SECOND LEGATEE.