Page images
PDF
EPUB

380

Meeting of the Attorneys. Superior Courts : Vice Chancellor's Court.

ASSIGNMENT OF COMPENSATION.

without expressing an opinion on any privilege

SUPERIOR COURTS. claimed by the House of Commous, or on the conduct of any of the parties who have in

Vice Chancellor's Court. curred the displeasure of the House, is of opipion that the inprisonment of an attorney for acting in his professional capacity, in accord- A. assigned to B. for valuable consideration, ance with the decision of the courts of law, is

an innual sam, granted to him during most dangerons to the rights and independence pleasure of the grantors, as compensation of this profession and to the due administra. for an office which A. had held, and which sion of jdstice.”

was abolished by act of parliament, and due Mr. G. Law seconded it.

notice of the assignment roas given to the The resolution was carried with acclamation. grantors : Held, upon motion before the Mr. Anderton moved the last resolution

hearing of the cause, that the assignment “That a petition embodying these resolutions was valid in equity as between B. and A.'s be presented to the House of Commons; that general creditor. the Incorporated Law Society be requested to This was a inotion for an injunction to reallow the petition to lie in the hall of the so- strain the defendant Sir William Boothby, ciety for signature: and that Mr. Freshfield Receiver General of her Majesty's Customs, be requested to present it to the house." from paying to the other defendants, Charles

Mr. R. B. Follett seconded the resolution, and Asprey, John Chart, or William Richard congratulated the meeting on the step which Browne, or any other person for their use, or the House of Commons had now taken by the use of any of them, any monies in his Sir means of a legislative enactment to settle these W. B.'s hands, for answering and paying the uuhappy disputes.

compensation allowance of 5001. a-year, which Mr. Hamilton deprecated all idea of petition- had been awarded and granted to the said ing the House of Cominons. They should at W. R. Browne, on the abolition of his office of once address themselves to the Queen, praying cocket-writer in the London Custom House ; that Her Majesty might be pleased to dissolve and also to restrain the said C. Asprey and the parliament.

J. Chart from proceeding at law against Sir An annendment substituting an address to W. Boothby for payment of said monies or the Queen for a petition to the House of Com- any part thereof. The facts of the case were mons was ultimately moved and seconded, these : In the year 1831, the office of cocketthen withdrawn, and afterwards moved again writer in the long room of the London Custom by other parties. After some discussion, House, held for several years with large however, the amendment, upon a show of emoluments, by Mr. W. R. Browne, was hands, was negatived, the vast majority being abolished by the 1 & 2 W. 4, c. 40, and the in favour of the original resolution.

annual suin of 5001. was by virtue of the Mr. Lawrence stated the case of a client of 50 G. 3, c. 117, and the subsequent statutes his own, whose copyright had been infringed for regulating the grantiog of pensions and by Messrs. Hansard in the publication of a re- compensations, awarded to him by the Com. port by order of the House of Commons so missioners of Customs, in pursuance of the recently as 1838, when, an action having been authority of the Lords of the Treasury, as threatened, an interview was requested by the compensation, payable to bim in equal quarterly Solicitor of the Treasury, and a sum of 100 payments by the receiver general. "By two guineas awarded, not as an equivalent, but as annuity deeds, dated respectively in September å fine and acknowledgment on the part of 1836, and May 1837, and duly executed and Messrs. Hansard, for the wrong they had enrolled, Mr. Browne, in consideration of two coinmitted. If such a case had occurred in sums of 6001. and 2001., granted to the plaintiff February 1840, and the compensation had Tunstall two annuities, amounting together to been refused, what would have been said, if he 1051, for his (Browne's life,) and to secure pas. had brought his action and retained, as he ment thereof, he assigned bis compeusation always did, the Solicitor General in the Com- allowance. Notice of the annuities and of the mon Pleas?

assignment of the compensation was given at Thanks were then voted to the chairman, the Audit Office, Somerset House, soon after and the meeting separated.

the execution of the deed, and to the Coin. Besides the gentlemen who took part in the missioners of Customs on the 5th of January discussion as above reported, there were pre- 1838, and in that month, Mr. Browne, who sent at the meeting the following amongst many had been arrested for a debt in November, other well known members of the profession : 1837, was discharged, under the act for relief B. Holme, B. Austen, M. Clayton, T. Dawes, of insolvent debtors, and Asprey and Chart T. Platt, sen., T. Tindal, E. L. Pemberton, w. were appointed bis assignees, to whom the Malton, J. S. Bockett, W. Woodrooffe, Sir G. Insolvent Debtors’ Court made the usual as. Stephen, J. S. Gregory, J. J. Sudlow, E. S. signment of the insolvent's estate and effects. Bigg, K. Barnes, G. L. Baker, G. Capron, Up to the month of April, 1839, Earle, C. Druce, J. Egan, A.W. Grant, A. Gordon, another defendant in the cause, and also an J. Leman, C. Stevens, C. J. Wbishaw, T. annuitunt of Browne, was in the habit of reWiglesworth.

ceiving the quarterly payments of his comThe petition lies for signature at the Incor- pensation allowance from the receiver general, porated Law Society, Chancery Lane.

and applying it in payment of the annuities

REGISTRATION ACT.-INDICTMENT.

Superior Courts : Vice Chancellor's Court : Queen's Bench,

381 for which he had a power of attorney from the Commissioners of Customs, so as to bind Browne. Froin that period, the assignees, them, inasınuch at they were not before the Asprey and Chart, claimed to have the pay- Court as parties to this suit. The order therements of the compensation made to thein for fore, which he should now make upon the the benefit of the general creditors of the present application was, that unless in the insolvent, and they obtained orders of the meantime the Lords of the Treasury or the Insolvents' Court for that purpose, under the Commissioners of Customs should make an 29th sect. of 7 G. 4, c. 57.

order to the contrary, Sir W. Boothby should be Mr. Richards and Mr. J. H. Pulmer, in sup- restrained from paying over the monies for port of the inotion, contended that the com- the quarterly payments of the compensation al. pensation allowance was well assigned to lowance in his hands, to the defendants Asprey Tunstall for a bona fide valuable consideration, and Chart, and that these latter defendants and that he had a prior claim on the fund in should also be restrained from taking any prosatisfaction of his annuities. They cited Alex- ceedings in the Insolvent Court or otherwise ander v. The Duke of Wellington,a to shew that at law for the recovery of the same. the circumstance of the compensation being Tunstall v. Sir W. Boothby and others, Sitheld during pleasure and revocable, would nottings at Lincoln's Inn, February 22d, 1940. render it incapable of assignment in a Court of Equity; and they were proceeding to refer

Queen's Bench). to numerous authorities in which future and expectant interests and possibilities were held

(Before the Four Judges.] to be assignable, when

The Vice Chancellor said it was unnecessary to do so, as it was clear that the contingent

The 6 87 W. 4, c. 86, (the Birth, Marrinature of the interest would not prevent its

age, and Deuth Registration Act) is comalienation in this Court.

pulsory in its provisions, and if the informThey then argued that the compensation al

ation required by that statute is withheld, lowance, not having reference to any future the party withholding it is liable to indicl

ment. services, was distinguishable from military pay and half-pay, Stone v. Lidderdale,b and that to

A public act which does require certain thing's

to be done, but does not attach any specific prevent its alienation an express enactinent

penalty to the not doing of them, may be was necessary, as in the cases of Chelsea Pensions (7 Geo. 4, c. 16, s. 26), Greenwich Pen

enforced by indictment. sions (10 Geo. 4, c. 26, s. 3), and Excise This was an indictment against the defendPensions (7 & 8 Geo. 4, c. 53, s. 121). The ant for having violated the provisions of the 6 Commissioners of Customs were purposely not & 7. W. 4, c. 86, the act relating to the regismade parties, as no compulsory order was tration of births, marriages, and deaths, by asked against thein.

having refused to give the particulars of the Mr. K. Bruce and Mr. Coleridge, for the birth of a child, pursuant to the 20th section assignees, opposed the notion on the ground of that statute.a . The indictment stated that that the compensation allowance was not as the defendant was the father of a child which signable, and that they were entitled under the bad been born in St. Peter's district, Birmingorders for payment to them, which the Insol- ham. That Geo. Pinner was the registrar of vent Court had made in pursuance of the 29th that district. That in pursuance of the act he sec. The compensation allowance was in the applied to the defendant and requested to be order and disposition of the insolvent under furnished with information respecting the time the 30th section, notwithstanding the notice at of the birth, the sex of the child, the names of the Audit Office. They also said that the the parents, and the business or profession of Commissioners of Customs refused to recognize the father. That the defendant had no lawful any assignments of pensions or allowances. excuse for not giving the required information,

Mr. Wray, for Sir W. Boothby, submitted but intending to prevent the due execution of to such order as the Court would be pleased to the law and the carrying into effect of the stainake, but considered that the Court could not tute, he contemptuously and unlawfully wholly interfere, as the allowance was a mere volun- refused to give to the said Geo. Pinner the in. tary and revocable grant.

formation so deinanded of bion. The indict. Mr. Richards, in reply, contended that the compensation was never within the 29th sec.

a By which it was enacted, “That the father of the insolvent act, because it had been well or mother of every child born in England after assigned to the plaintiff before the insolvency, the first day of March, 1837, or in case of the and that the 30th sec. had no application. death, illness, absence, or inability, of the

The Vice Chancellor was of opinion that father or nother, the occupier of the house or compensation was assignable, and that the as, tenement in which such child shall have been signment to the plaintiff was one which would born, shall within forty-two days next after the be held a valid one in equity, and that the no- day of every such birth, give information upon tices at the Audit Office was sufficient to com. being requested so to do, to the said registrar,

He could make no order at present according to the best of his or her knowledge against either the Lords of the Treasury, or and belief, of the several particulars hereby

required to be known and registered, touching & 2 Russ. & M. 35. D 2 Anstr. 541. the birth of such child."

plete it.

[blocks in formation]

ment was found at the sessions, and the defenil- the parents again to register them according ant then pleaded not guilty. The indictment was to the mode now provided by this act. Thus afterwards removed to this Court by certiorari, in the 18th section, after directing what the when a verdict of guilty was subinitted to, sub- registrar is to do, and how his duties are lo ject to the opinion of this Court on a case be perforined, the act contains these words Two questions were originally intended to be couching every such birth or every such raised, namely, one relating to the evidence death, as the case may be, which shall have necessary to shew that Pinuer was the regis- been already registered.” These last words trar of the district, and as such entitled to deshew that where the birth has already been mand the information; and secondly, whether registered, the parents need not again register an indictment for this offence wus sustainable it.” So that is registered in the usual way by in point of law. The latter was the only ques- the baptisın of the child in the church, it is lion argueil and decided. The argument oc- clear that the act does not compel the parents curred in Michaelmas Term. 1839.

again to go throngh the ceremony, and give The Attorney General in support of the information to the registrar of the district. It indictinent. The question whether this is is matter of notoriety that in passing throngh au indictalile offence_seeins to d-pend on the legislature the compulsory clauses were two considerations. First, whether the sta- / struck out on an objection raised to them by stute requires the information to be given, the most venerable church anthority in the or leaves it optional with the parents to give land, and it is therefore matter of history that or refuse the infor:dation; and secondly, the legislature intended only to pass an act whether if the information is required to be offering a perfect imeans of registry, but not given, the withholding of it ainounts to an compelling persons to adopt it. indictable offence under the statute. It is The Attorney General in reply. – The words clear that the statute did not intend to leave referred to in the 18th section “not already the giving or refusing of the information to the registered” were meant merely to prerent two option of the parents. The act was passed for registrations of the same inatter by different a public purpose: if the inforınation may be officers under this act. It did not abolish the withheld at the will and pleasure it may be church register, but for public purposes it pro. withheld by the negligence of the parents. vided that there should be a civil register of Then the object of the act may thus be defeat. births, marriages, and deaths. ed, either by the wilful foliy or the utter care

Cur, ado. rull. lessness of anybody. The legislature never Lord Denman (in Hilary Terin, 1810) decould have intendeii such to be the case. Then livered judgment. This was an indictment if the act required the information to be given, preferred against the defendant for not having is the refuse to give it a inatter which inay be given, in the inanner provided by section 9 inade the subject of an indictment? It may. of the 6 & 7 W. 4, cap. 86, the information It is a principle of law, that where a public act required by that statute, the Registration Act, directs someiling to be done for a public pur to the registrar of the district cincerning the pose, but does not provide any special penalty for birth of a child. Though in the course of the the not doing of it, the party guilty of the dis- argument there did not appear to be in the obedience to the act is punishable at common minds of any of those who argned the case, Jaw by indictment. The law has thrown a duty any doubt that it was the general intention of on bin which be must discharge. This rule is the legislature to obtain this information, yet clearly recognised in all the text writers.b The it was contended that the provisions of ibe indictment is consequently sustainable. statute were such as to leave it to the parties

Sir F. Pollock, contrà.--This is not an indict. to give such information or not at their pleaable offence. The general law so stated on the sure. But upon considering the provisions of other side is not denied, but it is inapplicable the statute we cannot avlopt that argument, in the present case. The act did not intend to and we think that the words of the 20th seccom:pel all parties to register the births of their tion are too strong to be got over. They dechildren, but oniy to give those who might be clare that “the father or mother of every child desirous of having the benefit of a complete born in England, or in case of the inability of register the opportunity to avail themselves of the father or mother, the occupier of the louse, the ineaus thus attorded by the legislature. &c., shall within forty-two days next after the The matter was left optional with the parties. day of the birtlı give information on being reThis is proved by the fact that the statute dues quested so to do, of the particulars required .not put an end to all other modes of registra- to be registered.” It is the duty of the regis. tion, and coinmand that this new inode alone trar to require such inforınation, and if he neshall be adopted, Thus in the 181h section it glect the duties imposed npon him by the act, recognises the existence of other inodes, and he will be liable to an indictinent for negleet when children have been already registered of such duties, the performance of which under tho.e the old inodes, it does not require is not otherwise provided for in the statute.

Now it is impossible for him to perforin all the b Hawk. C. 6, s. 5; 2 Hawk. C 25, s. 4; Juties of his office if this information is with4 Bla. Com. 122; Rex. v, Robinson, 2 Burr. beld. The section gives direct and positire 799 ; Rex v. Boyer, ib. 832; Kex v. Duvis, ib. injunctions that the information shall be af. 850 ; Rex v. Stubbs, 2 Terın Rep 295; Rex v. forded. Here it is withheld, and looking at Harris, 4 Terin Rep. 202,

the general object of the law we cannot avoid

cern.

Superior Courls: Queen's Bench Practice Court; Exchequer.

383 holding that these injunctions must be obeyed sworn before a person who appeared from the in this, which is a matter of great public con. declaration to be the plaintiffs' attorney, con.

The question here is, whether the de. trarv to Reg. Gen. H.T 2 Wm. 4, s. 6. fendant has been brought within the provisions Willmore supported the rule. and sulimitted of the statute so as to be liable for the wilful that it was sufficient if the plaintiff's and defenthouyh innocent refusal of obedience to its dants' names were set out. provisions. We think that he has been, and Putteson, J.-What do you say to the case that the verdict must be entered for the crown. of Due d. Cousins v. Roe?

The Attorney Grinerul stated that the only Willmore.-There it did not appear how far object in this prosecution was to assert the the case had proceeded. In the present one it Jaw, and that in this case he did not press for is merely the beginning of the action, and it is inore than a inerely nominal punishment. not requisite to set out more fully the names The Queen v. Price, H. T. 1840. Q. B. F.J. of the lessors of the plaintiffs who were not

plaintiffs or defendants in the case. As to the Queen's Bench Practice Court. objection that the affidavits were sworn be. FILING AFFIDAVITS.-ACCIDENT. fore a person who appeared by the declaration

to be plaintiff's attorney, he contended on the In enlurged rules, nothing but ineritable ac

authority of Beaumont v. Dean,6 and bild v cidents can excuse not filing affidurits a Daries, hi that it must expressly appear that the week before term.

attorney was not alone the general attorney of Greenuvod, inoved for a rule to show cause why the affidavits in this case should not be time the affidavit was sworn.

the party, but the attorney in the cause at the filed, nunc pro tunc. Il appeared that the rule

Patteson, J.-The case of Doe d. Cousins v. had been enlarged on the usual couditions, Roe was judginent against the casual ejector of filing the athdavits a week before the terin, in a very early stage of the proceedings ; and which had not however been dene. He con if it were not necessary to mention the paines, tended that under the R. M. 36 Geo, 3, K. B., lthe court would have said so in that case. As this might be done, if it should appear to the to the other objection, it appears by the declasatisfaction of the court that accident had laration delivered that the attorney was attoralone prevented the alti-lavit from being filed.

ney in the cause, which is sufficient. He cited Hoar v. Hill,a and Harding ". Aus.

Rule discharged.—Due d. Pryme v. Roe, H. lin.b

T. 1810. Q. B. P. C.
Patteson, J.-There is a later case than these,
Turner v. Trurin.c Wbut does your affida.

Grchequer of pleas.
vit slew to bring you within the words of the
rule 36 Geo. 3?

ARBITRATION.-AWARD.-COSTS...TAXATION. Greenrood.- It was the result of accident.

Putteson, J.-I consiiler myself entirely An arbitrator has, no poioer to order costs bound by the case of Turner v. Truuin. The to be paid as between attorney and client, court in that case tiought it better to adhere and if a provision ordering such costs to be to the strict words of the rule, and though a puid' is so connected with other parts of the contrary practice had exsisted, they deter- awurd that it cannot be rejected as un in. mined for the future to adhere strictly to the dependent provision, the urard is bud. rule

Butt shewed cause against a rule ol tained Rule refused. Wright v. Leicis, H. T., 1840. by Warren on the part of the plaintiff, for Q. B. P. C.

setting aside the award in this case. It appeared that the parties had agreed to refer to

arbitration "all the matters in difference on ENTITLING AFFIDAVITS.

the record in the cause, (except so far as In entitling an affidavit in a landlords' rule related to a sum of 101.) The costs of the said

in an action of cjectment the names of all action (except as aforesaid), and also of the the lessors ought to be introduced.

reference and award incident thereto, to be in In this case a rule nisi had been obtained the di:cretion of the arbitrators.” They under the 1 Geo. 4, c. 87. It was a landloril's awarded that "the action should cease, and no rule, and was granted in Doe ou the several further proceedings be taken therein ; that the demises of George Pryme & another.

defendant should pay to the plaintiff the sun Cole shewed canse and contended that all of 501, towards the costs incurred in the cause the names should have been set out in the afti and reference. That the plaintiff should piy davits on which the rule was granted. He his own costs of the cause and reference, and cited Rex v: The Sheriff of Surrey,a Foris v also pay to the defendant the costs of the deDirmar, Narv.- -, a

a Doe d. Spencer v. fendant in the call:e and reference, and the Want,d Tomkins v. Geach,e Due d. Cousins v. said costs in the mean time to be taxed as

There was also an objection to the between attorney and client. That the plaintiff atli davits on the ground that they were should pay to the arbitrators for their use 251.

for their fees and disbursements as arbitrators in I Chit 27. b 6 Moo. 523.

the reference, and for the costs and expenses c 4 D. PC. 16.

-INDEPENDENT PROVISIONS IN AWARD.

EJECTMENT.-NAMES

OF

LESSORS.

Roe.

of the award.” To this award three objections a 2 East 130.

b 7 T. R. 661.

were maile : First, that it was uncertain, it not I Swith 157.

d 2 Moore 7:22. e 5 D. P. C. 509, I 7 D. P. C. 53. & 4 D. P. C. 351. h 5 D. P. C. 568.

C

384 Superior Courts; Exchequer : Lúw Bills in Parliament : Editor's Letter Box. appearing whether the 501. to be paid to the LIST OF LAW BILLS IN PARLIAplaintiff, was to go towards the costs of the

MENT, WITH NOTES, plaintiff or of the defendant, or both ; secondly, ihat in the former alternative, it was incon.

House of Lords. sistent; and thirdly, that the arbitrators bad no power to award the taxation of costs to be Copyholds Enfranchisement. Ld. Brougham. made as between attorney and client.

[In Select Committee.] Butt shewed cause, and contended that the Frivolous Suits Act amendment, touching costs. award of 501. to the plaintiff is in consideration

[For second readiog.] Lord Denman. of the expenses to which he will be put by the Rated Inhabitants Evidence. payment of costs on both sides. The arbi- [In Committee.] trators have power to award costs as they Vagrants’ Removal. please, and they have chosen this peculiar

[For third reading. mode of doing so; and this renders it per- Brighton Small Debts Court. fectly consistent with the next part of the

(In Committee. ] award that the plaintiff is to pay the costs both of himself and the defendant. As to the

House of Commons. third objection, the arbitrators, it is true, had | To amend the Law of Copyright. not power to order the costs to be taxed as [In Committee.] Mr. Serjt. Talfourd. between attorney and client ; but is is com- To extend the Term of Copyright in Designs pelent for the Court either to read those words of woven Fabrics.

Mr. E. Tennant. as meaning a taxation to be made in the usual [In Commillee.] way between party and party, or reject them to carry into effect the Recommendation of as surplusage. Whitehead v. Frith.a

the Ecclesiastical Commissioners. Warren supported the rule and contended,

Lord J. Russell. that the first part of this award amounts in To extend Freemen and Burgesses' Right of substance to ordering a stet processus ; after Election.

Mr. F. Kelly. which comes the unintelligible provision that Drainage of Lands.

Mr. Handley. the defendant is to pay the plaintiff 501. for [For second reading.] costs, and the plaintióf to pay both his own To amend Tithes Commutation Act. and those of the defendant. Then with re- [In Committee.] Sir. E. Knatchbull. spect to the mode of taxation, it is clear that Sinal] Debt Courts for no arbitrator has power to award costs to be Aston,

Marylebone, taxed as between attorney and client. Watson

Barkston Ash, Tavistock, on Awards, pp. 133, 134.

Bolton,

Newton Abbott, Alderson, B.—That oljection would only Liverpool,

Wakefield Manor, have the effect of setting aside the award so Summary Conviction of Juvenile Offenders. far. The case of Marder v. Cox,b seems to [In Committee.]

Sir E. Wilmot. shew that that portion may be rejected. To amend the County Constabulary Act. Warren. In that case the part relating to

Mr. F. Maule. the costs was easily separable from the rest of To amend the Laws of Turnpike Trusts, and the award, in which case the authorities all to allow Unions.

Mr. Mackinnon. agree that the part in which the arivitrator for the entire Abolition of the Punishment of has exceeded bis authority may be rejected ;c Death. Negatived: there being 90 for and Jackson v. Clarke.d That, however, is not so 161 against the measure. Mr. Ewart. here.

Prisons Act Amendment. Parke, B – There is no difficulty about the [Iu Committee.] two first objections. The apparent inconsis. To consolidate and amend the Law of Sewers. tency is explained by the context, and the [For second reading.) award means in substance that the plaintiff is To give Summary Protection to persons emto pay the costs on both sides, both of the

ployed in the publication of Parliamentary cause and reference, together with the 251. to

Papers. [In Committee.] Lord J. Russell. the arbitrator; as a partial indeinnity for all

Bills passed the Commons. which, he is to receive a sum of 501. from the Vagrants’ Removal. defendant. But I am afraid that the third Brighton Small D: hts Court. objection is fatal. The award of the taxation of costs as between attorney and client, is so

THE EDITOR'S LETTER BOX, connected with what goes before and what follows, that non constat, that the payment of 501. by the defen:lant, was not part of the

in the case of Barron v. Fitzgerald, p. 361, consideration for which it was awarded. It the rule, instead of being discharged, as reseems to be so connected with the benefit in ported, was made absolute--as appears evidently tended to be granted to the defendant by this by the abstract of the decision and the judge award, that we cannot venture to reject it. ment.

Rule absolute.--Seckham v. Babb, H. T. The letters of " An Attorney”; T. S. G.; 1840. Excheq.

X.; “Quid nunc”; H. H;'“A Constant
Reader”; and “A Copying Clerk," shall

receive early attention. a 12 East, 165. b Cowp. 127.

Several communications have been printed, c 2 Ch. Arch. 1262. d 1 M'Clel. & Y. 200. I but are unavoidably postponed.

« EelmineJätka »