Attorneys to be admitted Trinity Term, 1840.
ATTORNEYS TO BE ADMITTED.
Trinity Term, 1840.

Brown, Joseph Thomas, 30, Russell Square; Michael Clayton, Lincoln's Inn; assigned to and 52, Tavistock Square.

Best, William, 35, Arundel Street, Cambridge James Best, Winchester.
Street, Edgeware Road; Bedford Street,
Bedford Row; Warwick Street, Regent
Street; and 81, Quadrant, Regent Street.
Burton, William Warwick, 12, Grove Road,
St. John's Wood.

[To be continued.]

Superior Courts: Lord Chancellor's Court.

486

SUPERIOR COURTS.

Lord Chancellor's Court.

PRACTICE.—SOLICITOR AND CLIENT-ORDER

TO PAY COSTS.

the recent act of parliament, vesting all his property in assignees in the Insolvent Debtor's Court. However, on the 20th of January last, Mr. Chambers came, in pursuance of a notice he gave of a motion to discharge for irregularity, all the orders obtained by Mr. Wilton, for payment of his costs; the irregularity he complained of was, that the order of the 2d of

A solicitor having obtained an order for taxa-May 1839, was not served on him until after

tion of costs against his client, served the latter personally with the Master's certificate, and afterwards obtained after notice, an order on the client to pay the costs within three weeks or be committed. This order was not served on the client until after the three weeks had expired: Held, that this order being abandoned and spent, all subsequent orders founded on it, for enforcing the payment of the costs were irregular.

Mr. Russell moved for the discharge of an order obtained by Mr. Chambers, on the 20th of January last, by which several orders made in May, June, and November, 1839, were discharged. Mr. Chambers had been a party in the cause of Duffield v. Elwes, in this Court, and Mr. Wilton, on whose behalf the present application was made, had been his attorney and solicitor in that and other matters, and having a demand for costs against Chambers, he obtained, after a contest, an order for the taxation of his bill in 1838. The master taxed he costs to 671. 10s. 4d, and on the 12th of February 1839 Wilton served Chambers personally with the master's certificate and the previous order for taxation and payment, and on the 2d of May following, the costs not being paid, he obtained an order, in pursuance of notice, on Chambers to pay the taxed costs within three weeks from that day. On the 8th of June, after the three weeks had elapsed, the costs not having been paid, the order of the 2d of May was served on Chambers, and the costs were demanded but not paid. He was then (on the 8th day of June) served personally with the four day notice for the 12th of the same month, that the Court would be moved for his committal to the Fleet, unless he paid the costs in the mean time. That motion was made before the Master of the Rolls, who made au order on Chambers to pay the amount of the master's certificate of the costs, or stand committed; that order was personally served on Chambers on the 4th of November last, and on the 14th of November another order (which was discharged by the order obtained by Mr. Chambers) was made. It recited the former orders, and then stated that on hearing them (the former orders) read, it was ordered that Mr. Chambers be committed until he paid the said costs pursuant to the orders of the 12th of June 1839. Mr. Chambers, though personally served with notice of this as well as of all the former motions and orders, did not appear by himself or counsel. He was then already in the Fleet Prison, and receiving large sums of money under an order of this Court. In the mean time a vesting order was obtained under

the three weeks had expired. He conceived he had a right to lie by all the time, and then come forward to discharge for irregularity orders made on him on adverse notice. The 12th of June was perfectly regular, and went learned counsel argued that the order of the into a distinction between the practice in proceedings for payment of costs between party and party, and between solicitor and client. If Mr. Chambers had appeared to the motion of the 12th of June 1839, he could not have stopped the order then made, except by paying the costs; it was not, therefore, competent for the Court to discharge that order afterwards, and a party who did not appear on notice to oppose a motion against him, ought not to be heard to complain of irregularity. At all events, it was his duty to come to the Court to complain as soon as he knew of the irregularity, whereas he lay by until the 20th of January in the present year. He submitted that the order then made on the application of Chambers, discharging Mr. Wilton's orders, should be discharged with costs for irregularity.

The Lord Chancellor, stopping Mr. Wigram, who was for Mr. Chambers, said, he could not agree in the proposition, that if one party takes an irregular order, then, because the other party aflected by it does not come to the Court to oppose or discharge it, such order becomes regular. His opinion was, that all the orders obtained by Mr. Wilton subsequent to that of the 2d of May were irregular. The first order was on Mr Chambers to pay the costs on the 8th of February 1839, the master taxed the costs and gave his certificate, and then a demand was made for payment. Nothing was done from that day until the 2d of May 1839, when the order on Mr. Chambers to pay within three weeks or stand committed was made. Then, on the 8th of June following, after the three weeks expired, the order of the 2d May was served, and no payment of the costs being then made, the order of the 12th June 1839 was obtained at the Rolls on the ground that the order of the 2d of May was not complied with. No notice was given of that order to Mr. Chambers until the time of obeying it expired, and it was not competent for the other party who obtained that order, after acting on it, to abandon it, and rest on the subsequent orders. All the subsequent proceedings did in fact rest on that order of the 2d of May as appeared to his Lordship, and nothing being done on that order, it could not be made a ground for the order of the 12th of June. Again, the order of the 12th of June was not served till the 2d of November, and on the 14th of November an order for commitment was made. If the order of the 12th

Superior Courts: Lord Chancellor's Court; Queen's Bench Practice Coart. of June could not stand, the order of the 14th | on the business of an attorney with one Robert November resting on it could not stand. Rising. It was further sworn that Hughes and Nothing was done between the parties from the 12th of June till the 2d of November; after all this negligence and irregularity, when Mr. Chambers appeared on the 23th of January for relief, the Master of the Rolls was quite justified in granting it, and this application must be refused with costs.

488

Superior Courts: Queen's Bench Practice Court.

Sir W. Follett and R. V. Richards contended | two attorneys must always be concerned, it on behalf of Hughes and Rising, the attorneys, that all which the act required was, that there should be an attorney present for the defendant, named by him, and attending at his request.

Cresswell and Crompton in support of the rule. There is no affidavit from Wm. Rising of his having advanced the money, and he does not deny that Robert Rising was his attorney. Walker v. Gardiner and Mason v. Kiddle were analogous cases.

would be necessary to expose the client's affairs to a stranger. Such an exposure will be necessary to the extent of obliging the borrower to send for some other attorney to explain and attest the warrant of attorney, if the lender chooses to have such a security, but no further; and without his doing so, there is great danger that he will not, in many cases, have the protection intended by the statute. On the defendant's refusal to have another attorney in this case, Mr. Rising ought to have Cur, adv. vult. told him that the warrant of attorney would Patteson, J.-This was a motion, amongst not be binding unless he did, and that the other things, to set aside a warrant of attorney money could not otherwise be advanced. For and judgment, upon the ground that the re- these reasons I am of opinion that this rule quisites of 1 & 2 Vict. c. 110, ss. 9 & 10, had must be made absolute, so far as regards the not been complied with. Taking the facts in setting aside the warrant of attorney and judgthe most favourable light for the plaintiff, they | ment. This decision proceeds upon the supappear to be as follows: The warrant of position that the plaintiff really advanced the attorney was one of several securities given money, upon which fact some doubt was upon a loan of 5,000l. by the plaintiff; it was thrown, principally on account of the plaintiff attested in the proper form by the plaintiff's not making any affidavit. This is material with brother, an attorney at Worcester, who, to- reference to other parts of the rule. The congether with his partner, had for some months duct of the attorney, as disclosed by the affihad the management of the defendant's affairs; davits on both sides, appears to me very the witness was the attorney of the defendant reprehensible; for it is sworn and not denied, generally, and particularly in this transaction; that there was a bargain between him and the and on his informing the defendant that it was defendant, that he should receive, and did renecessary he should have some other attorney ceive, a most exorbitant sum for his commispresent, named by him, to explain the meaning sion and trouble in this loan of 5,000%., and in of the instrument, the defendant refused, say. a prior loan of 2,000/., by the attorneys theming, "you are my attorney, and I will have you selves; but the plaintiff, the lender, is not imonly." But it also appeared that the attorney plicated in those matters, and I have no power had prepared the warrant of attorney and to deal with the mortgage deeds or any secuother securities for the protection of his bro-rities except the warrant of attorney, nor to ther the plaintiff, and was beyond all doubt acting for the plaintiff in the matter as well as for the defendant; and the question is, whether his so acting prevented him from being a good witness under the statute in question. The recent case of Mason v. Kiddle, following up former decisions, has established the doctrine that the attorney attending for the defendant must be a person other than the at torney acting for the plaintiff. It is true that in that case, the witness acted first as attorney for the plaintiff, and afterwards for the defendant. Here, the witness was attorney for the defendant in the first instance, and superadded the character of attorney for the plaintiff in this particular transaction. I think that the difference is quite immaterial. I do not say that it was necessary that any attorney for the plaintiff should have been present. If the document had been prepared by some one else and sent to the defendant's attorney to procure his client's signature, he not charging the plaintiff, or acting for him in any other manner, it might have been good. But I am satisfied, upon the affidavits in this case, that the witness acted as attorney for both, and that, I am of opinion, is contrary to law. Great inconvenience was supposed to be likely to result from the Court thus holding; for it was said to be very common in the country that an attorney had clients wishing to lend, and clients wishing to borrow; that warrants of attorney are common securities on loans, and that if

order any account to be taken by the master between the plaintiff and defendant, or that the attorneys should deliver up the securities which they hold for the plaintiff; nor can I, upon this rule, order any such inquiry as between the defendant and the attorneys considered as his attorneys. The rest of the rule therefore, must be discharged, and, according to the general practice, this would be with costs, because the rule has asked too much; but as in this case, the plaintiff has made no affidavit and the circumstances are very suspicious as to his having really advanced any money at all, and, as the rule succeeds in that part, I am of opinion that no costs on either side should be allowed.

Rule accordingly.-Rising v. Dolphin, H. T. 1840. Q. B. P. C.

COURT OF QUEEN'S BENCH, 11th April, 1840.

ORDER OF BUSINESS.

The Court will, during the first four days of the next term, take Motions, and the Peremptory Paper; and should the whole of the Motions for New Trials Nisi not be heard within the four days, when they are all disposed of will proceed with the Special and Crown Papers on the usual days, and every open day the New Trial Paper.

CAUSE LIST, EASTER TERM, 1840.

Lord Chancellor.-Vice Chancellor.