Lien on writings.

Lien on money recovered.

If an attorney be denied his privilege, he may have a writ of privilege for his discharge. 2 Haw. c. 10. § 39.

But the privileges of an attorney continue only while he is a practising attorney, and while he has a certificate. Brooke v. Bryant, 7 T. R. 25.

And the court of C. P. held, that an attorney should not be allowed his privilege, unless he could shew that he had practised within a year previous to his arrest. Dyson v. Birch, 1 Bos. & Pull. 4. Attorneys, plaintiffs, are not, within the London court of conscience act, 39 & 40 G. 3. c. 104., compellable to sue there for a debt under 51. at the peril of costs. Board v. Parker, 7 East, 47. And this though the defendant were an attorney. Id. 50.

If he refuse a re-delivery of writings entrusted to his perusal, though some of them concern himself principally, the court, upon motion, will compel him to re-deliver them, on payment of all due to him in the cause for which they were delivered; for if the writings were delivered for a special purpose, he shall not detain them for another demand. Id.

For the court, under circumstances, will entertain a summary jurisdiction over an attorney of the court, in obliging him to deliver up deeds, &c. on satisfaction of his lien, though they came into his hands as steward of a court, and receiver of rents. Sir Richard Hughes v. Mayre, 3 T. R. 275.

But if it appear that a third person is interested in the deeds, the court will take security from the person to whom they are delivered, to produce them on demand for the inspection of such third person. Id.

If a lease be put into an attorney's hands for the purpose of making an assignment of it, the court will not, upon a summary application, cause him to deliver it up, on payment of his demand; there being no cause in court, nor any criminal conduct imputed to him in respect of it. In the matter of S. Lowe, 8 East, 237.

And the court will award an attachment against him, for bad and fraudulent practice; and he shall pay costs thereupon, or shall be committed. But an attachment will not be granted before a day allowed to shew cause. Com. Dig. tit. Attorney, (B. 15.)

Where an attorney undertakes to appear for a party, the court will oblige him to do it at all events.

But an attorney has a lien on the money recovered by his client for his bill of costs; therefore, if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court, they will prevent its being paid over until his demand is satisfied. If the attorney give notice to the defendant not to pay till his bill be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned after notice. Dougl. 238. So he has a lien on a sum awarded in

favour of his client, and may obtain a rule that the money shall be paid to him, and not to his client. Ormerod v. Tate, 1 East, 464. Payment to the attorney is payment to the principal. Dougl.613. 1 Black. Rep. 8.

As to Evidence by Attorney, see Evidence, post.

Auction, Duty on. See tit. Ercise.

277

Award.

THIS title not being immediately relative to the duties of a justice of peace or parish officer, it is proposed, in order not to increase the work unnecessarily, merely to insert in the present edition so much as may be requisite to shew what things may be submitted to arbitration; and to add only the form of a common award, referring the reader for further information to the excellent treatise upon the subject published by Mr. Caldwell.

It is also considered advisable to append the recent provisions of the stat. 3 & 4 W. 4. c. 42. respecting arbitrations.

I. What Things may be submitted to Arbitration.

All matters of controversy, either of fact or of a right in things, Actions perand actions personal and uncertain, may be submitted to arbi- sonal.

tration. 9 Rep. 78.

All civil matters may be submitted to reference, as well as all

costs incident thereto. Per Gibbs C. J., Baker v. Townshend,

1 Moore, C. P. 124.

Matters of freehold, or any right and title to a freehold, cannot Matters of freebe submitted to arbitrament; for a freehold is not transferable hold. from one to another, without livery and seisin. Yet if there be a submission concerning the right, title, or possession of lands and tenements, and the parties enter into mutual bonds to stand to the award made relating to them, they forfeit their bonds unless they obey it. 1 Roll. Abr. 242. 244. Wood. b. 4. c. 3.

At the present day it is quite clear that any disputes respecting land may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and the possession. Caldw. on Arbit. 2.

In no criminal case, where it would be a public offence to com- Criminal of pound an injury, can the matter be referred to arbitration; indeed, fences. it seems that parties would be punishable who should enter into

such bonds. Caldw. on Arbit. 4.

But in cases of minor grievance, such as assault, libel, conspiracy, nuisance, maintenance, and the like, wherever the party injured has a remedy by action as well as by indictment, nothing can deter such party from referring the adjustment of the reparation which he is to receive to arbitration, although a criminal prosecution might have been commenced. Caldw. on Arbit. 4, 5. Baker v. Townshend, 1 Moore, 120. Per Gibbs C. J. S. C. p. 124. 7 Taunt. 422. S. C.

But it seems that, if an indictment have been already preferred, the express leave of the court must be obtained, to sanction a subsequent reference. Caldw. on Arbit. 5.

A mere question of law may be referred to an arbitrator; as may the construction which shall be put upon any particular instrument, will, or lease; nor will the court, under such circumstances, set aside the award, upon a suggestion that the arbitrator has mistaken the law. Caldw. on Arbit. 6.

By stat. 55 G. 3. c. 184. the former stamp duties on awards are, amongst others, repealed; and there is imposed

55 G. s. c. 184. Stamp duties.

3&4 W.4. c.42.
Submission to
arbitration by
rule of court,
&c. not to be

out leave of the court.

Upon every award a duty of
And where the same, together with any schedule or
other matter put or indorsed thereon, or annexed
thereto, shall contain 2160 words or upwards, then
for every entire quantity of 1080 words contained
therein, over and above the first 1080 words, a further
progressive duty of

£ s. d.

1 15 0

- 1 5 0

If it be by deed, it must have the stamp appropriated to deeds.

II. Provisions of stat. 3 & 4 W. 4. c. 42. respecting
Arbitrations.

By stat. 3 & 4 W.4. c. 42. § 39., after reciting that it is expedient to render references to arbitration more effectual, it is enacted, "That the power and authority of any arbitrator or umpire appointed by or in pursuance of any rule of court, or judge's revocable with order, or order of nisi prius, in any action now brought or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of his majesty's courts of record, shall not be revocable by any party to such reference without the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge; and the arbitrator or umpire shall and may and is hereby required to proceed with the reference notwithstanding any such revocation, and to make such award, although the person making such revocation shall not afterwards attend the reference; and that the court, or any judge thereof, may from time to time enlarge the term for any such arbitrator making his award.”

Power to com

ance of wit

nesses.

§ 40. "When any reference shall have been made by any such pel the attend- rule or order as aforesaid, or by any submission containing such agreement as aforesaid, it shall be lawful for the court by which such rule or order shall be made, or which shall be mentioned in such agreement, or for any judge, by rule or order to be made for that purpose, to command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order; and the disobedience to any such rule or order shall be deemed a contempt of court, if, in addition to the service of such rule or order, an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators, or by the umpire before whom the attendance is required, shall also be served either together with or after the service of such rule or order: Provided always, that every person whose attendance shall be so required shall be entitled to the like conduct money, and payment of expenses and for loss of time, as for and upon attendance at any trial: Provided also, that the application made to such court or judge for such rule or order shall set forth the county where such witness is residing at the time, or satisfy such court or judge that such person cannot be found: Provided also, that no person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compelled to produce at a trial, or to attend at more than two consecutive days to be named in such order."

Power for the arbitrators

§ 41. “When in any rule or order of reference, or in any sub- 3&4 W. 4. c. 42. mission to arbitration, containing an agreement that the submission shall be made a rule of court, it shall be ordered or agreed that the witnesses upon such reference shall be examined upon oath, it under a rule of shall be lawful for the arbitrator or umpire, or any one arbitrator, court to admiand he or they are hereby authorized and required, to administer nister an oath. an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly."

III. Form of an Award.

TO all to whom these presents shall come, we A. B. and C. D. of

send greeting.

of

Whereas there are several accounts depending, and divers controversies have arisen, between

the one part, and

of

of

-, yeoman, of •, yeoman, of the other part: And whereas, for putting an end to the said differences, they the by their several bonds or obligations last past, are reciprocally become bound each

said

and

bearing date
to the other in the penal sum of
to stand to, abide, per-
form, and keep the award, order, and final determination of us
the said
so as the said award be made in writing, and
ready to be delivered to the parties in difference on or before
next ensuing, as by the said obligations and conditions thereof may
appear: Now know ye, that we the said arbitrators, whose names
are hereunto subscribed and seals affixed (a), taking upon us the
burthen of the said award, and having fully examined and duly
considered the proofs and allegations of both the said parties, do
make and publish this our award between the said parties, in
manner following; that is to say, first, we do award and order
that all actions, suits, quarrels, and controversies whatsoever, had,
moved, arisen, and depending between the said parties in law or
equity, for any manner of cause whatsoever, touching the said pre-
mises, to the day of the date of the submission, shall cease and be no
farther prosecuted; and that each of the said parties shall pay
and bear his own costs and charges in anywise relating to or
concerning the premises. And we do also award and order that
shall deliver or cause to be delivered to the said
within the space of
,&c. And fur-
shall, on

the said

at

the sum of

and

on

ther, we do hereby award and order that the said
or before
•, pay or cause to be paid unto the said
We do also award and order, &c. And lastly,
we do award and order that the said
payment of the said sum of · shall, in due form of law, execute
each to the other of them, or to the other's use, general releases,
sufficient in the law for the releasing by each to the other of them,
his heirs, executors, and administrators, of all actions, suits, arrests,
quarrels, controversies, and demands whatsoever, touching or
concerning the premises aforesaid, or any matter or thing thereunto
relating, from the beginning of the world until the
day of

(a) If it be without seal, as it may be," and seals" must be omitted.

9 G. 4. c. 92.

tions shall be entitled to the privileges and benefits of this act.

last past (viz. the day of the date of the arbitration bonds). In witness whereof we have hereunto set our hands and seals (a) the day of

Witnesses hereof,

E. F.

G. H.

Backing a warrant.

A. B.

C.D.

See tit. Warrant, Vol. III.

(Criminal Law,) p. 952.

Bail. See Vol. III. (Criminal Law,) p. 64-76. Banks, destroping. See Vol. III. (Criminal Law,) p. 76.

Banks for Savings. (6)

I. Regulations of stat. 9 G. 4. c. 92.

II. Alterations and Amendments, and Provisions for the Purchase of Annuities, by stat. 3 W. 4. c. 14.

BY

I. Regulations of stat. 9 G. 4. c. 92.

Y stat. 9 G. 4. c. 92., intituled An act to consolidate and amend the laws respecting Savings Banks, after reciting that it is expedient to amend the laws relative to savings banks in England and Ireland, and to consolidate the same in one act, and to make other provisions respecting savings banks; and after reWhat institu- pealing all the previous acts, it is enacted, "That if any number of persons have formed or shall form any society in any part of England or Ireland, for the purpose of establishing and main. taining any institution in the nature of a bank to receive deposits of money for the benefit of the persons depositing the same, to accumulate the produce of so much thereof as shall not be required by the depositors, their executors or administrators, at compound interest, and to return the whole or any part of such deposit and the produce thereof to the depositors, their executors or administrators, (deducting out of such produce so much as shall be required for the necessary expenses attending the management of such institution,) but deriving no benefit whatsoever from any such deposit, or the produce thereof, and shall be desirous of having the benefit of the provisions of this act, such persons shall cause the rules and regulations established or to be established for the management of such institution to be entered, deposited, and filed in manner herein-after directed, and thereupon shall be deemed to be entitled to and shall have the benefit of the provisions contained in this act: Provided always, that the privilege of paying money into the banks of England or Ireland, and of receiving receipts for the same, shall be and the same is hereby declared to be extended to such institutions as may

(a) See note (a), p. 279.

(b) See tit. Friendly Societies. A valuable history of Savings Banks has been published by Mr. Tidd Pratt, the barrister at law appointed to certify the rules of Savings Banks and Friendly Societies in England and Wales.