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efforts now are, and will unquestionably still be "the substance" of a paper read before the
be required; but, from the contents of the February Number, just published, it may be reasonably doubted if they can or will be made, or, if made, be successful. That the Law Magazine has vastly fallen away from its former high position is matter of notoriety in the Profession. Whether anything has been done or attempted, which is likely to arrest the progress of its decay, the Profession will decide. Much, on the contrary, is to be found in its last Number, calculated to facilitate the final dissolution of this Quarterly Review of Jurisprudence.
It has often been said, and the assertion seems not unreasonable, that the Legal Profession neither require on the one hand, nor have any right on the other, to be represented by a " Quarterly." The admitted decadence of the two legal periodicals, which still linger on from quarter to quarter, is a proof that this opinion is gaining ground. The Law Review has appeared, it is said, for the last time, and a perusal of the last Number of the Law Magazine, which has produced this communication, may serve to strengthen conviction on this subject.
Juridical Society on December last. Any notice of this distinguished lawyer is of course interesting; but as the "paper" of which it is "the substance" will in due time appear among the publications of the society, which has already printed several valuable contributions from its members, it is difficult to see why twenty-seven pages of "strenuous efforts” should be directed to giving the readers of the Magazine the "substance."
The "strenuous efforts" of the Editor are not confined, seemingly, to a wholesale appropriation from the records of the Juridical Society,-those of another learned body are laid under contribution. Twenty-two pages are devoted to a reprint of the " Report by the Statute Law Committee of the Law Amendment Society as to the best means of Consolidating the Statutes." This paper is no doubt of great value as a contribution to the pending discussions on this most important subject; but is that sufficient reason for its reproduction in the pages of a Quarterly Review? Such a republication can only be justified, where the paper is not only of value and importance in itself, but cannot be readily obtained by the Can any reader fail to be painfully struck Profession or the Public. It is notorious; howwith the begging petition addressed to pub- ever, that all the Reports of the Law Amendlishers, which is prefixed to the "Short Notes ment Society may be procured at its rooms for of New Books?" Can any other periodical a few pence, such being one of the means be mentioned which has condescended to make which the society adopts, for furthering its such an intimation? When a book is forward- views, and inviting discussion on its proceeded by a publisher to an editor, it is supposed ings. The purchasers of the last Number of to be a graceful acknowledgment of the dignity, the Law Magazine may possibly object to pay, and a respectful homage to the hitherto much at a high rate, for what may be obtained for a prized and firmly asserted independence of the few pence, and without strenuous efforts of literary critic; for no publisher has ever en- any kind, editorial or otherwise. tirely escaped, and many have severely felt the censure of the reviewer. If a notice be held out as an inducement to forward books, which is what is done by the Law Magazine, it seems to convert the promised review into a purchased advertisement, and what is much worse, the previous promise cannot but involve, on the part of the reviewer, a sacrifice of all independence, and an entire abnegation of the critic's right to speak the truth even when it is likely to be disagreeable. What value can be But it is not all reprint. Ten pages of placed on the opinion of an editor, expressed original writing are devoted to a review of on works sent to him on this eleemosynary Stephen's Lush's Practice, a work publishprinciple, the reader can judge for himself. ed, it may be observed, by the publishers of Turning to the pages of the Magazine, the the Law Magazine. Dr. Johnson was oblig First Article" Sir Samuel Romilly as an Ad- ed to eat broken victuals behind a screen vocate, a Jurist, and a Legislator”—purports to in the shop of his employer, but times are
What, again, have the Professional or other readers of the Magazine to do with a reprint of the subjects of the Lectures, delivered at the Inns of Court, or the Questions propounded to the Students for the Bar? Every one sees the former screened in all the libraries and in the halls,-the latter may have puzzled a few dullards, and they have served their purpose; yet other twelve pages of the Quarterly Review of Jurisprudence are thus occupied.
The Law Magazine.-On the Choice of Counsel by Attorneys.
"ERRAS SI ID CREDIS."-Terence.
changed, it is to be hoped, since the Great ON THE CHOICE OF COUNSEL BY Essayist and the immortal Goldsmith were compelled by stern necessity to obey the orders of the bookseller. Their sense of the degrada tion was blunted, if not destroyed, not only by their own anxieties, but by the "practice THE remedy I saw alluded to in your "" of the day. To what is to be attributed, however, Journal of Jan. 26, for the slow advancement of so long a review of our New Common Law longer be necessary for them to receive briefs young Barristers,-namely, that it should no Procedure, apropos solely of Lush's Practice. and cases through the medium of Solicitors, The new edition of Chitty's Archbold's Practice, and that the bar being removed they should the ninth edition of which has just appeared, be allowed to run over the whole province of ably, carefully, admirably edited by Mr. Prentice Barrister and Attorney,-is a virtual amalga-seems to be unknown to, if it is not inten-mation of the two Professions; and is but the tionally ignored by, the reviewer. The latter proposal of those who have not sufficiently course, indeed, would seem to have been considered the subject or the results to the adopted, for while in a list furnished of the noble community of the Bar. Were the bar different editions of the two Procedure Acts, removed, thus stands the case :-Mr. Vainthe editors of works, which have fallen still-labour, now in briefless destitution, is deborn from the press, are enumerated, the name lighted that A., B., and likewise C., should be of one author, and of the only one whose clients, who "ostia pulsant." This is perhaps works have reached a second edition and are well for the present; but does. Mr. V. renow out of print, is entirely omitted. If this nounce all the ideas of future eminence? and, be the result of ignorance, the reviewer is evi- looking along the vista of his hopes, does no dently not qualified for the duty he presumes silk gown in alluring sleekness shine? Doth to undertake; if it be intentional, the critic is no Judge appear? is it not bounded by utterly unfitted for the office he thus dese- the Woolsack, and embellished with a world crates. The first qualification of a reviewer is of wigs? Has he never followed Eldon on the the same as that of a Judge,-perfect impar- upward course, or pondered over Brougham? tiality. It is not intended to charge the Law If he voluntarily extinguishes these brilliant Magazine, with wilfully ignoring the merits of prospects which glow in such vivid colours any author, whose labours have received the before him,-a rainbow, the promise that inapproval of the Profession; and it is not im-dustry and talent shall not go unrewarded, possible, that an explanation of the omission nor be overflooded by interest. If he prefers alluded to may be offered in a future Number. mediocrity in probability to eminence and disTill the appearance of its next Number (if any tinction in possibility, let him still continue to next Number ever appears), the reader may Solicitorize and Barristerize-he can do a fairly suspend his judgment, on the animus of small portion of both-but thus competition the reviewer. At all events, if the editorial labour of cor-own Profession. is lessened, and he lowers the dignity of his recting the proofs of reprints be a specimen of views that the prime of our youth enter at the But it is not with these "the practised revision and superintendence" Bar. If he does not, he will not be able, in of the new Editor, who (as announced by the full practice, to superadd the labours of a Sopublishers) has been "long recognised as a licitor to those of the Bar, already acknowleading writer on the science and practice of ledged sufficient for any mortal brain. How the law," what will be the results of the "stre- then: will he now repulse those who helped nuous efforts," when they come to be made, him to the pedestal he now stands on, and that are to "render the periodical more worthy when his chamber door "mane salutantûm than heretofore of confidence and support"? totis vomet aditus undam," shall he not still We await them without fear. Meantime act as their Solicitor,-" Should auld acquaintlet us hope, that another opportunity, will present itself for discussing the claims to conance be forgot." fidence and support so confidently put forth by the Law Magazine.
cessity that most salutary rule of the Bar This system would also abolish of nethat Counsel receive only honorary fees. Of course, as the Daily News says, "a man must have a start;" but how? Silverspoon was
322 On the Choice of Counsel by Attorneys.-Law of Attorneys and Solicitors.
depend, -and to deny that there are many such, on the soundness of whose judgment, and on whose ability and integrity the greatest reliance can be placed, shows only the bitterness of envy or wilful malignity. Again,"The layman being now at his Solicitor's mercy," it is thenceforth by the Daily News proposed to put him at his Barrister's ditto. Has it been proved that the bowels of the
born Silverspoon;-his father or uncle toiled | strides will be less numerous, and why does and acquired the practice that feeds him;-he he not consult some Attorney on whom he can was born with an interest in their patronage. This is his birthright, nor can you begrudge it him more than any one else,-Lord H. or Sir Henry B.,-the gallant deeds, exalted talents, or industrious disposition of whose fathers and forefathers won them their present position. How then is the start to be had. For those who imagine others always on the look out to give them a start without any reason, or who picture to themselves ideal latter are more enlarged than that of the Solicitors wandering through Lincoln's Inn former ? "A client becomes a prey to an in eccentric search after possible Broughams ignorant man ;"-his own fault-let him find and not unlikely Erskines, are "listening with a clever one. American customs cannot be credulity to the whispers of fancy, and pursu- pleaded; and, moreover, in the Supreme Court ing with eagerness the phantoms of hope." of Washington "ils ont changé tout cela," at We are humbly of opinion that Solicitors are the commencement of the present century; better engaged. How then for the start. "In- for it is decreed that Counsellors may be advenienda via est qua me quoque possim tollere mitted Attorneys, but in that case they shall humo." They must make a pedestal to stand not continue to act as Counsellors. You might also just as well plead the custom of electing Judges, which prevails in some parts there, and put the Judgeship of the Oxford Circuit up to vote.
To sum up-there are the two Professions, and, as we used to learn in the Latin 'grammar in the third form,-"Utrum horum mavis accipe,"—but don't, oh! don't hanker after both.
Solicitors will not give briefs to the "great unknown ones. They must, ere they enter at the Bar, take a good class at Oxford. Nor can they expect, after idling away a couple of years in a Barrister's chambers, without any great perseverance or study, to emerge by a legal-electro-platism covered with fees and honours. Let them work then, first having considered whether they are fit for it;-for be it known there are some on whom did it rain legal honours as thick as hail, none would become them, their talent is of a different nature. The cause of the extreme difficulty in rising to eminence at the Bar is this:-the TAXATION, WHERE RETAINER DISPUTED
LAW OF ATTORNEYS AND SO-
AND ACTION AT LAW.
higher the talents of the order in which you wish to excel, the more ability and perseverIr appeared that the Mayor of Saffron ance is required to do so. Nor can you exWalden convened a meeting of the inhabitants to take into consideration the propriety pect in a moment to rise to distinction in a of applying to Parliament for an Act to rate profession which is with us as Meyer said of the owners of small tenements in lieu of the it in France, that "it is as difficult as honouroccupiers. A resolution was passed in able." And though a patient attendance in favour of the proposition, and a committee "a building just up by the sky" will not was appointed to carry it into effect, conbring either a shower of briefs in at the win- sisting of the members of the town council, dow, nor the eager tap of the anxious Solicitor the two churchwardens, the two overseers, at the door of his elevated tenement, yet let the board of surveyors, the guardians of young Barristers know that in their profession the parish (of whom the petitioner, John talent, perseverance, and health rarely or never fail in the end, and that the tide wave will certainly reach them, though it reach other
Clarke, was one), and eight other persons. Soon after, and before applying to Parliament, it was suggested that a guarantee fund should be raised to meet the expenses, in case of failure in obtaining the Act, and To conclude.-The Daily News says,the following form of guarantee was accord"Who shall fathom the mysteries of a law-ingly drawn up :-" We, whose names are yer's bill, or know if he take ten steps instead hereunto subscribed, undertake to pay such of one." We ask, who shall say his Barrister's sum, not exceeding the amount set against
Law of Attorneys and Solicitors.
our names, as may be required towards defraying the expenses of the Rating of Tenements Bill, for the parish of Saffron Walden, for which application will be made in the ensuing Parliament, if the same should not pass into law." This was signed for sums amounting in the whole to 1447. by 15 persons, 10 of whom, including Clarke, who signed for 57., were members of the committee. Clark in his affidavit alleged, that this was communicated to the mayor, who expressed himself satisfied, and said that his sons, W. Thurgood and Richard D. Thurgood, who had been appointed solicitors, would go on; but that he (Clarke) did not consider himself liable for more than 51.
Upon the Bill being rejected by the House of Lords, Messrs. Thurgood delivered their bill of costs, and subsequently commenced actions against Clarke and Thomas Smith, both of whom had signed the guarantee. Mr. Clarke defended the action and afterwards obtained an order of course to tax the bill, which had been delivered as a bill against him jointly with other parties.
The petition stated that Messrs. Thurgood had brought an action against the petitioner, that he disputed his liability, and had a valid defence to the action, except as to 57. paid into Court, that he intended to defend the action, and was not desirous of restraining it, but neither the petition nor the order contained any submission to pay what should be found due on taxation.
On the motion of Messrs. Thurgood to discharge or vary the order,
The Master of the Rolls said,
"This was an application to discharge an order to tax, obtained in a form which is unusual, although not without precedent, under these circumstances:
dale, it stood over, and a compromise was entered into. Since then orders have been granted as of course in this form, and have not been disputed.
"With respect to the jurisdiction and power of the Court to make such an order, I think it unnecessary to say much. I entertain no doubt of the power, notwithstanding there may have been some questions and some words in the Act which are ambiguous, for the cases at Common Law have, I think, settled the point that the Court has jurisdiction. It cannot, however, be denied, that this form of order is open to great objection and inconvenience. The order compels immediate taxation, and directs that if one-sixth be taken off, the expenses of taxation are to be borne by the solicitor; but after this, it may appear on the trial of the action, that there was no retainer, and no portion of the bill may be due, and all this expense will have been unnceessarily incurred. It is ought to have attended to himself, but there
said that this is a matter which the solicitor
are many cases, in which a solicitor acting for a body of persons has no doubt he is acting for all of them, and his only remedy is by action at law.
"Another inconvenience may arise from the Taxing Master having to determine the validity of retainer, in cases where no directions have been given by the client to do a particular thing, without which the charges for certain items cannot be allowed; this may involve the same question as that determined at law, and the Taxing Master may come to one conclusion and the jury may arrive at a different result, and yet the costs of taxation depend on this question. All this shows that to remedy the evils and inconvenience on both sides the matter ought to be brought specially to the attention of the Judge, so that he may make an order suited to the circumstances of the case, by which means, either the taxation here may be postponed until the question at law is determined, or the whole question of retainer may be referred to the Taxing Master.
to question the retainer of Mr. Thurgood, and that Mr. Thurgood be restrained from commencing or prosecuting any action or suit touching his demand pending the reference, and an undertaking by the client to pay what, if anything, shall be found to be due on such taxation. The result will be, that I shall send the whole matter to the Taxing Master.
In this case, I think that I ought to make the same order as that In re Pyne, 5 Com. B. "The solicitor brought an action against 407. The order should be amended, by insertMr. Clarke for his bill of costs. The client ing therein, that the client shall be at liberty contests both his liability to pay anything, on the ground that he did not employ him as his solicitor, and he also disputes the amount of the bill. If the matter proceeds solely at law, although the question of retainer may be decided, yet the question of amount can only be decided in the most unsatisfactory manner, i. e., not by taxation before the proper officer, but either in "I cannot compel the client to take this Court or by a reference to take the account. Mr. Clarke has obtained this order to enable order, but if he refuses and prefers to try the him, in case he shall fail in the defence to the action, I shall then discharge the order of action, to have the amount of the bill properly course, without costs, as I think that he was justified in the state of the practice in applying ascertained here by the proper officer. It was to remedy this inconvenience that Lord Lang- for it. If he takes this order, I shall make the dale settled and approved of an order in this costs of the order abide the result of the taxaform, but he never decided that this was right; tion." In re Thurgood, 19 Beav. 541.
an application to discharge the first order was
made, but, on the suggestion of Lord Lang
Law of Costs.-Notes on Recent Statutes.
enacts that 'error may be brought upon a judgment upon a special case in the same manner
SPECIAL CASE, WHERE ERROR AND as upon a judgment upon a special verdict,
JUDGMENT BELOW REVERSED.
unless the parties agree to the contrary' (and they have not done so in this case); and the proceedings for bringing a special case before the Court of Error shall, as nearly as may be, be the same as in the case of a special verdict; and the Court of Error shall either affirm the judgment,'-and there is not, or shall reverse the judgment,'-but it is, or give the same judgment as ought to have been given in the Court in which it was originally decided.' In this case, unless there is some record to the contrary, it must be presumed that the Court of Error has given the same judgment as ought to have been given by this Court, and the rule may, therefore, be absolute; but, of course, the Master will tax the costs according to the judgment of the Court of Error, for we have no power over them." Elliott v. Bishop, 11 Exch, 321.
A SPECIAL case was stated for the opinion of the Court, under the 15 & 16 Vict. c. 76, s. 46, in which the question was, whether the plaintiff had any right or title to sell to the defendant certain tenant's and trade fixtures. On the hearing in Michaelmas Term, 1854, the Court differed in opinion, but the majority was of opinion that the plaintiff was entitled to sell the trade but not the tenant's fixtures, and judgment was given for the plaintiff for the value of the former, and for the defendant as to the latter (reported 10 Exch. 496). No agreement having been entered into as to the costs, the Court on a subsequent application held, that the plaintiff was entitled to the general costs of the cause, subject to the deduction of any costs incurred by the defendant in respect of the part of the case on which he succeeded (reported 10 Exch. 522). The Master taxed the defendant's costs at 117. odd, which he deducted from the plaintiff's costs, amounting to 457., and gave an allocatur for the difference, which was indorsed on the judg- AFFIDAVIT OF MERITS FOR INTERROGAment roll as the plaintiff's costs in the cause. The defendant afterwards brought error, when the Exchequer Chamber not only affirmed the judgment for the plaintiff as to the trade fix-interrogatories to the defendant under the 17 tures, but also adjudged him entitled to the tenant's fixtures (reported 11 Exch. 113), but
made no mention of costs.
Upon a rule nisi obtained on a reference of the parties to the Court by Platt, B., at Chambers, for the allowance of the plaintiff's, and disallowance of the defendant's costs, Parke, B., said:
NOTES ON RECENT STATUTES.
TORIES IN EJECTMENT.
Held, that the affidavit in support of an application by a plaintiff for leave to deliver
& 18 Vict. c. 125, s. 52, must show that he has a good cause of action upon the merits.
Therefore, in an action of ejectment, by reason of the forfeiture of a lease by the breach of the covenant to insure, an affidavit which merely stated that the plaintiff believed there was a good cause of action for the breach of covenant above mentioned, was held insufficient, inasmuch as by a waiver of the forfeiture the plaintiff's right to maintain the action would be gone. May v. Hawkins, 11 Exch. 210.
RIGHT OF COUNSEL TO SUM UP EVIDEnce.
"The question now is, whether the costs ought to be taxed, by the Master of this Court, for the plaintiff on that part of the claim on which he failed in the Court below. We are of opinion that this Court has no power over the subject-matter, and that it ought to be determined by the Court of Error. By the rule of the Common Law, when error was brought Held (per Pollock, L.C.B., Parke and Martin, BB., dissentiente Platt, B.), that the right by the defendant below, the Court of Error, in ordinary cases, could only reverse the judg-dence at the trial, under the 17 & 18 Vict. c. of the party who begins, to sum up the eviment simpliciter; but on a special verdict, they might give such judgment as the Court below ought to have given. The 32nd section of the Common Law Procedure Act, 1854, which for the first time makes a special case the subject of appeal to a Court of Error,
125, s. 18, is confined to the case where the the jury. Hodges v. Ancrum and another, 11 Judge holds that there is evidence to go to Exch. 214.