1847. DAVIES, Dem., Ten. writings marked respectively A. and B., by affixing her mark thereto respectively, in the presence of the deponent; that the name "William Jones" respectively subscribed to the said paper-writings respectively LOWNDES, marked A. and B., as the witness attesting the signature thereof respectively by the demandant, were the names, and of the proper handwriting, of the deponent; and that the demandant did, on the said 18th of January instant, state to the deponent that it was her wish and intention that Cook in the said paper-writings named, should be removed from being her attorney in this action, and that Richards should be substituted as her attorney in this action instead of Cook, and that it was with the view of having Cook removed from being her said attorney, and having Richards substituted as her attorney in his stead, that she had so signed the said paper-writings respectively marked A. and B. as aforesaid. C. Jones, Serjt., now shewed cause. The demandant is not described in her affidavit, in conformity with the rule of H. T. 2 W. 4. (a) In Lawson v. Case (b) it was held that an affidavit made by a defendant in a cause could not be read, unless his addition was inserted therein. And, although, in the subsequent case of Jackson v. Chard (c), it was held, that, where the defendant makes the affidavit, his addition need not be given, the propriety of that decision was much doubted in Brooks v. Farlar. (d) [Maule, J. In Archbold (e), Lawson v. Case is said to be a solitary case, and evidently wrong.] (a) Which requires that "the addition of every person making an affidavit shall be inserted therein." See 8 Bingh. 289., 1 M. & Scott, 416., 3 B. & Ad. 375., 2 C. & J. 169., 2 Tyrwh. 341., 4 Bligh, N. S. -593., 1 Dowl. P. C. 184. (b) 1 C. & M. 481., 3 Tyrwh. 489., 2 Dowl. P. C. 40. (c) 2 Dowl P. C. 469. 1847. DAVIES, Dem., LOWNDES, Ten. The affidavit of the demandant being that of a person unacquainted with the English language, and a markswoman, the jurat ought to shew that it was explained to her at the time of swearing, and that she understood it. [Maule, J. Would that which you suggest be necessary in the case of an affidavit made by a Frenchman? It does not seem to supply the defect of literature.] By rule of court, of 31 G. 3. (a), it is provided, that, "where any affidavit is taken by any commissioner of the King's Bench, made by any person who, from his signature, appears to be illiterate, the commissioner shall certify or state in the jurat that the affidavit was read in his presence to the party making the same, and that such party seemed perfectly to understand it; and also that the said party wrote his signature in the presence of the commissioner." So, by rule of the court of Exchequer, Hilary term, 40 G. 3. (b)," it must be certified 'in the jurat of affidavits made in the Exchequer by illiterate persons, that the deponents understood the affidavits, and made them in the presence of the commissioner taking the same." [Maule, J. These rules apply to affidavits taken by commissioners, not to those made in court (c).] It would seem to be otherwise, from the rule of Trinity term, 1 G. 4. Exch. (d), which requires the jurat to state that the affidavit was read to, and understood by, the deponent, in the presence of the officer of the court (e), or person administering the oath. And in Haynes v. Powell (g) it was held, that, if an illiterate person is sworn in court, or before a commissioner, the (a) 7 T. R. 82. (e) An affidavit of a marks- read over and explained the fact of the affidavit being read over to him, and his understanding it, must be stated in the jurat. The court must be satisfied that the party is duly sworn. [Maule, J. The court is satisfied (a).] The affidavits do not by any means shew that this is really the application of the demandant herself. Manning, Serjt., in support of the rule, was not called upon. Per curiam. We think it now sufficiently appears that the application to substitute Richards as the attorney in this cause in lieu of Cook, is made with the knowledge and under the sanction of the demandant, and therefore that this rule should be made absolute, saving any lien that Cook may justly have for costs due to him. Rule absolute accordingly. Scott, on behalf of Henry Clarke, one of the former attorneys for the demandant in this cause, on the 15th instant, obtained a rule calling upon the demandant and tenant respectively, upon notice of that rule to be given to their respective attorneys (b), to shew cause why it should not be referred to one of the masters to ascertain the amount of the lien, if any, of Clarke, upon the sum of 5000l. agreed by the rule of court of the 17th of 1847. DAVIES, Dem. LOWNDES, Ten. Jun. 15. The lien of an attorney attaches upon money re ceived by way of coinpromise; though the verdict and judg ment be against his client. Upon an application to give effect to such lien, the affidavit should shew the amount claimed by the attorney. (a) The jurat was signed by V. Williams, J., who personally satisfied himself that the affidavit was properly explained to, and the nature of the application understood and approved by the demandant. (a) The service of the rule upon Cook, who did not appear in opposition thereto, was held sufficient to call upon him for an answer. 1847. DAVIES, Dem., LOWNDES, Ten. Jan. 29. December, 1846, to be paid by the tenant to Cook, the demandant's then attorney, as and for a compromise of this action, as against the said demandant; and why the tenant, or his attorneys, should not pay to Clarke the amount of such lien when so ascertained as aforesaid; and why, in the mean time, the tenant and his attorneys should not be restrained from paying, and the demandant and her said attorney, Cook, from receiving, the said sum of 5000l., or any part thereof, without first paying to Clarke the amount of such lien; or why the tenant, or his attorneys, should not pay the 5000l. into the hands of the masters of this court, to abide the further order of the court. The affidavit upon which the motion was founded, stated that Clarke, was on the 22nd of October, 1844, duly retained as the attorney for the demandant in this cause, in the place of Messrs. Davies & Son, who had for some time had the conduct of the suit; that Clarke continued to act as the attorney for the demandant down to the 13th of March, 1846, when the following order was made by Cresswell, J.:--" Davies v. Lowndes. By consent of Mr. Henry Clarke, I do order that Mr. Gustard be appointed attorney for the demandant herein, instead of the said Mr. Clarke, without prejudice to the said Mr. Clarke's lien for costs, &c.;" that, after the cause had been compromised, Clarke applied to Cook for an undertaking to pay his costs out of the 5000l., which Cook declined to give; and that Clarke had made out and duly delivered his bill of costs, charges, and disbursements, to the demandant. Against this rule cause was now shewn by Martin, and Channell, Serjt., on behalf of the tenant, and by Manning, Serjt., on behalf of the demandant. The opposition of the latter was founded upon the affidavits of John Bowen and of Cook. Bowen, in his affidavit, stated, that, upon the order being made for substituting Gustard as the demandant's attorney in lieu of Clarke (the 13th of March, 1846), the latter applied to Bowen, as agent of the demandant, to accept in his favour, in the demandant's name, two bills, dated that day, one for 10007., the other for 17781. 4s. 4d., payable two months after date; that Bowen accepted the bills under the power of attorney held by him (dated the 7th of March, 1846), and delivered them to Clarke; that it was agreed between Bowen, as such agent, and Clarke, that they (the bills) should be taken and accepted by Clarke in satisfaction of all claims of Clarke upon the demandant for or in respect of his costs, charges, cxpenses, and disbursements as attorney in this cause; and that the two bills so taken and accepted by Clarke, were still retained by him. Cook, in his affidavit, stated, that he was appointed attorney for the demandant by a judge's order, dated the 28th of October, 1846; that he afterwards received the bulk of the papers in the cause from Messrs. Davies & Son; that he received other papers from Gustard; that he never received any papers from Clarke, nor had he any notice of Clarke's lien when he received the papers from Davies & Son and Gustard; that he had no notice of Clarke's lien until the 17th of December, 1846, after the cause had been compromised; that one Scott, a client of Clarke's, informed him (Cook) that he (Scott) had paid Clarke all his actual expenses in the cause, receiving bills from Bowen at the rate of 500l. for every 1007. advanced that Clarke had informed the deponent to the same effect; and that it was his intention to obtain his full costs, in order to repay Scott; that the payment of the 5000l. into court would be injurious to the demandant, by reason of the delay, and the possibility of other liens being sought to be attached to it; that the deponent had laid out large sums in conducting the cause; that 1847. DAVIES, Dem., LOWNDES, Ten. |