38 Notices of New Books.-Law of Attorneys, No. VII. interlocutory matters, which form the third | bined with the fact that the Essay is published part; and the fourth contains Tables of Costs. An Essay on the Re-publication of Devises of Real Estate by Codicil. By John Lethbridge Cowlard. London: Richards, 1833. THIS Essay obtained for the author the Professor's prize in the Law Class, at King's College, London, in the first term of the academical year, 1832-3. It is a creditable performance, indicating industry of research, and a careful examination of the rules and principles of the cases considered. Mr. Cowlard has had the good sense to abstain from all attempt to embellish a subject which, although a prize essay by a student, necessarily both in stile and matter should be strictly legal. The only exception to this last commendation is contained in the following passage, which will shew the plan of the essay. "In considering this subject, in reference to which it is required that the modern cases should be critically examined, and the result of all analytically stated,' the chief aim of the essayist must be to arrange and classify the various consistent decisions in such a manner as to present a general sketch of the principles established by them; without at the same time disregarding such occasional decisions as might happen to have been erroneous, or, on the other hand, so noticing them as to throw any degree of suspicion on the authority of the others. To effect this object it seems most expedient to commence the examination of the subject at that source from which the first principles necessarily emanated; and, by examining each diverging rivulet, endeavour to obtain a correct and accurate opinion of the causes which were productive of the decisions generally, and to mark the precise point at which the original deviation which led to those erroneous decisions, happened; and which erroneous decisions, when thus considered, will assist in elucidating the established principles." In the advertisement to the reader, Mr. Cowlard says, that at the request of the Students of the Law Class, and not from any wish of the writer to court publicity,will be sufficient to exculpate him from the charge of presumption, to which he would otherwise appear to be justly liable, and be deemed a sufficient apology for the errors and omissions which he fears will be detected in the following pages." We wish the young author continued success in that professional career which he has thus diligently commenced. LAW OF ATTORNEYS. COUNSEL AND ATTORNEY. In the following case it will be found that the jury decided against the opinion of Mr. J. Taunton, with whose opinion on the subject we fully concur. A rule nisi for a new trial was afterwards granted and made absolute; but we have not heard the result. Assumpsit for an attorney's bill of costs for carrying on a suit in equity. It was proved that the cause in equity was in the paper for hearing in the Vice Chancellor's Court, on the 26th of February, 1830; and that a brief in that cause had been delivered to an eminent counsel at the equity bar on the 11th of that month; and a clerk of the plaintiff's town agent gave evidence as follows:-" I attended the Vice Chancellor's Court on the 26th of February, 1830. I did not see our counsel. The cause was five off, and I went to search for him at the Rolls' Court. The Vice Chancellor was sitting in Lincoln's Inn, and the Master of the Rolls at the Rolls' Court, in Chancery Lane. I could not find our counsel at the Rolls' Court, and I went back to the Vice Chancellor's Court. I was away less than ten minutes; and on my return I found that the cause had been struck out of the paper, with others that stood before it. In about five minutes after, I heard our counsel address the Court to restore the cause, but he did not succeed in his application." Sir J. Scarlett, for the defendant. — The "The honest desire of emulating the zeal fault here was in the clerk's going away: if he shewn by the students of the Law Class of had staid and said what counsel was in the King's College, in the advancement of their cause, the counsel would have been sent for. professional studies, induced him, at the close In the King's Bench, if the attorney and counof the Christinas Session, to offer for the ap-sel are both absent the case is lost, and no new probation of the Professor the following paper, to which he was pleased to award the prize. It was compiled at a time when the writer had not the most distant thought of its publication; and the alterations which he has since been enabled to make in it have been confined to the introduction of a few omitted cases, and some verbal and explanatory corrections; and it is hoped that thete circumstances,-com trial will be granted; but if the attorney stays, and says that his counsel is at the Rolls', or any other Court near, he would be sent for, instead of the cause being struck out. There has been a tender of all but this part of the bill; and it has been held that if there is no beneficial service, nothing is to be paid. Here there was no service, by reason of the negligence of the attorney. Selections from Correspondence, No. XXVII. 39 ; Alexander, in reply. If the attorney's clerk | by stat. 1 W. 4. c. 70, one might reasonably had sat still instead of going to look for his have expected that a new set of rules would, counsel, it would have been said that he ought ere this, have been promulgated for the reguto have gone to fetch his counsel. I submit lation of its practice; this not having been that the clerk did what a prudent man would done, there are, in consequence, no less than do, for he went for his counsel when the cause three different modes of proceeding, viz., one was five off. regulating causes originating in the King's Bench; another, those in the Common Pleas and a third, those in the Exchequer of Pleas. There can be no reason, now that there is but one appellate jurisdiction from the three Courts, why there should be more than one set of rules for the government of its practice. Surely, Mr. Editor, it needs but to draw the attention of those who have the power of making these rules to this subject, to have it rectified. Mr. Justice Taunton (in summing up).-The question here is, whether you are satisfied that the plaintiff did not use due diligence; and that, instead of using due diligence, he was guilty of gross negligence; and that, in consequence of such negligence, the cause miscarried. It appears that the plaintiff delivered a brief in the equity cause on the 11th of February, which was fifteen days before the cause came on. This was certainly no want of diligence. I do not know the practice of the Court of Chancery, but briefs at law are generally delivered later than that; and it further appears, that when the cause was five off, the attorney's clerk went to look for his counsel at the Rolls' Court; and that, being unable to find him, he returned in less than ten minutes. Here I must ask you if this was gross negligence either in the attorney or his clerk. The counsel who practise in equity are in the habit of going from one Court to the other, and neither the clerk nor the attorney could go and say to a gentleman at the bar there," You must not go to the Rolls' Court, as my cause in the Vice Chancellor's Court is only five off:" he could not do that, and as other causes were struck out which stood before this, the probability is, that, if those causes had been heard, this cause would not have met with the fate it did. It is further proved, that the counsel asked to have the cause restored, but was unsuccessful. You are therefore to say whether this misfortune which befel the present defendant, as a party in the equity suit, was not the result of an accident over which the attorney had no controul. The attorney is not answerable for the neglect or want of attention in the counsel. He acted for the best in going for his counsel to the Rolls' Court, and it was from an anxiety on his part that he did so. He is not, I repeat, answerable for the absence of his counsel; and his own absence was only caused by his trying to find the counsel. You will therefore say whether the attorney was guilty of gross negligence. Verdict for defendant.-Lowry, gent. v. Guildford, 4 C. & P. 234. SELECTIONS FROM CORRESPONDENCE. WRITS OF ERROR. To the Editor of the Legal Observer. The simplest of the three, in my humble judgment, appears to be that which guides cases originating in the Exchequer of Pleas; it is certainly the most expeditious, as in those cases the parties are not confined to one step in each term, but may proceed as fast as the rules expire. It is from, I suppose, the small number of writs of error, that the inconvenience has not been generally felt; and the Judges have not applied their attention to consolidate or amend the existing rules. J. K. UNIFORMITY OF PROCESS ACT. To the Editor of the Legal Observer. Sir, THIS Act was passed for the purpose of facilitating the prosecution of actions. That it has advantages, I do not deny; but I wish for the sake of its framer, and for that of the public for whose benefit it was intended, that the grievance I am about to mention had never existed. In a cause, in which I am concerned for the plaintiff, I issued a writ of summons against two defendants. One was served, but the other has been kept in the back ground. After several successive attempts made by my clerk, who stated his business, and that he would call again at a specified time, (at which time a copy of the writ was left,) I made an application to the Court for a distringas. Patteson, J. said, "you must wait eight days from the last attempt, and then, upon an affidavit of no appearance, move again," or to that effect. This has been done, and a rule granted. The distringas must be tested on the day on which it issues, and made returnable on some day in term, not being less than fifteen days after the return thereof, (which cannot, in my case, be before the 22d instant) and eight days after the return are given for appearance; when, if default be made, there must be another application to the Court on affidavit. Is not this a premium to defendants to throw every obstacle in the plaintiff's way? And does it not, in some cases, amount to a THE Court of Error having been remodeled denial of justice? 40 Selections from Correspondence, No. XXVII. The legislature should never countenance vexatious conduct; much less should it afford opportunities for its exercise. The reasonable course seems to be, that when three attempts have been ineffectually made to serve a defendant, and a copy of the writ left, the plaintiff should be at liberty, upon affidavit of the facts, to enter an appearance after the expiration of the eight days. The distringas is a dilatory process, and instead of being of the least service, frustrates much good that the Act would otherwise produce. If these remarks should prove the means of ameliorating the evil, I shall be most happy; and I remain, Sir, very Your obedient servant, SABBATH-BREAKING. To the Editor of the Legal Observer. Sir, FROM particular and unavoidable circumstances, I have hitherto been prevented calling your attention to the following modest bill of one of the Master Clerks, for selling an estate under an order of the Court of Chancery: but I think you and your readers will agree with me, after having perused it, that reform in the Court of Chancery is at least desirable in this branch of its business. The first item, "275 biddings, 341. 7s. 6d.," is stated to arise from "the ancient and accustomed fee" of 2s. 6d. being payable to the Master's Clerk upon each bidding. Why it should be paid (as the Clerk charges for loss of time in addition), perhaps your readers may explain. The next charge, For travelling expences to and back, 258 miles, 127. 188., is double the proper amount; the correct charge being 1s. per mile, including the journey back. I have no remark to make upon the two next follow-noxious. ing items. some of Blackstone in his Commentaries (B. 1. c. 11.) speaking of the duties of churchwardens says, that they are to levy a shilling forfeiture on all such as do not repair to church on sundays and holidays. Surely this cannot be generally known, otherwise it would not fail of bringing in a pretty considerable revenue, either to the church or to government. If the former be entitled thereto, it might be beneficially applied by the directors of the Queen Ann's bounty for the augmentation of the smaller livings. If to the latter, we might with safety, under the present state of things, anticipate a tolerable reduction of taxes in certain quarters where they are most ob Should this law be enforced, what a vast number of persons at present unocWith regard to the last, "For 27 copies of cupied, would it not throw into employment the particulars, (there being 27 bidders,) folios as collectors and clerks of the sabbath day 32 each, together folios 864, 21. 12s." I poll tax! and what a harvest would be proscarcely dare venture to allude to this, lest Iduced from the metropolis, together with its may, perhaps, outstep the bounds of prudence and moderation. The parties pay for printing and distributing the particulars of sale; but I understand it is thought to be an ancient and accustomed fee" also for the Master to charge the estate with a copy of the particulars for each bidder. I can only conjecture that this must have originated before printing was introduced into this country; and it is probable the Master's Clerk might have then made copies in anticipation of the expected number of bidders. One word to Lord Brougham If his Lordship (whose talents I am ready to acknowledge) would do the practitioners of the law the favor, and the public the justice, of con environs, on a Sunday alone, leaving out the holidays! Kensington Gardens, Primrose Hill, and the several parks, would by their own fertility reduce the national debt to twothirds of its present enormous bulk. Whilst the measures brought forward at the present day, for the better observance of the sabbath, are warmly defended on the one side, and as strenuously opposed on the other, we should do well to examine the provisions our ancestors have made for the furtherance of those objects, which we in our eagerness to promote, have entirely overlooked. G. G. Mackintosh, Alexander Brodie, 24, Great Or- George Tennant, Gray's Inn Square, deceased; mond Street. Manly, William, Nelson Square. Maudsley, H., Birmingham. Menlove, William Edward, Ellesmere, Salop. Murrow, James, the younger, Liverpool. Muskett, John, Halesworth, Suffolk. Myers, William, the younger, Liverpool. Nicholson, Henry William, Bradford, Yorkshire. Other, Thomas, 11, King's Bench Walk. Owen, Evan, the younger, 18, Hart Street, Bloomsbury. Paget, Alfred, 13, Kenton Street, St. George's, Bloomsbury. Palmer, Arthur Hare, 7, Southampton Row, Parker, George, Kingston-upon-Hull. Pearson, George May, 11, King's Bench Walk. Radford, Richard, 6, Tokenhouse Yard. Randall, Richard, 29, Coleman Street. assigned to Richard Harrison, Gray's Inn. Edmund Kent, the younger, Fakenham. Ralph Lindsay, 16, St. Thomas's Street, South wark. John Maudsley, Birmingham. James Murrow, the elder, Liverpool. Richard Tolson, same place. William Bayley, Stockton-upon-Tees, Durham. John Williams, Shrewsbury. Henry Enfield, Nottingham. Henry Andrews Palmer, Bristol. Charles Small, Bideford, Devonshire. Richard Meadowcroft Whittow, Manchester. James Whitchurch, Southampton; assigned to Thomas Tilson, the younger, Coleman Street. Remnant, Frederick William, Lincoln's Inn William Henry King, Hatton Garden; assignFields. Roberson, Charles James, Scholey, Oxford. Roberts, R. John, Whitehead's Grove, St. Luke's, Chelsea. Rouse, William Hart, New Inn. Sanders, Philemon Price, Warwickshire. Shapland, John, 4, Barnard's Inn. Spiller, John Jubilee, No. 2, Child's Place, Temple Bar. Squarrey, Coard William, New Sarum, Wiltshire. ed to Henry Peale Bird, Lincoln's Inn Fields. Thomas Roberson, Oxford. John Bisden, Great Torrington, Devon, deceased; assigned to Montague Edward Smith, same place; and by him assigned to Thomas Loftus, New Inn. Thomas Tims, Banbury, Oxfordshire. Robert Tucker, Ashburton, Devonshire; assigned to Edward Pain, 5, Great Marlborough Street. Stanley, Charles, 3, Sidmouth Place, Gray's John Stanley, Newport, Salop, now with John Inn Road. Stephens, George, 31, Basinghall Street. Whitelock, 70, Aldermanbury, agent to Mr. John Stanley. George Smith, 4, Basinghall Street. 42 Attorneys to be admitted in Trinity Term. Clerks' Names. To whom articled. Stevenson, John Mackeness, 53, King's Square, Michael Atkinson, Bakewell, Derbyshire. Goswell Street. Swyer, Robert, Shaftesbury. Tinsley, Charles, 41, Edgeware Road. Thomas, George, Swansea. Thomas, Benjamin, 57, Aldersgate Street. Twist, John Brown, Coventry. Samuel Foot, New Sarum; assigned to James Edmund Huntley, 16, Great Cumberland Thomas Thomas, Swansea. Notice dated 15th Edward Weedon, Gloucester. George Orred, Liverpool, deceased; assigned Tyas, Richard, 15, Kenton Street, Brunswick James Harris, late of Beaufort Buildings, Square. Venour, Thomas Henry, Blackburn, Towces ter. Vickers, Thomas Thwaites, 9, Thanet Place. Wade, Armigel, Great Dunmow. Welsh, James, Macclesfield, Cheshire. White, Eustace, Old Dorset Place, Clapham Whitehead, Thomas Hutton, Lancashire. Williams, Charles Lloyd, 90, Long-acre. Strand; assigned to Christopher Hawdon, 6, New Inn. William Gilbert Elliott, Towcester, Northamp ton. John Birks, Hemingfield, near Barnsley, George Wade, Dunmow. John Thomas Lloyd, Shrewsbury, deceased. Thomas Grimsditch, Macclesfield. John Curling Osborn, Coleman Street, de- Edmund Lodge, Preston. William Pickard, same place. Anthony Thorpe, York, deceased; assigned to Meaburn Tatham, Lincoln's Inn Fields. John Snow, Alcester; assigned to John Cox, Woodcock, Joseph, Newman's Row, Lincoln's Thomas Clark Brettingham, Diss, Norfolk assigned to Messrs. Kingsbury and Margitson, Bungay. COMMON PLEAS. Baker, George Edward, 14, North Square, Bentley, Greenwood, the younger, Bradford, Firmin, William Ongley, Camden Town. Archer Denman Croft, 63, Lincoln's Inn Greenwood, Bentley, same place. William Scoones, Tonbridge, Kent. Charles Wells Lovell, South Square, Gray's PERSONS APPLYING FOR RE-ADMISSION IN THE KING'S BEnch. Gough, Charles, late of Clement's Inn, New To be re-admitted, Trinity Term. Notice 13th Chambers, afterwards of Eden, Northamp- Lander, George Moseley, late of 4, Gray's Inn Rotten, Gilbert, late of Walton, now of Frome Sibley, Henry, late of 6, Staple Inn. April, 1833. To be re-admitted Trinity Term. To be re-admitted next Trinity Term. To be re-admitted, Trinity Term. If any reason is known to exist why any of the abovenamed persons should not be admitted, it is requested that it may be communicated to the Secretary of the Incorporated Law Society. |