Page images

•was no good ground of challenge. And in Jr. v. Hughes (1 C. & K. 225), which was tried at the Special Commission at Cardiff in 1843, an allegation that the sheriff "has not chosen the panel indifferently and impartially as he ought to have done, and that tho panel is not an indifferent one," was held by Gurney, B.,and Cresswell, J., to be too general. On the other hand, in O'Connellv.B. (11 C. & F. 155), Lord Denman held that an allegation that the jurors' book had not been completed in conformity with 3 & 4 Will. 4, c. 9, and that duly qualified persons had been fraudulently, and for the purpose of prejudicing the defendants, omitted from the general list and from the book itself, was a valid ground of challenge to the array, although there was no specific accusation against the sheriff or any of his officers. In cases of misdemeanor, although the Crown has no right of peremptory challenge, it has apparently the right to object to a juror when he is called without showing cause for the challenge, until the whole panel has been gone through. The validity of a challenge propter defectum was discussed by the House of Lords in Mulcahyy. R. (L. E. 3 H. L. 306), a case arising out of the Fenian prosecutions of I860, and it was held that a juror could not be excluded on a challenge on the ground that he was more than sixty years of age; while as an instance of the validity of a challenge propter affectum, a case is referred to in a note to Chitty's Blackstone, vol. 4, p. 354, where a juror, on looking upon the prisoners, had been heard to utter the words "damned rascals." If several co-defendants refuse to join in their challenges, the Crown may, to avoid the risk of the panel being exhausted, elect to try one or more of them separately, and if the panel is so far exhausted by challenges that less than twelve jurors are left, a fresh panel must be returned.

The Excited Gentleman who, on Thursday, announced his intention to take the necessary steps for the removal of Vice-Chancellor Malins from the bench will find the process to be a somewhat long and difficult one; nor can it be said that the result of similar adventures in former times is encouraging. Theearliest example in this century related to Mr. Justice Fox, of the Irish Court of Common Pleas, who, in 1805, was the subject of a petition to the House of Lords which complained of his j udicial conduct upon various occasions. The matters of complaint were referred to a committee of the whole House, to consider of an address to the King to remove the j udge if a sufficient ground for such address should be substantiated by proof, and to inquire into the facts alleged. The judge obtained leave to be present, and to be heard by himself or by counsel. After repeated adjournments the proceedings were, on the motion of Lord Grenville, adjourned for two months, on the ground that they ought to have originated in the House of Commons. No further step was taken in the matter, and Mr. Justice Fox remained on the bench for ten years longer. In 1819 a charge of corruption was presented to the House of Commons against Baron M'cleland, of the Irish Court of Exchequer; but the motion for a committee to inquire into the charge was withdrawn, and it was resolved " that the article of charge be rejected." In 1821 Chief Baron O' Grady, of the same court, was accused, upon two reports of the Commissioners on the Courts of Justice in Ireland, with having unjustly and arbitrarily increased his own fees; and the accusation was confirmed by reports from two successive Select Committees of the House of Commons. The matter was then referred back to the commissioners, and their further report was considered by a committee of the whole House, who reported a series of resolutions; but, ultimately, a motion was carried that tho House did not deem it necessary to adopt any further proceedings in the case. The case of Sir Jonah Barrinqton, judge of the Irish Court of Admiralty, is a somewhat celebrated one. On the 22nd of May, 182S, after several investigations before a committee of the whole House, the House of

Commons agreed to an address to the Crown for a removal of the judge from the bench for misconduct and malversation in office, and this resolution was ordered to be communicated to the Lords for their concurrence. The House of Lords, after hearing counsel on both sides, agreed toa similar address; and in July, 1830, Sir J. Barrington was removed by the Crown. Lord Abinger, when Lord. Chief Baron, was the subject of a similar petition to theHouse of Commons, on the ground that he had, when presiding at the special commission for Lancashire and Cheshire, been guilty of "partial, unconstitutional, andt oppressive" conduct, and had made use of "ultrapolitical and party language." Mr. Duncombe moved the House to summon witnesses to the bar, in order to ascertain the language used by Lord Abinger; but themotion was rejected by a large majority. Mr. Rigby Wason's celebrated petition against the late Sir Fitzroy Kelly referred to a charge of unfitness for judicial office through previous misconduct, and not to official misconduct; but Earl Russell stated that he had felt it his duty to present the petition to the House, rather than deprive the petitioner of his constitutional remedy in a matter of such public importance.

A Question which is agitating legal circles is, Who 13 the Recorder of Ludlow? It was announced some time ago that "Mr. Kedpath, Q.C.," had been appointed ta that office. As no such gentleman is to be found in the list of English Queen's Counsel, much speculation was set on foot as to the region in which Ibis unknown"silk " flourished. The favourite theory appeared to bethat he was a new Official Referee, who, of course, could not be expected to be known to the profession. By the time men had come to this conclusion, however, they were once more unsettled by the authoritative statement that, not Mr. Redpath, Q.C., but Mr. Smythies, Q.C., had been appointed recorder of the ancient borough. Here, again, the profession, rushing to theLaw List, found themselves baffled. There is no Queen's Counsel of that name. It has been suggested that the Queen might have desired to have among the list of her counsel the gentleman who prepared the building contract for the economical Memorial in the Strand, which bears her Majesty's gracious image graven in " the purest marble." We do not find, however, that there is any foundation for this suggestion, and we, therefore, give up the pursuit of Mr. Smythies. Q.C. We would only, in conclusion, express a feeble envy for the prisoners at the next Ludlow Sessions, who may have the privilege of seeing alive, and being sentenced by, a man whose very existence has been ignorantly denied. Let us hope that Mr. Smythies, Q.C, will temper justice with communicativeness, and let us knowwhen and where he got his silk.

The Magistrate at the Marylebone Police Court a fewdays ago requested an inspector of police to read policeman, who had been giving evidence in a case, "a lecture "; and the magistrate added that he must " impress upon the police the necessity of stating the whole truth in a court of justice." We have often commented upon this matter of the evidence given by policemen, but wo may be permitted to add here that the late Chief Justice Bovill, iu summing up a case at the Manchester Assizes, once used the following language:—" I desire to remark: publicly that I have known many instances in which the police, in giving their evidence, have not stated that which is in favour of the prisoner, and I wish ic to be understood that it is the duty of the police to state in, every case, not only what they know in favour of the prosecutor, but even to volunteer what they know in favour of the prisoner. That I wish every policeman most clearly to understand; and in every instance that has come before me in which the policeman has kept

back anything in favour of the prisoner, I have always endeavoured to impress on those in authority that it is a thing to be discouraged, and that policemen, instead of meriting reward for such conduct, placed themselves in a position for which they ought to be reprimanded." We commend these observations to the attention of the police authorities.

Ox Tcbsday Last the new practice as to making absolute decrees nisi for divorce was for the first time adopted. There were nearly sixty cases of this description in the list, and the decrees were pronounced without the in otion of counsel. Sir James Iianxex said, " In the , the names of which the registrar will read, and in which a decree nisi has been pronounced, and no intervention has taken place, the court will make the decrees absolute;" and the names were then read out by the registrar. In some of the cases no decree was pronounced in consequence of the papers not being in order, and one application was ordered to stand over for an explanation of the unusual length of time which had elapsed since the decree nisi was granted. This modest measure of law reform has already saved many guineas to suitors in divorce cases.


The satirical observation made by a learned j udge of the Court of Appeal, a few days ago, with reference to the erroneous action of a judge of first instance, that there "fortunately is no power to make the judge pay for his mistakes," reminds us of a remark we ventured to make some time ago, that civility is very becoming when one judge finds it necessary to criticize another. The occasion with reference to which we humbly submitted this commonplace sentiment was the stigmatizing by the same learned judge of a judicial dictum by a late Lord Chancellor as "unfortunate," and one which "had better not have been reported." We expressed a fear that the quality of inter judicial civility was growing as rare as it was graceful; and we cannot say that subsequent experience has allayed this apprehension.

To take only one or two recent cases, we find in Biehardton v. Bichardson (28 W. B. 942) the learned judge, to whom we have before referred (and whom every lawyer regards with respect and pride) when a decision of a Vice-Chancellor was cited, remarking, '' I fear the cases were not fully brought to the ViceCnancellor's notice," and regretting that "unfortunately " the case had " got into the reports." Again, in Moore v. Dickion (29 W. R. 12), we find a Vice-Chancellor saying that " the point does not seem to have been very much argued in Trollope v. Boutledge, before ViceChancellor Knight Bruce, who was a very rapid judge." And many other recent instances of the same kind of observation will readily suggest themselves to the practitioner in the Chancery Division.

We are, of course, aware that this is no new thing. Lord Westbury—who, when in practice at the bar, is aid on one occasion to have threatened to break up a conference because, as he remarked, " the leetle gentleman in the earner of the ream [a highly-respectable — solicitor] is somewhat trabblesom "—after he to the bench sometimes bestowed his asms on the judges whose decisions he had to review. Bumour has it that he once startled the •erenity of the House of Lords by describing the judgment of a Scottish court as " a melancholy collection of erroneous sentences." But the reproofs of the Lord Chancellor were rarely so overt as on this occasion. He had many decent and ingenious veils for his satire. One ef these was to express an opinion that the judgment of the Vice-Chancellor had been altogether mis-reported. * I regret extremely," he would say, "that I have not

better information of his Honour's judgment, for I cannot follow the reasoning, or understand how it affects the question at issue, or how the circumstances referred to by the Vice-Chancellor could possibly be held to show" the conclusion the judge below had arrived at.

We venture to think that criticism by one judge of the decisions of another should always be impersonal. It is, of course, often necessary to express dissent from the reasoning of a judgment or from the view of law or facts taken by the j udge. It is never necessary to intimate, either directly or indirectly, that a particular decision was a silly one, or that the judge who decided a case was a fool, or hasty, or inaccurate. Consider what the effect on the bar will be of the spread of the practice among the judges to which we have referred. Counsel instead of discussing the reasoning used by a judge in a previous case, will find it moro convenient to say, "There is, it is true, my lord, the case of Jones v. Smith the other way; but then that was one of Vice-Chancellor ——'s decisions, and, as your lordship said in Brown v. Bobinson, the Vice-Chancellor was 'a very rapid judge'; no doubt he did not give the point due consideration." It is an exceedingly decent and proper thing to assume that every judge has been endowed with a share of reason; that he is painstaking, and desirous to arrive at a just conclusion on the case before him.

To the credit of the bar it must be said that, with very rare exceptions, this assumption is acted on in the daily work of the courts. No keener or more critical observers of judicial defects can be imagined that the members of the bar, but the men who, when they meet at the dinner table, are full of complaints of the incompetence or the perverseness of a judge, next day exhibit before him respectful courtesy and deference. It need not be said that they are right in so doing. The deference is not paid to Sir John Smith, V.C., but to the administrator of the law. Without it the courts would become bear gardens, and litigants who lost their cases would come to the conclusion that they did so because their counsel and the judge were at loggerheads. But in order to the preservation among the bar of this decent practice of respect for a judge, it is essential that respect for judges should be inculcated from the bench; and it is for this reason that we have ventured to draw attention to the subject of those remarks.


These appears to us to be a good deal of difficulty in reconciling the dicta which have fallen from the judges of the Court of Appeal with regard to the jurisdiction of the court to order a reference compulsorily. In the recent case of Ward v. Pilley (28 W. B. 937, L. B. 5 Q. B. D. 427) Bramwell, L.J., is reported to have said: "I think they (the Legislature) meant to give the court power to refer compulsorily to an official referee any matter of account which it might have referred compulsorily to a master under section 3 of the Common Law Brocedure Act, 1854 "; and he added," and further, I think that whenover the court has jurisdiction to refer any question of account to an official referee, it has also jurisdiction to refer to him any other matter arising in the same action. I believe that, not long since, a notion got abroad that under section 3 of the Common Law Procedure Act we had power to refer questions only of account, and not other matters, but that mistake was set right in a case which we decided in this court at the last sittings." The case of Clow v. Harper (26 W. E. 364, L. B. 3 Ex. D. 198) does not appear to have been cited to the Court of Appeal in Ward v. Pilley. Bramwell, L.J., was a party to the judgment in that case also; and the language of the judgment above quoted reads rather strangely after referring to the report of the previous case. We do not say that the two cases are on all fours; because one is decided on section 57 of

the Judicature A«t, the other on section 3 of the Common Law Procedure Act; but Bo far as the judgment of Lord Justice Bramwell is concerned, it seems difficult to reconcile the ratio decidendi of the two cases. In Clow v. Harper, in an action for breach of covenant to repair, the defendant denied his liability. It appears to have been held by Cockburn, C.J., Brett and Cotton, L.JJ., that inasmuch as there was a denial of liability, and therefore a preliminary question to be decided upon before any question of account could arise, the action could not be referred compulsorily to the master under section 3 of the Common Law Procedure Act. The reasoning of these 3 udges clearly goes to this; that nothing but mere matters of account can be compulsorily referred, and so no item of claim in the action in respect of which liability is denied can be referred compulsorily. It is perfectly true that Bramwell, L.J., puts his judgment in Clow v. Harper on the ground of discretion, but his language in Ward v. Pilley seems to us irreconcileable with the deliberate opinion of the majority in Clow v. Harper.

But it may be said that, putting aside the ratio decidendi given by Bramwell,L.J., the two cases are reconcileable; that Ward v. Pilley really turns on section 57 of the Judicature Act, and that the true construction of section 3 of the Common Law Procedure Act, 1854, has no direct bearing on the question raised in Ward v. Pilley. To that we agree. The judgments of the majority in Clow v. Harper turned on the words " mere matter of account," which do not occur in section 57 of the Judicature Act, 1873. But it seems clear that Bramwell, L.J., does not hold the doctrine put forward in Clow v. Harper, and decided the case of Ward v. Pilley on grounds inconsistent with that decision. Baggallay, L.J., gives no reason for his judgment in Ward v. Pilley. Brett, L.J., the remaining judge, decides that if a case is once brought within section 57, the court may send to the official referee, not only all the issues of account, but all the issues in the cause. This may be so, but the learned Lord Justice, in the case of Longman v. Eatt (26 W. B. 183, L. E. 3 C. P. D. 152)—a case in which the language of section 57 received very careful consideration—seems to have used expressions which appear to be in direct conflict with this view. He says, "I think, therefore, that when the parties have consented, the court may send, not the whole cause, but any question or issues of fact in the cause to an official referee to try. When an order is made without consent, they can only send such questions as are brought within the terms of the section ; that is, any issue requiring a prolonged examination of documents, or requiring the examination of accounts, or requiring any scientific or local investigation." In the same case, Cotton, L.J., says, "My own opinion is that the issues which without consent may be sent to a referee cannot be restricted to those issues which involve local or scientific examination, or matters of account. There may be certain issues so connected with the matters of account, or with the matters requiring local inquiry or scientific examination, that it would be hardly possible fairly to deal with the issues not of that special character without sending them to the same person who is to deal with those requiring scientific examination or local investigation, or matters of account But, in my opinion, it would be wrong, even if there were any jurisdiction—which I do not say there i9—to transfer all the issues in a cause to a referee simply because there is a matter of account which can only be properly dealt with by him." It seems to us that in Longman v. East, Brett, L.J., and Cotton, L.JJ., thought that there was not necessarily j urisdiction to refer compulsorily all the issues because one of them might be so referred under section 57.

We think that Ward v. Pilley may be supported on grounds consistent with what was said in Longman?. East. The action was on a builder's bill consisting of many items. This part of the case seems clearly to be of such a

nature as comes within section 57 of the Judicature Act, and although there was a counter-claim for money lent and for damages for breach of an agreement by the plaintiff to advance money for the purpose of enabling the defendant to meet a certain bill of exchange accepted by him at the plaintiff's request, it appears probable that the transactions out of which the counterclaim arose were intimately connected with the claim and so came within the language nsed by Cotton, L. J., in Longman v. East. The general result, however, of the expressions used iu the various cases is to leave the subject in a somewhat confused and unsatisfactory state. It may be observed that there does not appear to be anything in the 57th section which expressly limits the power of the court to referring only issues requiring prolonged examination of documents, or accounts, or scientific or local investigation. And as Bramwell, L. J., said, there is this strong objection to referring some only of the issues and leaving others to be tried by a jury, that you have two trials instead of one, and so involve double expense.


There have been some important decisions during the year with reference to the apportionment of costs. In Knight v. Pursaell (28 W. B. 90) the plaintiff had sought an injunction for three separate purposes, but had been successful only as to one part of his claim, which was dismissed as to two of the matters in respect of which he sought relief, with an order that it should be referred to the taxing master to tax the defendant's costs as to so much of the action as had been dismissed, and to tax the plaintiff's costs of the rest of the action, with a set-off of the respective costs. The taxing master first taxed the plaintiffs costs in full, allowing him onethird, and the defendant two-thirds, and he then taxed the defendant's costs in full, allowing him two-thirds, and the plaintiff one-third. On a summons to vary the certificate, the plaintiff's counsel objected that each separate item ought to have been investigated and allowed or disallowed, according as the plaintiff or the defendant had succeeded upon that part of the claim in respect of which it had been incurred, but Bacon, V.C., declined to vary the certificate, holding that since the general costs of the action related to all the Issues, the taxing master was right in first taxing them as a whole, and then apportioning them in thirds. In Mason v. Brentini (42 L. T. N. S. 726) Fry, J., had dismissed both the claim and the counter-claim, with costs, and had ordered that the taxing master should set off the respective costs when taxed, and certify to which party the balance was due. The taxing master did not apportion the general costs, but taxed them on the principle that the pi.limit! should pay the costs of the action, and that the defendant should pay only the amount by which the costs had been increased through the counter-claim. A balance of £340 5s. Id. having been certified as due from the plaintiff to the defendant, the former took out a summons, before Malius, V.C., to review the taxation, and it was urged on his behalf that ord. 19, r. 3 did not affect the question of apportionment of costs. Reliance was placed upon Knight v. Purstell, and it was argued that the case of Saner v. Bilton (27 W. E. 472, L. B. 11 Ch. D. 416), upon the authority of which the taxing master had acted, wa3 incorrectly decided. The Vice-Chancellor, however, held that the last-named cose had been rightly decided. The Judicature Act having established a new system of pleading, ord. 19, r. 3 must be taken to have introduced a new principle of taxation. The defendant was, under the circumstances, bound to pay only the increase in the costs occasioned by the counter-claim; and to say that the mere putting in of a counter-claim rendered him liable to half the general costs of the action appeared tc> be "a great injustice." In The Pasithea (L. R. 5 P. D. 5} two separate salvage actions had been instituted against the same vessel, and Sir Robert Fhillimore ordered that the defendants should pay only one set of costs, which were to be apportioned between the plaintiffs in the respective actions according to the amounts of their respective bills of costs.

There appear to have been only two decisions relating to the scale npon which costs should be allowed. Chapman v. Midland Railway Company (28 W. R. 592, L. R. 5 Q. B. I). 431) was an action of trespass, not involving any question of title or any permanent injury to property, the plaintiff claiming £30 damages and an injunction. The defendants paid £10 into court, and the plaintiff afterwards obtained a perpetual injunction. An order having been made at chambers for a stay of proceedings on payment by the defendants of a further sum of £20 into court, and of the costs of the action, the plaintiff claimed to have his costs taxed upon the higher scale, within ord. 6, r. 2, of the Rules of the Supreme Court (Costs), li>75, on the ground that an injunction to restrain an injury to property was " the principal relief sought to be obtained." The Court of Appeal, affirming the decision of the Queen's Bench Division (reported 28 W. R. 413, L. R. 5 Q. B. D. 167), held that he was not entitled to costs on the higher scale. Brett, L. J., expressed an opinion (although it was not necessary to decide the question) that a bare trespass would not be such an injury to property as was contemplated by the section. He held that the master must always decide whether, in the particular case, the principal relief sought was an injunction or damages, and that no universal rule could be laid down. Cotton and Thesiger, L- J J., were of the same opinion, the latter observing that the circumstances that the plaintiff had sued in a common law division, that he had allowed a long interval to elapse, that he claimed substantial damages, and that the defendants' occupation of his land had not been permanent, were, although not conclusive, strong reasons for saying that the injunction was not the principal relief sought. The same rule was considered by Field, J., in Horner T. Oyler (49 L. J. Q. B. 655). The assignee of a lessor sued the assignees of the lessee for damages for breach of certain covenants in the lease, the writ being indorsed with a claim for damages and also for tolls for the use of a market, and for an injunction. Field, J., having tried the case without a jury, gave judgment for the plaintiff, and granted an injunction, and subsequently ordered that the plaintiff s costs should be allowed on the higher scale. He thought that, since the action was brought for breach of covenant and for the establishment of a right, the iuj unction was the principal relief sought, and, therefore, the facts were distinguishable from those in Chapman v. Midland Railway Company. Ho also observed that ord. 6. r. 3, of the Rules of the Supreme Court (Costs), 1875, empowers the judge at the trial to make an order "as to all or any part of the costs," and that the discretion so conferred should be exercised in accordance with the intention expressed in the preceding rule. Myers v. Defries (28 "V7. R. 406, L. R. 5 Ex. D. 181) involved a discussion as to the term "event" in ord. 55, r. 1. The statement of claim was for damages for maliciously taking proceedings in bankruptcy, and also for libel, slander, trespass, and conspiracy, and a verdict had been found for the defendants upon all the issues, except the claim for libel, as to which the jury awarded the plaintiff one farthing damages. It was afterwards ordered by the Court of Appeal (27 W. R. 791, L. R. 4 Ex. D. 176), that the plaintiff should have no costs. The master taxed the defendants' costs of the issue, npon which they had been successful, and on a motion by the plaintiff to review the taxation, it was argued by his counsel (1) that the "event" was in his favour, since he had obtained judgment for a certain amount of damages; (2) that even if the event had not been in favour of the plaintiff, it had, at any rate, not been in

favour of the defendants, since " event" must meau the whole event, and they had failed upon one of the issues; (3) that the question of costs became res judicata, when the plaintiff was deprived of costs by the previous order of the court. The Court of Appeal, affirming the decision of the Exchequer Division (reported 28 \V. R. 413, L. R 5 Ex. D. 15), refused to disturb the taxation. Bramwell, L.J., observed that ord. 55 was " unfortunate in its terms," and that it might be expedient to amend it, but all the Lords Justices held that the word " event" must be read distributively, and that, in order to entitle the defendants to their costs, it was not necessary that every single issue should be found in their favour.

Several of the recent cases involved questions as to the allowance of costs under special circumstances. In Foster v. Edwards (48 L. J. C. P. 767) a district registrar had dismissed the action (after the close of the pleadings) for want of prosecution, without costs, but Field, J., directed that the plaintiff should have his costs. On a motion to dismiss the order of Field, J., the plaintiff's counsel relied upon section 49 of the Judicature Act, 1873, and argued that no appeal lay from the district registrar's order as to the costs, which were in his discretion; but the divisional court held that the word "judge" in that section did not extend to a master or a district registrar. In Fritz v. Hobson (2) (28 W. R. 722, L. R. 14 Ch. D. 542) an application for an interim injunction had been adjourned till the trial, the costs not being provided for, and liberty to apply not being expressly reserved. At the trial the plaintiff obtained judgment, with the general costs of the action, less £10 costs as to one part of the case in respect of which he had failed. Leave to apply was reserved, but nothing was said as to the costs of the adjourned motion. Upon a motion by the plaintiff to vary the judgment (which had been drawn up, passed, and entored) by the allowance of the latter costs (which the taxing master had refused to allow), Fry, J., held that he had power to correct the mistake which had been made, either under ord. 41a, or under the liberty to apply expressly reserved at the trial, or under the liberty to apply which was impliedly reserved on the interlocutory order, as it it is under every order of the court. He therefore made a separate order, directing the taxation and payment of the plaintiff's costs of the interlocutory motion. In Trotter v. Maclean (28 W. R. 244, L. R. 13 Ch. D. 574), Fry, J., held that a letter written by the defendant's solicitors to the plaintiff's solicitors, stating that they were prepared to advise their client to settle the action upon certain terms, could not free the defendant from liability for the subsequent costs of the action, since it did not follow that he would comply with the advice of his solicitors.

Questions as to costs were involved in two cases where a solicitor had taken proceedings without his client's authority. In Nurse v. Durnford (28 W. R. 145, L. R. 13 Ch. D. 763), the surviving partner in a firm of solicitors commenced an action iu his own name and that of the executors of his late partner, and instructed his London agents to act as the solicitors on the record. An affidavit of documents was filed on behalf of the plaintiffs, but no further step was taken, and the surviving executor of the deceased partuer hoard nothing of the joinder of his name as a co-plaintiff until (after the death of the solicitor who commenced the action) he was served with a notice of motion that the plaintiffs be ordered to proceed with the action, or that it might be dismissed with costs, and he then moved to have his name struck out of the record. The Master of the Rolls made an order staying all proceedings in the action, and he ordered tho solicitors on the record to pay the costsas between solicitor and client of the plaintiff, who had been improperly joined, and all the costs of the defendant. He adopted the common law practice as followed in Reynolds v. Howell (22 W. R 18, L. R. 8 Q. B. 398), rather than that which was formerly adopted by the Court of Chancery, and intimated an opinion that the London solicitors would have a remedy against the estate of the solicitor who had instructed them to commence the proceedings. In Newbiggin Gas Company v. Armstrong (28 \V. E. 277, L. E. 13 Ch. D. 310) the action had been commenced without the authority ot the plaintiff company, the appointment of their solicitor (who had brought the action) having been invalid. The Court of Appeal (affirming the decision of Fry, J.) laid it down that the proper course under tho circumstances was for the plaintiffs to serve both the defendant and the solicitor with notice of application to dismiss the action. As in the case last cited, it was held that the former practice of the common law courts ought to prevail, and the solicitor was ordered to pay the plaintiffs costs as between solicitor and client, and the defendant's costs as between party and party.

With reference to costs in actions of a particular description, it may be mentioned that in Fisher v. Fisher (L. E. 4 P. D. 231) Sir James Hannen held that in a probate suit the condemnation of a party in costs involves liability for the costs of an administrator pendente lite. In Ball v. Kemp-Welch (L. E. 14 Ch. D. 512), the Master of the Eolls held that in a partition action the costs should, as a general rule, be borne by the parties in proportion to their respective interests as declared by the judgment, and that they could not be taxed as between solicitor and client except by the consent of all parties. Richardson v. Richardson (28 W. E. 942,1* E. 14 Ch. D. 611) was an administration action which had been commenced by the administrator against the next of kin, but discontinued on account of the estate proving insolvent. The action was afterwards continued by a creditor, and the Master of the Eolls held that the creditor was entitled to costs as between solicitor and client, since he had exerted himself and incurred expense on behalf of all the creditors.


PROBATE AND DIVORCE. Ay ErnoME or The Laws Op Prolate And Divorce.

By J. Carter Harrison, Solicitor. Stevens & Haynes.

This book is intended for the use of students in preparing for the final examination. It presents the outlines of the branches of law to which it relates in a very concise form, and is well arranged and well expressed. As regards both subjects, the information given is full enough to furnish an excellent foundation of knowledge for the student. The cases cited in the foot-notes appear, in the portions relating to probate which we have examined, to be judiciously selected. There is a misplaced bracket at page 29 which may perplex the student, but in general the book seems to be very accurate and useful.

PRACTICE OF THE COURT IN BANC. A Concise Manual Op The Practice Of The Court In Banc, With A Chapter On The Practice Of The Court or Appeal. By P. E. Vizard, Court Order Office (Exchequer Division). H. Sweet.

Mr. Vizard states in his preface that he has attended the sittings of the court in Banc, as an officer of the court, without intermission, from the time of the passing of the Judicature Acts and for some years previously; he is, therefore, undoubtedly qualified to undertake the compilation of this manual. His work relates to the practice in Banc which is common to all three common law divisions, and he deals with motions, new trials, appeals from inferior courts, special cases, demurrers, awards, motions for judgment, applications against solicitors, and affidavits. Under each of these heads he brings together the provisions of the Judicature Acts and Eules, the portions of the old practice still in force and the decisions; and adds practical directions. The

arrangement of the matter in the chapters is convenient,. and the effect of the cases is carefully and compactlystated. The manual is likely to be exceptionally useful' to practitioners in the common law divisions.

HIGHWAYS. The Law Op Highways In England And Wales, InCluding Bridges And Locomotives, &c. By T. Baker, Esq., Barrister-at-Law. Stevens & Sons. The general plan of Mr. Baker's book is good. Ha groups together condensed statements of the effect of the provisions of the different Highway Acts relating to the same matter, giving in all cases references to the sections, which are printed in full in the appendix. To each condensed section or group of sections he appends a note stating concisely the effect of the decisions. lathe case of. the Highway Acts we think that the consolidation and abbreviation which Mr.Baker has attempted is the best mode of laying before the reader within reasonable compass the statutory provisions; and since, as we have said, the sections are given in full in the appendix, the reader need not (if he U careful) be misled by any slip in the statement of the effect of a. section. There are some places, however, where the inadvertent omission of words may lead the careless reader into misapprehension. Thus on page 49 it is stated that "if any gate across any cartway be less than ten feet wide," the owner of the gate may be required to enlarge it. Of course, it should have been "across any public cartway." Again, on page 65, the effect of 8 Vict. c. 20, s. 46, is incorrectly stated, owing to the omission of the important;words "except where otherwise provided by the special Act"; and, owing to the omission of a single word, the concluding part of Mr. Baker's statement of the effect of this section is rather bewildering. He says that, "with, consent of two justices, the railway may cross any highway, other than a public road, on the level." It should have been "other than a public carriage road." The statements of the effect of the cases are, so far as we have examined them, fairly accurate. A table of cases will be found in the index. A short account of the course of legislation on the subject might, with advantage, have been prefixed to the book.

TAXES ON SUCCESSION. Trevor's Taxes On Succession: A Digest Op The StaTutes And Cases (including Those In Scotland And Ireland) Eelating To The Probate,Legacy, And SucCession Duties. Third Edition. By Evelyn Freeth. and E. J. Wallace, of the Legacy and Succession Duty Office. Stevens & Sons.

We turned with considerable interest to the observations of the editors of this new edition on the form of account required to be delivered under 43 Vict. c. 14, s. 10, with the affidavit of value for a grant of probate or letters of administration. The editors adopt the convenient course of setting out the form and annotating, each head which needs explanation. Most of the notes are practical and clear; and, as we presume they represent the view which is taken by the authoritiesat Somerset House of the requirements of the account, they will be of value to the practitioner. Fopinstance, under the heading in the account, "Eeal estate contracted, in lifetime of deceased, to be sold," the editors call attention to "the fact that where aa option of purchase under a lease of real estate is exercised by the lessee at any time after the lessor's death,

. . . the purchase-money must be dealt with as liable to probate duty under this head as part of the lessor's personal estate." It is odd, however, that the authors fail to notice that the doctrine that probate duty must be paid on the purchase-money in such a case as the abeve was laid down by Vice-Chancellor Malins in Lord v. Golvin (15 W. E. 485, L. E. 3 Eq, at p. 741), although)

« PreviousContinue »