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was no good ground of challenge. And in R. v. Hughes Commons agreed to an address to the Crown for a removal (1 C. & K. 225), which was tried at the Special Com of the judge from the bench for misconduct and malversa. mission at Cardiff in 1843, an allegation that the sheriff tion in office, and this resolution was ordered to be com“has not chosen the panel indifferently and impartially | municated to the Lords for their concurrence. The House as he ought to have done, and that the panel is not an in. of Lords, after hearing counsel on both sides, agreed to different one," was held by GURNEY, B., and CRESSWELL, J., a similar address; and in July, 1830, Sir J. BARRINGTON to be too general. On the other hand, in O'Connell v. R. was removed by the Crown. Lord A BINGER, when Lord. (11 C. & F. 155), Lord DENMAN held that an allegation Chief Baron, was the subject of a similar petition to the that the jurors' book had not been completed in con. | House of Commons, on the ground that he had, when formity with 3 & 4 Will. 4, c. 9, and that duly qualified presiding at the special commission for Lancashire and persons had been fraudulently, and for the purpose of Cheshire, been guilty of “partial, unconstitutional, and prejudicing the defendants, omitted from the general list oppressive" conduct, and had made use of “ultraand from the book itself, was a valid ground of chal political and party language.” Mr. DUNCOMBE moved lenge to the array, although there was no specific accusa the House to summon witnesses to the bar, in order to tion against the sheriff or any of his officers. In ascertain the language used by Lord A BINGER ; but the cases of misdemeanor, although the Crown has no right motion was rejected by a large majority. Mr. RIGBY of peremptory challenge, it has apparently the right to
Wason's celebrated petition against the late Sir FITZROY object to a juror when he is called without showing KELLY referred to a charge of unfitness for judicial cause for the challenge, until the whole panel has been office through previous misconduct, and not to official gone through. The validity of a challenge propter de misconduct ; but Earl RUSSELL stated that he had felt it fectum was discussed by the House of Lords in Mulcahyv. his duty to present the petition to the House, rather than R. (L. R. 3 H. L. 306), a case arising out of the Fenian deprive the petitioner of his constitutional remedy in a prosecutions of 1866, and it was held that a juror could matter of such public importance, 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,
A QUESTION which is agitating legal circles is, Who is where a juror, on looking upon the prisoners, had been
the Recorder of Ludlow? It was announced some time heard to utter the words “damned rascals.” If several
ago that “Mr. REDPATH, Q.C.," had been appointed to co-defendants refuse to join in their challenges, the
that office. As no such gentleman is to be found in the Crown may, to avoid the risk of the panel being ex
list of English Queen's Counsel, much speculation was hausted, elect to try one or more of them separately, and
set on foot as to the region in which this unknown if the panel is so far exhausted by challenges that less
6 silk” flourished. The favourite theory appeared to be than twelve jurors are left, a fresh panel must be re
that he was a new Official Referee, who, of course, could turned.
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 stateTHE EXCITED GENTLEMAN who, on Thursday, an
ment that, not Mr. REDPATH, Q.C., but Mr. SMYTHIES, nounced his intention to take the necessary steps for
Q.C., had been appointed recorder of the ancient the removal of Vice-Chancellor Malins from the bench
borough. Here, again, the profession, rushing to the will find the process to be a somewhat long and difficult
Law List, found themselves baffled. There is no Queen's one; nor can it be said that the result of similar adven
Counsel of that name. It has been suggested that tures in former times is encouraging. The earliest example
the Queen might have desired to have among the in this century related to Mr. Justice Fox, of the Irish
list of her counsel the gentleman who prepared the Court of Common Pleas, who, in 1805, was the subject of a petition to the House of Lords which complained of
building contract for the economical Memorial in the
Strand, which bears her Majesty's gracious image graven his judicial conduct upon various occasions. The matters
in “ the purest marble.” We do not find, however, that of complaint were referred to a committee of the whole
there is any foundation for this suggestion, and we, House, to consider of an address to the King to remove
therefore, give up the pursuit of Mr. SMYTHIES, the judge if a sufficient ground for such address should be
Q.C. We would only, in conclusion, express a feeble substantiated by proof, and to inquire into the facts alleged.
| envy for the prisoners at the next Ludlow Sessions, who The judge obtained leave to be present, and to be heard
may have the privilege of seeing alive, and being senby himself or by counsel. After repeated adjournments
tenced by, a man whose very existence has been ignothe proceedings were, on the motion of Lord GRENVILLE,
rantly denied. Let us hope that Mr. SMYTHIES, Q.C., will adjourned for two months, on the ground that they
temper justice with communicativeness, and let us know. ought to have originated in the House of Commons. No
when and where he got his silk. 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 THE MAGISTRATE at the Marylebone Police Court a few Court of Exchequer; but the motion for a committee to days ago requested an inspector of police to read a inquire into the charge was withdrawn, and it was re policeman, who had been giving evidence in a case, “a lecsolved" that the article of charge be rejected." In 1821 ture”; and the magistrate added that he must "impress Chief Baron O'GRADY, of the same court, was accused, upon the police the necessity of stating the whole truth upon two reports of the Commissioners on the Courts in a court of justice.” We have often commented upon cf Justice in Ireland, with having unjustly and arbitrarily this matter of the evidence given by policemen, but we increased his own fees; and the accusation was con may be permitted to add here that the late Chief Justice firmed by reports from two successive Select Committees BOVILL, in summing up a case at the Manchester Assizes, of the House of Commons. The matter was then re once used the following language:-“I desire to remark ferred back to the commissioners, and their further publicly that I have known many instances in which the report was considered by a committee of the whole police, in giving their evidence, have not stated that House, who reported a series of resolutions; but, ulti- which is in favour of the prisoner, and I wish it to be mately, a motion was carried that the House did not understood that it is the duty of the police to state in deem it necessary to adopt any further proceedings in every case, not only what they know in favour of the the case. The case of Sir JONAH BARRINGTON, judge of prosecutor, but even to volunteer what they kpow in the Irish Court of Admiralty, is a somewhat celebrated favour of the prisoner. That I wish every policeman one. On the 22nd of May, 1828, after several investiga. | most clearly to understand ; and in every instance that tions before a committee of the whole House, the House of has come before me in which the policeman has kept back anything in favour of the prisoner, I have always better information of his Honour's judgment, for I endeavoured to impress on those in authority that it is a cannot follow the reasoning, or understand how it affects thing to be discouraged, and that policemen, instead of the question at issue, or how the circumstances referred meriting reward for such conduct, placed themselves into by the Vice-Chancellor could possibly be held to & position for which they ought to be reprimanded." show" the conclusion the judge below had arrived at. We commend these observations to the attention of We venture to think that criticism by one judge of the the police authorities.
decisions of another should always be impersonal. It is, of course, often necessary to express Cissent from the
reasoning of a judgment or from the view of law or facts Ox TUESDAY LAST the new practice as to making absolute
taken by the judge. It is never necessary to intimate, decrees nisi for divorce was for the first time adopted.
either directly or indirectly, that a particular decision
was a silly one, or that the judge who decided a case There were nearly sixty cases of this description in the list, and the decrees were pronounced without the in
was a fool, or hasty, or inaccurate. Consider what the tervention of counsel. Sir JAMES HANNEN said, “ In the
effect on the bar will be of the spread of the practice
among the judges to which we have referred. Counsel cases, the names of which the registrar will read, and
instead of discussing the reasoning used by a judge in a in which & decree nisi has been pronounced, and no intervention has taken place, the court will make the
previous case, will find it moro convenient to say, decrees absolute;” and the names were then read out
“There is, it is true, my lord, the case of Jones v. Smith by the registrar. In some of the cases no decree was
the other way; but then that was one of Vice-Chancellor
's decisions, and, as your lordship said in pronounced in consequence of the papers not being in order, and one application was ordered to stand over for
Brown V. Robinson, the Vice-Chancellor was 'a an explanation of the unusual length of time which had
very rapid judge'; no doubt he did not give elapsed since the decree nisi was granted.
It is an exceedingly This modest
the point due consideration.” measure of law reform has already saved many guineas
decent and proper thing to assume that every judge has to suitors in divorce cases.
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 JUDICIAL AMENITIES.
work of the courts. No keener or more critical observers THE satirical observation made by a learned judge of the
of judicial defects can be imagined that the members of Court of Appeal, a few days ago, with reference to the
the bar, but the men who, when they meet at the dinner erroneous action of a judge of first instance, that there
table, are full of complaints of the incompetence or the " fortunately is no power to make the judge pay for his
perverseness of a judge, next day exhibit before him mistakes," reminds us of a remark we ventured to make
respectful courtesy and deference. It need not be said some time ago, that civility is very becoming when one
that they are right in so doing. The deference is not judge finds it necessary to criticize another. The occa
paid to Sir John Smith, V.C., but to the administrator of sion with reference to which we humbly submitted this
the law. Without it the courts would become bear commonplace sentiment was the stigmatizing by the
gardens, and litigants who lost their cases would come same learned judge of a judicial dictum by a late Lord
to the conclusion that they did so because their counsel Chancellor as “unfortunate," and one which “had
and the judge were at loggerheads. But in order to the better not have been reported.” We expressed a fear
preservation among the bar of this decent practice of that the quality of interjudicial civility was growing as
respect for a judge, it is essential that respect for judges rare as it was graceful; and we cannot say that subse
should be inculcated from the bench; and it is for this quent experience has allayed this apprehension.
reason that we have ventured to draw attention to the To take only one or two recent cases, we find in
subject of those remarks. Richardson v. Richardson (28 W. R. 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 Vice THERE appears to us to be a good deal of disculty in reChancellor's notice," and regretting that “unfortu. conciling the dicta which have fallen from the judges of nately” the case had “ got ir.to the reports.” Again, in the Court of Appeal with regard to the jurisdiction of Moore v. Dickson (29 W. R. 12), we find a Vice-Chan the court to order a reference compulsorily. In the cellor saying that “the point does not seem to have been recent case of Ward v. Pilley (28 W. R. 937, L. R. 5 Q. B. very much argued in Trollope v. Routledge, before Vice. D. 427) Bramwell, L.J., is reported to have said: “I Chancellor Knight Bruce, who was a very rapid judge.” think they (the Legislature) meant to give the court And many other recent instances of the same kind of power to refer compulsorily to an official referee any observation will readily suggest themselves to the practi- | matter of account which it might have referred comtioner in the Chancery Division.
pulsorily to a master under section 3 of the Common We are, of course, aware that this is no new thing. Law Procedure Act, 1854"; and he added," and further, Lord Westbury-who, when in practice at the bar, is I think that whenever the court has jurisdiction to refer said on one occasion to have threatened to break up a any question of account to an official referee, it has also conference because, as he remarked, “ the leetle gentlo. jurisdiction to refer to him any other matter arising in man in the corner of the reum [a highly-respectable the same action. I believe that, not long since, a notion country solicitor is somewhat trabblesom ”-after he got abroad that under section 3 of the Common Law was raised to the bench sometimes bestowed his | Procedure Act we had power to refer questions only of honeyed sarcasms on the judges whose decisions he had account, and not other matters, but that mistake was set to review. Rumour has it that he once startled the right in a case which we decided in this court at the last serenity of the House of Lords by describing the judge | sittings.” The case of Clow v. Harper (26 W. R. 364, ment of a Scottish court as “a melancholy collection of
| L. R. 3 Ex. D. 198) does not appear to have been cited erroneous sentences.” But the reproofs of the Lord to the Court of Appeal in Vard v. Pilley. BramChancellor were rarely so overt as on this occasion. He | well, L.J., was a party to the judgment in that case had many decent and ingenious veils for his satire. One also; and the languago of the judgment above quoted of these was to express an opinion that the judgment of reads rather strangely after referring to the report the Vice-Chancellor had been altogether mis-reported. | of the previous case. We do not say that the two cases "I regret extremely," he would say, “ that I have not | are on all fours; because one is decided on section 57 of
the Judicature Aet, the other on section 3 of the Com. / nature as comes within section 57 of the Judicature Act, mon Law Procedure Act; but so far as the judgment and although there was a counter-claim for money lent of Lord Justice Bramwell is concerned, it seems and for damages for breach of an agreement by the difficult to reconcile the ratio decidendi of plaintiff to advance money for the purpose of enabling the two cases. In Clow 7. Harper, in an action the defendant to meet & certain bill of exchange acfor breach of covenant to repair, the defendant cepted by him at the plaintiff's request, it appears denied his liability. It appears to have been held by probable that the transactions out of which the counterCockburn, C.J., Brett and Cotton, L.JJ., that inas. claim arose were intimately connected with the claim much as there was a denial of liability, and therefore a pre and so came within the language used by Cotton, L.J., liminary question to be decided upon before any question in Longman v. East. The general result, however, of of account could arise, the action could not be referred the expressions used in the various casas is to leave the compulsorily to the master under section 3 of the subject in a somewhat confused and unsatisfactory state. Common Law Procedure Act. The reasoning of these | It may be observed that there does not appear to be judges clearly goes to this; that nothing but mere matters anything in the 57th section which expressly limits the of account can be compulsorily referred, and so no power of the court to referring only issues requiring item of claim in the action in respect of which liability prolonged examination of documents, or accounts, or is denied can be referred compulsorily. It is perfectly scientific or local investigation. And as Bramwell, L.J., true that Bramwell, L.J., puts his judgment in Clow said, there is this strong objection to referring some only v. Harper on the ground of discretion, but his language of the issues and leaving others to be tried by a jury, in Ward v. Pilley seems to us irreconcileable with the that you have two trials instead of one, and so involve deliberate opinion of the majority in Clow v. Harper. double expense.
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
THE YEAR'S SOLICITORS' CASES. Judicature Act, and that the true construction of section 3 of the Common Law Procedure Act, 1854, has no
II. direct bearing on the question raised in Ward v. Pilley, THERE have been some important decisions during the To that we agree. The judgmerts of the majority in year with reference to the apportionment of costs. In Clow v. Harper turned on the words “mere matter of Knight v. Purssell (28 W. R. 90) the plaintiff had account,” which do not occur in section 57 of the sought an injunction for three separate purposes, but Judicature Act, 1873. But it seems clear that Bram. had been successful only as to one part of his claim, well, L.J., does not hold the doctrine put forward which was dismissed as to two of the matters in respect in Clow v. Harper, and decided the case of Ward of which be sought relief, with an order that it should v. Filley on grounds inconsistent with that de. be referred to the taxing master to tax the defendant's cision. Baggallay, L.J., gives no reason for his judg costs as to so much of the action as had been dismissed, ment in Ward v. Pilley. Brett, L.J., the remaining and to tax the plaintiff's costs of the rest of the action, judge, decides that if a case is once brought within with a set-off of the respective costs. The taxing master section 57, the court may send to the official referee, not first taxed the plaintiff's costs in full, allowing him oneonly all the issues of account, but all the issues in the third, and the defendant two-thirds, and he then taxed cause. This may be so, but the learned Lord Justice, in the defendant's costs in full, allowing him two-thirds, the case of Longman v. East (26 W. R. 183, L. R. 3 and the plaintiff one-third. On a summons to vary the C. P. D. 152)—a case in which the language of section 57 certificate, the plaintiff's counsel objected that each received very careful consideration--seems to have used separate item ought to have been investigated and expressions which appear to be in direct conflict with this allowed or disallowed, according as the plaintiff or the view. He says, “I think, therefore, that when the defendant had succeeded upon that part of the claim in parties have consented, the court may send, not the respect of which it had been incurred, but Bacon, V.C., whole cause, but any question or issues of fact in the declined to vary the certificate, holding that since the cause to an official referee to try. When an order is general costs of the action related to all the issues, the made without consent, they can only send such questions taxing master was right in first taxing them as a whole, as are brought within the terms of the section, that is, and then apportioning them in thirds. In Mason v. any issue requiring a prolonged examination of docu. Brentini (42 L. T. N. S. 726) Fry, J., had dismissed ments, or requiring the examination of accounts, or re both the claim and the counter-claim, with costs, and quiring any scientific or local investigation.” In the had ordered that the taxing master should set off the same case, Cotton, L.J., says, “My own opinion is tbat respective costs when taxed, and certify to which party the issues which without consent may be sent to a re- the balance was due. The taxing master did not apporferee cannot be restricted to those issues which involve tion the general costs, but taxed them on the principle that local or scientific examination, or matters of account. the plaintiff should pay the costs of the action, and that There may be certain issues so connected with the the defendant should pay only the amount by which the matters of account, or with the matters requiring local costs had been increased through the counter-claim. A inquiry or scientific examination, that it would be balance of £340 5s. 1d. having been certified as due hardly possible fairly to deal with the issues not of that from the plaintiff to the defendant, the former took out special character without sending them to the same a summons, before Malins, V.C., to review the taxation, person who is to deal with those requiring scientific ex and it was urged on his behalf that ord. 19, r. 3 did amination or local investigation, or matters of account. not affect the question of apportionment of costs. ReBut, in my opinion, it would be wrong, even if there liance was placed upon Knight v. Purssell, and it was were any jurisdiction-which I do not say there argued that the case of Saner V. Bilton (27 W. R. is-to transfer all the issues in a cause 472, L. R. 11 Ch. D. 416), upon the authority to a referee simply because there is a matter of of which the taxing master had acted, was incorrectly account which can only be properly dealt with by him.” decided. The Vice-Chancellor, however, held that the It seems to us that in Longman v. East, Brett, L.J., and last-named case had been rightly decided. The JudiCotton, L.JJ., thought that there was not necessarily cature Act having established a new system of pleading, jurisdiction to refer compulsorily all the issues because ord. 19, r. 3 must be taken to have introduced one of them might be so referred under section 57. a new principle of taxation. The defendant was, under
We think that Ward v. Pilley may be supported on the circumstances, bound to pay only the increase in the grounds consistent with what was said in Longmanv. East. costs occasioned by the counter-claim; and to say that The action was on a builder's bill consisting of many the mere putting in of a counter-claim rendered him items. This part of the case seems clearly to be of such a liable to half the general costs of the action appeared to be "a great injustice." In The Pasithea (L. R. 5 P. favour of the defendants, since "event" must mean the D. 5) two separate salvage actions had been instituted whole event, and they had failed upon one of the issues ; against the same vessel, and Sir Robert Phillimore (3) that the question of costs became res judicata, ordered that the defendants should pay only one set of when the plaintiff was deprived of costs by the previous costs, which were to be apportioned between the plain order of the court. The Court of Appeal, affirming the tiffs in the respective actions according to the amounts decision of the Exchequer Division (reported 28 W. R. of their respective bills of costs.
413, L. R. 5 Ex, D. 15), refused to disturb the taxation. There appear to have been only two decisions relating Bramwell, L.J., observed that ord. 55 was “ unfortunate to the scale upon which costs should be allowed. Chap. in its terms," and that it might be expedient to amend man v. Midland Railway Company (28 W. R. 592, it, but all the Lords Justices held that the word "event" L. R. 5 Q. B. D. 431) was an action of trespass, not must be read distributively, and that, in order to entitle involving any question of title or any permanent injury the defendants to their costs, it was not necessary that to property, the plaintiff claiming £30 damages and an every single issue should be found in their favour. injunction. The defendants paid $10 into court, and several of the recent cases involved questions as to the plaintiff afterwards obtained a perpetual injunction. the allowance of costs under special circumstances. In An order having been made at chambers for a stay of Foster v. Ed wards (48 L. J. C. P. 767) a district regis. proceedings on payment by the defendants of a further trar had dismissed the action (after the close of the sum of £20 into court, and of the costs of the action, the pleadings) for want of prosecution, without costs, but plaintiff claimed to have his costs taxed upon the higher Field, J., directed that the plaintiff should have his costs. scale, within ord. 6, r. 2, of the Rules of the Supreme On a motion to dismiss the order of Field, J., the plaintiff's Court (Costs), 1875, on the ground that an injunction counsel relied upon section 49 of the Judicature Act, to restrain an injury to property was“ the principal relief 1873, and argued that no appeal lay from the district sought to be obtained." The Court of Appeal, affirming registrar's order as to the costs, which were in his disthe decision of the Queen's Bench Division (reported 28 cretion; but the divisional court held that the word W. R. 413, L. R. 5 Q. B. D. 167), held that he was not “ judge' in that section did not extend to a master or a entitled to costs on the higher scale. Brett, L.J., ex- district registrar. In Fritz v. Hobson (2) (28 W. R. 722, pressed an opinion (although it was not necessary to L. R. 14 Ch. D. 542) an application for an interim indecide the question) that a bare trespass would not be junction had been adjourned till the trial, the costs not such an injury to property as was contemplated by the being provided for, and liberty to apply not being exsection. He held that the master must always decidepressly reserved. At the trial the plaintiff obtained whether, in the particular case, the principal relief judgment, with the general costs of the action, less £10 sought was an injunction or damages, and that no uni costs as to one part of the case in respect of which he versal rule could be laid down. Cotton and Thesiger, had failed. Leave to apply was reserved, but nothing LJI., were of the same opinion, the latter observing that was said as to the costs of the adjourned motion. Upon the circumstances that the plaintiff had sued in a a motion by the plaintiff to vary the judgment (which common law division, that he had allowed a long interval | had been drawn up, passed, and entered) by the allowto elapse, that he claimed substantial damages, and that ance of the latter costs (which the taxing master had the defendants' occupation of his land had not been per- refused to allow), Fry, J., held that he had power to manent, were, although not conclusive, strong reasons for correct the mistake which had been made, either under saying that the injunction was not the principal relief ord. 41a, or under the liberty to apply expressly sought. The same rule was considered by Field, J., in reserved at the trial, or under the liberty to apply which Horner v. Oyler (49 L. J. Q. B. 655). The assignee of was impliedly reserved on the interlocutory order, as it a lessor sued the assignees of the lessee for damages for | it is under every order of the court. He therefore made breach of certain covenants in the lease, the writ being a separate order, directing the taxation and payment of indorsed with a claim for damages and also for tolls for the plaintiff's costs of the interlocutory motion. In the use of a market, and for an injunction. Field, J., | Trotter v. Maclean (28 W. R. 244, L. R. 13 Ch. D. 574), having tried the case without a jury, gave judgment for Fry, J., held that a letter written by the defendant's the plaintiff, and granted an injunction, and subsequently solicitors to the plaintiff's solicitors, stating that they ordered that the plaintiff's costs should be allowed on were prepared to advise their client to settle the action the higher scale. He thought that, since the action was upon certain terms, could not free the defendant from brought for breach of covenant and for the establish- liability for the subsequent costs of the action, since it ment of a right, the injunction was the principal relief did not follow that he would comply with the advice of sought, and, therefore, the facts were distinguishable from his solicitors. those in Chapman v. Midland Railway Company. He Questions as to costs were involved in two cases where also observed that ord. 6, r. 3, of the Rules of the a solicitor had taken proceedings without his client's auSupreme Court (Costs), 1875, empowers the judge at the thority. In Nurse v. Durnford (28 W. R. 145, L. R. 13 trial to make an order “as to all or any part of the Ch. D. 763), the surviving partner in a firm of solicitors costs," and that the discretion so conferred should be commenced an action in his own name and that of the exercised in accordance with the intention expressed in executors of his late partner, and instructed his London ne preceding rule. Myers v. Defries (28 W. R. 406, agents to act as the solicitors on the record. An affidavit L. R. 5 Ex. D. 181) involved a discussion as to the of documents was filed on behalf of the plaintiffs, but no term "event" in ord. 55, r. 1. The statement of further step was taken, and the surviving executor claim was for damages for maliciously taking pro of the deceased partner hoard nothing of the joinder ceedings in bankruptcy, and also for libel, slander, of his name as a co-plaintiff until (after the death of the trespass, and conspiracy, and a verdict had been solicitor who commenced the action) he was served with found for the defendants upon all the issues, except | a notice of motion that the plaintiffs be ordered to prothe claim for libel, as to which the jury awarded ceed with the action, or that it might be dismissed the plaintiff one farthing damages. It was afterwards with costs, and he then moved to have his name ordered by the Court of Appeal (27 W. R. 791, L. R. 4 struck out of the record. The Master of the Ex. D. 176), that the plaintiff should have no costs. Rolls made an order staying all proceedings in the The master taxed the defendants' costs of the issue, action, and he ordered the solicitors on the record to pay upon which they had been successful, and on a motion the costs as between solicitor and client of the plaintiff, who by the plaintiff to review the taxation, it was argued by had been improperly joined, and all the costs of the dehis counsel (1) that the "event" was in his favour, since feudant. He adopted the common law practice as followed he had obtained judgment for a certain amount of | in Reynolds v. Howell (22 W. R. 18, L. R. 8 Q. B. 398), damages; (2) that even if the event had not been in rather than that which was formerly adopted by the Court favour of the plaintiff, it had, at any rate, not been in of Chancery, and intimated an opinion that the London
solicitors would have a remedy against the estate of the so arrangement of the matter in the chapters is convenient, licitor who had instructed them to commence the pro- and the effect of the cases is carefully and compactly ceedings. In Newbiggin Gas Company v. Armstrong (28 stated. The manual is likely to be exceptionally useful W. R. 277, L. R. 13 Ch. D. 310) the action had been com to practitioners in the common law divisions. menced without the authority of the plaintiff company, the appointment of their solicitor (who had brought the action) having been invalid. The Court of Appeal
HIGHWAYS. (affirming the decision of Fry, J.) laid it down that the THE LAW OF HIGHWAYS IN ENGLAND AND WALES, INproper course under the circumstances was for the plain. CLUDING BRIDGES AND LOCOMOTIVES, &c. By T.tiffs to serve both the defendant and the solicitor with BAKER, Esq., Barrister-at-Law. Stevens & Sons. notice of application to dismiss the action. As in the
The general plan of Mr. Baker’s book is good. He case last cited, it was held that the former practice of the
groups together condensed statements of the effect of common law courts ought to prevail, and the solicitor
the provisions of the different Highway Acts relating to was ordered to pay the plaintiff's costs as between solici.
the same matter, giving in all cases references to the tor and client, and the defendant's costs as between party
sections, which are printed in full in the appendix. To and party.
each condensed section or group of sections he appends With reference to costs in actions of a particular de.
a note stating concisely the effect of the decisions. Il. scription, it may be mentioned that in Fisher v. Fisher
the case of the Highway Acts we think that the con(L. R. 4 P. D. 231) Sir James Hannen held that in a
solidation and abbreviation which Mr.Baker has attempted probate suit the condemnation of a party in costs involves
is the best mode of laying before the reader within liability for the costs of an administrator pendente lite.
reasonable compass the statutory provisions; and since, In Ball v. Kemp-Welch (L. R. 14 Ch. D. 512), the
as we have said, the sections are given in full in the Master of the Rolls held that in a partition action the
appendix, the reader need not (if he is careful) be costs should, as a general rule, be borne by the parties in
misled by any slip in the statement of the effect of & proportion to their respective interests as declared by
section. There are some places, however, where the inthe judgment, and that they could not be taxed as
advertent omission of words may lead the careless between solicitor and client except by the consent of all
reader into misapprehension. Thus on page 49 it parties. Richardson v. Richardson (28 W.R. 942, L. R.
is stated that “if any gate across any cartway be 14 Ch. D. 611) was an administration action which had
less than ten feet wide," the owner of the gatebeen commenced by the administrator against the next of
| may be required to enlarge it. Of course, it should kin, but discontinued on account of the estate proving
have been“ across any public cartway." Again, on insolvent. The action was afterwards continued by a
page 65, the effect of 8 Vict. c. 20, s. 46, is incorrectly creditor, and the Master of the Rolls held that the
stated, owing to the omission of the important words creditor was entitled to costs as between solicitor and
“except where otherwise provided by the special Act"; client, since he had exerted himself and incurred expense
and, owing to the omission of a single word, the con. on behalf of all the creditors.
cluding 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 high
way, other than a public road, on the level.” It should REVIEWS.
have been “other than a public carriage road." The
statements of the effect of the cases are, so far as we have PROBATE AND DIVORCE.
examined them, fairly accurate. A table of cases will be AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE.
found in the index. A short account of the course of
legislation on the subject might, with advantage, have By J. CARTER HARRISON, Solicitor. Stevens & Haynes.
been prefixed to the book. 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
TAXES ON SUCCESSION. concise form, and is well arranged and well expressed.
TREVOR'S TAXES ON SUCCESSION: A DIGEST OF THE STAAs regards both subjects, the information given is full TUTES AND CASES (INCLUDING THOSE IN SCOTLAND AND enough to furnish an excellent foundation of knowledge IRELAND) RELATING TO THE PROBATE, LEGACY, AND SUCfor the student. The cases cited in the foot-notes appear, CESSION DUTIES. THIRD EDITION. By EVELYN FREETH in the portions relating to probate which we have exam and R. J. WALLACE, of the Legacy and Succession ined, to be judiciously selected. There is a misplaced Duty Office. Stevens & Sons. bracket at page 29 which may perplex the student, but We turned with considerable interest to the observain general the book seems to be very accurate and useful. tions of the editors of this new edition on the form of
account required to be delivered under 43 Vict. c. 14, PRACTICE OF THE COURT IN BANC. s. 10, with the affidavit of value for a grant of probate A CONCISE MANUAL OF THE PRACTICE OF THE COURT IN
or letters of administration. The editors adopt the conBanc, WITH A CHAPTER ON THE PRACTICE OF THE COURT
| venient course of setting out the form and annotating OF APPEAL. By P. E. VIZARD, Court Order Office
each head which needs explanation. Most of the notes (Exchequer Division). H. Sweet.
are practical and clear; and, as we presume they
represent the view which is taken by the authorities. Mr. Vizard states in his preface that he has attended
at Somerset House of the requirements of the acthe sittings of the court in Banc, as an officer of the count, they will be of value to the practitioner. For court, without intermission, from the time of the passing | instance, under the heading in the account, “Real of the Judicature Acts and for some years previously ; estate contracted, in lifetime of deceased, to be sold, he is, therefore, undoubtedly qualified to undertake the the editors call attention to “the fact that where a2 compilation of this manual. His work relates to the option of purchase under a lease of real estate is exerpractice in Banc which is common to all three common cised by the lessee at any time after the lessor's death, law divisions, and he deals with motions, new trials, ... the purchase-money must be dealt with as. appeals from inferior courts, special cases, demurrers, 1 liable to probate duty under this head as part of the awards, motions for judgment, applications against lessor's personal estate.” It is odd, however, that the solicitors, and affidavits. Under each of these heads he authors fail to notice that the doctrine that probate duty brings together the provisions of the Judicature Acts
must be paid on the purchase-money in such a case as the and Rules, the portions of the old practice still in force above was laid down by Vice-Chancellor Malins in Lord and the decisions; and adds practical directions. The v. Colvin (15 W.R. 485, L. R. 3 Eq, at p. 741), although