AN ESSAY %3 * 't\* ' y ■•• The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021678598 WM, CLOWES AND SONS Cornell University Library KD 474.M31 Barrister-at-law :an essay on the legal 1924 021 678 598 S. Theobald, M.A. of the Inner Author of An up-to-date Abridgment of t Royal 8vo., clol AN ABRIDGMENT OF LA COMPENDIUM. By H. C. Folkard.^ Recorder of Bath ; Author of " A Treatise Editions. Royal 8vo., cloth, izs. 6<. THE LAW OF LAND. By H Temple ; one of His Majesty's Counsel, and formerly Fellow of Wadham College, Oxford ; " A Treatise on the Law of Wills." The point of view from which the book has been written is to take a person, who is the owner of land, and to inquire, What are his rights and obligations? what use can he make of his land? how far are his rights affected by those of his neighbours ? The book has been written primarily for the practical lawyer. Third Edition at press, including the Act of 1904. THE LAW OP LICENSING IN ENGLAND. So far as it relates to the Retail Sales of Intoxicating Liquors, and to Theatres and Music Halls, embracing the Act of 1902. With a full Appendix of Statutes. By John Bruce Williamson, of the Middle Temple and North-Eastern Circuit, B arris ter-at-Law. "Amongst the many works on the subject of licensing, we know of none better than Mr. Williamson's book." — Laio Times. Fourthl Edition, thoroughly revised, demy 8vo., cloth, 17$. 6d. BRETT'S LEADING CASES IN MODERN EQUITY. By Thomas Brett, of the Middle Temple, Barrister-at-Law, LL.P.., Joint Author of " Clerke and Brett's Conveyancing Acts," and late Lecturer on Equity to the Incorporated Law Society, &c, &c. Fourth Edition, revised to date. By J. D. Rogers, B.C.L., of the Inner Temple, Barris ter-at-Law. "There is no better book or one so good from, which the student can learn the most important decisions of Courts of Equity during recent years." — Jurist. Specially recommended as a text-book for *' The Final " by the Solicitors' Journal. Demy 8yo., cloth, i2f. 6d. THE ENGINEER OR ARCHITECT AS THE ARBITRATOR BETWEEN THE EMPLOYER AND THE CONTRACTOR, and his other Functions under Building Contracts. By Charles Currie GregorYj Member of the Canadian Society of Civil Engineers, Associate Member of the Institution of Civil Engineers, London, England ; Barrister-at- Law of Osgoode Hall and of the Bar of Nova Scotia. Second Edition, revised, demy 8vo., cloth, xos. 6d. OP THE LAW RELATING TO MARINE By M. D. Chalmers, C.B., C.S.I., Permanent Under-Secretary, Home Office, A DIGEST INSURANCE. 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I always use it, and find it most accurate and excellent in every way." Just Published, demy 8vo., cloth, Vol. VI., 6s. Vols. I., II., III., IV., and V. same price. WORKMEN'S COMPENSATION CASES: Being Reports of Cases appearing chiefly in the Laiv Times Reports and the Times Law Reports. Edited by R. M. ! M into n-Sen house, of the Inner Temple, Barrister-at-Law, Author of " Accidents _ to Workmen," " The Employers' Liability Act, 1880," " The Case Law of the Workmen's Compensation Act, 1897/' &c., &c. £ a Demy 8vo., cloth, 3$. 6d. DIGEST OF^ RKMEN'S COMPENSATION CASES. Vols, I. to IV. By R. M. Minton-benhouse, of the Inner Temple, Esq., Barrister-at-Law. 7, FLEET STREET, LONDON, E.G. BARRISTER- AT-LAW BABBISTEB-AT-LAW AN ESSAY ON THE LEGAL POSITION OE COUNSEL IN ENGLAND JAMES ROBEET VEBNAM MABCHANT, M.A. OP GHAT'S INN AND THE OXFORD CIRCUIT, BAKBI8TER-AT-LAW, FOBUEBLT SCHOLAR OF WADHAM COLLEGE, OXFORD LONDON: WILLIAM CLOWES AND SONS, LIMITED, 7, FLEET STREET. 1905. PKISTED BT WILLIAM CLOWES AND SONS, LIMITED, LONDON" AND BECCLES. TO THE RIGHT HONOURABLE BARON BRAMPTON EMINENT ALIKE AS ADVOCATE AND AS JUDGE THIS ESSAY IS GRATEFULLY DEDICATED BY THE AUTHOR PREFACE The object of the following pages is to bring together the different authorities which define the legal position of a barrister in England. There is, it is believed, no work in which the law governing the profession of a barrister has been treated as a whole, nothing in England which corresponds to M. Cresson's " Profession d'Avocat " in France. While there are several text-books on the law relating to solicitors, and while much has been written on legal ana and on the antiquities and history of the Inns of Court, the law relating to the Bar has not yet formed the subject of any one treatise. If a student wished to find out the law of the profession which he might be about to enter, he would have to consult in turn several different works, for the law that governs the Bar belongs partly to the law of procedure and evidence, and partly to the law of trusts, and partly to the law of contract and tort ; even if text-books on all these heads were consulted, the student would find that he had not exhausted the field of his study, for beside the case law and statute law on the subject, there is a not inconsider- able body of unwritten law, consisting of customs, rules, and usages, which are binding on the profession and are well understood within its limits, but few of which had ever been authoritatively recorded before the foundation of the Bar Committee and its successor, the Bar Council Via PREFACE. The opinions given and published by the one or the other of those bodies have done much to clear up doubtful points and to define what was formerly vague. Of these opinions considerable use has been made in the following pages, in which an attempt has been made to collect not only the case law and statute law which affect the Bar, but also the most important usages of the profession, so far as they have been noticed by the Courts or interpreted by the Bar Committee or the Bar Council. It is hoped that this essay may prove useful both to those within and to those without the profession. In deal- ing with a new subject many mistakes must needs be made, and the author will be grateful to the members of the profession who will call his attention to any. The author wishes to thank the Executive Committee of the Bar Council for their permission to print the Eetainer Rules and the Council's resolutions relating to their construction ; he cannot adequately express his obliga- tion to his friend Mr. John Baymond for many valuable hints and suggestions and for much kindly criticism. J. E. V. MARCHANT. 3, Papek Buildings, Temple, Christmas, 1904. TABLE OF CONTENTS. Preface Table of Contents Table of Cases Cited Table of Statutes Cited Table of Rules of Coubt Cited l'AGK vii ix . xviii xxxvii . xli CHAPTER I. LEGAL PRACTITIONERS IN ENGLAND. Different kinds of legal practitioners in England Sources from which they derive their authority Annual certificates of solicitors, etc. Stamp Act, 1891, s. 44 Parliamentary agents .. 1 1 2 2 ■> CHAPTER II. THE INNS OF COURT. The four Inns of Court Ranks of the members of the four Inns of Court Powers of the benchers Appeals from decisions of the benchers to the judges Courts will not reverse decisions of benchers . . Booreman's Case .. Cunningham v. Wegg Neate v. Denman Rosslyn v. Jodrell Manisty v. Kenealy JSakestraw v. Brewer Hudson v. Slade .. Bar Committee, General Council of the Bar 3 3 4 5 5 6 6 7 7 8 8 9 10 X TABLE OF CONTENTS, CHAPTER III. THE RIGHT OF AUDIENCE. PAGE Admission to rank of barrister the act of an Inn of Court . . . . 12 Scope of a barrister's practice .. .. .. ■• •• ■• -^ Barrister's right of audience .. .. .. •• •• •■ 1" in the House of Lords .. .. ■• •• •• 1* Commons .. .. •• •• •• 1* Judicial Committee of the Privy Council 15 Supreme Court of Judicature .. •• •• •• 15 Solicitor's right of audience in bankruptcy . . 15 Applications which can only be made by counsel . . 16 Criminal proceedings .. .. .. •• ■• 18 English counsel in Scotland . . . . • • • • 18 Inferior Courts . . . . . . • ■ • • • • 19 Mayor's Court .. .. .. -. •• •■ 19 Quarter Sessions . . . . . . • • • • 19 County Courts . . . . . . • ■ ■ • 20 Sheriffs Court 20 Coroner's Court . . . . . . . . ■ ■ 20 Petty Sessions .. .. .. .. .. .. 20 Army courts-martial . . . . . . . . . . 24 Navy courts-martial . . . . . . . . . . 24 Commissioners under Church Discipline Act, 1840 25 Proceedings under Public Worship Eegulation Act, 1874 25 Ecclesiastical Courts . . . . . . . . . . 25 Vice-Chancellor's Court (Oxford) . . . . . . 25 Appeals under Income Tax Acts, etc. .. .. 25 No right to appear in Courts of Revising Barristers or in arbitrations under Local Government Act, 1894,s.9 26 Tribunals that have a discretion and may refuse to hear counsel .. .. .. .. .. .. .. 26 Arbitrators .. .. .. .. .. .. 26 Chief gas examiner of Metropolitan District . . . . 26 Charity Commissioners .. .. .. .. 27 Election Courts proceeding under Corrupt and Illegal Practices Prevention Act, 1883, s. 38 .. .. 27 Assessment Committees have no such discretion . . . . 27 Royal Commissions . . . . . . . . . . . . 28 Grand Jury . . . . . . . . . . . . . . 28 Disciplinary proceedings before Vice-Chancellor, etc., of University .. .. .. .. .. .. 2S Representation of person in contempt . . . . . . . . 29 TABLE OF CONTENTS. XI CHAPTER IV. COUBT AND COUNSEL. Barristers not officers of the Court Power of the Court to silence barristers No instance in recent times Statute 3 Edw. I. c. 29 .. Bedding's Case Mitchell's Case Courts punishing barristers for contempt Proper punishment, fine and imprisonment Can only suspend from practice when the contempt involves imputation of bad character . . Illustrations from Privy Council reversing colonial Courts Smith v. Sierra Leone .. In re Downie and Arrindell .. Pollard Wallace .. Newton v. High Court of North Western Provinces . Ex parte Benner English cases Lechmere Charlton's Case Ex parte Pater .. Linwood v. Andrews .. Punishment of counsel for scandalous pleadings Counsel's signature to pleadings, etc. Proceedings in forma pauperis Barristers when privileged from arrest on civil process Expressions of counsel when privileged Forensic costume CHAPTER V. COUNSEL AND SOLICITOR. Intervention of solicitor between counsel and client when required by etiquette Not enforceable by law Doe d. Bennett v. Hale .. Barrister looks for his fees to solicitor and not to client Pees ought to be paid when brief delivered Not recoverable by legal process Counsel proving in bankruptcy of s olicitor Acknowledgment of payment by counsel Solicitor not liable to client for absenc, etc., of counsel Acting by advice of counsel Xli TABLE OF CONTENTS. CHAPTER VI. COUNSEL AND CLIENT. PACE Eelation of counsel and client .. .. .. .. .. 51 (1) Incapacity of client and counsel to contract .. .. .. 51 (a) Counsel canDot sue for fees .. .. .. .. .. 51 Morris v. Hunt .. .. .. .. .. ■■ 53 Hobart v. Butler .. .. .. .. .. ■■ 53 Promises by client to pay counsel's fees not binding . . 54 Kennedy v. Broun .. .. .. .. . . 54 Broun v. Kennedy .. .. .. .. . . 55 Principle applicable to non-litigious work .. .. .. 56 Thornhill v. Evans .. .. .. .. .. 56 Mostyn v. Mostyn .. .. .. .. .. .. 57 Work done outside England . . . . . . 57 Beg. v. Doutre .. .. .. .. .. 58 Not to work outside the ordinary scope of a bar- rister's practice . . . . . . . . . . 58 Egan v. Kensington Union .. .. .. 58 Barrister acting as arbitrator quaere .. .. .. 58 Lien by barrister on evidence taken under commission 58 (6) Immunity of barrister from action for negligence, etc. . . 59 Fell v. Brown .. .. .. .. .. .. 59 Swinfen v. Lord Chelmsford .. .. .. .. 59 (2) Confidential position of counsel . . . . . . . . . . 60 Counsel cannot use the confidence reposed in him to gain an advantage for himself to the detriment of the client .. 60 Carter v. Palmer .. .. .. .. .. .. 61 Thornhill v. Evans .. .. .. .. . . 61 Segrave v. Kirwan .. .. .. .. . . 62 Campbell v. Corley .. .. .. .. . . 63 Skapholme v. Hart .. .. .. .. . . 63 Broun v. Kennedy .. .. .. .. .. 63 Deed executed by client in favour of counsel where no undue influence may stand as voluntary settlement .. .. 63 When counsel should not accept brief against former client 64 Counsel should not act for two clients whose interests may conflict .. .. .. .. .. .. 64 Slander to impute to a barrister unfaithfulness towards his client . . . . . . . . . . . . 64 Confidential communications between counsel and client privileged from disclosure .. .. .. .. 64 TABLE OF CONTENTS. XLU Counsel may give evidence as to what he sees in court Brown v. Foster .. May refuse to give evidence Advocate as witness Curry v. Walter Statements by counsel as to compromise of action ( U) Authority of counsel in an action Court will not generally inquire into authority of counsel Cannot share conduct of case with client Extent of counsel's authority (a) Where there is no express limitation Extends to the action and all incidental matters Authority to compromise . . Matthews v. Munster . . Chambers v. Mason . . Porter v. Cooper (6) Where the authority is limited Instances of Court refusing to set aside com- promise when limitation not known to the other side Strauss v. Francis Rumsey v. King Lynch v. Cornell Filmer v. Delber Wright v. Soresby Court has discretion to set aside such a compromise Neale v. Gordon-Lennox (c) Compromise on collateral matters not binding client unless client expressly assents .. Swinfen v. Swinfen .. Ellender v. Wood Kempshall v. Holland Elworthy v. Bird (d) Mistake ground for setting compromise aside Furnival v. Bogle (e) Compromise does not bind persons under dis- ability without sanction of Court Cumming v. Ince if) Statements by counsel when evidence against client Colledge v. Horn Buncombe v. Daniell . . Machell v. Ellis Holler v. Worman Statements by counsel out of court do not bind clients Bichardson v. Pet o .. PAGE 06 66 67 67 67 68 68 87 87 XIV TABLE OF CONTENTS. l'AGE (4) Authority of counsel in non-litigious matters .. .. .. 87 Deverell v. Bolton .. .. .. .. . . • • 88 Notice .. .. .. .. .. .. .. •• 88 (5) Effect of acting under counsel's advice . . . . . . • . 88 Does counsel's advice protect client .. .. .. •• 88 Trustees acting under counsel's advice .. .. •• 89 CHAPTER VII. PRECEDENCE KING'S COUNSEL AND JUNIOR BARRISTERS. Precedence of barristers . . . . . . . . . . • ■ 93 The Attorney-General and Solicitor-General .. .. .. 93 King's Counsel . . . . . . . . . . . . . . • • 93 Junior barristers . . . . . . . . . . . . • • 93 Precedence in the House of Lords and Privy Council . . . . 94 King's Counsel — does not usually appear without a junior . . . . 94 In judge's chambers .. .. .. .. .. ■■ 94 At Quarter Sessions . . . . . . . . . . • • 94 Cannot appear against Crown without licence . . . . . . 95 Gives up drafting, etc. . . . . . . . . . . • • 95 Proportion between fees of King's Counsel and junior . . .. 95 Junior may accept a brief to take notes or open pleadings .. .. 96 CHAPTEE VIII. THE HEARING OF COUNSEL. (1) Trial in King's Bench Division by a judge with a jury .. 97 Opening pleadings Argument on right to begin .. Opening speech Examination of witnesses in chief Cross-examination Re-examination Number of counsel heard on argument on points of law .. 100 Stamp objections .. .. .. .. ... .. 100 Closing of case of party who begins . . . . . . . . 101 Non-suit 101 Summing up by counsel for party who begins when no evidence called on other side . . . . . . . . 101 Last word 102 Opening speech of counsel for party who does not begin . . 102 Examination, cross-examination, and re-examination of wit- nesses by the party who does not begin . . . . . . 103 Summing up of the party who does not begin .. .. 103 Reply 103 Separate cunsel for different co-defendants .. .. .. 103 97 97 99 99 100 TABLE OF CONTENTS. XV Order in which they are heard Phillips v. Willetts Third party procedure SummiDg up by judge Indorsement on counsel's brief (2) Trial in King's Bench Division by judge without jury (3) Trial in Chancery Division Summing up of evidence by juniors (4) Proceedings in Probate, Divorce, and Admiralty Division (5) Examinations under Bankruptcy Act, 1883 Companies Act, 1862 (6) Criminal trials Opening speech of counsel for the prosecution Summing up of counsel for the prosecution Separate counsel for different defendants — order of hearing Eight of reply of Attorney-General and .Solicitor-General when no witnesses are called for defence Reply by counsel for prosecution when witnesses arc called for the defence Position of counsel for the prosecution in criminal trials (7) Divisional Court — hearing of motions .. Number of counsel heard (8) Court for Consideration of Crown Cases Reserved (9) Motions in the Chancery Division (10) Court of Appeal (11) House of Lords (12) Privy Council (13) County Courts, etc. ■ (14) Petty Sessions TAGE 104 105 106 106 107 107 108 108 108 109 110 110 110 111 112 112 113 113 114 114 116 117 117 118 119 120 121 CHAPTER IX. SPECIAL FEES. What is a special fee . . . . . . . . . . . . . . 122 Usage of the Bar as regards special fees — report of Bar Committee 122 Special fees in Chancery Division .. .. .. .. .. 123 At Assizes and Quarter Sessions . . . . . . . . . . 124 CHAPTER X. KETAINEBS. Courts have no jurisdiction on questions of retainers Ex parte Elsee Ex parte Lloyd Attorney-General decides disputes as to retainers .. 127 127 127 128 XVI TABLE OF CONTENTS. Retainer Rules settled by Bar Committee General retainers Special retainers . . Circuit retainers Appeals Opinions and pleadings Promotion of counsel Amount of fees Interpretation of these rules by the Bar Council PAGE 128 128 129 130 130 130 131 132 132 CHAPTEE XI. TAXATION. Counsel's fees part of the costs of an action' Party and party, and solicitor and client taxation Advice before action Pleadings, etc. Drafts (conveyancing) Advising — Conferences — Consultations Judge's chambers Commissions — views Brief fees — number of counsel on motions, etc. Trial of actions— number of counsel — two or three Third counsel on appeal Proportion between brief fees of leader and junior Betainer — special fee Refreshers County Court House of Lords Privy Council .. Counsel's clerks 134 134 134 135 135 135 136 137 137 139 140 141 141 141 144 145 145 145 CHAPTER XII. (1) Offices for which barristers alone are eligible by statute . . 146 When of fifteen years' standing — Lord of Appeal, Judge of Court of Appeal . . . . . . . . . . . . 146 When of ten years' standing — Judge of the High Court and of various inferior courts, etc. . . . . . . . . 146 When of seven years' standing — County Court Judge, etc. 147 When of five years' standing — Judge of one of the High Courts in India, etc. . . . . . . . . . . 147 When of three years' standing — Examiner of the High Court 148 ■ Offices customarily filled by barristers .. .. .. .. 148 TABLE OF CONTENTS. XVll PAGE (2) Offices for which barristers are eligible jointly with solicitors . . 148 Offices the holders of which are prohibited from practising 150 Offices the holding of which is inconsistent with practising as a barrister . . . . . . . . . . . . 151 Declaration made by a student before call . . . . 151 Magistrate for a county should not practise at Petly or Quarter Sessions in the county .. .. .. .. .. 152 APPENDIX. Consolidated Regulations of the Four Inns of Court . . . . 153 Index .. .. .. .. .. .. .. .. .. 169 TABLE OF CASES CITED. A. PAGE Abbott & Peake, Case of, 6 C. & P. 637 93 v. Parsons, 5 M. & P. 521 ; 7 Bingh. 563 107 Abratb v. N. E. Ey. Co., 11 Q. B. D. 455 89 Abitbol v. Benedetto, 3 Taunt. 225 ; 2 Campb. 487 . . . . 69 Ailesbury's (Marquis of) Settled Estates, in re (1892), 1 Cb. 506 ; 61 L. J. Ch. 116 ' 118 Alexander v. Crosby, 1 Jo. & Lat. 666 ; 7 Ir. Eq. B. 448 . . . . 88 Allen v. Allen (1894), P. 248 106,108 Alliance, etc., Syndicate v. Maclvor's Patents, 7 Times L. E. 599 . . 77 Andrews v. Hawley, 26 L. J. Exch. 323 49, 50, 89 Angell v. Oodeen, 29 L. J. C. P. 227 47 Angier v. Stannard, 3 Myl. & K. 566 ; 3 L. J. Ch. 216 .. .. 90 Anglo- Austrian Printing, etc., Union, in re (1894), 2 Ch. 622 ; 63 L. J. Ch. 632 ; 71 L. T. 331 Anon. 9 L. J. C. P. 176 16 L. J. (newsp.) 153 78 L. T. (newsp.) 286 3N. &M. 566 .. 2Salk. 645 .. 42 W. E. 648 .. 136,139,142 39 17 97 17 97 Antigua, Court of C. P. of, in re, 1 Knapp. 267 . . . . 4, 5, 30 Arden v. Tucker, 1 M. & Bob. 192 100,103 Armit v. Paget, 6 Ir. L. T. E. 158 140 Ashton v. Shorrock, 43 L. T. 530 ; 29 W. E. 117 117 Atkinson v. Mayor of Carlisle (1896), 1 Q. B. 393 ; 65 L. J. Q. B. 331 144 Att.-Gen. v. Barker, 4 Myl. & Cr. 262 17 '„. Lord Advocate, 2 CI. & P. 481 14,93,94 v. Carrington, 6 Beav. 454 . . . . . . . . . . 134 v. Marmion, Armstr. & Mac. 98 .. .. .. .. 16 „. Munro, 1 Mac. & G. 213 139 v. Tomline, 7 Ch. D. 388 ; 47 L. J. Cb. 473 ; 38 L. T. 57 ; 26 W. E. 188 83 for Canada v. Att.-Gen. for Ontavio (1898), A. C. 247 93, 95 TABLE OF CASES CITED. XIX B. Badische Anilin etc. Fabrik v. La Societe Chimique des Usines du Rhone, 14 Rep. Pat. Cas. 892 Baillie's Case, 21 St. Tr. 340 Ballard v. White, 2 Hare 158 ; 7 Jur. 506 . . Banister, in re, Broad v. Munton, 12 Ch. D. 131 ; 40 L. T. 828 ; 27 W. R. 826 Bankes v. Allen, Roll. Abr. 54 Barclay v. Pearson (1893), 2 Ch. 154 ; 62 L.J. Ch. 636 ; 68 L. T. 709 42 W. R. 74 Barclee's Case, 2 Sid. 101 Barton v. L. & N. W. Ry. Co., 38 Ch. D. 144 ; 57 L. J. Ch. 676 59 L. T. 122 ; 36 W. R. 452 Bastard v. Smith, 2 M. & Rob. 132 Bateman, in re, 2 D. & L. 725 ; 6 Q. B. 853 ; 14 L. J. Q. B. 89 ; i< I n i 132 Batty v. McCundie, 3 C. & P. 204 Baylis v. Grout, 2 M. & K. 316 Beale v. Mouls, 1 C. & K. 1 Beauchamp (Earl) v. Madresfield, L. R. 8 C. P. 253 ; 42 L. J. C. 36 ; 27 L. T. 609 ; 21 W. R. 125 Beavan,.m re, 23 L. J. Ch. 536 ; 2 W. R. 299 Beddoe r Downes & Cottam, in re (1893), 1 Ch. 557 ; 62 L. J. Ch. 233 68 L. T. 595; 41 W. R. 177 Benthall v. Kilmorey, Tudor's Charitable Trusts, 3rd ed. 564 Benton v. Ellis, Lever & Co., 1 Times L. R. 499 Bessell v. Wilson, 1 E. & B. 489 ; 22 L. J. M. C. 94 ; 17 J. P. 567 1 W. R. 126; 17 Jur. 664 Bethlehem, etc., Hospitals, in re, 30 Ch. D. 542 ; 54 L. J. Ch. 1143 53 L. T. 558; 34 W. R. 148 Betts v. Cleaver, L. R. 7 Ch. 513 ; 41 L. J. Ch. 663 ; 27 L. T. 85 20 W. R. 732 v. Clifford, 1 J. & H. 74 Bewdley Case, The, 1 O'M . & H. 176 Biddell v. Dowse, 6 B. & C. 255, 9 D. & R. 404 Bidder v. Bridges, W. N. 1887, 208 Birch v. Walsh, 10 Ir. Eq. R. 93 Bishop v. Willis, 5 Beav. 83 Biss, in re, Biss v. Biss (1903), 2 Ch. 61 Blore v. Ashby, 42 Ch. D. 682 ; 58 L. J. Cd. 779 ; 38 W. R. 141 Bolton v. Liverpool, 1 Myl. & K. 88 v. Sherman, 2 M. & W. 403 Bonnewell v. Jenkins, W. N. 1877, 202 Booreman's Case, March, 177 .. .. .. ,. 139 68 103 89 13 115 20 106 97 5 104 127 105 71 47 138 21 16 140 139 27 84 139 40 39 140 106 65 86 108 3,6 28 16 XX TABLE OF CASES CITED. FAOK Boswell v. Coaks, 36 Cb. D. 444 ; 58 L. T. 97 ; 36 W. R. 209 . . 142 Boulter v. Kent JJ. (1897), A. 0. 556 ; 66 L. J. Q. B. 787 ; 77 L. T. 288; 46 W. R. 114; 61 J. P. 532 Bpulton v. Beard, 3 De G. M. & G. 608 8y Bradish v. Gee, 1 Ken. 76 72 Bradlaugh, ex parte, 3 Q. B. D. 509 ; 47 L. J. M. C. 105 ; 38 L. T. 680 ; 26 W. R. 758 17 Breech-loading Armoury Co., in re, L. R. 4 Bq. 453 .. •■ HO Bristol (Mayor of) v. Cox, 30 Sol. Jo. 356 107 Broad and Broad, in re, 15 Q. B. D. 252, 420 140 Broadhouse, ex parte, in re Broadhouse, L. R. 2 Ch. 655 ; 36 L. J. Bkcy. 29; 17 L. T. 126; 15W.R. 1154 Brake's Case, F. Moore, 409 64 Brook v. Montague, Cro. Jac. 90 . . . . . . . . • • 40 Broun v. Kennedy, 33 Beav. 133 ; 33 L. J. Ch. 71, 342 ; 4 De G. J. & S. 217 ; 10 Jur. N.S. 141 ; 12 W. R. 360 ; 9 L. T. N.S. 736 .. .. 55,63 Brown, in re, Tyas v. Brown, 42 L. T. 501 ; 28 W. R. 575 .. 65 v. Foster, 1 H. & N. 736 ; 26 L. J. Exch. 249 .. .. 66 v. G. W. Ry. Co., 3 Times L. R. 582 141 v. Sewell, 16 Ch. D. 517 134,142 Bull, in re, 20 L. T. O.S.,24 16 Burton, in re, Danby v. Burton, 1901, W. N. 202 64 Butt v. Jackson, 10 Ir. L. R. 124 40 Butterworth v. Clapham, 1 Jac. & W. 673 69 Calcraft v. Guest (1898), 1 Q. B. 759 ; 67 L. J. Q. B. 505 ; 78 L. T. 283 ; 46 W. R. 420 65,66 Cambrian Mining Co., in re, 20 Ch. D. 376 ; 51 L. J. Ch. 221 ; 30 W. R. 283 110 Campbell v. Corley, 1 De G. & J. 238; 26 L. J. Ch. 865; 5 W. R. 646 ; 3 Jur. N. S. 1225 63 v. Loader, 34 L. J. Exch. 50 ; 11 L. T. 608 .. .. 107 Carey v. Cuthbert, 6 Ir. R. Eq. 599 65 Cargill v. Bower, 4 Ch. D. 78 ; 46 L. J. Ch. 175 ; 35 L. T. 621 ; 25 W. R. 221 137 Carson v. Pickersgill, 14 Q. B. D. 859 ; 54 L. J. Q, B. 484 ; 52 L. T. 950 ; 33 W. R. 589 ; 49 J. P. 612 . . . . 39, 45, 52, 134 Carter v. Palmer, 1 Ir. Eq. R. 302 ; 1 D. & Wal. 743 ; 8 CI. & P. 657 60,61 Cates v. Indermaur, 1 P. & P. 259 48 Cathcart, in re, W. N. (1893), 107 139 Cavendish v. Strutt (1904), 1 Ch. 524 ; 73 L. J. Ch. 247 ; 90 L. T. 500 ; 52 W. R. 333 .. .. 14,3 TABLE OF CASES CITED. xxi PAGE Chambers v. Mason, 5 C. B. N.S. 59 ; 28 L. J. C. P. 10 ; 5 Jur. N.S. 148 72,73,74 Chapman, in re, 10 Q. B. D. 54 ; 52 L. J. Q. B. 54 ; 47 L. T. 426 16, 136 Charman v. Brandon, 82 L. T. 369 141 Child v. Stenning, 7 Ch. D. 413 ; 47 L. J. Ch. 371 ; 38 L. T. 232 104, 105 Chippendale v. Masson, 4 Campb. 174 . . . . . . . . 104 Cholmondeley v. Clinton, 19 Ves. 261 64 Chown v. Parrott, 14 C.B. N.S. 74; 32 L. J. C. P. 197; 8 L. T. 391; 11 W. K. 668 72 Clagett v. Phillips, 2 Y. & C. Ch. C. 82 ; 7 Jur. 31 65 Clark, m re, 1; De G. M. & G. 43 ; 21 L. J. Ch. 20 ; 15 Jur. 1047 49 Cleaver v. Cleaver, 9 App. Cas. 633 . . . . . . . . . . 14 Clement's Inn, Case of, 1 Keb. 135 6,7 Clifton, The, 3 Knapp. 375 .. .. 86 Cobbett, ex parte, 15 Q. B. 181 17 v. Hudson, 15 Q. B. 988 ; 14 Jur. 982 16 Cockayne, in re, 19 L. J. (newsp.) 500 . . . . . . 45, 47 Cockle v. Joyce, 7 Ch. D. 56 ; 47 L. J. Cb. 543 ; 37 L. T. 428 ; 26 W. B. 59 97 Cole, ex parte, 1 Dougl. 114 . . . . . . . . . . . . 5 Coles v. Civil Service, etc., Association, 26 Ch. D. 529 ; 53 L. J. Ch. 638; 50L. T. 114; 32 W. K. 407 106 Colledge v. Horn, 3 Bingh. 119 ; 10 Moore 431 .. .. 43,71,85 Collier v. Hicks, 2 B. & Ad. 668 ; 9 L. J. K. B. 300 . . 15, 19, 21 Collins, in re, 7. De G. M. & G. 558 ; 3 Eq. R. 865 ; 24 L. J. Ch. 732 ; 1 Jur. N.S. 1125 69 v. Worley, 60 L. T. 748 142 Colquhoun, ex parte, in re Clift, 38 W. E. 688 46 Combe v. London, 1 Y. & C. Ch. 631 ; 4 Y. & C. Exch. 139 ; 6 Jur. ,571 ■• •■ 65 Commissioners of Railways v. O'Rourke (1896), A. C. 594; 65 L. J. P. C. 84; 75L. T. 84 136 Conington v. Gilliat, 1 Ch. D. 694 ; 45 L. J. Ch. 273 ; 34 L. T. 123 ; 24 W. B. 269 100 Cooke v. Turner, 12 Sim. 649 94,138 Cope, in the goods of, 36 L. J. P. & M. 83 109 Cotton, ex parte, 9 Beav. 107; 10 Jur. 84 145 Courier, The (1891), P. 355 ; 61 L. J. P. 11 ; 66 L. T. 386 ; 40 W. R. 336 142 Cox v. Coleridge, 2 D. & R. 86 ; 1 B. & C. 37 23 Crampton and Holt v. Ridley, 20 Q. B. D. 48; 57 L. T. 809 ; 36 W. R. 554 58 Craven's Settlement, in re, 6 Times L. R. 105 137 Crerar v. Sodo, 1 Moo. & M. 85 102 Cull's Trusts, in re, L. R. 20 Eq. 561 ; 44 h. J. Ch. 664 ; 32] i. T. 853; 23 W. R. 850 • •• •■- »• 81 XXU TABLE OF CASES CITED. PAGE Gumming v. Ince, 11 Q. B. 112 8 * Cunningham v. Wegg, 2 Bro. Ch. 0. 240 3 > 6 Curry v. Walter, 1 Esp. 456 67 Cuts v. Pickering, 1 Ventr. 197 ; 3 Eep. Ch. 64 65 D. Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Exch. 227 ; 2 Jur. N.S. 497 98,102 Dashwood v. Magniac, W. N. (1892), 54 139 Daubney v. Cooper, 10 B. & C. 237 ; 5 M. & By. 314 ; 8 L. J. K. B. 21 21 Davies v. Marshal], 1 Dr. & Sm. 564 ; 9 W. R. 756 ; 7 Jur. N.S. 669 136 Davis v. Davis, 13 Ch. D. 861 ; 49 L. J. Ch. 241 ; 41 L. T. 790 ; 28 W. E. 345 73 Davis v. Dysart (Earl of), 21 Beav. 124 ; 25 L. J. Ch. 122, 322 ; 8 De G-. M. & G. 33 ; 4 W. R. 41, 268 ; 1 Jur. N.S. 1153 ; 2 Jur. N.S. 219 135 Day v. Ponsonby, 5 Ir. Eq. R. 24 64 De la Warr (Earl) v. Miles, 19 Cb. D. 80 ; 48 L. T. 424 ; 30 W. R. 35 ' 99,117 Deane v. Packwood, 4 Dowl. & L. 395 101 Death, ex parte, 18 Q. B. 647 ; 21 L. J. Q. B. 337 ; 17 Jur. 112 . . 29 Dering v. Dering & Blakeley, 1 P. & D. 534 ; 37 L. J. P. & M. 53 ; 19 L. T. 50 108 Deverell v. Bolton (Lord), 18 Ves. 505 88 Devey v. Thornton, 9 Hare 232 90 Dickson v. Harrison, 9 Ch. D. 246; 47 L. J. Ch. 762 ; 38 L. T. 796 16,94 Doe d. Bennett v. Hale, 15 Q. B. 171 ; 19 L. J. Q. B. 353 ; 14 Jur. 830 17,43,68 ■ Crake v. Brown, 5 C. & P. 315 69 Hogg v. Tindale, 1 Moo. & M. 314 ; 3 C. & P. 565 . . . . 104 Rowcliffe v. Egremont (Earl of), 2 M. & Rob. 386 . . . . 100 v. Roe, 2 Oanipb. 280 99 Downie & Arrindell, in re, 3 Moore P. C. 414 . . 34, 120 Downing College Case, 3 M. & Cr. 474 140 v. Cage, 1 Eq. Ca. Abr. 165 72 Doxford v. Sea Shipping Co., 14 Times R. Ill . . 16 Drake v. Att.-Gen., 10 CI. & F. 257 117,119 v. Morgan, 27 L. J. P. & M. 3 ; 4 Jur. N.S. 32 . . . . 16 Drennan v. Andrew, L. R. 1 Ch. 300 ; 14 L. T. 39 ; 14 W. R. 444 39 Drew v. Josolyre, 4 Times L. R. 717 138 Duckitt v. Junes, 33 I>, T. 777 38 TABLE OF CASES CITED. XX111 PAGE Duncan v. Toms, 56 L. J. M. 0. 81 ; 56 L. T. 719 ; 35 W. R. 667 ; 16 Cox 0. 0.267 21 Duncombe v. Daniell, 8 C. & P. 222 85,98 Dimdass v. Weymouth, Cowp. 665 .. .. .. .. .. 38 Dunglas (Lord) v. H.M.'s Officers of State, etc., 9 01. & P. 199 117, 119 Dunning v. Grosvenor Dairies Ld., W. N. (1901), 218 .. .. 142 Dyniock v. Watkins, 10 Q. B. D. 451 ; 48 L. T. 393 ; 31 W. R. 331 121 E. Bast India Co. v. Robertson, 7 Moa. Ind. App. 361 ; 12 Moo. P. C. 400 .. 120 Eastland v. Burchell, 3 Q. B., D. 436 ; 47 L. J. Q. B. 300 ; 38 L. T. 563; 27 W. R. 290 101 Easton v. London Joint Stock Bank, 38 Ch. D. 25 ; 57 L. J. Ch. 329; 58 L. T. 364; 36 W. R. 375 Ebrard v. Gassier (No. 2), 55 L. T. 741 Eden v. Naish, 7 Ch. D. 781 ; 47 L. J. Ch. 325 ; 26 W. R. 392 Edgington v. Pitzmaurice, 29 Sol. Jo. 650 Edmunds v. Newman, Ry. & Moo. 5 . . Egan v. Kensington Union, 3 Q. B. 935 Ellender v. Wood, 32 Sol. Jo. 628 Elsas v. Williams, 54 L. J. Ch. 336 ; 52 L. T. 39 Elsee, ex parte, in re Joiner, Mont. 69 Elworthy v. Bird, 13 Price 222 ; 9 Moore 430 ; 2 Bingh. 258 ; L. J. O. S. C. P. 260 ; 2 Sim. & Stu. 372 ; Taml. 38 Emeris v. Woodward, 43 Ch. D. 185 ; 59 L. J. Ch. 230 ; 61 L. T. 666 ; 38 W. R. 346 Emerson v. Dallison, 1 Ch. R. 194 Evans, ex parte (or Reg. v. Denbighshire, JJ.), 9 Q. B. 279 ; 2 New Sess. Cas. 422 ; 15 L. J. Q. B. 335 ; 10 Jur. 542 19 Everet v. Williams, Lindley on Partnership, 6th. ed. 101 ; 9 Law Quart. Rev. 197 .. .. ' 38 P. P., in re, 18 L. J. (newsp.) 352 47 Pairlie v. Denton, 3 C. & P. 103 100 Pass v. Gunter, Times, 27 Oct. 1886, 3 97 Paviell v. Eastern Counties Ry. Co., 2 Exch. 344 ; 6 D. & L. 54 ; 17 L. J. Exch., 233, 297 72,76 Fawcett v. Garford, Oswald on Contempt, 2nd eti. 44 .. 39 Pell v. Brown, Peake N. P. 96 52, 59 Felstead v. Gray, L. R. 18 Eq. 92 108 Penn, expartSfZ Dowl. 527- .. - .. .. .. •• .. 17 144, 145 144 77 144 87 58 77,79 83 127 ; 3 80, id . 101 )b; 77 38 XXIV TABLE OF OASES CITED. PAGE Filmer v . Delber, 3 Taunt. 486 72,75,76 Pirmin v. Pulham, 12 Jur. 410 ; 2 De G. & Sm. 99 91 Fletcher v. Crosbie, 2 M. & Rob. 417 104 v. L. & N. W. Ry. Co. (1892), 1 Q. B. 122; 61 L. J. Q. B. 24; 65 L. T. 605; 40 W. R. 182 99 Flint v. Pike, 4 B. & C. 473 ; 6 D. & R. 528 ; 3 L. J. O.S. K. B. 272 40 Flockton v. Peake, 4 N. R. 456 ; 12 W. R. 1023 140 Forshawv. Lewis, .10 Bxoh. 712; 1 Jur. N.S. 263 65 Forster v. Davies, 32 Beav. 624 136 France v. Carver, W. N. (1875), 171 140 Fray v. Voules, 1 E. & E. 839 ; 28 L. J. Q. B. 232,- 5 Jur. N.S. 1253 ; 7 W. R. 446 76 Friend v. Solly, 10 Beav. 329 138 Fry's Case, Hayward's Case, 89 . . . . . . . . . . 4 Fuller's Case, 12 Co. 41 37 Furnival v. Bogle, 4 Russ. 142 76,82 G. Galwey v. Barron, LoDg. & Town. 76 .. .. .. .. 107 Gardner v. Irvin, 4 Exch. D. 49 ; 48 L. J. Exch. 223 ; 40 L. T. 357 ; 27 W. R. 442 65 Garnett v. Ferrand, 6 B. & C. 611 ; 9 D. & R. 657 ; 5 L. J. O. S. K. B. 221 20 General Steam, etc., Co. v. Mann, 2 W. R. 154 139 Gilford v. Davies, 2 F. & F. 23 103 Glamorgan County Council v. G. W. Ry. Co. (1895), 1 Q. B. 21 ; 64 L. J. Q. B. 138; 71 L. T. 736 140 Glennie v. Glennie, 3 S. & T. 110 ; 32 L. J. P. & M. 21 . . 102, 105 Godefroy v. Dalton, 6 Bingh. 460 ; 4 M. & P. 149 ; 8 L. J. O. S. C. P. 79 48 Goldberg, ex parte (1893), 1 Q. B. 417 ; 62 L. J. Q. B. 127 ; 68 L. T. 142 ; 41 W. R. 210 39 Gordon v. Gordon (1904), P. 163 29 Gore v. Stacpoole, Lords' Journ. xlviii. 822 . . . . . . . . 118 Great Australian Gold Mining Co. v. Martin, 5 Ch. D. 10 ; 46 L. J. Ch. 290 ; 35 L. T. 874; 25 W. R. 247 38 Green v, Briggs, 7 Hare 279 140 v. Crockett, 34 L. J. Ch. 606 ; 12 L. T. 749 ; 13 W. R. 1052 72 Gregory, in re, Miles v. Knight, 90 L. T. (newsp.) 56 .. 16,137 Greville v. Greville, No. 2, 27 Beav. 596 ' 137 Grey's Brewery Co., in re, 25 Ch. D. 405; 53 L. J. Ch. 264; 50 L. T. 17 ; 32 W. R. 383 109 Guinea's Case, Ir. Circ, R. 167 .. .. .. .. 68,101 TABLE OF CASES CITED. XXV H. PAGE Hackney Charities, in re, 34 L. J. Ch. 175 27 Hall, in re, 2 Jur. N.S. 1076 46 v. Stothard, 2 Chitt. 267 " 48 Haller v. Worman, 3 L. T. N.S. 741 ; 9 W. R. 348 ; 2 P. & P. 165 86 Hallows v. Fernie, 16 W. R. 175 137 Hamer v. Boreham, 1 S. & T. 26 ; 27 L. J. P. & M. 107 . . . . 13 Hargrave v. Hargrave, 12 Beav. 408 ; 19 L. J. Ch. 261 .. .. 84 Hargraves v. White, 17 Jur. 436 108 Hargreaves v. Scott, 4 C. P. D. 21 ; 40 L. T. 35; 27 W. R. 323 .. 134 Harrison, in re, 33 Ch. D. 52 ; 55 L. J. Ch. 768 ; 55 L. T. 72 ; 34 W. R. 645 143 v. Rumsey, 2 Ves. Sen. 488 72 v. Wearing, 11 Ch. D. 206 ; 48 L, J. Ch. 365 ; 41 L. T. 376 ; 27 W. R. 526 142 Harvey v. Croydon, etc., Authority, 26 Ch. D. 249 ; 53 L. J. Ch. 707 ; 50 L. T. 291; 32 W. R. 389 73 v. Mitchell, 2 M. & Rod. 366 102 Haslam v. O'Connor, Ir. R. 6 Eq. 615 140 Hatch v. Lewis, 2 P. & P. 467 48,72 Hawes v. Peake, 33 L. T. 818 ; 24 W. R. 407 114 Hawkins v. Harwood, 4 Exch. 503 ; 7 D. & L. 181 ; 19 L. J. Exch. 33 48 v. Righy, 8 C. B. N.S. 271 ; 29 L. J. C. P. 228 ; 2 L. T. 243 138 Hay ward's Case . . . . . . . . . . 6 Heap v. Peart (1891), 1 Q. B. 110 ; 39 W. R. 95 144 Hebblethwaite v. Hebblethwaite, L. R. 2 P. & D. 29 . . 100 Henfrey v. Henfrey, 4 Moo. P. C. C. 29 119 Henn v. Neck, 3 Dowl. 163 107 Hestia, The, W. N. (1895), 100 143 Hewlett v. Cruchley, 5 Taunt. 277 89 Hickie, in re, 1 Ir. L. T. & S. J. 795 47 Hickman v. Berens (1895), 2 Ch. 638 ; 64 L. J. Ch. 785 ; 73 L. T. 323 v. Clarke, 2 Fowl. Exch. Pr. 478 . . 22 L. T. Higginsoni;. O'PIaherty, 4 Ir. C. L. R. 125 Hill v. Peel, L. R. 5 C. P. 172 ; 39 L. J. C. P. W. R. 605 Hill's Case, Cary 38 .. Hoare v. Bremridge, 42 L. J. Ch. 1 ; 27 L. T. 593 ; 21 W. R. 43 Hobart v. Butler, 9 Ir. C. L. R. 157 . . Hobler, in re, 8 Beav. 101 .. .. .. .. ., Hocquard v. The Queen, 11 Moo. P. C. 0. 155 Hodges v. Ancrum, 11 Exch. 214; 24 L. J. Exch. 257 ; 3 W. R. 518 102 68,83 .. 38 .. 40 18 136, 137 .. 38 .. 117 43, 44, 45, 47, 52, 53 74 120 XXVI TABLE OF CASES CITED. PAGE Hodgson v. Scirlett, 1 B. & Aid. 232 40 Hoggins v. Gordon, 3 Q. B. 466 ; 2 G. & D. 656 ; 11 L. J. Q. B. 286 58 Holmes v. Baddeley, 1 Phill. 476 ; 14 L. J. Ch. 113 . . . . 65 Holmesdale (Yisct.) v. Mortimer Sackville West, Lords' Jouro. cix., 359 14 Holt v. Jesse, 3 Ch. D. 177 ; 40 L. J. Oh. 254 ; 24 W. R. 879 . . 73 Home v. Pringle, 8 CI. & P. 264 118 Howard v. Gossett, C. & M. 380 98 Huddersfield Banking Co. v. Lister (1895), 2 Ch. 273 ; 64 L J. Ch. 523 ; 72 L. T. 703 ; 43 W. R. 567 ., 83 Hudson v. Slade, 3 P. & P. 390 4,5,9 Hughes v. G. W. Ry. Co., 14 C. B. 637 ; 2 0. L. R. 1360 ; 23 L. J. C. P. 153 101 I. Iggulden v. Terson, 2 Dowl. 277 ; 4 Tyr. 309 68 lies v. West Ham Union, 46 L. T. 150 117 Ipswich Case, The, 23 Q. B. D. 30 27 Ireson v. Pearman, 5 D. & R. 687 ; 3 B. & C. 799 ; 3 L. J. 0. S. K. B. 119 .. .. : .. .. ■■ 49 Jackson, in re, Wilson v. Donald, 44 L. T. 467 .. .. .. 89 James v. Harris, 7 C. & P. 257 97 Jenkins v. Bushby, L. R. 2 Eq. 547 65 Jewa-Jee v. Trimbuk-Jee, 3 Moo. Ind. Ap. 138 120 Johnson v. Lindsay & Co. (1892), A. C. 110 134 Jones Settled Estate, in re, 27 L. J. Ch. 706 ; 6 W. R. 762 .. 135 Julius v. Bishop of Oxford, 5 App. Cas. 221 ; 49 L. J. Q. B. 578 ; 42 L. T. 547; 28 W. R. 726 118 K. Kemp, ex parte, in re Sir W. Russell, 42 L. J. Bkcy. 26 .. .. 110 KempshalU. Holland, 14 R. 336 68,76,77,79,80 Kennedy v. Broun, 13 C. B. N.S. 677 ; 32 L. J. C. P. 137; 7 L. T. 626 ; 11 W. R. 284 54,56,57 Kent, Case of the Sheriff of, 2 0. & K. 197 ; 15 L. J. Q. B. 268 . . 39 Kidston v. Empire Ins. Co., 16 L. T. 286 .. .. 134, 135 KiDg v. King, 1 De G. & J. 663 ; 27 L. J. Ch. 29 ; W. R. 85 . . 90 v. Lake, 2 Ventr. 28 64 v. Williamson, 3 Stark 162; D. & R. N. P. 95 .. 104, 105 TABLE OF OASES CITED. XXVll PAGE Kino v. Rudkin, 6 Ch. D. 163 108 Kirkwood v. Webster, 9 Ch. D. 239 ; 47 L. J. Ch. 880 ; 26 W. R. 812 139 Knight's Trusts, in re, 27 Beav. 49 ; 28 L. J. Ch. 627 . . . . 91 Knight v. Waterford, 2 Y. & C. Exch. 30 65 Knipe v. McMahon, 4 D. & War. 295 84 L. Laffitte Charles & Co., L. B. 20 Eq. 650 ; 44 L. J. Ch. 633 ; 33 L. T. 91; 24 W. E. 7 .. .. ' 139 Langworthy, in re, Times, 8 Aug. 1887, 3 29 Leamington, ex parte, Local Board of, 5 L. T. N.S. 637 . . . . 21 Lebrasseur & Oakley, in re (1896),l2 Ch. 487 . . 45, 46 Lechmere Charlton's Case, 2 My]. & Cr. 316 . . . . 33, 37 Leoocq v. S. E. Ry. Co., 7 B. & S. 415 ; 14 L. T. 401 ; 14 W. R. 649 137 Leeds Forge Co. v. Deighton's Patent Flue, etc. (1903), 1 Ch. 475 ; 72L. J. Ch. 294; 87 L. T. 711; 51 W. P.. 380 137 Leonhardt v. Kalle, 12 Eep. Pat. Cas. 306 136,140 Leslie v. Verschoyle, Beatt. 535 .. .. .. .. .. 03 Lewis, ex parte, 21 Q. B. D. 191 ; 57 L. J. M. C. 108 ; 59 L. T. 338 ; 37 W. E. 13 17 Lewis's v. Lewis, 45 Ch. D. 281 ; 59 L, J. Ch. 712 ; 63 L. T. 84 ; 39 W. E. 75 83 Linwood v. Andrews, 58 L. T. 612 33, 38 Lloyd, ex par te, Mont. 70 .. .. .. .. .. .. 127 Lockstone v. L. B. & S. C. Ey. Co., 12 C. B. N.S. 243 . . .. 139 London & Manchester, etc., Ey. Co., in re, 18 L. J. Ch. 245 .. 69 & N. Bank, in re (1902), 2 Ch. 73 ; 71 L. J. Ch. 511 ; 86 L. T. 430; 50 W. E. 536 110 Engineering, etc., Co. v. Cowan, 16 L. T. N.S. 573 . . 16 Longworth (or Yelverton) v. Yelverton, L. R. 1 Sc. & D. 218 . . 71 Low v. Holmes, 8 Ir. Ch. E, 53 98 Lowry v. Guilford, 5 C. & P. 234 48 Lucas v. Peacock, 8 Beav. 1 .. .. .. .. .. 131,136 Luntly v. Nathaniel, 2 Dowl. 51 ; 1 Cr. & M. 579 ; 2 L. J. Exch. 185 40 Lynch v. Cowell, 12 L. T. N.S. 548 ; 13 W. R. 846 .. . . 75, 77 M. McAskie v. McCay, 2 Ir. E. Eq. 447 97 McConnell, in re, Saunders v. McConnell, 29 Ch. t>. 76 ; 52 L. T. 80 ; 33 W. R. 359 117 McCulloch v. Gregory, 1 K. & J. 292 88 c XXV111 TABLE OF CASES CITED. Machell v. Ellis, 1 C. & K. 682 86,98 Maoleod v. Thrupp, 37 Sol. Jo. 31 142 Maokay v. Ford, 15 H. & N. 792; 29 L. J. Exch. 404; 8 W. E. 586 40 Macnamara v. Malone, 18 L. R. Ir. 269 134 Macqueen, in re, 9 C. B. N.S. 793 26 Maddock, in re, Butt v. Wright (1899), 2 Ch. 88 ; 68 L. J. Ch. 655 ; 81 L. T. 320; 47 W. R. 684 139 Maharajah Ishuree, etc., Sing o. Lai, etc., Sing, 3 Moo. Ind. App. 100 120 Mahony v. Mahony, 2 Ir. Jur. 129 .. ..85 Maling v. Hill, 1 Cox, 186 Malone v. Geraghty, 2 Con. & L. 235; 3 D. & War. 262 Mammoth, The, 9 P. D. 126 ; 53 L. J. P. 70 ; 51 L. T. 459 ; 33 W. R. 172 Manisty v. Kenealy, 24 W. R. 918 . . Manning v. Wilkin, 12 L. T. 0. S. 249 Mason v. Brentini, 42 L. T. 726 . . v. JDitchbourne, 1 M. & Rob. 462 Massey v. Goyder, 4 C. & P. 162 Matthews v. Munster, 20 Q. B. D. 141 ; 57 L. J. Q. B. 49 922; 36 W. R. 178 May, in re, 4 Jur. N.S. 1169 ; 7 W. R. 126 Meekins v. Smith, 1 H. Bl. 636 Merchant Banking Co. v. Maud, L. R. 20 Eq. 452: 44 L. J. Ch. 581; 32 L. T. 794; 23 W. R. 788 Metzler v. Wood, 47 L. J. Ch. 139 ; 37 L. T. 523 ; 26 W. R. 125 .. Midland Ry. Co. v. Brown, 10 Hare App. xliv. ; 22 L. Ch. 1092 .. Millard v. Burroughes, W. N. (1880), 4 Minet v. Morgan, L. R. 8 Ch. 361 ; 42 L. J. Ch. 627 ; 28 L. 21 W. R. 467 Mitchell v. New Zealand Loan, etc., Co. (1904), A. C. 149 Mitchell's Case, 2 Atk. 173 Mole v. Smith, 1 Jac. & W. 673 Monckton, in re, 3 Notes of Cas. Eccl. Suppl. lxii. , 1 Moo. P. C. 455 Moor v. Row, 1 Rep. in Ch. 38 Moriarty v. Brooks, 6 C. & P. 684 Morocco, The, 1 Asp. N.S. 46 ; 24 L. T. N.S. 598 Morris v. Hunt, 1 Chitt. 544 .. .. 45, 47, 51, 53 : Moscatti v. Lawson, 1 M. & Rob. 454 Mostyn v. Mostyn, L. R. 5 Ch. 457 ; 39 L. J. Ch. 780 ; 461; 18 W. R. 657 v. West Mostyn Coal, etc., Co., 34 L. T. 531 Mouncey v. Robinson, 37 L. J. Eccl. 8 Mounet v. Beck, 14 Rep. Pat., Cas. 850 107 139 .. 5,8 .. 48 .. 140 .. 104 .. 104 57 L. T. 43, 72, 76 .. 46 .. 39 140 108 140 139 T. 573; 65 39 31, 32, 33 74, 184 25 33 46 .. 102 .. 109 122, 134, 139 69 22 L. T. 46,57 .. 65 .. 39 .. 139 TABLE OF OASES CITED. xxix PAGE Mulligan v. McDonagh, 5 Ir. Jur. N.S. 101 ; 2 L. T. N.S. 136 52, 59 Munster v. Lamb, 11 Q. B. D. 588 ; 52 L. J. Q. B. 726 ; 49 L. T. 252; 32 W. R. 243 40 Murphy v. Richardson, 13 Ir. L. R. 430 44,68 N. Naish v. Brown, 2 C. &. K. 219 102 Nawab Unjad, etc. v. Mussumafc Mohumdee, etc., 11 Moo. Ind. App. 517 120 Neale v. Gordon-Lennox (1902), A. C. 465 ; 71 L. J. K. B. 939 ; 87 L. T. 341; 51 W. R. 140 76,77 Neate v. Denman, L. R. 18 Eq. 127 4,7 Needhani v. Dowling, 15 L. J. P. C. 9 40 Nelson, in re, 30 Ch. D. 10 ; 53 L. T. 416 ; 33 W. R. 646 . . . . 45 New Brunswick and Canada Ry. Co. v. Conybeare, 9 H. L. C. 711 ; 31 L. J. Ch. 297 70 Newton, in re, 16 C. B. 99 17 v. Chaplin, 10 C. B. 356 ; 19 L. J. C. P. 374 .. .. 70 v. Constable, 9 Dowl. 933 ; 1 G. & D. 408 ; 2 Q. B. 157 ; 10 L. J. Q. B. 349 40 v. Harland, 8 Scott 70 39 v. Judges, etc., of the N. W. Provinces, L. R. 4 P. C. 18 . . 35 v. Ricketts, 2 Phill. 624 ; 12 Jur. 107, 238 . . . . 71, 103 Nias v. Northern, etc., Ry. Co., 3 Myl. & Cr. 355 ; 7 L. J. Ch. 170 65 Nicholl v. Jones, 2 H. & M. 588 ; 13 W. R. 451 65 Nicholson v. Brooke, 2 Bxch. 213, 17 L. J. Exch. 229 .. 103, 104 Nieroth v. Boileau, 2 Times L. R. 478 39 Nordmann, in re, ex parte Hasluck, 67 L. J. Q. B. 996 ; 47 W. R. 151 141 North E. Ry. Co. v. Jackson, 22 W. R. 629 139 Norwood's Patents, in re, 12 Rep. Pat. Cas. 219, 221 . . . . 103 0. O'Brien v. Cantwell, 12 Ir. Ch. R. 221 122,134 O'Connell v. The Queen, 11 CI. & P. 155 ; 9 Jur. 25 .. 117, 119 O'Connor v. Nicholson, 1 Pox & Sm. Reg. Cas. 250 26 O'Hara, Matthews, & Co. v. Elliott & Co. (1893), 1 Q. B. 362 ; 62 L. J. Q. B. 317; 68 L. T. 166; 41 W. R. 248 142 Osborne to Rowlett, 13 Ch. D. 798 ; 49 L. J. Ch. 319 ; 42 L. T. 656 89 Overend, Gurney, & Co., in re, ex parte Musgrave, 17 L. T. N.S. 313 138 Oxfordshire, The Case of the Sheriff of, 2 C. & K. 200 . . 39, 40 XXX TABLE OF CASES CITED. PACE Palmer v. Boyes, Owen, 17; Cro. Eliz. 342 13 v. Maclear, 1 S. & T. 149 104 Parkinson v. Hanbury, L.E.2E.L.6; 4 De G. M. & G. 508 ; 36 L. J. Ch. 294 ; 22 L. J. Ch. 979 ; 1 W. E. 509 . . . . 13, 70 Parliament, Case of Privilege of, 6 St. Tr. 1146 41 Parson, in re, Parson v. Parson (1901), 2 Ch. 176; 70 L. J. Ch. 563; 84 L. T. 709 141 Pater, ex parte, 9 CoxC. C. 544; 5 B. & S. 299; 33 L. J. M. C. 142; 10 L. T. 376 ; 12 W. E. 823 33,37 Payne v. Ibbotson, 27 L. J. Exch. 341 107 Pearce v. Poster, 15 Q. B. D. 114 ; 54 L. J. Q. B. 432 ; 52 L. T. 886 ; 33 W. E. 919 65 v. Lindsay, 1 De G. P. & J. 573 ; 8 W. E. 383 . . . . 139 Peard v. Jones, Cro. Car. 382; 1 Eoll. Abr. 55 13 Peare's Case (or Peard v. Jones), 1 Eoll. Abr. 55 . . - . 64 Pearse v. Pearse, 1 De G. & Sm. 12 ; 16 L. J. Ch. 153 .. .. 65 Peers v. Ceeley, 15 Beav. 209 90 Pender, in re, 10 Beav. 390 136 Penrice v. Parker, Pinch, 75 45,56 Penruddook v. Hammond, 11 Beav. 59 . . . . . . . . 65 Perara, in re, 3 Times L. E. 677 12 Perring v. Eebutter, 2 M. & Bob. 429 60 ■ v. Tucker, 1 Moo. & M. 392, 4 C. & P. 70 104 Phillips v. Willetts, 2 M. & Bob. 319 105 Pickering v. Dowson, 4 Taunt. 779 .. .. .. .. 96 VM, ex parte, 2 Dowl. 439; 5 B. & Ad. 1077 17 v. Coombs, 3 N. & M. 212 ; 5 B. & Ad. 1078 39 Plumley v. Horrell, W. N. (1868), 240 65 Pneumatic Tyre Co. v. Ixion, etc., Tyre Co., 14 Eep. Pat. Cas. 875 139 Pocock v. Lowe, L. E. 1 P. & D. 535 109 Pole v. Leask, Daniell's Ch. Pr. 7th ed. 1093 145 Pollard, in re, L. E. 2 P. C. 106 ; 5 Moo. P. C. N.S. Ill . . 33, 34 Poole v. Sidden, Eoscoe Nisi Pri us, 17th ed. 290 104 Porter v. Cooper, 1 C. M. & E. 387 ; 6 C. & P. 354 ; 4 Tyr. 456 .. 73 Potts v. Sparrow, 6 C. & P. 749 49 Poucher v. Norman, 3 B. & C. 744 ; 5 D. & E. 648 ; 3 L. J. O.S. K. B. 11 551 Power v. Barham, 7 C. & P. 356 102 Praed v. Graham, 24 Q. B. D. 53 ; 59 L. J. Q. B. 230 ; 38 W. E. 103 99 Prendergast v. Prendergast, 3 H. L. C. 217 .. .. .. .. 118 Prestwich v. Poley, 18 C. B. N.S. 806 ; 34 L. J. C. P. 189 ; 12 L. T. 390 ; 13 W. E. 753 72,76,79 Price v. Seeley, 10 CI. & P. 28 118 Prinsep v. Dyce Sombre, 10 Moo. P. U. 234 120 Prymie's Ca*e, 3 St. Tr. 562 30 TABLE OF GASES CITED. xxxi It. PAGE E. v. Adey, 1 M. & Rob. 94 100 v. Atkins, 9 Mod. 4 . . . . . . . . 70 u Attwood, 29 Sol. Jo. 29 112 v. Aves, 24 L. T. 64 22 v. Baines, 12 A. & E. 213 116 v. Balfour, Times, 29th Oct. 1895, 4 112 v. Barber, 1 C. & K. 434 112 v. Barrow, 10 Cox, 407 .. .. .. .. .. .. 112 v. Bartlett, 2 C. & K. 321 " 95 v. Beard, 8 C. & P. 142 98,112 v. Berens. See B. v. Holchester. v. Biggins, 5 L. T. 605 22 v. Bignold, D. & Ey. N. P. C. 59 102 v. Biron, 54 L. J. M. C. 77 ; 51 L. T. 429 17 v. Borron, 3 B. & Aid. 432 23 v. Bowler, 7 C. & P. 773 110 v. Brice, 2 B. & Aid. 606 ; 1 Chitt. 352 18 v. Bunts, 2 T. E. 683 116 v. Bums, 16 Cox, 195 112,113 v. Christie, 1 F. & F. 75 . . 112 v. Cook, 5 St. Tr. 1078 41 v. Cox, 14 Q. B. D. 153 ; 54 L. J. M. C. 41 65 v. Davis, 7 C. & P. 785 Ill v. Denbighshire JJ. See Evans, ex parte. v. Dignam, 7 A. & E. 593 116 v. Doutre, 9 App. Cas. 752 ; 53 L. J. P. C. 85 ; 51 L. T. 669 58 v. Dowse, 4 F. & F. 492 113 v. Fogarty, 5 Cox C. C. 161 52 v. Frost, 9 C. & P. 165 .. 117 v. Gascoine, 7 C. & P. 772 110 v. Glass, 4 F. & F. 492 113 v. Gray's Inn, J Dougl. 353 5 v. Griffiths, 54 L. T. 280 ; 16 Cox C. C. 46 23 v. Gurney, 11 Cox, 422 18 v. Hardie, 1 St. Tr. N.S. 609 18 v. Hartel, 7 C. & P. 773 Ill v. Hayes, 2 M. & Bob. 155 113 v. Holchester (or Berens), 10 Cox, 226 ; 4 F. & F. 842 111, 114 v. Hutchins, 7 Ir. C. L. E. 425 .. .. 40 v. Jackson, 7 C. & P. 773 110 v. Jones, 9 C. & P. 404 95 v. Jordan, 9 C. & P. 119 113 v. Kain, 15 Cox, 388 113 XXXll TABLE OF CASES CITED. TAG It E. v. Kiernan, 5 Ir. C. L. E. 171 "40 v. Lancashire J J., 1 Chitt. 602 j 1-7,18 v. Lincoln's Inn, 7 D. & B. 351 ; 4 B. & 0. 855 . . . . 6 v. Littleton, 9 C. & P. 671 18 v. Liverpool, 7 Times L. E. 592 17 v. London JJ., L. T. newsp. (1896), 560 20 v. Mansel Jones, 23 Q. B. D. 29 ; 60 L. T. 860 ; 37 W. E. 508 27 v. , Short & Mellor's Practice of the Crown Office 38 17 v. Marsden, 1 Moo. & M. 439 112 v. Marshall, 4 E. & B. 475 33 v. Maybury, 11 L. T. N.S. 566 70 v. Medley, 6 C. & P. 300 116 v. Millhouse, 15 Cox, 622 112 v. Millis, 10 CI. & F. 534 118 v. Milne, 2 B. & Aid. 606 18 — v. O'Connell, 7 Ir. L. E. 312 114 v. Orrell, 7 C. & P. 774 Ill v. Orton, Archhold's Pleading, etc., in Cr. Cases, 170 .. .. 23 v. Oxfordshire (Judge of County Ct. of), (1894), 2 Q. B. 440; 63 L. J. Q. B. 689 ; 70 L. T. 874 ; 42 W. E. 603 .. .. 20 v. Page, 2 Cox, 221 18 v. Parkins, 1 C. & P. 548 ; Ey. & Moo. 166 70 v. Penprase, 4 B. & Ad. 573 24' v. Puddick, 4 P. & P. 497 111,114 v. Eadcliffe, 1 W. Bl. 6 112 v. Eicketts, 6 A. & E. 537 115 v. Eudland, 4 F. & P. 496 Ill v. St. Mary Abbott's Kensington (1891), 1 Q. B. 378; 60 L. J. M. C. 52 ; 64 L. T. 240 ; 39 W. E. 278 27 v. Shimmin, 15 Cox C.C. 122 .. .. ' 112 v. Simpson, 1 Stra. 44 22 v. Skinner, Lofft, 55 . . . . . . . . . . 40 v. Staffordshire JJ., 1 Chitt. 217 21 v. Stanbury Eardley, 49 J. P. 551 17 v. Stoddart, Dickinson's Quarter Sess., 5th ed. 134 .. .. 18 v. Sutton, 7 A. &E. 594 116 v. Swatkins, 4 C. & P. 548 Ill v. Thorogood, 12 A. & E. 183 115 v. Toakley, 10 Cox C. C. 406 112 v. Trevelli, 15 Cox C. C. 289 113 v. Wainwiight, 13 Cox, 171 113 v. Walker, Tremaine's Pleas ol the Crown, 261 . . . . 60 v. Webb, 4 F. & F. 862 111,114 v. Wheeler, 3 Burr. 1258 38 TABLE OF CASES CITED. XXXUL B. v. White, 3 Campb. 98 v. Williamson. 59 L. J. Q. B. 493 v. Ysouado, 5 Cox, C. C. 161 Eainy v. JJ. of Sierra Leone, 8 Moo. P. C. 47 Eakestraw v. Brewer, 2 P. Wms. 511 . . Eamsay, in re, L. E. 3 P. C. 427 Eavenga v. Mackintosh, 2 B. & C. 693 Eawlins v. Desborough, 2 M. & Eob. 70 Eayment v. Dimbleby, W. N. (1877), 67 Bedding's Case, Sir T. Baym. 376 ; Bac. Abr. Courts E. Eeece v. Trye, 9 Beav. 316 Eeg. v. See E. v. Begicides, Trials of the, 5 St. Tr. 872 Eenner, ex parte (1897), A. C. 218 Bex v. See E. v. Eeynolds, ex parte, in re Barnett, 15 Q. B. D. 169 . . Ehodes v. Swithenbank, 22 Q. B. D. 577' Eichardson v. Peto, 1 M. & Gr. 896 ; 9 Dowl. 73 . . „. Eichardson (1895), P. 276 Eidgway v. Phillips, 3 Dowl. 154 ; 1 C. M. & E. 415 . . Eobertson v. Macdonogh, 6 L. E. Ir. 433 Eobinson v. Cook, 6 Taunt. 336 Eossborough v. Boyse, 3 Ir. Ch. E. 540 Eosslyn v. Jodrell, 4 Campb. 303 Eothwell v. King, 2 Swanst. 221 Eowe v. Brenton, 3 M. & E. 304 Eumsey v. King, 33 L. T. N.S. 728 Eussell, ex parte, in re Elderton, 31 Sol. Jo. 235 ; 3 Times L. E. 324 Eyan v. Nesbitt, W. N. (1879), 100 Eyland v. Jackson & Brodie, 18 Times L. E. 574 Eyves v. Att.-Gen., Annual Eegister (1866), Eemarkable Trials, 255 1'agk .. 70 ..27,43 .. 29 .. 33 8 .. 33 .. 89 .. 97 .. 140 .. 31 .. 65 28 .. 36 16 ..72,84 ..43,87 39, 52, 134 .. 104 ..52,59 .. 101 .. 84 7 .. 65 .. 102 72, 75, 76 15,16 90 105 98 S. Sanders v. McConnell, Times, 12th Feb. 1885 97 Scheyer v. Wontner, 90 L. T. (newsp.) 116 74 Scout, The, L. E. 3 Ad. & E. 512 109 Seal, in re, 37 Sol. Jo. 685 45 Seaton v. Burnand (1900), A. C. 135 107 Segrave v. Kirwan, Beat. 157 .. .. .. .. .. 62 Seymour v. Butterworth, 3 F. & P. 381 .'. 4 Sharp D.Ashby, 12 M. &W. 732 139 Slmttleworth v. Nicholson, 1 M. & Eob. 254 70 Sinclair v. Gr. E. By. Co., L. E. 5 C. P. 135 ; 21 L. T. N.S. 752 . . 138 Skapholme v. Hart, Fincb, 477 56,63 XXXIV TABLE OF CASES CITED. PAGE Skerratt, ex parte, 28 Sol. Jo. 376 107,117 Smart v. Rayner, 6 C. & P. 722 98 Smith in re, 4 Beav. 317 .. .. .. .. .. .. 45 v. Buller, L. E. 19 Eq. 473 140 v. Daniell, L. R. 18 Eq. 649 ; 34 L. T. 899 . . . . 65, 142 v. Effingham (Earl of), 10 Beav. 378 140, 141 v. Hallen, 2F.&F. 678 58 v. Kerr (1900), 2 Ch. 511; 1902, 1 Ch. 774 3 v. Sierra Leone (JJ. of), 3 Moore P. C. 361 . . . . 33, 34 v. Troup, 7 0. B. 757 72,76 v. Wills, 53 L. T. 386 142 Snag v. Gray, 1 Roll. Abr. 57 .. ■• 64 Sneesby v. L. & T. Ry. Co., 1 Q. B. D. 42 117 Snow v. Etty, 22 L. J. (newsp.) 292 45 Solicitor, in re a, 63 L. J. Q. B. 397 47 (1903), 2 K. B. 205 18 Sparkes v. Barrett, 8 C. & P. 442 104 Spencer v. Luttrell, 2 Sw. ,221 65 Spurting v. Bantoft (1891), 2 Q. B. 390 115 Stanhope v. Nott, 2 Sw. 221 65 v. Roberts, 2 Atk. 214 58 Stanton v. Baring, W. N. (1875), 188 134, 139 Steadman v. Hockley, 15 M. & W. 553 ; 15 L. J. Exch. 332 .. 59 Stephens v. Lord Newborougb, 11 Beav. 403 ; 17 L. J. Ch. 332 .. 138 Stevens v. Webb, 7 C. & P. 61 98 Stewart & Co. v. Weber, 19 Times L. R. 722 143 Stokes v. Kromshoder, W. N. (1879), 196 97 Stones v. Byron, 4 D. & L. 393 101 Stott v. Milne, 25 Ch. D. 714 90 Stracy v. Blake, 1 M. & W. 168 86 Strauss v. Francis, L. R. 1 Q. B. 379 .. 09, 71, 72, 74, 76, 79 Streeter, ex parte, in re Morris, 19 Ch. D. 21G .. .. .. 16 Sturge v. Dimsdale, 9 Beav. 170 138 Svendsen v. Wallace, 16 Q. B. D. 27 144 Swift v. Grazebrook, 13 Sim. 185 103 Swinfen v. Lord Chelmsford, 1 F. & F. 619 ; 29 L. J. Exch. 382 52, 59, 72, 77, 79 v. Swinfen, 18 C. B. 485 ; 25 L. J. C. P. 303 ; 1 C. B. N.S. 364 ; 26 L. J. C. P. 97 ; 24 Beav. 549 ; 27 L. J. Ch. 35, 491 ; 6W. R. 480 54,76,77,78 Talbot's Case, 2 St. Tr. 778 41 Taylor v. Clarke, 13 Ir. C. L. R. 571 127, 141 Thellusson v. Rendlesham, 7 H. L. 430 L19 TABLE OF CASES CITED. XXXV Thomas v. Harris, 27 L. J. Exch. 353 v. Hewes, 2 C. & M. 519 v. Newton, 1 Moo. & M. 48 . . Thompson v. Maskery, 73 L. T. 401 Thornhill v. Evans, 9 Mod. 331 ; 2 Atk. 330 Tillett v. Stracy, L. E. 5 C. P. 185 Tisdall v. Richardson, 20 L. B. Ir. 199 Tucker v. Collipson, 16 Q. B. D. 562 . . Turner v. Green (1895), 2 Ch. 205 v. Phillips, Peake "N. P. 122 . . v. Turner, 2 De G. Mc. & G. 28 ; 21 L. J. Ch. 422 PAGE ..72,79 77 .. 100 ..42,43 51, 52, 56, 61 .. 136 .. 135 13 .. 83 ..52,59 .. 84 U. Underwood v. Sec. of State for India, 35 L. J. Ch. 545 65 V. Van Wart v. Wolley, Ry. & Moo. 4 Veitch v. Russell, 3 Q. B. 936 .. Vez v. Emery, 5 Ves. 141 87 51 9.' W. Waddell, ex parte, in re Lutscber, G Ch. D. 328 Wakefield v. Brown, L. R. 9 C. P. 410 Waldron v. Ward, Styl. 449 Walker v. Siggers, W. N. (1875), 194 Wallace, ex parte (1902), 2 K. B. 488 in re, L. R. 1 P. C. 283 v. Cook, Times, 15th June, 1903 Walsham v. Stainton, 2 H. & M. 1 ; 3 N. R. 241 ; W. R. 199 Walton v . Potter, 3 M. & G. 411 Warkworth, The, 1 Times L. R. 659 . . Warner, ex parte, 6 Jur. 1016 Wason, ex parte, 10 B. & S. 580 Wastell v. Leslie, 14 Sim. 84 ; 13 L. J. Ch. 368 Watt v. Ligertwood, L. R. 2 H. L. Sc. 361 .. Weare, in re (1893), 2 Q. B. 439 Webh v. Catchlove, 50 J. P. 795 v. Fitzgerald, W. N. (1875), 244 Webb's Estate, in re, Webb v. Jones, 28 L. T. 726 ; Wedderburn v. Wedderburn, 17 Beav. 158 . . L. T .. 110 .. 137 65 .. 108 17 ..33,35 48, 72, 98 603; 12 65 , 107 , 141 5 17 , 140 . 33, 37 18 21 , 137 138 . 103 21 W. R. 745 XXXVI TABLE OF CASES CITED. 139 13 72 Wegmann v. Corcoran, 41 L. T. 792 136,140 Weiser v. Segar, W. N. (1904), 93 107 Wentworth v. Lloyd, L. E. 2 Eq. 607 West Derby, etc.,Guardians v. Atcham, 6 Times L. B. 5 West Devon, etc., Mine, *m re, 38 Ch. D. 51.. Wettenhall v. Wakefield, 2 Dowl. 759 ; 3 Moore and Sc. 805 ; 10 Bingh.338 30 Wharton v. Lewis, 1 C. & P. 529 100 Whatley v. Morland, 2 Dowl. 249 ; 2 C. & M. 347 ; 4 Tyr. 255 . . 26 Whitelocke's Case, 2 St. Tr. 766 41 Wicksteed v. Biggs, 52 L. T. 428 135,142 Wilding v. Sanderson (1897), 2 Ch. 539 68, 83 Willemlll, The, 1 Asp. N.S.132 109 Williams, in re, 9 W. K. 393 59 Williams v. Quebrada By., etc., Co. (1895), 2 Cb. 751 .. .. 65 Wilson v. Eastall, 4 T. E. 753.. .. ' 65,66 Wilton, in re, 13 L. J. Q. B. 17 45,48 Windhill Local Boards;. Vint, 45 Ch. D. 351 83 Wood v. G-unston, Styl. 462 40 Woodcraft's Patent, in re, 3 Moo. P.C. 172 120 Wright v. Soresby, 2 C. & M. 671 ; 4 Tyr. 434 ; 3 L. J. Exch. 207 75 v. Wright, 7 Bingh. 459 106 Wynne v. Wynne, 2 M. & Eob. 321 105, 106 Yates v. Carlisle, 1 W. Bl. 270 Yearsley v. Yearsley, 19 Beav. 1. Yeatman v. Eead, 35 L. J. Ch. 176 ; 13 L. T. 580 ; 14 W. E. 123 38 138 107 TABLE OF STATUTES CITED. 3 Edw. I. c. 29 (St. Westm. 1) 28 Bdw. I. o. 11 33 H. VIII. c. 24, s. 6 5Bliz. c. 1 1 W.&M.C.8 7 & 8 W. III. c. 3, s. 1 (Treason Act, 1695) . . 20G.n. c.30 11 G. IV. & 1 W. IV. c. 40 4 & 5 W. IV. c. xcii. s. 2 (Liverpool Court of Passage Act) 6 & 7 W.IV. c. 114 (Trials for Felony Act, 1836) .. 7 W. IV. & 1 Vic. c. 30, s. 15 2 & 3 Vict. c. 71 (Metropolitan Police Courts Act, 1839) 3 & 4 Vict. c. 86 (Church Discipline Act, 1840) . . 5 & 6 Vict. c. 109 6 Vict. c. 18 (Parliamentary Voters Registration Act, 1843) s. 28 .. ' s. 41 6 & 7 Vict. c. 65 (Copyright of Designs Act) 6 & 7 Vict. c. 73 (Solicitors Act, 1843)— s. 2 s. 47 8 Vict. c. 10, s. 7 (Bastardy Act, 1845) 8 & 9 Vict. c. 127 (Small Debts Act, 1845)— s.9 s. 12 9 & 10 Vict. c. 54 9 & 10 Vict. c. 59 (Religious Disabilities Act, 1846) 11 & 12 Vict. c. 42 (Indictable Offences Act, 1848)— s. 17 s. 18 s. 19 s. 25 11 & 12 Vict. c. 43 (Summary Jurisdiction Act, 1848)- s. 10 PAGE . 30 . 53 , 150 12 12 38 . 14 . G2 . 147 . 18 . 150 . 147 . 25, 39 , 40 . 147 26 . 21 . 43 . 148 22 . 150 . 150 15 12 23 23 22. 23 20 XXXVlll TABLE OF STATUTES CITED. FAGE 11 & 12 Vict. c. 43— continued. s. 12 21 9. 18 22 s. 14 121 11 & 12 Vict. c. 44 (Justices Protection Act, 1848)— s. 2 22 s.5 17 14&15 Vict. c. 83, s. 1 (Court of Chancery Act, 1851) .. .. 146 15 Vict. c. lxxvii., s. 8 (London (City) Small Debts Extension Act, 1852) 147 15 & 16 Vict. c. 80, s. 41 (Court of Chancery Act, 1852) .. . . 147 20 & 21 Vict. c. 77 (Court of Probate Act, 1857)— s. 20 .. .. 150 s. 21 150 s. 26 109 s. 40 15 s. 41 1,15 20 & 21 Vict. c. 85, s. 15 15 20 & 21 Vict. c. clvii. s. 43 (Mayor's Court of London Procedure Act, 1857) 147 21 & 22 Vict. c. 48 12 22 & 23 Vict. c. 6, s. 1 15 23 & 24 Vict. c. 127 (Solicitors Act, I860)— s. 3 5 s.16 5 23 & 24 Vict. c. 136, s. 2 (Charitable Trusts Act, 1860) .. .. 27 24 & 25 Vict. c. 10 (Admiralty Court Act, 1881)— s. 27 149 s.28 150 24 & 25 Vict. c. 104, s. 2 (Indian High Courts Act, 1861) . . . . 147 25 & 26 Vict. c. 89, s. 115 (Companies Act, 1862) 110 25 & 26 Vict. c. 103, s. 18 (Union Assessment Committee Act, 1862) 27 26 & 27 Vict. c. 97, s. 3 (Stipendiary Magistrates Act, 1863) .. 148 28 & 29 Vict. c. 18, s. 2 (Criminal Procedure Act, 1865) . . Ill, 113 31 & 32 Vict. c. 72 (Promissory Oaths Act, 1868) .. .. .. 12 31 & 32 Vict. c. cxxx., s. 14 (Salford Hundred Court of Record Act, 1868) 146,148 32 & 33 Vict. c. 71, s. 70 (Bankruptcy Act, 1869) 16 32 & 33 Vict. c. 89 (Clerks of Assize, etc., Act, 1869)- s. 3 150 s. 8 150 33 & 34 Vict. c. 77, s. 9 (Juries Act, 1870) 40 34 & 35 Vict. c. 48 (Promissory Oaths Act, 1871) 12 35 & 36 Vict. c. 86, s. 7 (Borough and Local Courts of Record Act, 1872) 147 TABLE OF STATUTES CITED. XXXIX PAGE 36 & 37 Vict. c. 66 (Judicature Act, 1873)— s. 8 146 s. 12 5 s. 23 15 37 & 38 Vict. c. 53, s. 6 (Revising Barristers Act, 1874) . . . . 147 37 & 38 Vict. c. 85 (Public Worship Regulation Act, 1874)— s. 7 147 s. 11 25 38 & 39 Vict. c. 77, s. 21 (Supreme Court of Judicature Act, 1875) .. 15 38 & 39 Vict. c. 87 (Land Transfer Act, 1875)— s. 106 146,149 5.119 „ .. , 149,150 39 & 40 Vict. c. 59 (Appellate Jurisdiction Act, ,1876)— s.4 118 s. 6 146 40 & 41 Vict. c. 25, s. 12 (Solicitors Act, 1877) 5 40 & 41 Vict. c. 43, s. 7 (Justices Clerks Act, 1877) . . 149 42 & 43 Vict. c. 22, s. 4 (Prosecution of Offences Act, 1879) 149, 150 42 & 43 Vict. c. 49, s. 17 (Summary Jurisdiction Act, 1879) .. 22 42 & 43 Vict. c. 78 s. 10 (Supreme Court of Judicature (Offices) Act, 1879) .. 149 43 & 44 Vict. c. 19, s. 57, subs. 9 (Taxes Management Act, 1880) 25 44 & 45 Vict. c. 58, s. 129 (Army Act, 1881) 37 45 & 46 Vict. c. 39 (Conveyancing Act, 1882)— s. l(4)(ii.) " 88 s, 3 88 45 & 46 Vict. c. 50 (Municipal Corporations Act, 1882) — s. 161 147 s. 163 147 s. 166 147 s. 168 147 s. 172 150 s. 175 148 46 & 47 Vict. c. 51 (Corrupt and Illegal Practices Prevention Act, 1883)— s. 38 5,27 s. 43(7) 149 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883)— s. 27 109 s. 93 16 s. 151 16 49 & 50 Vict. c. 48, s. 6 (Medical Act, 1886) 51 51 & 52 Vict. c. 41 (Local Government Act, 1888)— s. 42(1) 146 s. 42 (14) 148 xl TABLE OF STATUTES CITED. 51 & 52 Vict. c. 43 (County Courts Act, 1888)— s.8 .. 147 s. 14 .. 150 s. 18 .. 147 s. 72 .. 20 s. 118 .. 144 51 & 52 Vict. c. 65 (Solicitors Act, 1888)— s.5 s. 10 1 1 s. 13 .. 17 52 & 53 Vict. c. 63, s. 13 (Interpretation Act, 1889) 22 53 Vict. c. 5 (Lunacy Act, 1890)— s. Ill (3) .. 146 s. 151(2) .. 148 s.154 .. 147 53 & 54 Vict. c. 62 (Companies (Winding-up) Act, 1890) .. .. 142 54 & 55 Vict. c. 39 (Stamp Act, 1891)— s.43 2 s.44 2 s.47 2 s. 101 47 55 & 56 Vict. c. 32, s. 14 (3) (Clergy Discipline Act, 1892) 25 56 & 57 Vict. c. 37, s. 6 (Liverpool Court of Passage Act, 1893 I .. 147 56 & 57 Vict. c. 73, s. 9 (Local Government Act, 1894) 26 57 Vict. c. 3, s. 6 (Army (Annual) Act, 1894) .. 37 59 & 60 Vict. c. 68, s. 25 (Friendly Societies Act, 1896) .. .. 26 61 & 62 Vict. c. 10, s. 16 (Finance Act, 1898) .. .. 25 61 & 62 Vict. c. 36, s. 2 (Criminal Evidence Act, 1898) . . .. Ill 3 Edw. VII. c. 38 (Poor Prisoners Defence Act, 1903) 52 TABLE OF RULES OP COURT CITED. El.S.0, , 1883- -0. xvi. r. 26 27 52 xix. r. 4 xxn. r. 22 xxiii. r. 1 XXXIV. •• xxxvi. r. i 56 xxxvu. r. 40 lv. r. la lvi. r. 7 lxii. r. 4 12 lxv. r. 12 22 . , 27 (15) (16) (29) (44) (45) (46) (47) (48) (51) (52) lxxii. r. 2 Crown Office Rules, 1886— R. 83 147 180 181 182 249 PAGE .. 52 39,52 .. 106 .. 39 .. 99 .. 135 .. 115 .. 101 .. 148 .. 16 .. 136 .. 107 .. 107 .. 139 .. 135 134, 135, 136 16, 136 .. 143 .. 141 .. 135 .. 139 .. 138 142, 143 .. 145 '.. 47 .. 15 .. 24 .. 115 .. 116 .. 116 .. 116 .. 116 xlii TABLE OF RULES OF COURT CITED. Crown Office Rules, 1886— continued. 275 280 287 .. 39 .. 116 .. 116 App. D. Form No. 78 23 E. Form No. ccxxxix. !'i> County Court Rules, 1903— App. IV . . 144 BABRISTER-AT-LAW. AN ESSAY ON THE LEGAL POSITION OF COUNSEL IN ENGLAND. CHAPTER I. LEGAL PRACTITIONERS IN ENGLAND. A legal practitioner in England at the present day must belong to one or other of the following classes : barristers, solicitors, notaries public, conveyancers, special pleaders, draftsmen in equity, and parliamentary agents (a). Barristers derive their authority to practise from one of the four Inns of Court ; so also do conveyancers, special pleaders, and draftsmen in equity. Solicitors are admitted by the Master of the Bolls and their names are then entered on the roll of solicitors which is kept by the Incorporated Law Society (h). Notaries public derive their authority to practise from the Court of Faculties of the Archbishop of Canterbury (e). (a) Persons who on August 25th, 1857, had been admitted advocates in any of the ecclesiastical courts in England had by the Court of Probate Act, 1857 (20 & 21 Vict. c. 77, s. 41), the right to practise as if they had been barristers ; this class of advocates is now almost extinct. (&) 51 & 52 Vict. c. 65, ss. 5 and 10. From and after November 2nd, 1874, the name "solicitor" was substituted for that of "attorney" and " proctor." (c) Brooke's " Notary," 6th ed., 17. B 2 BARRISTER- A T-LA W. Solicitors, conveyancers, special pleaders, draftsmen in equity, and notaries public have to take out annual certifi- cates authorising them to practise (a). No certificate is required for a barrister to practise. Barristers and certificated solicitors, notaries public, con- veyancers, special pleaders, and draftsmen in equity are the only persons in England who are allowed " for or in expec- tation of any fee or reward to draw or prepare any instru- ment relating to real or personal estate or any proceeding in law or equity" (&). Any person may practise as a parliamentary agent iu the House of Lords, but in the House of Commons a parlia- mentary agent must sign a declaration and be registered in a book kept in the Private Bill Office (c). (a, Stamp Act, 1891 (54 & 55 Vict. u. 39, ss. 43 and 47). (6) Stamp Act, 1891, s. 44. The section does not extend to any public officer drawing or preparing instruments in the course of his duty, or any person employed merely to engross any instrument or proceeding. " Instru- ment " in the section does not include (a) a will or other testamentary instru- ment, (6) an agreement under hand only, (c) a letter or power of attorney, (d) a transfer of stock containing no trust or limitation thereof. (c) Clifford, "History of Private Bill Legislation," ii. S80 ; Erskine May, " Parliamentary Practice," C91. ( 3 ) CHAPTER II. THE INNS OF •COURT. The word barrister is the name of a rank which can only be conferred in England by one of the four Inns of Court, viz. Lincoln's Inn, the Inner Temple, the Middle Temple, and Gray's Inn. The four Inns of Court are voluntary unin- corporated societies (a) which are independent of the state and of each other, but which act together in providing for the legal education and examination of students, and in defining the conditions on which the rank of barrister is conferred. Each Inn of Court holds property which is vested in trustees by a series of successive conveyances (Z>) ; the property is bound by a trust of a public nature (e). The members of each Inn of Court are divided into three classes : students, utter barristers, and benchers. The students are those members of the Inn who have not been called to the bar, but who have an inchoate right to be called to the bar on complying with the conditions which the four Inns have imposed. A student who is qualified to be called to the bar, may, with the permission of the benchers, practise " under the bar " as a conveyancer, special pleader, or equity draftsman ; such permission is granted for one year only but may be renewed annually (d). Utter barristers (e) (a) Booreman's Case (1642), March, 177; Cunningham v. Wegg (1787), 2 Bro. Ch. Ca. 240 ; Keport of the Inns of Court Commissioners, 1855, 3. See Smith v. Kerr, 1900, 2 Ch. 511 ; 1902, 1 Ch. 774. (6) See Kyd on Corporations, 7. (c) Smith v. Kerr, v.s. (d) " Consolidated Kegulations of the Four Inns of Court " (April, 1903), s. 25, post, p. 153. (e) I.e. outer barristers, as to the origin of the name, see "Black Books of Lincoln's Inn," I. ix. 4 BARRISTER- AT-L AW. are those members of the Inn who have been called to the bar, but who have no share in the government of the Inn. The benchers are the governing body of the Inn, and fill np vacancies in their number or add to their number by- co-opting barristers who are members of the Inn. The benchers alone have the right to determine whether they will at any time fill up vacancies or add to their number by a fresh election; they have the right to determine what persons shall be admitted as students, and what students shall be called to the bar; but while a student has an inchoate right to be called to the bar on complying with the conditions which the four Inns have imposed, no barrister has any inchoate right to be elected a bencher ; even if a barrister has been proposed by one bencher, and seconded by another for call to the bench, the benchers may refuse to elect him, and need assign no reason for their refusal (a). The benchers form a domestic tribunal, with jurisdiction to inquire into the fitness of persons to be admitted as students, or of students to be called to the bar, and into the profes- sional conduct of barristers who are members of the Inn (b). No member of an Inn of Court can retire from the society except with the consent of the benchers of his Inn and after compliance with the conditions which they impose (e). A barrister, as long as he is in practice, is subject to the supervision of the benchers of his Inn (d) ; it follows, therefore, that a barrister who retires from the membership of his Inn, without being or becoming a member of another Inn, cannot continue to practise as a barrister (e). A bar- rister can only cease to be a barrister by being disbarred by the benchers of his Inn. A barrister is sometimes disbarred on his own petition, as, for instance, in order to become a (a) Fry's Case (1689), see Hayward's Case, 89. (b) Per Lord Wynford, in re Justices of the Court of Common Pleas at Antigua (1830), 1 Knapp, 267 ; Seymour v. Butterworth (18G2) 3 F & F 3S1 • Hudson v. Slade (1862), 3 F. & F. 404. (c) Neate v. Denman (1874), L. E. 18 Eq. 127. (d) Seymour v. Butterworth (1862), 3 F. & F. 381. (e) See Neate v. Denman (1874), L. K. 18 Eq. 127. THE INNS OF COURT. 5 solicitor, for a barrister cannot be put on tbe roll of solici- tors (a), or serve as an articled clerk for the purpose of being admitted a solicitor (b), without being first disbarred on his own petition. Disbarring, when a barrister does not petition to be disbarred, is a punishment inflicted by the benchers on a barrister whom the benchers sitting as a domestic tribunal adjudge guilty of conduct unbecoming his pro- fession (c). When the benchers of an Inn punish a bar- rister by disbarring, they must, it seems, assign a reason for their action. Besides the power of disbarring a bar- rister the benchers have also the power of disbenching one of their own number (d), but if they disbench as a punish- ment, they must, it seems, assign a reason for their action. The decisions of the benchers are not subject to review in any Court of Justice, but an appeal from them lay, before the Judicature Act, 1873, to the Lord Chancellor and the judges of the superior courts of common law, and now lies to the Lord Chancellor and the judges of the High Court of Justice(e) sitting as a domestic tribunal. All the power which the Inns of Court have concerning admission to the bar and the disbarring of barristers is said to be delegated to them from the judges, and the decisions of the benchers are in con- sequence subject to the control of the judges as visitors (/). A mandamus will not lie to the benchers of an Inn to call a student to the bar, for the proper mode of relief in case of a refusal is by appeal to the judges as visitors (g). Nor will a mandamus lie to the benchers of an Inn to admit (a) Ex parte Cole (1779), 1 Dougl. 114; ex parte Warner (1842), 6 Jur. 1016. (6) In re Bateman (1845), 2 D. & L. 725 ; 6 Q. B. 853. As to barristers becoming solicitors, see 23 & 24 Vict. c. 127, ss. 3, 16 ; 40 & 41 Vict. c. 25, s. 12. (c) Hudson v. Slade (1862), 3 F. & F. 390. See 46 & 47 Vict. c. 51, s. 38, subs. 7. (d) See Manisty v. Kenealy (1876), 24 W. E. 918. (e) 36 & 37 Vict. c. 66, s. 12. (/) See per Lord Mansfield, Bex v. Gray's Inn (1780), 1 Dougl. at p. 354 ; in re Justices of the Court of Common Pleas at Antigua, per Lord Wynford, 1 Knapp, 267. (3) Bex v. Benchers of Gray's Inn (1780), 1 Dougl. 353. 6 BARRISTER-AT-LAW. a person as student (a). Indeed, until recent times there was no remedy at all open to a person whom the benchers refused to admit as a student, for the judges had originally no jurisdiction to hear an appeal except by admitted mem- bers, but now, by consent of the Inns, the judges hear appeals against refusals to admit (b). The Courts will not try actions brought by members of an Inn of Court against benchers in respect of anything done by the benchers in their official capacity, and will not determine questions of title to chambers in the Inns of Court (c). In Booremaris Case (d) a barrister who had been expelled from his Inn, and whose chambers had been seized for non- payment of commons, sued in the King's Bench for a writ of restitution, but the writ was refused on two grounds : first, that " there is none " in an Inn of Court " to whom the writ can be directed," as " it is no corporate body but only a ■voluntary society," secondly (and this seems the true ground), " because the applicant had waived the ancient and usual way of redress, which was by appealing to the judges." In Cunningham v. Wegg (e), a member of Gray's Inn brought a bill in Chancery against the treasurer, benchers, and steward of his Inn for an account of monies paid for the renewal of grants of chambers and for a decree that his term in several sets of chambers might be renewed. The defen- dants pleaded to the jurisdiction that " there are four law societies, one of which is called Gray's Inn, that it is a voluntary society governed by benchers, who make rules for the regulation of the society and the letting, etc., of chambers subject to an appeal, in case of dispute, to the Lord Chancellor and the twelve judges." Lord Thurlow, L.C., allowed the plea, and said, "There is no instance of a (a) Bex, v. Benchers of Lincoln's Inn (1825), i 13. & 0. 855. (6) See Hayward's Case, 95. (c) Clement's Inn, case of (1661), 1 Keb. 135. (d) (1642) March, 177. (e) (1787) 2 Bro. Ch. Ca. 240. TEE INNS OF COURT. 7 suit with relation to the discipline or property of chambers in an Inn of Court. The defendants say, as far as they have acted, they are liable to the jurisdiction of the judges. It is a claim among persons having privilege, therefore this is not the proper jurisdiction." In Neate v. Denman (a) a barrister of Lincoln's Inn filed a bill in Chancery to restrain an action at law on a bond for arrears due to the society ; the plaintiff was willing to pay the arrears but claimed to be entitled to retire from the society without giving any undertaking not to practise as a barrister, or being subject to any conditions against his so practising, and without being liable to the payment of any fine or composition on his retiring. The defendants, who were the obligees of the bond, demurred to the bill on the ground that the Court had no jurisdiction to entertain it ; Hall, V.C., allowed the demurrer, and held that he had no jurisdiction to try the questions raised between the plaintiff and the society, the right to retire being a matter to be decided by the internal regulations of the society itself, and the plaintiffs remedy being by appeal to the judges as visitors. When the benchers resort to the Courts, as they may do (&),for the sake of enforcing their own decisions or securing payment of arrears or protecting their property, the Courts will not inquire into the propriety of their decisions or the reasonableness of their charges, the remedy in complaints on such matters being to the domestic tribunal of the judges. Thus, in Bosslyn v. Jo&ell (c), which was an action of debt on a bond executed by the defendant on his call to the bar, Lord Ellenborough, C.J., refused to enter into the question of the reasonableness of the charges or the legality of the orders of the society under which the charges were made ; " sitting here," he said, " I am not prepared to enter (a) (1874) L. K. 18 Eq. 127. (6) See Clement's Inn Case (1661), 1 Keb. 135. (c) (1815)4Campb.'303. 8 BABRISTER-A T-LA W. into a calculation of pounds, shillings, and pence, and to determine whether too much money is raised by the benchers, or whether the money which is raised is mis- applied ; if there be any abuse, apply to the twelve judges ; they are the proper visitors of the Inns of Court, and they will grant redress." In Manisty v. Kenealy (a), the defendant, who had formerly been a bencher of Gray's Inn and a trustee of its property, had been disbenched and disbarred ; the benchers brought the action against him to obtain possession of a set of chambers which had been allotted to him as bencher, and an order to compel him to execute a conveyance of the property of the society to new trustees ; the defendant pleaded that he was entitled to the chambers for his life, that in disbenching and disbarring him the plaintiffs had been actuated by malice and had acted ex parte without sufficient reason, and without giving him an opportunity of being heard in his defence, and that he had never legally ceased to be a member of the society ; the plaintiffs de- murred to the defence on the ground that the society itself, by its benchers, was the proper tribunal for deciding on all matters relating to the admission and expulsion of members, subject to an appeal to the Lord Chancellor and the judges; Hall, V.C., allowed the demurrer, holding that he could not enter into the question of the propriety of the expulsion, the jurisdiction on that question resting with the benchers alone, subject to an appeal to the judges. In one case, in a matter which related to chambers in an Inn of Court but which did not arise directly between the society and a member, the benchers left the persons seeking redress to apply to a Court of equity, and the Court exer- cised jurisdiction (&). In this case the personal representa- tives of a member of Gray's Inn brought a bill against the defendant, the assignee of a mortgage of chambers, to redeem the mortgage ; the plaintiffs had petitioned the (a) (,1876) 24 W. E. 918. (6) Ralcestraw v. Brewer (1728), 2 P. Wins. 511. TEE INNS OF COURT. 9 benchers to be admitted to redeem, and the Bench had made an order that the matters in dispute were matters of account which the Bench were not capable of taking, but that the plaintiffs were at liberty to seek their remedy in a Court of Equity. On the defendants objecting to the bill that the plaintiffs, not being able to get redress from the benchers, should have applied to the judges, Jekyll, M.R., said : " I would not meddle with this title to chambers, which is no legal one, but the benchers themselves having recommended it to the plaintiffs to come hither, and left them at liberty to make the application, therefore the bill is proper." A redemption decree was made, and was affirmed on appeal. This is, it is believed, the only reported case in which the Courts entertained a suit relative to the title of the property of an Inn of Court. In the case of Hudson v. Slade (a) a question arose as to the nature and power of the benchers of an Inn of Court when engaged in an inquiry into the conduct of a member. The benchers of an Inn of Court had held an inquiry into the conduct of a barrister, a member of the Inn, with regard to transactions in relation to a certain company. The barrister produced as a witness in his favour a director of the company. The benchers cross-examined the director as regards certain letters in a letter-book procured by them from the solicitor to the company; the book contained letters and copies of letters to and from the company with reference to the business of the company. The witness afterwards asked for the book to offer an explanation, and having got it, put it into his pocket, said he would keep it, and refused to return it. Thereupon the benchers directed the porter to retake it by force. This the porter did, and the director brought an action against four of the benchers, the under-treasurer, and the porter. Cockburn, C.J., who tried the case, directed the jury that, supposing the letter-book was not the plaintiff's private property, the benchers had lawful possession of it for the purposes of the inquiry. He • (a) (1862) 3 P. & F. 390. 1 BABRISTER-A T-LA W. went on to say that the benchers, when inquiring into alleged delinquencies on the part of a member of the bar, although they had no power of compelling persons to attend as witnesses or to produce documents, were yet more than a " friendly tribunal," that is, one which sits by the consent of both parties for the adjustment of mutual differences. " The benchers," the learned j udge went on to say, " on a charge being preferred against a member of the bar, are armed with powers to disbar him, that is, to deprive him of his professional position and existence. ... I own I can conceive of no jurisdiction more grave and serious in its character and consequences. And its gravity and importance are only equalled by its high and salutary effects in pre- serving the profession of the bar from being disgraced by members of it who are guilty of conduct unworthy of it and contrary to that which all its members agree to maintain." Apart from the Inns of Court there was, until recent times, no organisation of the whole body of the English bar. In December, 1883, a meetiDg of the bar was held, and it was resolved that a body called the Bar Committee should be constituted to " collect and express the opinion of the members of the bar on matters affecting the profession and to take such action thereon as may be deemed expedient ; " the Bar Committee, which was composed of persons elected by the whole bar, continued to act till 1894, and amongst other things, agreed with the Incorporated Law Society on certain rules for regulating the practice as to retainers (a). In 1894 its place was taken by the " General Council of the Bar," a consultative body, elected by, and the accredited representative of the bar, and having power conferred on it "to deal with all matters affecting the profession, and to take action thereon as may be deemed expedient ; " at the meeting of the bar at which the council was con- stituted, it was agreed that the Council should have no power to interfere with the property, jurisdiction, powers, or privileges of the Inn of Court or any of them, and (a) See post, p. 128, TEE INNS OF COURT. 11 that no part of the disciplinary jurisdiction of the Bench of the Inns of Court should be exercised by the Council, and that the Council should hold no inquiry into alleged misconduct of individual members of the bar, except for the purpose of reporting, if necessary, to the Inn of which the barrister is a member (a). The General Council of the Bar has continued up to the present time to act as the representative of the bar and to answer questions and lay down rules regulating the etiquette of the pro- fession (6). The Chairman of the Council, in conjunction with the President of the Incorporated Law Society, undertakes the settlement of differences between barristers and solicitors on the parties signing a memorandum agreeing to submit the matters in dispute (c). (a) Twelfth Annual Statement of the Bar Committee and the First of the General Council of the Bar. (6) See Annual Practice, 1904, II. 660. (c) Annual Statement of the General Council of the Bar, 1900-01, 15. 1 2 BARBISTER-A T-LA W. CHAPTER III. THE EIGHT OP AUDIENCE. Before the passing of the Promissory Oaths Act, 1868 (a), barristers had to take the oath of allegiance to the Crown (b), in the Court of King's Bench, and the newly admitted barrister signed the roll in that Court as an authentication of the oath. Since the passing of the Promissory Oaths Act, 1868, no oath or declaration is required to be taken in court by persons on being called to the bar (e). Nor is it necessary to sign the roll, for the necessity to sign was abolished with the obligation to take the oath (d). The admission of a person to the rank of barrister is the Act of the Inn of Court to which he belongs, and in England is not completed by any act of the Court. As soon as a person has been called to the bar, he can, unless he is prohibited either by statute or by some convention of the bar or some condition or limitation imposed upon him by his Inn, practise as counsel in accordance with the rules of the profession. There are certain offices and employments, the holders of which are prevented by statute or by the rules of the profession from practising at the bar (e), but in the absence of any such disqualification, a person, as soon as he has been called, can begin to practise at the (a) 31 & 32 Vict. c. 72. (6) 5 Eliz. u. 1, s. 5 (repealed 9 & 10 Vict. o. 59); 1 W. & M. c. 8 (repealed 31 & 35 Vict. c. 48) ; 21 & 22 Vict. c. 48. (e) See 9 B. & S. 966. One result of the abolition of the oath is that aliens can be and are admitted to the English bar. (d) In re Perara (1887), 3 Times L. R. 677. (e) Bee post, pp. 150-1, 154, 160. THE RIGHT OF AUDIENOE. 13 bar (a). The sphere of a barrister's practice includes advising on questions of law, drafting pleadings, convey- ances, and other documents, and acting as an advocate (b). The most important part of the privilege of a barrister is the right to practise as an advocate in all the superior, and most of the inferior, courts in England. This right is in most cases to the exclusion of all other persons, but is in some cases exercised concurrently with solicitors and others. A litigant, if an individual, may in all courts conduct his own case iD person, with this exception, that a pauper, to whom counsel has been assigned, can only appear in the Supreme Court by the counsel who has been assigned to him, unless there has been a renunciation or reassignment of counsel, or the litigant has been dispaupered (c). But the right to appear on behalf of a litigant, or the crown, or of a prisoner, is in most courts limited to members of the bar. Another privilege of a barrister is the right of authenti- cating by his name the report of a case decided in court ; " as soon as a report is published of any case with the name of a barrister annexed to it, the report is accredited, and may be cited as an authority before any tribunal " (d). (a) There are certain rules of the profession which disqualify individual barristers from practising in particular courts, e.g. a barrister who is a county magistrate cannot practise at petty or quarter sessions in the county where he is a magistrate, Annual Statement of the General Council of the Bar, 1896-97, 10, and the son or near relation of a county court judge cannot practise before his father or near relation, Annual Statement of the General Council of the Bar, 1895-96, 6. (6) It is slander of a barrister by way of his profession, and therefore actionable per se to say of him that he is "no lawyer," or in any other way to impute to him ignorance of law or unskilfulness or incompetence in the exercise of his profession, Peard v. Jones (1635), Cro. Car. 382, Boll. Abr. 55 ; Palmer v. Payer (1594), Owen 17, Cro. Eliz. 342 ; Banket v. Allen (1616), Boll. Abr. 54 ; Odgers on Libel and Slander, 3rd ed., 76, 82. (c) Parkinson v. Banbury (1853), 4 De G. M. & G. 508; Earner v. Boreham (1858), 27 L. J. P. & M. 107; aliter of a pauper to whom no counsel has been assigned, Tucker v. Collinson (1886), 16 Q. B. D. 562. (i) Lord Westbury,L.C.,Hans. Pari. Deb., 3rd ser. clxxi. 778 ; History of the Law Beports, by "VV. T. S. Daniel, 34, 56. See West Derby, etc., Guardians v. Ateham (1889), 6 Times B. 6, per Lord Bsher, M.E. 1 4 BARRISTER-A T-LA W. House of Lords. — In the House of Lords, when sitting as the ultimate tribunal of appeal for the United Kingdom, English, Irish, and Scotch counsel have equal and ex- clusive right of audience as advocates (a). Counsel are not generally heard before the House of Lords Appeal Committee (&). In proceedings on impeachment before the House of Lords, the person impeached has the right to be defended by counsel who are assigned for that purpose after the articles of impeachment are exhibited by the Commons (e). In proceedings upon public bills, counsel have been heard for petitioners against bills at the bar, both of the House of Lords and of the House of Commons, but only in cases when the particular interests of the petitioners have been involved (d). In proceedings upon bills which affect the status of particular individuals, such as " bills of pains and penalties, disabilities and disfranchisement," it is usual to allow the parties affected to be heard by counsel in both houses (e). In proceedings upon private bills, counsel have been heard at the bar of both Houses (/). In proceedings before committees on private bills counsel are heard, but have no exclusive right of audience ; parliamentary agents have also been heard (g). Before select committees of either House appointed to inquire into matters concerning the character or conduct of individuals, counsel have been heard by order of the House obtained on the petition of the persons concerned (Ji). (a) Macqueen, Practice of the House of Lords, 203. See Attorney-General v. Lord Advocate (1834), 2 01. & F. at p. 487. (6) Cleaner v. Cleaver (1884), 9 App. Oa. at p. 633. But see Viscount Holmesdale v. Mortimer Saclcville West, Lords' Journals, cix. at p. 359. (c) Erskine May, Parliamentary Practice, 627 ; 20 Geo. II. c. 30 ; Lords' Journals, xlv. 439. " (d) Erskine May, Parliamentary Practice, 450; Hansard, cxi. 943. (e) Erskine May, 450. (/) Clifford, History of Private Bill Legislation, ii. 852. (gr) lb., ii. 871 ; Erskine May, 771. (7») Erskine May, 391. TEE BIGHT OF AUDIENCE . 15 Counsel, who are members of the House of Commons, cannot appear as advocates before that House, or before any- parliamentary committee (a), but may plead at the bar of the House of Lords in all matters, except such as are of a legislative character (b). When counsel are heard before either House or any parliamentary committee, Scotch and Irish counsel seem to have equal right of audience with English counsel. In the Judicial Committee of the Privy Council, English, Scotch, Irish, and colonial counsel have the right of exclusive audience as advocates (e). In the Supreme Court of Judicature constituted by the Judicature Act, 1873 (d), and composed of two branches, the Court of Appeal and the High Court of Justice, English barristers have exclusive right of audience as advocates in the Court of Appeal (e), and in all sittings in open court of the High Court except in bankruptcy. At the time of the passing of the Judicature Act, 1873, barristers had this right in all the courts which were united by that act into one court under the name of the Supreme Court of Judica- ture (/ ) ; the right was shared by the members of two orders now almost extinct, namely the sergeants-at-law, an order of which only barristers could become members, and the advocates of the civil law (g). This right, as being part of the then existing procedure, was preserved by the Judica- ture Acts, 1873 and 1875 (/*), and the rules made under them (i). In the London Court of Bankruptcy, solicitors (a) Erskine May, 82. (6) Macqueen, Practice of the House of Lords, 203. (e) Oordery on Solicitors, 3rd ed., 216 ; 19 L. J. (newsp.) 596 ; Annual Statement of the General Council of the Bar, 1900-01, p. 12. (<2) 36 & 37 Vict. u. 66. (e) See ex parte Unwell, in re Elderton (1887), 31 Sol. Jo. 235. (/) Collier v. Hicks (1831), 2 B. & Ad. at p. 668; 9 & 10 Vict. c. 54 (Common Pleas) ; 20 & 21 Vict. c. 77, s. 40 (Probate Court) ; 20 & 21 Vict. c. 85, s. 15 (Divorce Court); 22 & 23 Vict. c. 6, s. 1 (Admiralty Court). (g) See 20 & 21 Vict. c. 77, s. 41. (ft) 36 & 37 Vict. c. 66, s. 23 ; 38 & 39 Vict. c. 77, s. 21. (i) |Bules of Court, 1875, First Schedule, headnote; B. S. C. 1883, O. Ixxii. 1 6 BARRIBTER-A T-LA W. had a right to appear as advocates as well as barristers (a) ; when this Court became a part of the Supreme Court of Judicature (6), the solicitor's right of audience concurrent with that of barristers was preserved in sittings of the High Court in bankruptcy (c) ; this right extends to the hearing in a Divisional Court of an appeal from a County Court sitting in Bankruptcy (cl). But the right is confined to a solicitor who is instructed by a client and does not extend to the clerk of such a solicitor or to a solicitor appearing as an advocate for a solicitor who is instructed by the client (e), and is limited to the High Court and does not apply to the Court of Appeal (/). Except in bankruptcy proceedings in the High Court neither solicitors nor any other persons but members of the English bar can be heard as advocates in any sitting in open court of any branch of the Supreme Court of Judicature {g). A solicitor cannot even consent to a verdict, but must instruct counsel (h). In sittings of the High Court in chambers counsel have the right to appear, but not the right of exclusive audience (*). Although litigants in person are allowed to conduct actions for themselves and to make some applications, there are certain applications which are of such a nature that they (a) 32 & 33 Viot. o. 71, s. 70, (6) 46 & 47 Viot. c. 52, s. 93. (c) lb., s. 151. (d) Ex -parte Reynolds, in re Barnett (1885), 15 Q. B. D. 169. (e) Ex parte Broadhouse, in re Broadhouse, L. R. 2 Ch. 655 ; in re Bull (1852), 20 L. T. 0. S. 24 ; ex parte Streeter, in re Morris, 19 Ch. D. 216. {/) Ex parte Russell, in re Elderton (1887), 31 Sol. Jo. 235. (g) See Cobbett v. Hudson (1850), 15 Q. B. 988; Drake v. Morgan (1858), 27 L. J. P. & M. 2 ; Attorney-General v. Marmion, Armstr. Mao. and 0.(1841) 98. But see Doxford v. Sea Shipping Co. (1897), 14 Times R. 111. As to amicus curiae, see Bouvier's Law Dictionary, edited by Rawle, sub nom. (h) London Engineering and Iron Shipbuilding Co. v. Cowan (1867), 1G L. T. N.S. 573. (0 B. S. C. 1883, O. lv. r. la ; O. lxv. r. 27 (16). See in re Chapman (1882), 10 Q. B. D. 54; in re Gregory (1890), 90 L. T. newsp. 56 ; Dickson v. Harrison, 9 Ch. D. at p. 246; in re Bethlehem, etc., Hospitals (1885), 30 Ch. D. at p. 542. TEE BIGHT OF AUDIENCE. 17 can only be made by counsel. To this class belong applica- tions for the prerogative writ of mandamus (a), for a rule in the nature of a mandamus under S. 5 of Jervis's Act (b), if applied for in open court, for a writ of certiorari to remove an order of justices, if applied for in open court (c), for an information on behalf of the Attorney-General (d), for a writ of habeas corpus (e), if applied for in court, for a criminal information (/), and for an attachment if applied for in court (g). Applications in court to strike a solicitor off the rolls can only be made by counsel (h). Most of such applica- tions along with applications for a rule calling upon a solicitor to answer matters in an affidavit are now by the Solicitor's Act, 1888 (*'), made to the Incorporated Law Society and are heard by a statutory committee before whom either party may appear in person • or by counsel or solicitor (j) ; the committee, if they think that a prima facie case of misconduct is established, must report to the High Court. When the report is brought before the (a) Ex parte Wason (1869), 10 B. & S. 580; Beg. v. Mansel Jones, Short and Mellor's Practice of the Crown Office, 38n. ; Beg. v. StanJmry Eardley (1885), 49 J. P. 551 ; Beg. v. Mayor of Liverpool (1891), 7 Times L. E. 592 ; Tapping on Mandamus, 296. (6) 11 & 12 Vict. >;. 44. Ex parte Wallace (1902), 2 K. B. 488, overruling Beg. v. Biron (1884), 54 L. J. M. C. 77, and ex parte Lewis (1888), 21 Q. B. D. 191. (c) Short and Mellor, Practice of the Crown Office, 128. In ex parte Bradlaugh (1878), 3 Q. B. D. 509, the application was made by a person who was not a barrister, but the point as to his right to apply does not seem to have been raised. (d) Attorney-General v. Barker (1838), 4 Myl. & Cr. 262. (e) Short and Mellor, Practice of the Crown Office, 350 ; in re Newton (1855), 16 C. B. at p. 99 ; but a wife has been allowed to apply in person on behalf of her husband, ex parte Goboett, 15 Q. B. 181n. (/) Bex v. J J. of Lancashire (1819), 1 Chitt. 602; Doe d. Bennett v. Bale (1850), 15 Q. B. at p. 179 ; Shortt on Informations, etc., 52. (g) Ex parte Fenn (1834), 2 Dowl. 527. (7s) Anon. (1834), 3 N. & M. 566; Anon. (1881), 16 L. J. (newsp.) 153; ex parte Pitt (1833), 2 Dowl. 439. (0 51 & 52 Vict. c. 65, s. 13. (j) Rules under the Solicitors Act, 1888, Part I. s. 5, Annual Practice 1905, II. 626. 1 8 BARRISTER-A T-LA W. Court no one but counsel can be heard in support of the charges made against the solicitor (a). In certain cases (b), applications to strike a solicitor off the rolls may still be made direct to the Court -without any reference to the Incorporated Law Society and such applications can only be made by counsel (c). In criminal proceedings in the High Court or at the Assizes or at the Central Criminal Court prosecutors in person are not allowed to appear, but prosecutions must be conducted by barristers who, when acting in this capacity are said to be of the nature of public officers (d). Counsel could not by the common law appear in criminal trials for defendants accused of felony and treason, except to argue points of law (e): this rule was altered by statute, and defendants were allowed counsel in cases of treason by 7 and 8 W. III., c. 3, s. 1, and of felony 6 and 7 W. IV., c. 114. The right of English counsel to appear in Scotland, at a trial for treason, held under a special commission, under the seal of the United Kingdom in conformity with English procedure was disputed in one case (/), but the objection was overruled. Inferior Courts. — In some inferior courts barristers have exclusive right of audience as advocates, in others they have a right of audience as advocates concurrently with solicitors and other persons, in others they are expressly excluded by statute from appearing. If in any court there is no statutory enactment or established practice defining what persons are heard as advocates, the court itself has the (a) In re a Solicitor (1903), 2 K. B. 205. (6) In re Weare (1893), 2 Q. B. 439. (o) See cases cited p. 17, note (7(). (d) Sex v. JJ. of Lancashire (1819), 1 Chitt. 602 ; Bex v. Brice (1S19), ib. 352 ; Rex v. Milne, 2 B. & Aid. 606n. ; Bex v. Stoddart (1819), Dickin- son's Quarter Sessions, 6th ed., 152; Beg. v. Gurney (1869), 11 Cox C. C. 422; Beg. v. Page (1845), 2 Cos C. C. 221 ; Beg. v. Littleton (1840), 9 C. & P. 671. (e) Hawkins, Pleas of the Crown, bk. ii. cap. 39, 8th ed., ii. 554. (/) Bex v. Bardie (1810), 1 St. Tr. N.S. 609. Scotch counsel have been heard at trials before special commissions in England for treasons committed in Scotland, ib., 1 St. Tr. N.S. 661n. THE RIGHT OF AUDIENCE. 19 power to regulate its own procedure and to determine what persons shall have audience (a). Mayor's Court. — In the Mayor's Court in the City of London, barristers have exclusive right of audience at all sittings in open court (6). Quarter Sessions. — In most Courts of Quarter Sessions in counties, the rule is to give exclusive audience to barristers, when a sufficient number attend (c). That Courts of Quarter Sessions have power to make such a rule was decided by the Queen's Bench in ex parte Evans (d), on an application to quash an order of the justices of Denbighshire in Quarter Sessions giving exclusive audience to barristers at all times when four barristers were present; no barristers before the order had attended the Court except on special retainer, and the business of the Court had usually been done by attorneys ; the Court of Queen's Bench refused the application to quash the order. As regards Courts of Quarter Sessibns in boroughs, Lord Denman, C.J., when consulted by the Becorder of Oxford, gave an extra-judicial opinion that barristers might be accorded pre-audience, but not exclusive audience (e). But it is submitted that the effect of the decision in ex parte Evans (f), cannot be confined to counties and that Courts of Quarter Sessions in boroughs may grant exclusive audience to barristers where a sufficient number attend ; in many Courts of Quarter Sessions in boroughs it is usual to give barristers exclusive audience. When the rules of a Court of Quarter Sessions provided that "consents should be signified by counsel in open (a) Mx parte Evans (1846), 9 Q. B. 279. (6) Glyn, Jackson and iProbyn's Mayor's Court Practice, 3 ; L. J. newsp. 1883, 490 ; Brandon, Notes of Practice of the Mayor's Court, 3, 76. (c) Collier v. Hiclts (1831), 2 B. & Ad. at p. 669 ; Dickinson's Quarter Sessions, 6th ed., 152. (d) (1846) 9 Q. B. 279. (e) Manning, Serviens ad Legem, 125n. ; Dickinson's Quarter Sessions, 6th ed., 153 ; Pritchard's Quarter Sessions, 1st ed., 99, 2nd ed , 103. ( (/) 9 Q. B. 279. 20 BARRISTER-AT-LAW. Court " it was held that the. Court was right in refusing to allow the clerk of an Assessment Committee on an appeal against a valuation list to consent to the alteration of the list (a). At all Sessions where there is a sessions bar an appeal cannot be respited except upon motion by counsel (b). County Courts. — As regards county courts it is expressly provided by the County Courts Act, 1888 (c), that a barrister " retained by or on behalf of any party on either side," may address the Court, but that barristers have no right of exclusive audience ^ a solicitor " acting generally in the action or matter " for a party id), and by leave of the judge " any other person " may also address the Court. Before the sheriff's court counsel have the right to appear, but have no exclusive right (e). Before a coroner's court counsel are entitled to be present on behalf of persons interested (/). Petty Sessions. — When justices of the peace are sitting as a court of summary jurisdiction, both complainant and defendant are entitled by statute (g) to be represented by counsel ; a complaint or information may be made or laid " by the complainant or informant in person, or by his counsel or attorney or other persons authorised in that behalf ; " the "room or place in which the justices sit to hear the complaint or information is to be deemed an open and public court to which the public generally may have access, so far as the same can conveniently contain them ; the party against whom such complaint is made or (a) Reg. v. JJ. of London, 100 C. L. T. (newsp.), April lift, 1896, 560. (6) Annual Statement of General Council of the Bar, 1903-04, 15. (e) 51 & 52 Viet. c. 43, s. 72. (d) See Reg. v. Judge of County Court of Oxfordshire (1894), 2 Q. B. 440. (e) If a litigant intends to be represented by counsel in an inquiry to assess damages, be sbould give notice of bis intention to the otber side. Chitty's Arcbbold's Practice, 1335. (/) Barclee'e Case, 2 Sid. 101; Jervis on Coroners, 6th ed. 25; see Garnett v. Ferrand (1827), 6 B. & C. 611. (3) 11 & 12 Vict. c. 43 s. 10. THE BIGHT OF AUDIENCE. 21 information laid shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf; and every complainant or informant in any such case shall be at liberty to conduct such complaint or information respec- tively and to have the witnesses examined and cross- examined by counsel or attorney on his behalf " (a). Before the passing of this statute it was held that no persons had the right to act as advocates on the trial of an information before justices of the peace without their permission (6). But it was also held that, where justices sat as a court of summary jurisdiction, they were exercising a judicial func- tion and that their proceedings ought to be public and not private, and therefore that justices were not warranted in turning out of the room where they sat a person who did not interrupt the proceedings (e). An appearance by counsel or solicitor before a court of summary jurisdiction, is a sufficient appearance. In Bessell v. Wilson (d), the plaintiff had been convicted before a court of summary jurisdiction and adjudged to pay a penalty under the Copyright of Designs Act (e) ; not having paid the penalty, he was summoned before the same Court to show cause why he should not be committed to prison for default ; on this summons he did not appear in person, but counsel and attorney appeared for him. The magis- trate refused to hear the case in his absence, and issued a warrant under which he was imprfsoned ; the conviction was afterwards quashed, and the plaintiff sued the magis- trate for false imprisonment ; it was contended on behalf of the magistrate that the plaintiff did not appear " according (a) 11 & 12 Vict. c. 43, ». 12. See Duncan v. Toms (1887), 56 L. J. M. C. 81 ; Webb v. Catchlove (1886), 50 J. P. 795 ; exparte Local Board of Leamington (1862), 5 L. T. N.S. 637. (6) Collier v. Hides (1831), 2 B. & Ad. 668 ; Beg. v. JJ. of Staffordshire (1819), 1 Chitt. 217. (o) Davhney v. Cooper (1829), 10 B. & C. 237. (d) (1853) 1 E. & B. 489; 22 L. J. M. 0. 94 ; 17 J. P. 567; 17 Jur. 664. (e) 6 & 7 Vict. c. 65. 22 BAER1STER-A T-LA W. to the exigency of the summons" within s. 2 of 11 & 12 Vict. c. 44, and that the magistrate was entitled under that section to have the verdict entered for him, but the Court of Queen's Bench decided against this contention, and held that appearance by counsel or solicitor was "appearance according to the exigency of tbe summons." Justices may, if they think fit, on proof of the service of the summons, hear and determine in the absence of the de- fendant {a), a case which is within their jurisdiction. In one case (b), it was argued that justices had no power to convict on a plea of guilty in the absence of the defendant, but the Court gave no judgment on this point (c). A defendant who has been summoned before a court of summary juris- diction has no right to have the proceedings adjourned for the sake of obtaining legal assistance, and the refusal to adjourn is within the jurisdiction of the magistrate, and is no ground for quashing a conviction (d). In bastardy proceedings the applicant for an affiliation order may " be assisted in her application by counsel or attorney" and the person summoned as the putative father "may appear and make his answer by counsel or attorney," and either of such parties may "have all witnesses examined and cross-examined by such counsel or attorney " (e). When justices are sitting not to dispose of cases with which they can finally deal but to inquire whether an accused person shall, or shall not, be committed for trial ; the room or building in which they are sitting is not according to the'provisions of the Indictable Offences Act, 1848 (/), to be deemed an "open court." It was decided (a) XI & 12 Vict. c. 43, s. 13. (6) Beg. v. Aves (1871), 24 L. T. 64. (c) See Bex v. Simpson (1763), 1 Stra. 44. (. 73, u. 9, subs. (11). (e) 59 & 60 Vict. c. 25, s. 68. (/) See In re Macqueen (1861), 9 C. B. N.S. 793. (g) lb. ; " Russell on Arbitration," 8th ed., 120. (/() Wliatley v. Morland (1833), 2 Dowl. 249. THE RIGHT OF AUDIENCE. 27 hear counsel upon an appeal from the report of a gas examiner (a). On the hearing of an application for the making of an order under s. 2 of the Charitable Trusts Act, 1860 (b), the Charity Commissioners have a discretion to determine, whether they shall or shall not hear counsel; they only hear counsel in exceptional cases (c). If a person has received a notice which the Corrupt and Illegal Practices Prevention Act, 1883 (d), requires to be given before he can be reported as guilty of a corrupt and illegal practice, so that he may have an opportunity of being heard "by himself" and of calling evidence in his defence to show why he should not be reported, he has no right on his appearing in consequence of the notice to be represented by counsel or solicitor (e). But, if the Court thinks fit, counsel or solicitor may be heard in such a case (/). The power of determining what person shall or shall not appear as advocates before them is limited to judicial tribunals. Assessment Committees appointed under the Union Assessment Committee Act, 1862 (g), to hear objec- tions against a valuation list, are not judicial tribunals, and have no power to make rules determining what persons may appear on behalf of objectors (h). In such a case, there being a right given by statute for the objector to appear, and the statute being silent as to whether he should appear (a) Beg. v. Williamson (1890), 59 L. J. Q. B. 493. (6) 23 & 24 Tict. c. 136. (o) Benthall v. Earl of Kilmorey (1844), Tador's Charitable Trusts, 3rd ed., 564. See per Lord] Eomilly, M.K., in re Hackney Charities (1864), 34 L. J. Ch. 175. (d) 46 & 47 Vict. o. 51, s. 38. (e) Beg. v. Mantel Janet (1889), 23 Q. B. D. 29. (/) Day's Election Cases in 1892 and 1893,78. Seethe Bewdley Cate (1869), per Blackburn, X, 1 O'M. & H. 176, and the Ipsvrich Cate, cited but not followed, Beg. v. Mantel Jones, 23 Q. B. D. pp. 30, 33. (g) 25 & 26 Vict. c. 103, s. 18. (ft) Beg. v. Assessment Committee of St. Mary MbqUs^ Kensington (1891), 1 Q. B. 378. 28 BABRISTER-AT-LAW. personally or not, there is nothing to limit the right of the objector to appoint as his agent for appearance any person who is not manifestly improper. The meetings of licensing justices are perhaps in the same category as Assessment Committees (a). There are some proceedings, such as inquiries by Eoyal Commissions, &c, where there may be no right for any one to appear except persons summoned, and in which therefore counsel can have no right to take part. In the Eoyal Commission to inquire into the Belfast Riots in 1886, the president refused to recognise the right of counsel to examine and cross-examine witnesses (&). The Grand Jury in Criminal Courts only examine witnesses for the prosecution, the prisoner himself does not appear, and neither counsel nor solicitor is present (c), on behalf of either prosecution or defence (d). Where the client himself has no right to be present, counsel has of course no larger right and cannot appear. Thus, where a tradesman was summoned before the Vice- Chancellor and heads of Colleges of the University of Cambridge for violating a regulation which required every tradesman with whom any person in statu pupillari should contract a debt exceeding £5, to send a notice of the same at the end of every quarter to the college tutor of the person indebted, on pain of being discommoned, and the tradesman appeared with his solicitor, but the solicitor was refused permission to attend, and the decree was made discommoning the tradesman in the absence both of the tradesman and his solicitor ; it was held by the Court of Queen's Bench that the tradesman was not entitled to be heard by solicitor or counsel, that the proceeding was one to enforce discipline and was not a judicial proceeding, that the notice to the tradesman to attend was unnecessary, and that (o) See Boulter v. J J. of Kent (1897), A. C. 556. (6) Law Journal (newsp.), 1886, 556. (o) 1 Ohitt., Criminal Law, 317. (d) The practice formerly seems to have been different, Trials of the Eegicides (1660), 5 St. Tr. 972n. TEE EIGHT OF AUDIENCE. 29 therefore he had no right to be represented by any one else (a). A person may by his conduct deprive himself of the right which he would otherwise have of appearing or being represented at a judicial inquiry when he is an iuterested party. Thus, it has been held that a bankrupt who is in contempt, and keeps out of England in order to defeat his creditors, has no right to be represented at an inquiry into damages before the Official Receiver in his bankruptcy (6). But where an appellant alleges that an order made against him was without jurisdiction, the Court will not refuse to hear his appeal because he is in contempt (c). In Reg. v. Yscuado (d), Erie, J., refused to assign counsel to a prisoner who stood " mute of malice." (a) Ex parte Death (1852), 18 Q. B. 647; 21 L. J. Q. B. 337. (6) In re Lcmgworthy, Times, August 8th, 1887, 3. (c) Gordon v. Gordon (1904), P. 163. (d) (1854) 6 Cox C. 0. 386. 30 BA ERISTER-AT-LA W. CHAPTER IV. COURT AND COUNSEL. Barristers are not, as solicitors are, officers of the Supreme Court (a), and the Court has no special control over them, and although it has been said that the Superior Courts have, by virtue of their inherent jurisdiction, power to suspend from practising before them particular barristers who have been guilty of misconduct, which renders them unfit to practise (&), there is, it is believed, no reported instance in recent times of the exercise of such a power in England (c). The statute 3 Edw. I. c. 29, which was made in affirmance of the 1 common law (d), enacts that " if any sergeant, pleader, or other, do any manner of deceit or collusion in the King's Court, or consent unto it in deceit of the Court, to beguile the Court or the party, and thereof be attainted, he shall be imprisoned for a year and a day, and from thenceforth shall not be heard to plead in the Court for any man." The words " or other " are explained by Lord Coke in his exposition of the statute as including (a) See Wettenhall v. Wahefield (1833), 2 Dowl. 759. (6) In re Justices of the Court of Common Pleas at Antigua (1830), 1 Knapp. 267 ; Manning, Serviena ad Legem, 42. (c) The judgment of the Court of Star-Chamber in Prynne's Case (1632-33, 3 St. Tr. 562, at pp. 576 and 580) ordering Lincoln's Inn to put Prynne out of the society is an instance of an illegal stretch of authority. The House of Commons, by a resolution of April 20th, 1641, declared the sentence to be illegal (Commons Journals, ii. 24, 123, 366). Prynne, who had been ex- pelled from Lincoln's Inn by an order dated April 24th, 1634, was restored by an order dated May 20th, 1641, see Black Books of Lincoln's Inn, ii. 317, 358. (d) 2nd lust, 213. COURT AND COUNSEL. 31 apprentices (a), a term which is no longer in use, but was the name given, in the thirteenth century and later, to those persons who were not sergeants, but who practised as advocates in the King's Courts ; the apprentices seem to have founded the Inns of Court in connection with which the term " barrister " came into existence ; the term " apprentice " is no longer in use in this sense, and its place has been taken by the term " barrister " ; therefore, the statute 3 Edw. I. c. 29 applies to barristers (b). Sir W. Blackstone in his Commentaries (e) speaks of the punishment awarded by this statute as "still sometimes inflicted for gross misdemeanours in practice," and refers to Bedding's case (d). Redding, a barrister engaged as counsel for the Eoman Catholic lords, who, on the evidence of the notorious Bedloe, were charged with complicity in the alleged Popish Plot, was accused of tampering with Bedloe and attempting to induce him to withdraw his evidence, and was tried in 1679 before Commissioners of oyer and terminer, and being found guilty, was sentenced to pay a fine of £1000, to stand in the pillory, and to be imprisoned for a year (e). Being afterwards set at liberty he came into the King's Bench before Scroggs, C. J., Dolben, Jones, and Baymond, JJ., and demanded that an informa- tion which he there brought in his hand might be received against the Commissioners who condemned him, of which Jones and Dolben, JJ., were two, and that the information might be filed. "But the Court did declare that he was in a wrong way to exhibit any information in this manner, and did cause his words whereby he did accuse the two judges of oppression to be recorded ; and for those words (/), and (a) 2nd Inst., 214. (6) See Mitchell's Case (1741), 2 Atk. 173. (c) 1st ed. (1768), iii. 29. (d) (1680) Sir T. Raym. Rep., 376 ; Bao. Abridgm, Courts E., 7th ed., ii. 399. (e) Howell's St. Tr., vii. 259, 310. (/) The words in Bac. Abr. are : " Sir Thomas Jones and Sir William Dolben, contrary to Magna Charta, the king's oath and their oath, have ruined me." 3 2 BARRISTER -AT-LAW. for that he was infamous by having been on the pillory, the Gentlemen at the Bar did pray that his gown might be pulled over his ears, which was ordered and executed in Court (a), and he was also condemned in Court to pay the King £500 and to lie in prison till he paid it " (6). In this case neither the punishment inflicted by the Commissioners of oyer and terminer, nor that inflicted by the Court of King's Bench, seems to have purported to be under the statute of Edw. I.; no reference was made to the statute in the indictment in the first case (e), or in the sentence in either case, and the punishment on each occasion seems to have been for contempt of Court. Lord Hardwicke, L.C., in dealing with a case of contempt of Court (d), refers to the statute of Edw. I. and to Coke's exposition of it, but seems to have had doubts as to his power to silence a barrister, and as to the procedure to be adopted. In this case, Mitchell, a barrister who had formerly been a solicitor, had been committed to prison for contempt in bringing about a marriage of a ward of the Court ; he petitioned for his release and submitted " to be restrained from acting as a counsel." Lord Hardwicke said : " As to Mr. Mitchell's submission to be restrained from acting as a barrister, I shall at present give no other directions, but that according to his own submission he shall be restrained from acting as such till further orders, because from any inquiries that I have hitherto made, I am not satisfied what is the proper course to remove him from practising as a barrister. If Mr. Mitchell had continued a solicitor, there had been no difficulty, for the ready and proper way would have been to have struck him out of the roll of solicitors ; and surely it would be very hard when he has advanced himself to a degree of greater rank and honour (a) " By the tipstaff," Bac. Abr. Courts E., 7th ed., ii. 399. (6) The Court afterwards remitted the fine arid imprisonment, Sir Thomas Baymond Bep., 377. (c) In fact Bedding argued that the indictment was really an indictment for treason, St. Tr., vii. 264. (d) Mitchell's Case (1741), 2 Atk. 173. COURT AND COUNSEL. 33 in the law, that there should not be some precedents for degrading a person, who, by his malpractices, has rendered himself highly unworthy of the character he has taken upon him of a barrister-at-law. But whether this ought to be done by disbarring him, or whether the Court by its own power and authority will silence him for the future, I shall not at present determine." The practice now seems to be that if a judge, in the course of a trial or otherwise, becomes acquainted with acts done by a barrister which are of such a serious character as to render him unfit to practise, the judge reports to the Inn to which the barrister belongs, and the Inn holds an inquiry, and if the case is established, punishes by disbarring. A barrister may be punished by the Court for contempt in respect of acts done by him either in a private (a) or in a professional (6) capacity. The proper punishment for contempt of Court is fine and imprisonment (c), and, if a Court has power to punish an advocate for contempt by suspending him from practice, it can only so punish him when the contempt is of such a nature as to " subject the individual committing it to an imputation of bad character, so as to render his remaining in the Court as a practitioner improper " (d). The following cases in the Privy Council which reversed the decisions of the colonial Courts are cited in illustration of this principle. In in re Monckton (e), the Chief Justice of the Supreme Court of Prince Edward's Island made an order suspending (a) Mitchell's Case (1741), 2 Atk. 173 ; in re Wallace (1861), L. E. 1 P. C. 283. (&) Lechmere Charlton's Case (1836), 2 My 1. & Cr. 316 ; Watt v. Ligertwood (1874), L. E. 2 H. L. Sc. 361 ; in re Pollard (1868), L. 'E. 2 P. C. 106 ; Lmwood v. Andrews (1888), 58 L. T. 612 ; in re Eamsay (1868), L. E. 3 P. C. 427 ; Smith v. J J. of Sierra Leone (1841) 3 Moore P. 0. 361 ; ex parte Pater (1864), 9 Cox C. C. 544; Bainy v. JJ. of Sierra Leone (1852-53), 8 Moore P. C. 47. (c) In re Wallace (1866), L. E. 1 P. C. 283. (d) In re Wallace, I.e. See Beg. v. Marshall (1855), 4 E. & B. 475. (e) (1837) 1 Moore P. C. 455. D 3 4 BARR1STER-A T-LA W. from practice the appellant, who was a barrister and attorney. The ground of the order was that the appellant only pre- tended to act as a practitioner and kept his name on the rolls of the Court for the purpose of protecting himself against arrest by his creditors. There was no evidence before the Chief Justice in support of this, and the Privy Council rescinded the order. In Smith v. Justices of Sierra Leone (a), a barrister practising in Sierra Leone was fined and struck off the roll of the Court for contempt in refusing to answer in a particular form a question put to him by the Chief Judge ; the Privy Council reversed the order striking the barrister off the roll, as there was nothing in what he had done affecting his character (b). In in re Downie and Arrindell (c), the Supreme Court of British Guiana suspended from practising before it a barrister whom it adjudged guilty of contempt ; the alleged contempt was being party to the service on a judge by the provost marshal of the court of a petition to the Queen, praying that the Queen would prevent the judge from proceeding to try an action in which he was interested ; the Privy Council reversed the order, holding that the Act was not such a contempt as to warrant the order. In in re Pollard (d), a barrister, while engaged in his professional duty before the Supreme Court at Hong Kong, was, without being heard in his defence, adjudged by the Chief Justice to have been guilty of several contempts of Court, in disrespectfully addressing the Chief Justice during the conduct of a cause, and was fined and suspended from practice until the fine was paid ; the Judicial Committee of the Privy Council set the order aside and remitted the fine on two grounds — first, that no distinct charge of the alleged offence was stated and no opportunity given of answering (a) (1841) 3 Moore P. 0. 361. (6) See Smith v. Justices of Sierra Leone, 7 Moore P. C. 174. (c) (1841) 3 Moore P. C. 414. (d) (1868) L. E. 2 P. 0. 106. COURT AND COUNSEL. 35 the charge ; and, secondly, that none of the alleged offences amounted to a contempt of Court. In in re Wallace (a), an advocate, who was also a suitor in the Supreme Court of Nova Scotia, wrote a letter addressed to the Chief Justice reflecting on the judges and the administration of justice in that court ; the letter was in such terms as to amount to a contempt of Court, and the Supreme Court made an order suspending the advocate from practice indefinitely ; the Judicial Committee of the Privy Council held on appeal that, as the offence was com- mitted by the advocate in his capacity of suitor, and had no connection with his professional character, and did not subject the person committing it to anything like general infamy or imputation of bad character so as to render bis remaining in the court as a practitioner improper, it was not competent on the Court to inflict upon him a professional punishment for an act which was not done professionally, and which did not per se render him improper to remain as a practitioner of the court ; the order was discharged on the ground that it substituted a penalty and mode of punish- ment which was not the appropriate punishment for the case in question. In Newton v. The Judges of the Sigh Court, North Western Provinces (b), the High Court of North Western Provinces declared an advocate guilty of gross professional mis- conduct, and suspended him from practice for five years ; two charges were brought against the advocate, the first was that he drafted for a client a letter to a firm of merchants asking for an advance of money for carrying on an indigo factory, when the client to the advocate's know- ledge meant to apply part of the money, if advanced, to the carrying on of a suit in which the client was engaged, and particularly to the payment of the advocate's fees in this suit; the Judicial Committee of the Privy Council held that the drafting of the letter could not be taken to (a) (1866) L. E. 1 P. C. 283. (6) L. B. 4 P. 0. 18. 36 BARRISTER- AT-L AW. constitute suck grave professional misconduct as would justify any part of the sentence passed ; the second charge was that the advocate had advised his client to indorse to him a note as administratrix of the estate of a deceased intestate, when, in fact, the client was not administratrix ; as regards this, the Court below had found that the advocate believed at the time when he procured this indorsement that the client would in a very short time be in a position legally to assume the character of administratrix ; on this finding the Judicial Committee held that, although the advocate had been guilty of a grave irregularity, which was deserving of censure, yet, as the Court below bad acquitted him of malus animus, his conduct did not deserve the heavy sentence passed upon it ; the order suspending the advocate was accordingly discharged. In ex parte Benner (a), two charges were brought against a barrister practising in the Gold Coast; one charge was that he had drawn a mortgage, and had, with intent to defraud, antedated it, and inserted as consideration the sum of £250 instead of £150 ; the other charge was that, at the hearing of an interpleader summons, he had put the mortgage in evidence without informing the Court that the date was false ; the Supreme Court of the Gold Coast colony, before whom the charges came, acquitted the barrister of the first charge, but found him guilty of the second, and ordered him to be struck off the roll of the Court. The Judicial Committee of the Privy Council held that the second charge fell with the first, as there was no evidence that the barrister had any reason to believe that the mortgagee had not advanced the consideration mentioned in the deed at or before the date it bore, and as it was immaterial to the question at issue in the interpleader proceedings whether the deed was antedated or not ; the order striking the barrister off the roll was accordingly reversed. The following cases are cited as instances of the English (a) (1897) A. C. 218. COURT AND COUNSEL. 37 Courts punishing an advocate for contempt by fine or imprisonment. In Lechmere Charlton's case (a), a barrister, who had appeared before a Master in Chancery in support of a petition presented by himself and others, wrote to the Master a letter in threatening terms with the object of causing the Master to alter his opinion; the Lord Chan- cellor committed him to prison during pleasure (6). A barrister may be punished for contempt of Court in respect of language used by him in the discharge of his functions as an advocate (c). In ex parte Pater (d), a bar- rister, while defending a person on trial at Quarter Sessions for larceny, was taking an objection to the examination of the prosecuting counsel, when he was interrupted by the foreman of the jury. The barrister thereupon said to the foreman, "You had better not get into collision with me, sir," and in his address to the jury said, "I thank God there is more than one juryman to determine whether the prisoner stole those articles, for if there was only one, and that one the foreman, from what has transpired to-day there is no doubt what the result would be"; the barrister also told the foreman that he ought to be removed from the box and another put in his place. These expressions were utterod in a loud, threatening, insulting tone and manner, and were accompanied with violent gestures. The deputy-assistant judge, who was presiding at the trial, twice requested the barrister to withdraw these expressions, but the barrister refused to do this, and the deputy-assistant judge thereupon adjudged him to have committed a contempt of Court and fined him £20. An application was made to the Court of Queen's Bench to quash the order inflicting the fine, but (a) (1836) 2 Myl. & Cr. 316. (6) See Watt v. Ligertwood (1874), L. E. 2 H. L. So. 361. (c) See Fuller's Case, 12 Co. 41 ; Ex parte Pater (1864), 9 Cox C. C. 544 ; 5 B. & S. 299 ; 33 L. J. M. C. 142 ; 10 Jur. N.S. 972; 10 L. T. 376. See, as regards contempt of court in the case of courts-martial, The Army Acts, 1881 and 1894 (44 & 45 Vict. c. 58, s. 129 ; 57 Vict. c. 3, s. 6). (d) v.s. 38 BARRISTER- AT-L AW. the Court held that, though the expressions used were words which counsel might have uttered in the honest discharge of his duty for the sake of vindicating the interests of his client, and if so uttered would have been within the right and privilege of counsel, yet the utterance of such expres- sions, with the intention to insult the jury, would be an abuse of the privilege of counsel, and might be treated by the judge as a contempt and punished accordingly. The Court of Queen's Bench held, on the facts, that it could not be said that the presiding judge came to a conclusion so unreasonable and wrong that he had not jurisdiction to impose the fine. In the case of Linwood v. Andrews (a), a barrister who was adjudged guilty of knowingly permitting false affidavits to be read in court, was committed to prison for contempt by Kay, J. The Court of Chancery sometimes punished counsel for prolix, frivolous, and scandalous pleadings (6). The Courts of common law on some occasions took notice of prolix or tricky pleading and vexatious proceedings (e), and on one occasion the Court of Exchequer fined a barrister who had subscribed his name to " tedious and scandalous answers," and ordered that he should thereafter be " for ever disabled to subscribe his name to any bill, answer, or pleading in that Court" (d). Before the Judicature Act, 1873 (e), pleadings in Chancery, with some exceptions, had to be signed by counsel (/). Now the signature of counsel is not (o) (1888) 58 L. T. 612. (6) See Mitford on Pleading, 48; Emerson v. Dallison (1660), 1 Rep. in Ch. 194 ; Sill's Case (1603), Cary, 38 ; Everet v. Williams (1725), Lindley on Partnership, 6th ed., lOln. ; Oswald on Contempt, 2nd ed., 41, 43, 82. (c) Dundass v. Weymouth (1777), Cowp. 665; Yates v. Carlisle (1761), 1 W. Bl. 270, 291 ; Rex v. Wheeler (1761), 3 Burr., at p. 1258. (d) Hickman v. Clarke (1615), 2 Fowl. Exch. Pr. 478. (e) 36 & 37 Vict. u. 6G. Sec Duckitt v. Jones, per Malins, V.O. (1876) 33 L. T. 777. (/) Mitford on Pleading, 48, 208, 301, 315 ; see per James, L.J., Great Australian Gold Mining Co. v. Martin, 5 Ch. D. 10. COURT AND COUNSEL. 39 necessary except to pleadings or a special case that have been settled by counsel (a). Articles under the Church Discipline Act (b) must now be approved and signed by a barrister (e). Interrogatories in writing on attachments in the King's Bench Division must be signed by counsel (d). A litigant is not permitted to sue or defend as a pauper in the High Court, unless he has first laid a case before counsel and obtained counsel's opinion that he has reasonable grounds for proceeding (e) : the Court may then assign counsel to the litigant ; it is contempt of court for counsel to take a fee in an action from a litigant who has been permitted to sue or defend as a pauper (/). Barristers whilst going to or returning from the Supreme Court for the purpose of being engaged on business there are entitled to immunity from arrest on civil process (g). A barrister on circuit is privileged from arrest on civil pro- cess (li), whether he has business or not, and if on circuit is so privileged, as long as the circuit lasts (i). The privilege, it (a) B. S. C. 1883, O. xix. r. 4. As to the punishment of a solicitor who puts counsel's name to a pleading without authority, see Bishop v. Willis (1749), 5 Beav. 83n. ; Fawcett v. Garford (1789), Oswald on Contempt, 44 ; 2 Fowl. Exch. Pract. 480. (6) 3 & 4 Vict. c. 86, s. 7. (c) Mouncey v. Robinson (1867), 37 L. J. Eccl. 8 ; Phillimore, Eccl. Law, ii. 1020. (d) C. O. B. 1886, r. 275. (e) As to appeals, see Drennan v. Andrew (1866), L. B. 1 Ch. 300 ; ex parte Goldberg (1893), 1 Q. B. 417; Mitchell v. New Zealand Loan and Mercantile Co. (1904), A. C. 149. ( /) B. S. C. 1883, O. xvi. r. 27. See Carson v. Pichersgill, 14 Q. B. D. 859. In cases to which these rules do not apply, e.g. the House of Lords and the Probate and Divorce Division, counsel may take fees from a pauper, see Richardson v. Richardson (1895), P., at p. 278 ; see Nieroth v. Boileau (1886). 2 Times E. 478. (g) Meehins v. Smith (1791), 1 H. Bl. 636; Newton v. Sarland (1839), 8 Scott, 70 ; Pitt v. Coombs (1834), 3 N. & M: 212 ; Anon. (1839), 9 L. J. C. P. 176 ; Chitty's Archbold, 1485 ; Oordery on Solicitors, 3rd ed., 238. (7j) The case of the Sheriff of Kent (1846), 2 C. & K. 197 ; Meeldnsv. Smith (1791), 1 H. BI. 636. (i) The case of the Sheriff of Oxfordshire (1816), 2 C. & K. 200. 4 BARRISTER- A T-LA W. seems, does not extend to barristers going to or returning from Quarter Sessions (a). Barristers if "actually practising" {i.e. seeking their living by practising) (&), are exempt from serving " upon any juries or inquests whatsoever" (e), and from serving the office of constable under 5 & 6 Vict. c. 109 (d). The expressions of counsel uttered in his professional capacity are privileged if pertinent to the matter in issue, and no action will lie against counsel in respect of such expressions (e). The privilege of counsel in this respect is the privilege of the client (/), the right of "every subject of the realm in all Courts of Justice to assert and defend his rights and to protect his liberty and life by the free and unfettered statement of every fact and use of every argument and observation that can legitimately (i.e. according to the rules and principles of law) conduce to this end" (g). But the expressions of an advocate are not privileged unless they are relevant to the issue (h), or are uttered in the course of judicial proceedings (i), or warranted by facts proved or which may be proved (/) ; and the privilege does not cover the separate publication of a speech of counsel which contains defamatory matter (k). There are some old instances of criminal proceedings (a) Newton v. Constable (1841), 9 Dowl. 933; 1G.&D. 408 ; 2 Q. B. 157 ; not following Luntty v. Nathaniel (1833), 2 Dowl. 51. (6) The case of the Sheriff of Oxfordshire (1816), 2 C. & K. 201. (c) 33 & 34 Vict. c. 77, s. 9 and Schedule. (), he cannot, it seems, refuse to give evidence. In several recent cases counsel have at the request of their clients made statements in court as to the cir- cumstances in which they have consented to a com- promise of an action. In such cases they generally make the statement from their places at the bar and without being sworn (c). 3. Authority of Counsel. — When counsel appears in Court and states that he is instructed, the Court will not inquire as to his authority to appear. In the Irish case of Murphy v. Richardson (d) the defendant had changed his attorney, but the rule for the change had not been served on the other side, and the former attorney's name appeared on the record ; on counsel instructed by the new attorney appearing at the trial, the plaintiff's counsel objected that, as counsel was not instructed by the attorney on the record, there was no (a) Baillie's Case (1778), 21 St. Tr. 340. (6) See Guinea's Case (1841), Ir. Cire. R. 167. (c) Hickman v. Berens (1895), 2 Ch. 638 ; Kempshall v. Holland (1895), 14 E. 336; in Wilding v. Sanderson (1897), 2 Ch., at p. 539, the statements were made on oath. See Iggulden v. Terson (1833), 2 Dowl. 277. (rf) (1850) 13 Ir. L. R. 430. See Doe d. Bennett v. Hale (1850), 15 Q. B. 171. COUNSEL AND CLIENT. 69 appearance by the defendant. The judge refused to hear defendant's counsel, and directed the case to be heard as undefended, but the Court of Exchequer held that he was wrong in so doing and ordered a new trial. Where on the hearing of a petition two counsel appeared for the same parties, differently instructed by different solicitors, Plumer, M.R., directed that the petition should stand over and that the authorities under which the solicitors acted should be verified by affidavit (a). la another case where two different counsel appeared for the same client, Knight-Bruce, V.O., asked the client who was in court whom he wished to have as his coun- sel. The counsel whom the client named was heard, and the other counsel excluded (&). The mere giving of a retainer to counsel confers no authority upon him. A brief must be delivered to him in order to authorise him to take any step in an action (e). Counsel cannot share the conduct of a case with his client ; if counsel is instructed, he ought to be at the head of the case and conduct it throughout (d). It is not becoming for counsel to submit to any limitation of the ordinary authority of counsel in this respect or to take a subordinate position in the conduct of a case (e). If a litigant conducts his case in person and examines and cross- examines witnesses, counsel will not be allowed to suggest questions and argue points of law (/) ; if counsel examines and cross-examines witnesses, the litigant will not be allowed (a) Butterworth v. Clapham (1820), 1 Jac. & W. 673n. As to solicitors without authority instructing counsel , to appear for parties, see in re Collins (1855), 7 De G. M. & G. 558. As to different counsel appearing for the prosecution in criminal matters, see Stone's Justice's Manual, 36th ed. 15n. (6) In re London & Manchester Direct Independent Railway Co. (1849), 18 L. J. Oh. 245. (c) Ahitbol V.Benedetto (1810), 3 Taunt. 225 ; 2 Oampb. 487 : Doe d. Crake, v. Broom (1832), 5 C. & P. 315. (d) Alderson, B., in Moscatti v. Lawson (1835), 1 Moo. & Rob., at p. 454, (e) Strauss v. Francis (1860), L. R. 1 Q. B. 381, 383. (/) Moscatti v. Lawson (1835), 1 Moo. & Rob. 454. 7 BAR BISTER- A T-LA W. to address the Court (a). On one occasion (b), Lord Ellen- borough, C.J., allowed counsel to suggest questions for the defendant who was being tried for a misdemeanour and to argue points of law for him, but would not assent to counsel examining witnesses and to the defendant afterwards putting questions to them and addressing the jury. If a litigant instructs counsel to appear for him, the litigant cannot be heard unless he revokes his counsel's authority and himself assumes the conduct of the case (c). A litigant cannot revoke the authority of his counsel for the purpose of assuming the conduct of the case at any time he pleases ; he can only do so before the Court and his counsel are fairly seised of the case (d). In Beg. v. Maybury (d) the defendant had been in- dicted for a nuisance and was found guilty; on the prosecution moving for judgment, counsel appeared for the defendant and put in a number of affidavits in mitigation of punishment, but before he had finished readingthem he informed the Court that he wished, with the sanction of the Court, to withdraw from the case, as his client, who was present, desired to be heard himself ; as the arguments had not been gone into, the Court allowed this to be done, and when the reading of the affidavits was finished, the defendant himself addressed the Court. The same rule applies if the litigant is himself a barrister ; a barrister who is a litigant cannot appear both as counsel and as litigant ; he must elect either to conduct the case entirely as litigant in person or to abandon the case entirely to his counsel ; he cannot be heard to address the Court either after or before his counsel (e). If one of two (a) Shuttleworth v. Nicholson (1835), 1 Moo. & Bob. 254 ; Rex v. Parkins (1824), By. & Moo. 166 ; Rex v. White (1811), 3 Campb. 98. (6) Rex v. White (1811), 3 Oampb. 98. (c) Parkinson v. Banbury (1867), L. E. 2 H. L. 6 ; 4 Do G. M. & G. 508. See Reg. v. Maybury (1865), 11 L. T. N.S. 566. (d) Reg. v. Maybury (1865), 11 L. T. N.S. 566. (e) New Brunswick & Canada Railway Co. v. Conybeare (1862), 9 H. L. C. 711; Newton v. Chaplin (1849), 19 L. J. C. P. 374. It is doubtful whether a barrister litigant who is conducting his own case has any right to appear in forensic costume or to speak from tho places reserved for counsel, sec Cox-Sinclair's Bights, etc., of an Advocate, p. 28, cf. Rex v. Atkins, 9 Mod. 4. COUNSEL AND CLIENT. 71 plaintiffs is a barrister and appears in person and the other plaintiff appear by counsel, the Court will only hear either the barrister litigant or his co-plaintiff's counsel ; it will not hear both, but a barrister, though a litigant in person, has been allowed to appear as counsel if properly instructed for himself and another (a). In a case in the House of Lords where the appellant, owing to the absence of counsel, opened her case herself, the House of Lords intimated that in the exceptional circum- stances of the case they would hear the appellant's counsel in reply, but that they would not allow the appellant to begin her reply and break off and be followed by her counsel, but that if she began she must finish (b). Extent of Counsel's Authority. — Counsel who is briefed to appear for a client at the trial of an action is invested with a general control over the conduct of his client's case. This authority does not arise by virtue of any contract between counsel and client and' is not governed by the ordinary rules relating to principal and agent, for counsel is not the agent of the client (c), but is peculiar to and flows from the position which counsel occupies. The authority may be expressly limited by the client, but only to a certain extent, and it is not becoming for counsel to accept a brief with an authority limited to an extent beyond what is usual (d). With regard to appeals on points of law, if counsel has satisfied himself that he has no argument to offer in support of his case, he ought at once to say so and withdraw alto- gether ; counsel is master of the argument and of the case in court and should at once retire if he finds it wholly unsustainable, unless he has express instructions to the contrary (e). (a) Where there is no express limitation. — The authority (o) Newton v. Ricketts (1848), 2 Phil. 624 ; 12 Jur. 107, 238. (b) Long-worth or Yelverton v. Yelverton (1867), L.R. 1 Sc. &D. 218. (c) Colledge v. Bom (1823), 3 Bingh., at p. 121. (d) See Strums v. Francis (I860), L. R. 1 Q. B. 381, 383. (e) Earl Beauchamp v. Madresfield (1872), L. K. 8 C. P., at p. 253, per Brett, J. 72 BARRISTER-AT-LAW. of counsel at the trial of an action extends to the action and all matters incidental to it and to the conduct of the trial (a), such as withdrawing the record or a juror (b), calling no witnesses, selecting such as in his discretion he thinks oughtto be called (&), consenting to a reference (e), or a stet processus (d), or a verdict (e), undertaking not to appeal (f), or on the hearing of a motion for a new trial consenting to the reduc- tion of damages (g). A judgment obtained by consent of counsel acting in court (h) in a matter within their authority cannot form the subject of an appeal (*). For a matter which is within the ordinary authority of counsel the consent of the client is not needed, and if a compromise is entered into by counsel in the absence of the client, the client is bound. Thus in Matthews v. Munster (_/), during the trial of an action for malicious prosecution the defendant's counsel in his client's absence and without any express authority consented to a verdict for £350 with costs and to a withdrawal of all imputations against the plaintiff. A motion by the defendant for a new trial was refused both by the Divisional Court and the Court of Appeal, the Court of Appeal holding that the settlement was within the apparent general authority of counsel and was binding on his client. If counsel with his client's authority and consent agrees (a) Per Pollock, C.B., Swinfen v. Lord Chelmsford (1860), 29 L. J. Exch. 382; Hatch\. Lei«is(1861),2F. &F. 467: Wallace*. Cook, Times, June 15th, 1903. (6) Chambers v. Mason (1858), 5 C. B. N.8. 59 ; 28 L. J. C. P. 10 ; Strauss v. Francis (1866), L. B. 1 Q. B. 379. (c) Filmer v. Delber (1811), 3 Taunt. 486 ; FavieU v. Eastern Counties Railway Co. (1848), 2 Exch. 344 ; Smith v. Troup (1849), 7 C. B. 757. (d) Bumsey v. King (1876), 33 L. T. N.8. 728. (e) Matthews v. Munster (1887), 20 Q. B. D. 141 ; Prestwich v. Poley (1865), 18 0. B. N.8. 806; CJiown v. Parrott (1863), 32 L. J. C. P. 197. (/) In re West Devon Great Consols Mine (1888), 38 Oh. D. 51 ; but see Rhodes v. Swithenbank (1889), 22 Q. B. D. 577. (g) Thomas v. Harris (1858), 27 L. J. Exch. 353. (ft) Counsel has no authority to compromise an action out of court Green v. Crockett (1865), 34 L. J. Oh. 606. (i) Downing v. Cage (1699), 1 Eq. Ca. Abr. 165 ; Harrison v. Mumsey (1752), 2 Ves. Sen. 488; Bradish v. Gee (1754), 1 Ken., at p. 76. C?) (1887) 20 Q. B. D. 141. COUNSEL AND CLIENT. 73 to an order and there is no mistake or surprise, the client cannot arbitrarily withdraw his consent (a). If terms of compromise are accepted by counsel in the presence of his client, the client cannot afterwards withdraw his consent on the mere allegation that it was inadvertently given (&). In Chambers v. Mason (c), the defendant, his attorney and. counsel discussed in conference certain terms of compromise which had previously been offered by the plaintiffs and rejected by the defendant ; counsel on leaving the defendant said he would do his best for him, and the defendant expressed no dissent. The action was immedi- ately afterwards settled in court, a juror being withdrawn, the defendant being present and expressing no dissent. An order of Court was drawn up accordingly ; the defendant then applied to set aside the order and stated in an affidavit that though present in court he did not understand what was going on. The Court of Common Pleas refused the application on the ground that it would be extremely dangerous to act upon such a statement as the defendant's, the truth of which it would be almost impossible to ascertain. In Porter v. Cooper (d), an indictment for a nuisance was found against the defendant at one quarter sessions, and the defendant not having filed his plea within the proper time, the prosecutor said he should press for judgment unless the defendant would pay the costs of the day. The Court said that the defendant must plead and take his trial, or he might be allowed to traverse on payment of the costs of the day. The defendant's attorney then went and consulted the defendant, who was not in Court ; and on the attorney's return an arrangement was concluded and a memorandum drawn up, signed by counsel on both sides in these words — - " traversed to next sessions by consent, the defendant paying (a) Holt v. Jesse (1876), 3 Oh. D. 177; Harvey v. Croydon Union Sural Sanitary Authority (1884), 26 Ch. D. 249. (6) Davis v. Davis (1880), 13 Ch. D. 861. (c) (1858) 5 0. B. N.8. 59; 28 L. J. 0. P. 10. (<2) (1834) 1 0. M. & K. 387. 74 BAREISTEB-AT-LAW. the costs of the day." It was held by the Court of Exchequer that what took place at sessions amounted to an agreement between the parties on which the defendant could be sued. (b) Where counsel's authority is limited. — Questions of some nicety have arisen where the authority of counsel has been expressly limited by the client, and counsel have consented to an order or judgment in spite of the dissent of his client, or on terms different from those which the client has authorised (a). If the limitation of authority has been communicated to the other side, a con- sent by counsel outside the limits of his authority would be of no effect (6). Difficulties have arisen where the authority of counsel is limited, but the limitation is unknown to the other side who enter into a compromise believing that the opponent's counsel has the ordinary authority of counsel. It has been laid down in some cases that in a matter which is within the ordinary authority of counsel, the Court will not inquire whether there was any limitation of counsel's authority to consent, when the limitation is not communicated to the other side (c). In some cases the Courts have refused to set aside a compromise entered into by counsel when his authority had been limited, but the limitation was not known to the other side. Thus in Strauss v. Francis (d), while counsel for the defendant was addressing the jury, the plaintiff's counsel interposed, and a juror was withdrawn by consent. The plaintiff applied to have the compromise set aside and a new trial granted, on the ground that the withdrawal of a juror was without his assent and against his express wish. The Court of Queen's Bench refused the application, partly because the plaintiff had not established that there was any limitation of counsel's authority, and partly on the ground (a) See Sckeyer v. Wontner (1890), 90 L. T. (newsp.), 116. (&) See per Blackburn, J., Slrauss v. Francis (1866), L. E. 1 Q. B. 382. (o) In re Holler (1848), 8 Beav. 101 ; Mole v. Smith (1820), 1 Jac. & W. 673 ; Chambers v. Mason (1858), 5 C. B. N.S. 59 ; 28 L. J. C. P. 10. (d) (1866), L. E. 1 Q. B. 379. COUNSEL AND CLIENT. 75 that it is not enough in such a case to show that counsel's authority was limited, but that it must also be shown that the limitation was known to the other side. In Bumsey v. King (a), counsel and solicitor for the plaintiff consented to a stet processus; the compromise was announced in open court; the plaintiff was present and expressed his dissent to his counsel and solicitor, but did not protest openly in court. The Court refused to set aside the stet processus, holding that the plaintiff, if he had wished not to be bound by his counsel's consent, should have pro- tested openly in court. If in such a case the client were to insist on his counsel going on, the proper course for counsel to take would be, it seems, to return his brief (b). In the case of Lynch v. Cowell (c), counsel for the plaintiff consented to a non-suit, the plaintiffs attorney's clerk objecting, the plaintiff being in court but not interfering. A motion for a new trial, on the ground that the consent was made without authority, was refused. Crompton, J., said that it was the duty of counsel to do the best he could in his judgment for his client, and that the Court would not interfere unless counsel exercised a clearly wrong discretion. In Filmer v. Delber(d), the counsel and attorney of the defendant agreed to refer the action, and an order of Court was made accordingly. The defendant then applied to have the order set aside on the ground that she had expressly desired her counsel not to consent to any rule of reference, but her application was refused (e). In Wright v. Soresby(f), a verdict by consent was taken in the presence of the defendant in court against his express in- structions to his counsel. The defendant did not communicate his dissent to the other side or to the Court ; an application (o) (1876) 33 L. T. N.S. 728. (6) Per Blackburn, J., Strauss v. Francis (1866), L. R. 1 Q. B. 382. (c) (1865) 12 L. T. N.S. 548. {d) (1811) 3 Taunt. 486. (e) But see Neale v. Gordon-Lennox (1902), A. C. 465, (/) (1834) 2 0. & M. 671. 76 BARBISTER-AT-LAW. for a new trial was refused on the ground that the defendant had allowed the arrangement to be concluded. The cases of Filmer v. Delber(a), Bumsey v. King (b), Strauss t. Francis (e), Matthews v. Munster (d), with many- others bearing on the authority of counsel (e), were cited in argument in the House of Lords in Nealev. Gordon-Lennox (J) , but Lord Halsbury, L.C., in giving his judgment in that case, while approving of these cases, said they all turned on the discretion of the Court, and that none of them decided that the Court had no power to set aside an order which had been agreed to by counsel whose authority was limited, even although the limitation was not known to the other side. In Neale v. Gordon-Lennox (/), the plaintiff in an action for libel had agreed to her counsel referring the action on the condition that all imputations on her character were withdrawn in open court. Her counsel agreed to an order of reference without making any stipulation as to the with- drawal of the imputations. After the order was drawn up the plaintiff applied to Lord Alverstone, C.J., before whom the case had been called on, that the order of reference should be set aside. Lord Alverstone set the order aside on the ground that the order was interlocutory, and that where an interlocutory order was made by consent without authority, it might be set aside. Lord Alverstone intimated that had the order been a final one, he would have held that the order could not have been set aside, because the limitation of counsel's authority was not known to the other party. The Court of Appeal reversed the decision of Lord Alverstone, C.J., and held that the same principle applied (a) (1811) 3 Taunt. 486. (6) (1876) 33 L. T. N.S. 728. (c) (1866) L. R. 1 Q. B. 379. (d) (1887) 20 Q. B. D. 141. (e) Swinfen v. Swinfen (1857), 1 0. B. X.S. 364 ; Eempshall v. Holland (1895), 14 R. 336 ; Prestwich v. Foley (1865), 18 G. B. N.S. 806 ; Fray v. Voules (1859), 1 B. & E. 839 ; Smith v. Troup (1849), 7 C. B. 757 ; Furnival v. Bogle (1827), 4 Ruas. 142 ; Faviell v. Eastern Counties Railway Co. (1848) 2 Exch. 344. (/) (1902) A. C. 465. COUNSEL AND CLIENT. 77 to the compromise of an action resulting in an interlocutory order as to a compromise resulting in a final order. The House of Lords reversed the decision of the Court of Appeal, and, without overruling any of the cases quoted, decided that the Court had power to interfere, that it was not pre- vented by the agreement of counsel from setting aside the order, that it was a matter of discretion for the Court, and that in the particular circumstances of the case, as grave injustice would be done by refusing to allow the plaintiff to have her case tried in open court, if the imputations on her character were not withdrawn, the order ought to be set aside. This case establishes that where an order is made by consent of counsel, whose authority is limited, the order may be set aside, although the opposite party is ignorant of the limitation, and that it is a matter of discretion (a) for the Court whether the order should or should not be set aside. The principle of the decision seems applicable to many of the proceedings by which the validity of a com- promise may be tested, such as a summons or motion in the action (b), or an action for specific performance of the com- promise (c), or a motion for a new trial or an appeal, when such a procedure is applicable ; but it is not clear that it applies to the bringing of an action on the agreement, or of a fresh action to set aside a final judgment obtained by consent (d), for in these two last-mentioned cases it would seem that no question as to the discretion of the Court can arise, (c) Collateral matters. — The authority of counsel to com- promise an action is limited to the issues in the action. A compromise made by counsel affecting collateral matters will not bind the client unless he expressly assents (e). (o) See Lynch v. Cornell (1865), 12 L. T. N.S. 548. (6) See Eden v. Naish (1878), 7 Ch. D. 781 ; Alliance Pure White Lead Syndicate v. Maclvor's Patents (1891), 7 Times L. K. 599. (c) Per Lord Halsbury, L.O., Neale v. Gordon-Lennox, at p. 469. Id) See Emeris v. Woodward (1889), 43 Ch. D. 185. (e) Swinfen v. Swinfen (1857), 1 C. B. N.S. 364 ; 26 L. J. C. P. 97 ; Swinfen v. Lord Chelmsford (1860), 29 L. J. Exoh. 382 ; Ellender v. Wood (1888), 32 Sol. Jo. 628 ; Kempshall v. Holland (1895), 14 R. 336 ; Thomas v. Eewes (1834), 2 C. & M. 519. 78 BARRISTER-AT-LAW. The law relating to this subject was much discussed in a series of cases which arose out of the suit of Swinfen v. Swinfen (a). In that suit an issue had been directed by the Master of the Eolls, to try the validity of a will by which an estate was devised to the plaintiff, Mrs. Swinfen. The trial of the issue came on at Stafford Assizes. After the close of the first day the plaintiff's counsel suggested a compromise to her but'she refused to agree ; subsequently the plaintiff's counsel, in the presence of her solicitor but in the absence of the plaintiff herself, and without any express authority from her, agreed to a compromise on the terms, that a juror should be withdrawn, the estate should be conveyed by the plaintiff to the defendant in fee free of incumbrances created since the death of the testator and that the defendant should secure to the plaintiff an annuity. These terms were embodied in an order of nisi prius which was made a rule of court. On the plaintiff not complying with the terms of the order, two applications were made to the Court of Common Pleas to attach the plaintiff for contempt. The first application failed on the ground that no demand and refusal of performance had been proved (6) ; the second application also failed, as Crowder, J., held that the com- promise was outside the implied general authority of counsel, and as the majority of the Court, though of a different opinion, would not make the rule absolute for an attachment, when one member of the Court differed (e). The defendant then filed a supplemental bill in Chancery, praying for the specific performance of the agreement to compromise, or in the alternative for a new trial of the issue (d). Komilly, M.E., refused to grant specific per- formance, and ordered a new trial, holding that the agree- ment was not binding on the plaintiff, that her counsel had (a) 18 C. B. 485 ; 25 L. J. C. P. 303 ; 1 0. B. N.S. 364 ; 26 L. J. C. P. 97 ; 24 Beav. 549 ; 27 L. J. Ch. 35, 491. (b) (1856) 18 C. B. 485 ; 25 L. J. C. P. 303. (o) (1857) 1 C. B. N.S. 364 ; 26 L. J. C. P. 97. (<2) Swinfen v. Swinfen (1857), 24 Beav. 549 ; 27 L. J. Ch. 35. COUNSEL AND CLIENT. 79 no authority to enter into the compromise without express instructions from the client, and that the plaintiff had not bound herself by acquiescence ; this judgment was affirmed on appeal by Knight-Bruce and Turner, L.JJ., on the ground that there had been no consent by the plaintiff (a). The case of Swinfen v. Swinfen was distinguished in Prestwich v. Foley (b), Erie, C. J., saying that " it can hardly be referred to as a decision which is to afford a guide in any case not similarly circumstanced." It was also dis- tinguished in Thomas v. Karris (c) and Strauss v. Francis (d). Indeed it can now only be treated as an authority for the proposition that a compromise by counsel relating to a matter collateral to an action cannot bind the client with- out his express assent (e). The principle that the authority of counsel to com- promise an action does not extend to matters collateral to the action is illustrated by the cases of EUender v. Wood (/) and Kempshall v. Holland (g). In EUender v. Wood, which was an action for breach of promise of marriage, the plaintiff's counsel agreed to settle the action and all claims by the plaintiff against the defendant for £100 and costs, and an order was made staying proceedings in accordance with the compromise ; the claims to which the compromise extended arose under a deed by which the defendant in consideration of the plaintiff agreeing not to molest or annoy him covenanted to pay her a weekly sum during her life ; the breach of this agreement had been set up by the defendant in his counterclaim in the action. The (a) 27 L. J. Ch. 491 ; 6I.R. 480. Knight-Bruce, L. J., also referred to the special nature of the proceedings and to the circumstances that a verdict either for or against Mrs. Swinfen would not have been of any avail unless confirmed by the Court that directed the issue. (6) (1865) 18 C. B. N.S., at p. 814. (c) (1858) 27 L. ,T. Exch. 353. (i) (1866) L. B. 1 Q. B. 379. (e) See per Pollock, O.B., Swinfen v. Lord Chelmsford (1860), 29 L. J. Exch. 382. (/) (1888)32 Sol. Jo. 628. ( ? ) (1895) 14 B. 336. 8 BARRISTER- A T-LA W. defendant, after having received the £100 and costs, began a fresh action for damages for breach of promise of marriage and for payment of the sums due under the agreement. The Divisional Court stayed proceedings in the second action on the ground of the compromise. On the plaintiff appealing from this decision and also from the order by consent staying proceedings in the first action, the Court of Appeal refused to set aside the order in the first action, but varied the order staying proceedings in the second action by excluding from the operation of the order so much of the items of the plaintiffs claim under the agreement as did not come within the first action but with which the compromise affected to deal. In Kempshall v. Holland (a), which was also an action for breach of promise of marriage, the plantiff s counsel con- sented to verdict and judgment being entered for the defen- dant without costs on the terms that the plaintiff and her solicitor should hand over to the defendant all letters and copies of letters from the defendant in their possession, that the plaintiff should undertake not to molest the defendant, and that the defendant should pay the plaintiff £1000 and her solicitor £200. The plaintiff applied for a new trial on the ground that she had never consented to the arrangement, and that the agreement as to the giving up of the letters and the undertaking not to molest, related to matters collateral to the issue, and was not within the ordinary authority of counsel. The Court of Appeal granted a new trial holding that the plaintiffs counsel had authority without the express consent of the plaintiff to agree that judgment should be entered for the defendant, but had no authority without express consent to agree to the return of the letters and to undertake not to molest the defendant, these matters being outside the scope of the action. The case of Elworthy v. Bird (b), which was an instance (a) (1895) 14 E. 336. (6) (1824) 13 Price, 222; (1829) Taml. 38. COUNSEL AND CLIENT. 81 of a compromise affecting collateral matters, is remarkable for the different views taken by the Court of Chancery, and by the Courts of common law. In that case an indictment was found against the defen- dant at quarter sessions for an assault on his wife. The justices recommended an arrangement, and an agreement was come to by counsel that a nominal fine should be imposed on the defendant, and that a deed of separation should be executed, and an annuity secured by him to his wife. The substance of the agreement was stated to the jus- tices, and sanctioned by them, and they, in consequence of it, sentenced defendant to a nominal fine, and ordered the trials of other indictments against the defendant for assaults on his wife to be respited. The defendant's solicitor agreed to the arrangement, and the defendant himself was present in court, and did not dissent. On the defendant failing to carry out the terras of the agreement, an action was brought on it by the persons who were to be the trustees of the separation deed. At the trial of the action before Best, J., the briefs of counsel with the agreement indorsed and signed by the counsel for the defendant, were produced by the plain- tiffs attorney who stated that he understood that the parties assented to it. The defendant's attorney was called, and stated that he had recommended the defen- dant to adopt the agreement, but that the defendant would not. Best, J., therefore non-suited the plaintiffs, holding that there was nothing to leave to the jury in support of the action on the agreement. The non-suit was upheld by the Court of Exchequer, Hullock, B., holding that there was no evidence of the defendant's assent, and that the plaintiffs were bound to prove this. Garrow,B., expressed no opinion on this point, but held that the plaintiffs counsel in the court below had tacitly acquiesced in the non-suit (a). Another action was then brought by the plaintiffs, and was tried before Mr. Sergeant Bosanquet (o) (1824) 13 Price, 22-'. G 82 BARRISTER-AT-LAW. and the plaintiffs were again non-suited on the ground that while they alleged that the bills of indictment had been wholly discontinued and not further proceeded with, there was no evidence that the prosecutors had taken any steps to put an end to the indictments. The non-suit was upheld by the Court of Common Pleas, Best, J., ex- pressing a doubt whether the agreement was a legal one (a). The plaintiffs afterwards brought a bill in chancery praying for specific performance of the agreement. An objection was first raised that a compromise of an indictment for assault could not be the ground of an action, but this objection was over-ruled (b). Leach, M.R., in trying the main question took a different view from the common law judges, whose decision, however, does not seem to have been cited to him, and held that, as the agreement was signed by counsel, it was for the defendant to prove that he had not assented. After hearing the evidence he decided that the defendant's counsel had authority to bind his client, and that, although the defen- dant objected when the arrangement was first proposed, he afterwards assented. A decree was accordingly made for the specific performance of the agreement (c). (d) Mistake. — A compromise by counsel will not bind the client if counsel is not apprised of facts the knowledge of which is essential in reference to the question on which he has to exercise his direction. Thus in Furnival v. Bogle (d) the defendant's counsel at the trial proposed certain terms, and the plaintiff's counsel asked for time as the solicitor instructing him was not in court. The defen- dant's counsel refused to grant any time, and the plaintiff's counsel thereupon accepted the proposed terms in the absence of both plaintiff and his solicitor, and an order by consent was made in the presence of the clerk to the plaintiff's solicitor. The plaintiff immediately gave notice of motion (a) 9 Moore, 430; 2 Bingh. 258. (6) (1825) 2 Sim. &Stu. 372. (c) (1829) Taml. 38. (d) (1827) 4 Buss. 142. COUNSEL AND CLIENT. 83 that the order by consent should not be drawn up. It ap- peared that an offer of terms similar to those accepted had been made to the plaintiff at an earlier stage of the pro- ceedings, and had been rejected, that the offer had been renewed and no answer given. These circumstances were not known to the plaintiff's counsel when he accepted the proposed terms. Lyndhurst, L.C., granted the plaintiff's application on his paying the costs of the consent order, and the proceedings to which it had given rise. Where counsel enters into a compromise in intended pursuance of terms agreed upon between the clients, and the compromise, owing to a misunderstanding, fails to carry out the intentions of one side, the compromise does not bind the client, and the Court will allow the consent to be withdrawn (a). Where counsel acting upon instructions to compromise consent to a compromise under a misunderstanding, and the compromise does not carry into effect the intention of counsel, and is thought by one party to be more extensive than the other party intends it to be, in such a case there is no agree- ment on the subject-matter of the compromise, and the Court will set the compromise aside (6). But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he had a good ground of defence (c). Generally speaking an order or judgment made by con- sent may be set aside upon any ground which would invali- date an agreement between the parties (d). (e) Infants, etc. — A compromise or order made by consent of counsel for an infant or other person under disability is (a) Lewie's v. Lewis (1890), 45 Ch. D. 281. (6) Hickman v. Berens (1895), 2 Ch. 638. See Wilding v. Sanderson (1897), 2 Ch. 534. (c) Elsas v. Williams (1884), 52 L. T. 39. Id) Suddersfield Banking Co. v. Lister (1895), 2 Ch. 273 ; Wilding v. Sanderson (1897), 2 Ch. 534. See Turner v. Green (1895), 2 Ch. 205 ; Wind- hill Local Board v. Vint (1890), 45 Ch. D. 351 ; Attorney-General v. Tomline, (1877), 7Ch. D 388. 8 4 BARBISTER-A T-LA W. not binding on the client (a) unless it is sanctioned by the Court as being for the benefit of the client (b). A com- promise entered into by counsel for a person under disability and counsel for a person not under disability cannot be enforced by an action for specific performance, even at the instance of the infant, there being no mutuality or recipro- city in the compromise (c). In Cumming v. Ince (d), the plaintiff had been confined in a lunatic asylum, and an inquisition, under a commission of lunacy, was held upon her, and attended by her counsel and by counsel for the promoters ; before any verdict was given an arrangement was signed by counsel on both sides that the plaintiff should be released from confinement, that certain arrangements should be made as to her property, and that some title deeds, which had been taken from her when she was put under restraint and which were in the hands of the promoters of the commission, should be given up and placed in the hands of the defendant, and that the commission should be superseded. The plaintiff was accord- ingly released, and the deeds handed over to the defendant. The plaintiff then brought an action of detinue against the defendant to recover the deeds. On the trial of the issue whether the plaintiff was entitled to the possession of the deeds, Erie, J., left to the jury but one question — viz. whether the consent of the plaintiffs counsel to the agree- ment was obtained by constraint. The jury found that it was so obtained. A motion for a new trial was refused by the Court of Queen's Bench, who held that the question was rightly left to the jury, and that the legality of the restraint (assuming it to be legal) and the consent of counsel furnished no conclusive proof that the agreement was not void by (o) Rhodes v. Swithenbank (1889), 22 Q. B. D. 577 ; Turner v. Turne T (1852), 2 De G. M. & G. 28 ; Biddell v. Dowse (1827), 6 B. & C. 255 ; Eose- borough v. Boyse (1854), 3 Ir. Ch. B. 540 ; but [see Enipe v. MeMahon (1843), 4 Dr. & War. 295; Mole v. Smith (1820), 1 Jac. &,W. 673. (6) See Annual Practice 1905, II. 348. (c) Hargrave v. Hargrave (1850), 12 Beav. 408 ; 19 L. J. Ch. 261. (d) (1847) 11 Q. B. 112. COUNSEL AND CLIENT. 85 duress, and that if counsel acted for the plaintiff, believing her to be of sound mind, and being influenced by the same fear of the results of restraint which affected the mind of the plaintiff, the action of counsel ought to be considered as enforced by the same duress as the action of the plaintiff. (/) Statements by counsel lohen evidence against client. — On the trial of an action, or in the course of any interlocutory proceeding relating to the* action, the statements of counsel, at all events if made in the presence of the client or solicitor or some one authorised to represent the solicitor (a), and if not repudiated, bind the client, and may be used as evidence against him at any stage in the same proceedings. In Colledge v. Horn (&), the defendant sought at the trial to prove an admission made in the presence of the plaintiff by his counsel in his opening address to the jury on a former trial, but Alexander, O.B., rejected the evidence. The Court of Common Pleas directed a new trial in order that the facts might be ascertained, Best, J., observing, " at present it does not appear whether the plaintiff was within hearing of the statement made by his counsel or how far that state- ment was authorized." Burroughs, J., said, "parties are every day bound by the Acts and declaration of their counsel. If the plaintiff was in court, heard what his counsel said, and made no objection, I think he was bound." In Buneombe v. Daniell (c), an action of libel relating to a cheque, the plaintiff's counsel, in his opening speech, said that his client had paid the cheque, but no evidence was adduced as to this fact. Denman, C.J., held that the defendant's counsel was entitled to call for the production of the cheque on a notice to produce without proving it to be in the plaintiffs possession in any other way than by reference to his counsel's opening, and that on the cheque not being produced, secondary evidence of its contents might be given. (a) See Mahony v. Mahony (1850), 2 Ir. Jur. 129. (6) (1825) 3 Bingh. 119. (o) (1837) 8 0. & P. 222. 8 6 BABB1STER-A T- LA W. But in Machell v. Ellis (a), an action of trover for a colt, where the plaintiff's counsel stated in his opening that the defendant had distrained the colt, on the defendant attempting to rely on the opening as evidence of the distress, Pollock, O.B., refused to consider the fact of the distress as established by the plaintiffs opening. In Haller v. Worman (b), an action of detinue to recover papers, the defendant's counsel, at the hearing in judge's chambers of a summons to change the venue, stated in the presence of the clerk to the solicitor who was instructing him that his client had the papers. Evidence of this state- ment was admitted by the judge at the trial of the action, and the jury found a verdict for the plaintiff. A motion for a new trial on the ground that the evidence ought not to have been received, was refused by the Court of Common Pleas, who held that the admission by the defendant's counsel was rightly received in evidence as a statement made by counsel in the discharge of his duties relevant to the matter in issue, and made for the purpose of influencing the judge to take a step in favour of his client. Williams, J., said that when counsel before a Court or a judge makes a statement or does an act in the presence of the attorney on the record or of any authorised person who represents the attorney, and the statement or the act is not repudiated by the attorney or his representative, this amounts to an adop- tion of it, and it becomes the statement or act of the attorney and therefore of the party (e). When in the conduct of a case by counsel, a particular fact is, without being formally admitted, treated by both sides as admitted, the jury have a right to draw the same conclusion, as if the fact had been proved or admitted (d). A special case signed by counsel is as against the parties (a) (1845) 1 0. & K. 682. (6) (1861) 3 L. T. N.S. 741 ; 2 P. & F. 165. (c) See The Ship Clifton (1835), 3 Knapp. 375 ; Mahony v. Mahony (1850), 2 Ir. Jur. 129. (d) Stracy v. Blake (1836), 1 M. & W. 168 ; Bolton v. Sherman (1837) 2 M. & W., at p. 403. COUNSEL AND CLIENT. 87 for whom counsel act an admission of the facts therein stated, and may be used in subsequent proceedings as evidence of such facts (a). A statement made by counsel out of court does not bind the client. In Richardson t. Peto(b), the defendant's counsel obtained a rule nisi, calling upon the plaintiff to show cause why judgment should not be entered for the defendant. After service of the rule nisi the plaintiff's attorney met the defendant's counsel in the street, told him the plaintiff was unwell and unable to give the necessary instructions for showing cause against the rule, and asked the defendant's counsel to postpone bringing on the motion to make the rule absolute. The defendant's counsel promised to do so, and said there was no hurry, but advised the attorney to be as quick as he could. The rule was afterwards made absolute, no one appearing to show cause against it, and judgment was then signed. A motion was then made to set aside the judgment, on the ground that the rule had been made absolute at an earlier period than ac6ording to good faith and the understanding between the parties ought to have been done. The Court of Common PJeas refused to set aside the judgment, Tindal, C.J., observing that "the attorney admitted to prosecute or defend represents his client throughout the cause, but a counsel represents his client only when speaking for him in court. It would confuse the relative position of the two branches of the profession, if we were to hold that a communication made to counsel by the adverse attorney or party, or a statement made by him out of court was to have the same effect as a communication made to a proceeding from the attorney." 4. Authority of counsel in non-litigious matters. — In non-litigious matters the acts of counsel can only bind the client when counsel has express authority or when his acts are adopted by the client. The legal effect of such acts has (a) Van Wart v. Wolley (1823;, Ey. & Moo. 4. See Edmunds v. Newman (1823), Ey. & Moo. 5n. (6) (1840) 1 M. & G. 896; 9 Dowl. P. 0. 73 88 BARBISTER-AT-LAW. rarely formed the subject matter of judicial decisions. The effect of the approval by counsel of a title to property has been considered in several cases (a). In Deverett v. Bolton (b), which was an action for specific performance of a contract to purchase a house, the plaintiffs title had been con- ditionally approved by the defendant's counsel, but ad- ditional requisitions were made in consequence of counsel's opinion, and ultimately the defendant's counsel insisted on conditions which the plaintiff would not satisfy. It was contended that the conditional approval amounted to a waiver of objections, but Lord Eldon, L.C., refused to grant specific performance, observing that " it is too much to say that, when an abstract is laid before counsel who approves the title, his approbation is to be taken as against the person consulting him as a waiver of all reasonable objec- tions." But, if counsel for a purchaser waive the pro- duction of a particular document stated in the abstract to be lost, and the purchaser adopt the opinion of counsel and continue to deal with the vendor, the purchaser will not be permitted afterwards to repudiate the opinion of his counsel (e). A purchaser (d) is not prejudicially affected by notice of any instrument, fact, or thing which has come to the knowledge of his counsel as such, unless it came to the knowledge of counsel in the same transaction with respect to which a question of notice to the purchaser arises (e). 5. Effect of acting under counsel's advice. — The question whether counsel's opinion protects the client who acts on it has been raised in several cases. The client can derive no (a) Deverett v. Lord Bolton (1812), 18 Ves. 505; McCulloch v. Gregory (1855), 1 K. & J. 292 ; Alexander v. Crosby (1844), 1 Jo. & Lat. 666 ; 7 Ir. Eq. E. 448. (6) (1812) 18 Ves. 505. (c) Alexander v. Crosby (1844), 1 Jo. & Lat. 666; 7 Ir. Eq. R. 448. (d) The term " purchaser " in this sense includes a lessee or mortgagee or an intending purchaser, lessee, or mortgagee, or other person who for valuable consideration takes or deals for property (Conveyancing Act 1882 8. l(4)(ii)). (e) Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 3. COUNSEL AND CLIENT. 89 protection from counsel's opinion, unless the facts have been properly stated to counsel and his advice obtained lond fide and properly pursued (a). If criminal proceedings are instituted by a person who lays all the facts of the case before counsel and acts lond fide upon the opinion given, this is in an action for malicious prosecution evidence of reasonable and probable cause for the prosecution (I). But if the client does not act lond fide on the opinion or lays an incorrect statement of facts before counsel, the opinion of counsel will be of no avail to the defendant in such an action (c). The opinion of counsel recommending a purchaser not to accept a title or to accept it only under certain conditions will not protect the purchaser from costs if the Court should be of opinion that a good title can be made (d). Where property is sold by order of the Court and the conveyancing counsel to the Court settles the conditions of sale, the conveyancing counsel is the counsel of the vendor, and for any error made by such counsel the vendor is liable (e). Questions have frequently arisen to what extent trustees are protected if they act on the advice of counsel. If trustees acting under the advice of counsel make a wrong payment, they will none the less be ordered to return the money if they are sued by their cestui que trust (/). Parties who act in a manner which the Court decides to be improper, cannot protect themselves by showing that they received bad advice, however eminent the person may be who gave (a) Andrews v. Eawley (1857), 26 L. J. Exch. 323. (6) Eavenga v. Mackintosh (1824), 2 B. & C. 693 ; Abrath v. N. E. Railway Co. (1883), 11 Q. B. D., at p. 455, per Lord Esher, H.R. (c) Hewlett v. Cruchley (1813), 5 Taunt. 277; Eavenga v. Mackintosh (1824), 2 B. & C. 697. (d) Mating r. Hill (1785), 1 Cox, 186 ; Osborne to Rowlett (1880), 13 Oh. D., at p. 798. (e) In re Banister, Broad v. Munton (1879), 12 Ch. D. 131. (/) In re Jackson, Wilson v. Donald (1881), 44 L. T. 467; Boulton v. Beard (1853), 3 De G. M. & G. 608. 90 BABRISTEB-AT-LAW. it (a). Because an action is advised by counsel, it does not follow that it is always and necessarily one which trustees may properly bring (b). According to Lord Selborne, L.C., "the advice of counsel is not an absolute indemnity to trustees in bringing an action, though it may go a long way towards it "(b). But in some cases where trustees have acted under the advice of counsel, and have consequently been sued by their cestuis que trustent and have been un- successful, the Court has exercised its discretion and refused to make the trustees pay the costs of the proceedings. Thus, where the owner of a bare legal estate refused to convey it except under certain conditions, and it was held that he was not justified in his refusal, still, as he had acted bond fide under the advice of a conveyancer of character, the Court, while it made a decree against him, did not order him to pay costs to the other side (e). So, when trustees acting under the advice of counsel refused to pay money over to the cestuis que trustent, and raised questions as to their title, and an action was brought and decided against the trustees, yet no costs were given against them (d). In another case (e), Jessel, M.E., refused to make the trustees of a settle- ment pay the plaintiffs costs of an action that was brought against the trustees, and was made necessary by the conduct of the trustees who, acting under the advice of counsel, had put a mistaken interpretation on a clause in the settlement. In another case (/) when the cestuis que trustent called upon their trustees to transfer a certain fund, and the trustees took the advice of counsel, who recommended that the transfer might be made subject to certain conditions to which the cestuis que trustent were willing to agree, but the trustees still refused to transfer, and a bill was filed against the trustees, Stuart, V.C., while directing a transfer, gave (a) Peers v. Ceeley (1892), 15 Beav. 209, per Romilly, M.K, (6) Stott v. Milne (1884), 25 Ch. D., at p. 714. (c) Angier v. Stannard (1834), 3 Myl. & K. 566. (d) Devey v. Thornton (1851), 9 Hare, 232. (e) Ryan v. NesUtt (1879), W. N. 100. (f) King v. King (1857), 1 De G-. & J. 663. COUNSEL AND GL1EN1. 91 the trustees their costs. On appeal it was argued' by the plaintiffs that they had consented to all the requisitions on which counsel had insisted, and that, therefore, the trustees were not entitled to the costs of an action brought to compel them to do what their counsel had advised they might do on certain conditions to which the plaintiffs had agreed. Turner, L.J., however, thought that the trustees were jus- tified in asking the opinion of the Court, and that the advice of counsel fell short of what was required. Knight- Bruce, L.J., dissented, but the judgment of Stuart, V.C., was affirmed. In another instance (a), trustees acting on the opinion of counsel based upon a case instead of paying a trust fund over to their cestuis que trusient paid it into court. On a petition being brought, asking that the fund should be transferred to the cestuis que trustent, and that the trustees should be ordered to pay the costs, Jessel, M.R., after deciding that the case on which counsel had relied did not justify his advice, said that as the point was not free from doubt to other minds, although he was quite clear about it, and as it was the first case of the kind that had come before him, he would not make the trustees pay the costs, but that if any trustees acted in a similar manner, in the future he would make them pay the costs. In another case (&), trustees who, acting under the advice of counsel, paid a trust fund into court without being justified were ordered to pay the costs incurred by the cestuis que trustent in obtaining payment out of court. In another case where a trustee acting under the advice of counsel refused to transfer the trust fund as the cestuis que trustent required, and an action was brought against him to compel him to transfer, the Court ordered him to transfer the fund and also to pay the plaintiffs' costs as well as his own (e). (a) In re Cull's Trusts (1875), L. E. 20 Eq. 561. (6) In re Knight's Trusts (1859), 27 Beav. 49. (c) Firminv. Pulham (1848), 12 ^ur. 410, 9 2 BARRISTER-A T-LA W. If a trustee, without the sanction of the Court, com- mences an action or defends an action unsuccessfully, he does so at his own risk as regards costs, even if he acts on counsel's opinion ; ;and when the trustee seeks to obtain such costs out of his trust estate, he ought not to be allowed to charge them against the estate unless under very ex- ceptional circumstances (a). In a case where an executor, without taking legal advice, paid to a creditor of his testator in consequence of what purported to be a legal decision in Switzerland a larger sum than was due, Lord Alvanley in holding the executor liable for the over payment said, " if he had taken advice and been advised by any gentleman of the law in this country, that he was bound to make this payment, I would not have held him liable " (6). (a) Per Lindley, L.J., in re Seddoe, Dowries v. Coltam (1893), 1 Ch., at p. 557. (b) Vez v. Emery (1799), 5 Ves. 141. ( 93 ) CHAPTER VII. PRECEDENCE — KING'S COUNSEL AND JUNIOR BARRISTERS. In the Supreme Court of Judicature, and in other Courts where barristers alone can practise, there are certain fixed rules governing the precedence or preaudience of counsel . The Attorney-General and the Solicitor-General (a) have precedence of all other barristers (b). After them come the King's Counsel, and those to whom patents of pre- cedence have been granted by the Crown (e). These rank inter se according to the dates of their patents ; with the King's Counsel rank the Queen Consort's Attorney- General and Solicitor-General (d) ; then come the junior barristers whose precedence inter se is determined by the date of their call ; if two counsel are called to the bar on the same day at different Inns of Court, the one whose name has been longest on the book of the. Inn to which he belongs is the senior (e). Those who have obtained studentships or certificates of honour rank in seniority over all other students called on the same day. Those who have obtained (o) See 6 Taunt. 424. (&) Except, perhaps, in the Palatine Court of the Duchy of Lancaster. See Attorney-General v. Lord Advocate, 2 CI. & F. 487n. (c) See Attorney-General for Canada v. Attorney -General for Ontario (1898), A. C. 247 ; Blackstone, iii. 28 ; Manning's Serviens ad Legem, 25 ; Foss's Judges, viii. 91. (d) Blackstone, iii. 28n., where a table of precedence is given, including eleven degrees, only four of which now exist, viz. Attorney-General, Solicitor- General, King's Counsel, Barrister. (e) Case of Abbott and Peake, 6 C. & P. 637n. 94 BARRISTER- AT-LAW. certificates of honour rank immediately after the holder of a studentship called on the same day (a). In the House of Lords, where Scotch and Irish counsel are heard as well as English, the Attorney-General and the Solicitor-General have precedence (b). The Attorney- General takes precedence of the Lord Advocate, even in a Scotch case (c). The precedence of colonial King's Counsel and law officers in the Privy Council is not well defined. At one time, it is said, it was the practice for English King's Counsel to lead in all cases (d), but Sir H. James, when Attorney- General, gave an opinion that colonial King's Counsel, when pleading in the Privy Council in colonial cases, should have the same precedence afforded to them as if they were King's Counsel created in England, and that there was no objection to an English King's Counsel accept- ing a junior brief to a Canadian King's Counsel, especially as the Canadian counsel was Attorney-General for Ontario (e). According to a long-standing rule of the profession, a King's Counsel cannot hold a brief for the plaintiff on the hearing of a civil cause in the High Court, Court of Appeal, or the House of Lords without a junior. It is the usual practice for King's Counsel to insist upon having a junior when appearing for a defendant in like cases, and also when appearing either for the prosecution or for the defence in trials of criminal indictments (/). It is unusual that a King's Counsel should appear without a junior in the Privy Council or in the County Court (g). It is not usual for a King's Counsel to appear in judge's chambers (h). A (a) Consolidated Begulations of the Four Inns (April, 1903), s. 58 ; Annual Statement of the General Council of the Bar, 1902-03, 11. (6) See 19 L. J. (newsp.) (1884), 596. (c) Attorney-General v. Lord Advocate (1834), 2 CI. & P. 481. (d) 19 L. J. (newsp.) (1884), 596. (e)J6. (/) Seventh Annual Statement of the Bar Committee (1890), 2 ; Annual Statement of the General Council of the Bar, 1901-02, 5. See Coolie v. Turner (1844), 12 Sim. 649. (g) Annual Statement of the General Council of the Bar, 1902-03, 3. (A) Dickson v. Harrison (1878), 9 Cfo. D., at p. 246. PRECEDENCE. 95 King's Counsel does not usually appear at Quarter Ses- sions (a) without a special fee. A King's Counsel cannot appear in a case against the Crown, even if the Crown be only a nominal party, without a licence from the Crown (6). On being called within the bar, a King's Counsel gives up that part of a barrister's practice which consists of drafting and writing opinions on evidence, but may settle any such drafting and advice on evidence in consultation with a junior (c). In the Chancery Division, the rule is, that a King's Counsel should not settle pleadings even in cases in which he has been engaged before taking silk, except in consultation with a junior (d). There is no uniform practice in the King's Bench Division which pro- hibits a junior who has taken silk from settling pleadings and doing the other ordinary work of a junior, after he becomes a King's Counsel, in cases in which he was retained as a junior. " It is in the discretion of a junior who has taken silk to refuse to do this work, and this course is often followed " (e). In the Chancery Division, the usual practice is that on taking silk a King's Counsel should attach himself to a particular court, and should not accept a brief in any other court in that Division without a special fee (/). But a King's Counsel in either the King's Bench or the Chancery Division can attend in any court without a special fee in any case in which he has been engaged as junior (g). By long-settled practice the fees on the briefs of the (o) Dickinson's Quarter Sessions (5th ed.), p~ 135. (6) See Meg. v. Jones (1840), 9 C. & P. 404 ; Beg. v. Bartlett (1846), 2 C. & K. 321 ; Attorney-General for Canada v. Attorney-General for Ontario (1898), A. C. 247 ; Crown Office Rules, App. E, No. ccxxxix., Short and Mellor's Crown Office Practice, 713. A fee of 10s. 6d. is payable to counsel's clerk on the licence being obtained, see Eleventh Annual State- ment of the Bar Committee, 6. (o) Annual Statement of the General Council of the Bar, 1901-02, 5. (d) lb., 1900-01, 11. («) lb. (/) lb., 1898-99, 11. (g) lb., 1900-01, 11. 9 6 BARRISTER- A T-LA W. leading counsel and his junior respectively stand to one another in the proportion of three to two or five to three, but there is no rigid rule on the subject. A junior is entitled to refuse a brief which is not marked in this pro- portion, but there is no rigid rule of professional etiquette which prevents him from accepting a brief marked with a fee bearing a less proportion to his leader's fee, but it is in accordance with the practice of the profession that he should refuse to do so in the absence of special circum- stances affecting the particular case, and he should be sup- ported by his leader in such action (a). A junior barrister may accept a brief to take notes or to open the pleadings, and in such a case the rule as to the proportion of fees between leader and junior does not apply, but the junior so briefed cannot take any part in the trial except doing that for which he has been briefed (6). On the trial of an action the leader has the conduct of the case, and the Court will not allow the junior counsel to take up a line different from that taken up by his leader (c). (a) Annual Statement of the General Council of the Bar, 1900-01, 5. (6) lb., 1903-04, 13. (c) See Pickering v. Doweon (1813), 4 Taunt. 779. ( 97 ) CHAPTER VIII. THE HEARING OF COUNSEL. 1. At the trial of a civil action ia the King's Bench Division by a judge with a jury, the first step in the pro- ceedings taken by counsel (a) is the opening of the pleadings by the junior counsel for the plaintiff ; to open the pleadings is to state concisely what are the issues of fact on the record ; no one but a stuff-gownsman can open the pleadings, and except on the trial of an action brought in forma pauperis (b), if a King's Counsel appear for the plaintiff, a stuff-gownsman must also be instructed on the same side at least to open the proceedings (c). After the pleadings have been opened, the question sometimes arises on which side is the onus of proof, and therefore the right or the obligation to begin (d). If there is any argument on this point, one counsel only on each side is heard (e). Opening speech. — When no question arises as to the right to begin or when it arises and has been decided, the leading counsel for the party that begins opens his case. Counsel (a) As to the absence of counsel, see Anon. (1697), 2 Salk. 645 ; Sanders y. McConnell, Times, February 12tb, 1885 ; Times, May 5th, 1886 ; Anon., 78 L. T. (newsp.), 286 ; Cockle v. Joyce (1877), 47 L. J. Ch. 543 ; Stolces v. Kromshoder (1879), W. N. 196; Fass v. Gunter, Times, October 27th, 1886; Chitty's Archbold's Practice, 737. (6) James v. Harris (1835), 7 C. & P. 257. (c) McAskie v. McCay (1868), 2 Ir. E. Bq. 447. See Annual General Statement of the General Council of the B#,r, 1902-03, 3. (d) See Best on Evidence, s. 637; Day's Common Law Procedure Acts, 4th ed., 260. (e) Rawlins v. Desborough (1837), 2 M. & Bob. 70; Bastard v. Smith (1837), 2 M. & Bob. 132. H 98 BARRJSTER-AT-LAW. in opening states the facts and circumstances of the case to the jury, the substance of the evidence he has to adduce, and its effect in proving the case, and remarks upon any point of law upon which, together with the matters of fact, the jury will have to find their verdict (a). The object of an opening is to give the jury a general notion of what will be given in evidence so as to enable them to understand the evidence when it is given (&). It is improper for counsel to give to the jury or the Court his own personal opinion of the case (c). In the opening, or in any address to the jury, counsel may state those facts of which the Court takes judicial notice (d). It is irregular to open facts which require proof, but which it is not in- tended to prove, or to open any matters irrelevant to the issues to be tried; the statement of such matters in an opening, while it may be prevented by the judge, cannot in strictness be objected to by the other side at that stage, and the proper time to object to the introduction of irrelevant matter is when it is tendered in evidence (e). But it is by no means uncommon for counsel to object to the introduction of irrelevant matter in an opening or other speech. In some cases the opposite party may make use of an opening in support of their own case(/). Usually it is left to the discretion of counsel to determine what facts he shall open to the jury, but the introduction of irrelevant matter which influences the minds of the jury, is ground for granting a new trial (g). If the jury is misled by the (a) Chitty's Archbold'g Practice, 14th ed., 630 ; Smart v. Rayner (1S34), 6 C. & P. 722. See Stevens v. Webb (1835), 7 0. & P. 61 ; Reg. v. Beard (1837), 8 C. & P. 142 ; Duncombe v. Daniell (1837), S C. & P. 227. (6) Per Pollock, C.B., Maohell v. Ellis (1845), 1 C. & K, at p. 684. (e) Per Cockburn, C.J., Ryves v. Attorney-General, Annual Register, 1866, Remarkable Trials, 255; Lord Herschell, The Rights and Duties of an Advocate, 10. (d) Taylor on Evidence, Pt. I. chap. ii. ; Darby v. Ouseley (1856), 1 H. & N. 1 ; 25 L. J. Exch. 227 ; Howard v. Gossett (1842), Oar. & Marsh. 380. (e) See Low v. Holmes (1858), 8 Ir. Ch. R. 53. (/) See Duncombe v. Daniell (1837), 8 C. & P. 227. (g) Wallace v. Cook, Times, June 15th, 1903. THE HEARING OF COUNSEL. 99 speeches of counsel, introducing at any stage facts which are immaterial or not proved, this is ground for a nevv trial (a). It is irregular for the plaintiff's counsel either in his opening or at any stage of the trial before verdict to mention the amount of general damages claimed by the plaintiff (b) ; neither the fact that money has been paid into Court by the defendant, nor the amount paid in, can be communicated to the jury (c). Judgment cannot be given against a litigant on the opening of his counsel alone before any evidence is heard, unless his counsel consents (d). Examination in chief. — When the opening is finished, the evidence is gone into, and the witnesses, if there are any, are orally examined " in chief " ; if more counsel than one are engaged on the same side, they generally divide between them the examination of the witnesses. It is the duty of the junior counsel on each side, when not engaged in examining witnesses, to take a note of the evidence, and such a note may be used on appeal to supplement the notes of the judge (e). If a junior counsel has begun to examine a witness, his leader may interpose and take the witness out of his hands and finish the examination, but when one counsel has closed his examination, no other counsel on the same side can regularly put any other question "in chief "(/). Cross-examination. — When the examination-in-chief of a witness is finished, counsel on the other side may cross- examine him. Cross-examination serves not only to test the evidence of witnesses and to elicit evidence from the opposite side, but also to indicate the nature of the case which counsel, who is cross-examining, intends to set (a) Praed v. Graham, 24 Q. B. D. 53. (6) Annual Statement of the General Council of the Bar, 1898-99, p. 12. (e) E. S. C. O. xxii. r. 22. (<2) Fletcher v. L. & N. W. By. Co. (1892), 1 Q. B. 1"22. (e) Earl de la Warr v. Miles (1881), 19 Ch. D. 80. (/) Doe v. Boe, 2 Campb. 280. 100 BAREISTER-AT-LAW. up (a). Omission to cross : examine as to facts deposed to by a witness in chief makes it unnecessary to call any further evidence with regard to such facts. Be-examination. — When the cross - examination of a witness is finished, the counsel for the party, on whose behalf the witness is called, may re-examine him as to matters arising out of the cross-examination. If a witness objects to answer a question (b), or to pro- duce a document (e), the witness cannot have counsel to argue for him; nor can counsel for one of the. parties object in favour of a witness that an answer to a particular question may render him liable to prosecution; such an objection belongs to and must be made by the witness alone (d). Indeed, witnesses who are not parties have no right to be represented by counsel on the trial of an action (e). If a point of law is raised during the examination of a witness or at any other stage of a trial, all the counsel on each side may be heard, but in practice it is not usual for more than two counsel on each side to argue (/) ; the leading counsel present for the side on which the point is raised has a right of reply (g) ; if in replying he cites cases that have not been cited before, one counsel on the opposite side is allowed to observe on these cases (h). On questions of fact the Court only hears one counsel on each side (£). It is not usual for counsel to take "stamp objections," that is, to object to the admissibility of a document in evidence on the ground that it is unstamped or insufficiently stamped, unless such defect goes to the validity of the (a) Wharton v. Lewis (1824), 1 0. & P. 529. (b) B. v. Adey (1831), 1 M. & Eob. 94. (c) Doe d. Bowcliffe v. Egremont (1841), 2 M. & Eob. 3S6. Id) Thomas v. Newton (1827), 1 M. & M. 48n. ; Hebblethwaite v. Hebble- thwaite (1869), L. K. 2 P. & D. 29. (e) As to witnesses in bankruptcy, etc., see post, p. 109. (/) Darnell's Ch. Pi\, 7th ed„ 596. (3) See Arden v. Tuclter (1832), 1 SI. & Rob. 192. (ft) Fairlie v. Denton (1828), 3 C. & P. 103. (i) See Conington v. Gilliat (1876), 1 Ch. D. 694. THE HEARING OF COUNSEL.' 101 document, or to take part in the discussion in support of such an objection, unless incited to do so by the Court (a). A litigant appearing in person is allowed both to address the Court and to give evidence on his own behalf, but it is doubtful whether a person who appears as advocate for another can give evidence as a witness (6). When all the witnesses for the party who begins have been called, his counsel intimates that his case is closed ; counsel on the other side may then submit that there is no case to go to the jury. If the judge expresses an intention to decide in favour of such a submission, counsel for the party who begins must, if it is wished afterwards to complain of misdirection, insist on the case being left to the jury. If the judge says that he will non-suit on a point of law, counsel does not by mere acquiescence in the judge's ruling lose the right to move for a new trial (e). Where a defendant raised objections to the plaintiff's case, and the judge held the objection to be good, and the plaintiff's counsel acquiesced in the judge's ruling, and a verdict passed for the defendant without his counsel going into his case, the Court, on an application for a new trial, " inclined to think the objection good but refused, after the points had been abandoned by the plaintiff's counsel at the trial, and the defendant thereby precluded from going into his case, to permit them to be mooted " (d). When the counsel for the party who begins has closed his case and the counsel for the other side does not announce his intention to adduce evidence, the counsel for the party who begins has the right to address the jury a second time for 1 the purpose of summing up his evidence (e) ; but there (a) Annual Statement of the General Council of the Bar, 1901-02, 5. (6) Stones v. Byron (1846), 4 Dowl. & L. 393; Deane v. Packwood (1847), ib., 395n. ; but see Eastland v. Burchell, 3 Q. B. D., at p. 436 ; Guinea's Case (1841), Ir. Oirc. K. 167. (c) Hughes v. G. W. \By. Co. (1854), 14 C. B. 637 ; but see Elworthy v. Bird (1824), 13 Price, 222. (d) Bobinson v. Cook (1815), 6 Taunt. 336. (e) B. S. 0. 1883, 0. xxxvi. r. 36 ; Day's Common Law Procedure Acts, 4th ed., 259. 102 BARRISTER-AT-LAW. is no such right when the judge holds that there is no evidence to go to the jury (a). Counsel for the party who does not begin will not be allowed to try to elicit from the jury an expression of opinion whether or not they desire him to call evidence (b). If the party who does not begin does not announce his intention to adduce evidence and the counsel on the other side has summed up his evidence, the counsel for the party who does not begin cannot alter his mind and adduce evidence (c). If counsel for the party who does not begin calls no evidence, he has the last word and counsel on the other side has no right of reply, except where the sovereign is a party to the record, in which case the Attorney-General or the Solicitor-General by virtue of his office can claim a right to reply (d). . The calling of witnesses to prove some collateral issue does not give a right of reply to the party who begins (e). If counsel for the party who does not begin cites a case but calls no witnesses, the counsel for the party who begins has a right to observe on the case cited (/). If counsel for the party who does not begin opens facts to the jury and calls no witnesses to prove these facts, the judge may allow a reply to the counsel on the other side (g). When counsel for the party who does not begin announces his intention to call witnesses, then on the close of his opponent's case he opens his own case and comments on the evidence that has been given (h) and indicates the (a) Hodges v. Ancrum (1855), 11 Exch. 214 ; 24 L. J. Exch. 257. (6) Moriarty v. Brooks (1834), 6 C. & P. 684. (o) lb. (d) Taylor, s. 390 ; Best, s. 631 ; Chitty's Archbold Pr., i. 645 ; see Rome v. Brenton (1825), 3 M. & JRy. 304. (e) Harvey v. Mitchell (1840), 2 Moo.'& Eob. 366. (/) Power v. Barham (1835), 7 C. & P. 356. (g) Crerar v. Sodo (1827), 1 M. & M. 85 ; see Bex v. Bignold (1823), 1 D. & Ey. N. P. C. 59 ; Naish v. Brown (1S46), 2 O. & K., 219 ; Darby y. Ouseley (1856), 1 H. & N. 1 ; 25 L. J. Exch. 227. (7i) See Glennie v. Glennie (1863), 3 S. & T. at p. 110; 32 L. J. P. & M. at p. 21. THE HEARING OF COUNSEL. 103 nature of his case and the evidence which he -proposes to adduce ; he then calls his witnesses, and after they have been examined, cross-examined, and re-examined, he sums up his own evidence (a). It often happens that counsel for the party who does not begin instead of making an opening speech calls his witnesses immediately after the close of his opponent's case and makes one general speech at the close of his own evidence ; however, in strictness the comments on the case of the other side ought to be made in the opening speech, and the speech at the close of the evi- dence ought to be limited to the summing up of the evidence (6). When the counsel for the party who does not begin has summed up his evidence, the counsel on the other side replies generally on the whole case; If the counsel for the party who does not begin opens a defence on the facts and also relies upon a legal objection, and after citing cases in support of his objection calls witnesses to establish the facts, he is entitled to a reply on the matter of law after the general reply of the counsel on the other side (e). Co-plaintiffs must appear by the same solicitor and the same counsel and cannot sever (d). Co-defendants may be represented by different solicitors and counsel, and, if they are so represented, it is a matter for the discretion of the judge at the trial to decide how many counsel shall be heard (e). When the interests of the co- defendants are precisely the same, the court will not allow more than one cross-examination of the plaintiff's witnesses or more than one address to the jury on behalf of the (a) See Gilford v. Davies (1860), 2 F. & F. 23. (6) See Gilford v. Davies (1860), 2 F. & F. 23; Day's Common Law Procedure Acts, 4th ed., 259n. (c) Arden v. Tucker (1832), 1 Moo. & Bob. 192. (d) Ballard v. White (1843), 2 Hare 158; Wedderbum v. Wedderburn (1853), 17 Beav. 158. In re Norwood's Patents (1895), 12 Eep. Pat. Cas. 219, 221. Cordery on Solicitors, 3rd ed. 108 ; Newton v. Biohetts (1848), 2 Phill. 624: 12 Jur. 107, 238; Swift v. Grazebrook (1842), 13 Sim. 185. (e) Nicholson v. Brooke (1848), 2 Exch. 213. 104 BABRISTER-AT-LAW. defendants (a). The defendants' witnesses in such a case will be examined by the different counsel in the same manner as if the defence were joint and not separate (6) ; but different counsel will be heard for each defendant on a legal objection (c). In one case two defendants had pleaded by one attorney ; an application was made to the judge in chambers to allow them to sever in their pleading, but was refused on the ground that the only object of the application was to have two speeches ; at the trial counsel appeared for one defendant, but the other defendant appeared in person ; Tindal, 0. J., refused to allow two speeches for the defendants to be made to the jury; the defendant who appeared in person was allowed to cross-examine the plaintiffs witnesses but not to address the jury; the only speech to the jury that was allowed for the defendants was made by the counsel who appeared for one (d). When several defendants appear by different solicitors and different counsel and have different interests, counsel for each defendant so appearing will be allowed to cross- examine the witnesses on the other side and to address the jury (e). In such a case it is in the discretion of the judge to say in what order counsel for the different defendants shall cross-examine and address the jury (/) ; it has some- times been contended that the order of the seniority of the different counsel is the right one, but the practice generally, though not invariably, followed is that counsel for the different defendants should have priority according to the (a) Nicholson v. Brooke (1848), 2 Exch. 213 ; Sparkes v. Barrett (1837), 8 C. & P. 442 ; Chippendale v. Masson (1815), 4 Campb. 174 ; Doe d. Sogg v. Tindale (1829), 3 C. & P. 565 ; 1 M. & M. 314 ; Mason v. Ditchborne (1835), 1 M. & Rob. 462 ,- Batty v. McCundie (1828), 3 C. & P. 204n ; Palmer v. Maclear (1858), 1 S. & T. 149. (6) Chippendale v. Masson (1815), 4 Campb. 174. (c) Per Tindal, C.J., Poole v. Bidden (1832), Roscoe, N. P., 17th ed., 290. (d) Perring v. Tucker (1829), 4 C. & P. 70 ; 1 M. & M. 392. (e) Bidgeway v. Philip (1834), 3 Dowl. 154 ; 1 C. M. & R. 417 ; King v. Williamson (1822), 3 Stark. 162, D. & R. N. P. 35 ; Massey v. Goyder (1829), 4 C. & P. 162n ; Child v. Btenning (1878), 7 Ch. D. 413 ; 47 L. J. Ch. 371. (/) Fletcher v. Crosbie (1842), 2 M. & Rob. 417. THE HEARING OF COUNSEL. 105 oriler in which the defendants' names appear on the record (a). If one defendant calls witnesses and another who is separately represented does not, the counsel for the defendant who does not call witnesses can only address the Court once, namely, in general, before the witnesses for the other defendants are examined (6) ; if the evidence which it is proposed to give on behalf of one defendant is hostile to the interests of the other defendant, the judge may allow counsel for the defendant who does not call witnesses to address the jury not before but after the evidence has been heard on behalf of the other defendant (e). In a case where there were two defendants represented by different counsel, each of whom cross-examined the plaintiffs witnesses, and addressed the jury, and certain witnesses had been subpoenaed by both defendants, only one counsel was allowed to examine these witnesses-in-chief (d). In cases in which co-defendants are more opposed in interest to one another than to the plaintiff, permission may be given to each defendant or to each set of defendants to open and prove their cases separately. An instance of this kind is to be seen in the case of Phillips v. Willetts (e), which was an issue to try whether the plaintiff was the next of kin of an intestate ; there were two sets of defendants who appeared by separate counsel ; one set put forward a case not inconsistent with that of the plaintiff, namely, a pedigree showing that the persons whom they represented stood in the same degree of relationship to the intestate as the plaintiff and that they were entitled to share with the plaintiff; the other set of defendants pnt forward a case adverse both to the plaintiff and to their co-defendants, and sought to show that they were the next of kin to the exclusion both of the plaintiff and of their co-defendants. (a) See Phillips v. Willetts (1840), 2 M. & Rob. 319; Wynne v. Wynne, 2 M. & Rob. 321 ; Child v. Steiming (1878), 7 Cb. D„ at p. 414. (6) See Glennie v. Olennie (1862), 3 S. & T. 109; 32 L. J. P. & M. 17. But see Ryland v. Jaclcson andBrodie (1902), 18 Times L. R. 574. (c) Beale v. MouU (1843), 1 C. & K. 1. Id) King v. Williamson (1822), 3 Stark. 162. (e) (1840) 2 Moo. & Rob. 319. 106 BARRISTER- A T-LA W. On the close of the plaintiff's case, Alderson, B., held that counsel for the second set of defendants, whose interest was most opposed to that of the plaintiff, should first open his clients' case and call his witnesses; that these witnesses should be cross-examined first by counsel for the other set of co-defendants, and then by counsel for the plaintiff; that on the close of the case of the second set of defendants, counsel for the other set of co-defendants should open his clients' case and call witnesses, and that these witnesses should be cross-examined first by counsel for the second set of defendants and then by counsel for the plaintiff, and that on the close of the cases of both sets of defendants counsel for the plaintiff should reply generally on both. A similar order was said in the course of this case to have been observed in the earlier case of Wynne v. Wynne (a). On the trial of an issue, counsel for a person who is not a party to the record, but who has liberty to attend the trial, cannot call witnesses or address the jury, but is allowed to cross-examine witnesses and to suggest points of law (&). Under the present third party procedure, the position for a third party on the trial of the question between the plaintiff and the defendant must depend on the terms of the order (c). In a case when the order was that the question as to the liability of the third party should be tried as soon as might be after the trial of the action, counsel for the third party was allowed to cross-examine witnesses on the trial of the action (d). After the case for the defence has been closed and the plaintiff's counsel has replied, the judge sums up the evidence to the jury and directs them on points of law. An objection to the applicability of evidence cannot be taken (a) 2 Moo. & Bob. 321. As to the cross-examination of a co-defendant's ■witnesses by his co-defendant, see Allen v. Allen (1894), P. at p. 254. (6) Wright v. Wright (1830), 7 Bingh. 459. (e) See E. S. C. (1883), O. xvi., r., 52 ; Coles v. Civil Service Supply Asso- ciation (1884), 26 Ch. D. 529; Barton v. L. & N. W. By. Co. (1888), 38 Oh. D. 144. (d) Blore v. Ashby (1889), 42 Ch. D. 682. TEE SEAMING OF COUNSEL. 107 after the judge has commenced his summing up (a). Objec- tions that have not been taken (6), or that have been abandoned (e) by counsel, cannot be revived afterwards ; but when counsel relies on some grounds of defence only, such a selection does not amount to a waiver of the rest (d). Counsel may correct mis-statements of fact by the judge, but not errors of law (e). Counsel may ask the judge to put certain specific questions to the jury, but, unless these questions are distinctly raised on the record, the refusal to put them does not amount to mis-direction (/). It is the duty of counsel on each side to take a note of the substance of the summing up and of the judgment for the purpose of informing the Court above in case of an appeal (g). Counsel indorse on their briefs the effect of the verdict, judgment, or order of the Court, and judgments and orders are often drawn up from such indorsements (h), but, if there is any difference in the indorsements on the briefs, any question that arises as to the terms of the order or judgment is settled by a reference to the note of the officer of the court taken at the time (i). 2. On the trial >of an action by a judge without a jury in the King's Bench Division the pleadings are not formally opened, but in other respects mutatis mutandis the proceed- ings are similar to those in a trial by a judge with a jury. (a) Abbott v. Parsons (1831), 7 Bingh. 563. (6) Senn v. Neck (1834), 3 Dowl. 163. See Campbell v. Loader (1865), 34 L. J. Exch. 50. (o) Malone v. Geraghty (1843), 2 Con. & L. 250 ; 3 Dr. & "War. 262. (i) Galwey v. Barron (1841), Long. & Town. 76. (e) Payne v. Ibbotson (1858), 27 L. J. Exch. 341. (/) Walton v. Potter (1841), 3 M. & G. 411. See Weiser v. Segar, W. N. (1904), 93 ; Beaton v. Bernand (1900), A. 0., at p. 143. (g) See ex parte Slterratt (1884), 28 Sol. Jo. 376. (ft) In the Chancery Division the party bespeaking a judgment or order has to leave with the registrar his counsel's brief and such other documents as may be required by the registrar for the purpose of enabling him to draw up the judgment or order. E. S. C. O. lxii. r. 4. But the production of the brief may be dispensed with, see O. lxii. r. 12 ; Yeatman v. Mead (1863), 14 W. E. 123 ; Mayor of Bristol v. Cox (1886), 30 Sol. Jo. 356, (0 See per Pearson, J., W. N. (1884), 91. 108 BARRISTER- AT-LAW. 3. Ou the trial of an action in the Chancery Division the procedure is different. The leading counsel for the party who begins opens his case, the evidence is then gone into, and the junior counsel on the same side sums up the evidence ; the leading counsel on the other side then opens his case, and the evidence is gone into, and the junior counsel on that side sums up the evidence ; the leading counsel of the party who begins may then reply (a). This practice, however, is by no means invariably followed, and in some cases the leading counsel opens and closes his case and ex- amines all the witnesses. A cause cannot be heard as a " short cause " in the Chancery Division unless there is a certificate by counsel for the plaintiff that the cause is fit to be so heard, i.e. that it is one which is not likely to take more than ten minutes (6). 4. In the trial of an action in the Probate, Divorce, and Admiralty Division the order of proceedings is in many re- spects the same as in the King's Bench Division, but there are some variations arising out of the special procedure of the Court (c). In a suit for the dissolution of marriage where the Queen's Proctor intervened and other parties who were separately represented by counsel also intervened and sup- ported the Queen's Proctor's case, the order of proceedings was as follows : — The case was opened and witnesses were called and examined by counsel for the Queen's Proctor ; counsel for the other witnesses was allowed to examine these witnesses before they were cross-examined by the petitioner's counsel and to cross-examine the petitioner's witnesses after they had been cross-examined by the Queen's Proctor's counsel, but was not allowed to address the jury (d). (o) Kino v. Rudkin (1877), 6 Ch. D. 163 ; Bonnewell v. Jenkins, W. N. (1877), 202. But see Metzler v. Wood (1877), 47 L. J. Oh. 139. (6) Daniell's Ch. Pr., 7th ed. 583 ; FeMead v. Gray (1874), L. E. 18 Eq. 92 ; Walker v. Siggers, W. N. (1875), 194; Hargraves v. White (1853), 17 Jur. 435-6. (c) As to the cross-examination of a respondent on behalf of a co- respondent, see Allen v. Allen (1894), P. 248. (c?) Bering v. Bering and Blakeley (1868), L. P. 1 P. & D. 534. THE HEABINQ OF COUNSEL. 109 Where certain plaintiffs propounded a will which was opposed by the testator's next-of-kin and heir-at-law, who both pleaded the same pleas but were separately represented by counsel, counsel for the heir-at-law was allowed to cross- examine the plaintiff's witnesses after they had been cross- examined by counsel for the next-of-kin, and to address the jury after counsel for the next-of-kin had opened his case (a) . In proceedings under 20 and 21 Vic. c. 77, s. 26, when a person is brought before the Court to be examined as to his knowledge of the testamentary papers of some one deceased, the person so brought has the right to have counsel attend on his behalf ; counsel in such a case may put questions to the witness and cross-examine other persons similarly summoned as witnesses (b). In Admiralty it frequently happens that there are several actions relating to the same matter — e.g. the salvage of a ship, and these actions are often consolidated or tried together, and questions then arise as to the hearing of different counsel for the different plaintiffs. When two actions are consolidated, and the interest of one of the plaintiffs is adverse to the interest of the others, separate counsel may be heard on his behalf (c). Where different salvage actions are consolidated or tried together, counsel for rival salvors may cross-examine each other's witnesses, but only as to circumstances in dispute between them (d). In such cases the counsel for the ship that was first on the spot generally begins (e). 5. In examinations under s. 27 of the Bankruptcy Act, 1883 (/), if the person summoned is the debtor, he is allowed to have the professional assistance of counsel or solicitor (g). If a witness other than the debtor is summoned, he is (a) Pocock v. Low (1868), L. K. 1 P. & D. 535n, (6) In tlie goodt of Cope, 36 L. J., P. & M. 83. (c) The Scout (1872), L. E. 3 Adm. & Bccl. 512. (d) The Morocco (1871), 1 Asp. N.S. 46 ; 24 L. T. N.S. 598. (e) The Willem III. (1871), 1 Asp. N.S. 132. (/) 46 & 47 Vict. e. 52. (g) In re Greys Brewery Co. (1883), 25 Oh. D., at p. 405. 110 BABE IS TER-A T-LA W. entitled to be represented by counsel when the examination is the "first step in a litigation hostile to the witness" (a). It seems that the practice is to allow counsel for all witnesses so examined (b), but a witness summoned for examination only is not entitled to be paid by the party summoning him the costs of employing solicitor or counsel (c). Where a witness is examined under s. 115 of the Com- panies Act, 1862 (d), he is entitled to be represented by counsel, who may examine the witness when the examination of the registrar is finished, and may take and carry away notes of the proceedings (e), but may only use the notes for the purpose of re-examination of the witness (/). The examination is a private proceeding, and the registrar may exact as a condition of a person being allowed to be present at the examination an undertaking not to disclose to any one, without the leave of the Court, any information he might acquire at the examination (g). 6. In criminal trials the procedure is in many respects different from that which is followed in civil actions. Where no counsel appears for the prisoner, it is not necessary that counsel for the prosecution should make an opening speech to the jury (h), except where there is some peculiarity in the circumstances (i) ; where the prisoner is defended, counsel ought always to open the case (j), and in the opinion of some judges (&) all cases, whether defended or not, should be opened. In opening a case, counsel for the prosecution (a) Williams' Bankruptcy Practice, 8tli ed., 96. Ex parte Kemp, in re Sir W. Russell (1873), 42 L. J. Bankr., at p. 28 ; ex parte Waddell, in re Lutscher (1877), 6 Ch. D. 328. (6) Williams' Bankruptcy Practice, I.e. (c) Ex parte Waddell, in re Lutscher, I.e. () lb., p. 9. ( 127 ) CHAPTER X. EETAINEES. The Courts have no jurisdiction to interfere on questions of retainers between counsel and client (a). In ex parte Elsee, in 're Joiner (b), the counsel for the respondent objected to Mr. Montagu, the counsel for the petitioner, being heard on the ground that Mr. Montagu was retained by the respondent. Mr. Montagu said that '* he was not retained by the respondent according to the professional rule in the case of retainer, and that even if he had been retained, the Lord Chancellor sitting in Bankruptcy had not any juris- diction, but that questions of this nature were always decided by some King's Counsel to whom the matter was referred, which course had been adopted on the present occasion." There being some doubt as to the facts, the petition stood over till the next day, when Mr. Montagu was heard for the petitioner. In the case of ex parte Lloyd (c), a petition was brought to restrain Mr. Montagu from acting as counsel for a bankrupt. Lord Eldon, L.C., expressed his " clear decided opinion that he sitting in Bankruptcy had no jurisdiction whatever to interfere with a barrister in the exercise of his discretion as to the client upon whose retainer he thought proper to act," but on Mr. Montagu's soliciting his lordship to hear the petition, his lordship heard it as amicus curise. (a) Taylor v. Clarke (1862), 13 Ir. O. L. B. 571, at 574; Baylis v. Grout (1835), 2 M. & K. 316. (6) (1830) Mont. 69. (c) (1822) Mont. 70n. 128 BARRISTEB-AT-LAW. Disputes as to the validity of a retainer are generally decided by the Attorney-General (a). "Rules for regulating the practice as to retainers of counsel " were in 1892 prepared by the Bar Committee, settled and approved by the Attorney-General and accepted by the Incorporated Law Society (6). The rules are as follows : — General Retainers. I. General retainers are either ordinary or limited. II. An ordinary general retainer applies to the Supreme Court and House of Lords. III. A limited general retainer applies to the tribunal or tribunals or Court or Courts to which it is expressed to be limited. IV. A separate general retainer must be given for the Privy Council. V. A separate general retainer must be given for Par- liamentary Committees. VI. If the counsel who has accepted a general retainer from one party should be offered a special retainer or brief by another party, the general retainer entitles the party who has given it to reasonable notice before the offered special retainer or brief is accepted. VII. Subject to these rules a general retainer lasts for the joint lives of the client and counsel, unless the same be forfeited. VIII. In case a special retainer or brief is offered to counsel by a party other than the party from whom he has accepted a general retainer, the counsel, after giving notice to the party from whom he has accepted the general retainer of the offer of the special retainer or brief, is at liberty to accept the special retainer or brief of the other (a) Twelfth Annual Statement of the Bar Committee and First of the General Council of the Bar, 15. (6) Tenth Annual Statement of the Bar Committee, 2. BETAINERS. 129 party, unless a special retainer or brief be given within a reasonable time by the party from whom he has accepted the general retainer. IX. Where a general retainer has been given, and a brief is not delivered to the retained counsel in any action or other proceeding in which the party giving the general retainer is concerned, and to which it applies, or a special retainer or brief is not given within a reasonable time after a notice has been given by the counsel holding a general retainer, that a special retainer or brief has been offered to him by another party, the general retainer is forfeited ; pro- vided that the holding of a general retainer does not entitle a King's counsel to the delivery of a brief on occasions when it is usual to instruct a junior counsel only. X. Where a general retainer has been given for one person, and he is party to a proceeding with others and appears separately, the retainer applies to that proceeding; but if he appears jointly with others, the retainer does not apply, and remains unaffected. Special Eetainees. , XI. A special retainer cannot be given until after the commencement of an action, appeal, or other proceeding. XII. A special retainer in an action or proceeding in the Supreme Court gives the client a right to the services of the counsel while the action or proceeding remains in or under the control of that Court. XIII. A special retainer in an action or proceeding other than an action or proceeding in the Supreme Court gives the client a right to the services of the counsel during the whole progress of such action or proceeding. XIV. A counsel who has been specially retained is entitled to the delivery of a brief on every occasion to which the special retainer applies ; provided always — A special retainer does not entitle a King's Counsel to the delivery of a brief on occasions when it is usual to instruct junior counsel only. K 130 BARRISTER- AT-LAW. Where more than one junior counsel has been retained, only one of such junior counsel is entitled to the delivery of a brief on occasions when it is usual to instruct one junior counsel alone. Circuit Retainers. XV. A special retainer must be given for a particular assize (a). XVI. If the venue be changed for another place on the same circuit, a fresh retainer is not required. XVII. If the action be not tried at the assize for which the retainer is given, the retainer must be renewed for every subsequent assize until the action is disposed of, unless a brief has been delivered. XVIII. A retainer may be given for a future assize, without a retainer for an intervening assize, unless notice of trial shall have been given for such intervening assize. Appelas. XIX. When a counsel has held a brief for any party in an action or proceeding, but has not received a general or special retainer, he shall not accept a general retainer or special retainer or a brief on appeal (including in that expression appeals to the House of Lords and to the Privy Council) for any other party, without giving the original client the opportunity of retaining or delivering a brief to him. Opinions and Pleadings. XX. Counsel who has drawn pleadings or advised, or accepted a brief during the progress of an action on behalf (o) A circuit retainer does not make it compulsory upon the counsel retained to go the circuit, but only gives the client the right to the services of the countel if he attend the assize town and the case be entered for trial. Annual Statement of the General Council of the Bar, 189S-99, 9. The party giving the retainer has the right of renewing it for the next circuit, provided he does so in a reasonable time, i.e. the currency of the pending circuit. lb. 1899-1900, 6. RETAINERS. 131 of any party shall not accept a retainer or brief from any- other party without giving the party for whom he has drawn pleadings or advised, or on whose behalf he has accepted a brief, the opportunity of retaining or delivering a brief to him, but such counsel is entitled to a brief at the trial and on any interlocutory application when counsel is engaged, unless express notice to the contrary shall have been given to him with the instructions to draw such pleadings or advise, or at the time of the delivery of such brief. Provided always such counsel shall not be entitled to a brief in any case where he is unable or unwilling to accept the same without receiving a special fee. XXI. No counsel can be required to accept a retainer or brief or to advise or draw pleadings in any case where he has previously advised another party on or in connection with the case, and he ought not so to do in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by the other party, or in which his acceptance of a retainer or brief on instructions to draw pleadings or advise would be incon- sistent with the obligation of any retainer held by him, and in any such case it is the duty of counsel to refuse to accept such retainer or brief, or to advise or draw plead- ings, and in case he has received such retainer or brief inadvertently to return the same (a). Promotion of Counsel. XXII. The retainer of a counsel does not cease upon his being promoted to a higher rank at the bar (b). (a) As to this rule, see Annual Statement of the General Council of the Bar, 1896-97,9: "Counsel should act in accordance with the spirit of this rule rather than its letter, and in cases in which counsel is aware that confi- dence has been reposed in him by some one not his client, but who has been assisting his client with information, counsel should not afterwards act against that person in any matter to which the information so given would be material. There can, however, be no such duty towards a person who has not been the client of the counsel, unless the fact of confidence having been so reposed is clearly made known to the counsel." (b) Lucas v. Peacock (1844), 8 Beav. 1. 132 BABRI8TER-AT-LAW. Amount op Fees. XXIII. The fees for general retainers are as follows : — In Parliament (committees), Ten Guineas. In all other cases, Five Guineas. XXIV. The fees for special retainers are as follows : — In Parliament (committees), Five Guineas. In the House of Lords and Privy Council, Two Guineas. In all other cases, One Guinea. By a subsequent resolution (a) the Bar Council stated that in their opinion : — 1. Subject to Eules 19, 20, and 21 of the Betainer Bules, a special retainer is binding if duly tendered, whether accepted or not. 2. There is no rule of the profession which makes a general retainer binding on a counsel unless it is accepted by him. Many opinions have been given by the Bar Council in regard to these rules, particularly Bules 14 and 20,, the latter of which altered the old practice. The Bar Council have resolved (b) that Eules 14 and 20 should be enforced by the following practice, which is henceforth to be considered a rule of the profession : — " When a brief is offered or delivered to any counsel, and he finds that another counsel has become entitled to a brief within the meaning of Bule 14 or 20 and has not been briefed, such first-named counsel ought, where practicable, to ascertain from the solicitor offering or delivering such brief whether there is any sufficient explanation why a brief has not been offered or delivered to such other counsel, and unless a satisfactory explanation is given ought to refuse or return the brief." The brief to which counsel is entitled at the trial under Eule 20 is a " regular " brief such as counsel can (a) Annual Statement of the General Council of the Bar, 1901-02, 5. (6) Annual Statement, 1897-98, 8. EETAINERS. 133 accept; the obligation to deliver a brief is not satisfied by the delivery of a complimentary brief or of one marked with a fee such as counsel could not properly take (a). If counsel has become entitled to a brief and one is offered to him marked with a fee in a proportion to the leading brief fee less than two to three or three to five, and the counsel refuses the brief only on the ground that it is so marked, and the brief is offered to another counsel, these facts " are not in themselves a satisfactory explanation " of the non-delivery of the brief to the counsel entitled (b). Nor does a change of solicitors by itself constitute a sufficient or satisfactory explanation (c). If the counsel to whom the brief is delivered receives what he considers is a satisfactory explanation why the brief is not delivered to the counsel entitled, he may accept the brief and is under no obligation to communicate with such counsel (d). If the client for whom counsel draws pleadings or advises is a company which goes into liquidation in the course of the action and the Official Receiver thereupon has the conduct of the action, the mere fact of liquidation, whether followed by a change of solicitors or not, would not deprive counsel of his right to a brief at the trial (e). Rule 20 does not apply to proceedings after the con- clusion of the trial of an action, e.g. to an appeal (/). (a) Twelfth Annual Statement of the Bar Committee and First of the General Council of the Bar, 14. (6) Annual Statement of the General Council of the Bar, 1900-01, 5. (c) Annual Statement, 1898-99, 9. (. at p. 34. (d) Safford & Wheeler, Privy Council Practice, 871 : Preston, Privy Council Appeals, 119. (e) Easton v. Joint Stock Bank, per Cotton, L.J., 38 Ch. D. at p. 34, (/) R. S. C, 0. liv. r. 27 (51) ; Second Annual Statement of the Bar Committee, p. 2. See ex parte Cotton, 9 Beav. 107. (g) First Annual Beport of the Bar Committee, p. 1. 146 BARBISTER-AT-LAW. CHAPTER XII. OFFICES. There are certain offices which can only be filled barristers, and others which can only be filled by barrist solicitors, or other persons having specified qualifications 1. The following appointments are reserved for barrisl or those who have been barristers. The office of Lord of Appeal in Ordinary can only filled by a person who has held for not less than two ye certain " high judicial offices," or has been for not less tl fifteen years a practising barrister in England or Ireland a practising advocate in Scotland (b). The office of Judge of the Court of Appeal is open t Judge of the High Court of not less than one year's stand and to barristers of fifteen years' standing (0). To be a barrister of not less than ten years' standing i qualification for the appointments of a Judge of the Hi Court (d), a Judge of the Salford Hundred Court (e), a p Chairman or Deputy-chairman of the quarter sessions for 1 County of London (/), a Master in Lunacy ( (ft) 38 & 39 Vict. c. 87, s. 106. OFFICES. 147 barrister who has been in actual practice for ten years, or a person who has been a judge of one of the Superior Courts (a). Only conveyancing counsel in actual practice who have practised as such for ten years at least can be appointed Conveyancing Counsel to the Court (b). To be a barrister of at least seven years' standing is a qualification for the appointments of County Court Judge (e), a deputy County Court Judge (d), Assistant Barrister or Assessor in the Liverpool Court of Passage (e), a Eevising Barrister (/), Secretary to the Lunacy Com- missioners (g), a Stipendiary Magistrate for a borough appointed under s. 161 of the Municipal Corporations Act, 1882 (h), and a Deputy or Assistant Judge of a borough or other local court of record (t). To be a Deputy Judge of the City of London Court ( J), or of the Mayor's Court (ft), or to be a Stipendiary Magistrate in the Metropolitan Police District (V), a person must have practised as a barrister for at least seven years. To be a barrister of five years' standing is a qualification for the offices of Judge of one of the High Courts of Judicature in India (m), Kecorder of a borough having a separate court of quarter sessions (n), a Deputy (o), or Assistant Kecorder (p), a Deputy Judge of the Salford (a) 37 & 38 Vict. c. 85, s. 7. (6) 15 & 16 Vict. c. 80, s. 41. (c) 51 & 52 Vict. c. 43, s. 8. (<0 16, s. 18. (e) 4 & 5 Wm. IV. c. xcii., s. 2 ; 56 & 57 Vict. c. 37, s. 6. (/) 6 & 7 Vict. c. 18, s. 28 ; 37 & 38 Vict. o. 53, s. 6. (g) 53 Vict. c. 5, s. 154. (ft) 45 & 46 Vict. c. 50. (i) 35 & 36 Viot. u. 86, s. 7. 0) 15 Vict. c. lxxvii., s. 8. (h) 20 & 21 Vict. c. clvii., s. 43. (Z) 2 & 3 Vict. c. 71, s. 3. (m) 24 & 25 Vict, a 104, s. 2. Irish barristers and Scotch advocates are also eligible for this office. v (n) 45 & 46 Vict. c. 50, s. 163. This does'not include the Recorder of the City of London, an office which has in modern times always been held by barristers. (o) lb. 166. ( p) lb. 168. 148 BA RRI8TER-A T-LA W. Hundred Court (a), a Deputy Judge of a borough civil court if appointed under s. 175 of the Municipal Corporations Act, 1882, a Stipendiary Magistrate if appointed under 26 and 27 Vict. c. 97, s. 3, and a paid legal Commissioner in Lunacy (b). To be a barrister of three years' standing is a qualifi- cation for the office of Examiner of the High Court (c). The Common Sergeant of the City of London and the Judge of the City of London Court must be " duly qualified " barristers (d). There are certain other offices which are invariably filled by barristers but for which there is no express statutory qualification ; to this class belong the offices of Lord Chan- cellor and Attorney and Solicitor-General. The office ol Treasury Solicitor has been of recent years generally held by a barrister. The solicitors of the treasury, customs, excise, post office, stamp duties, or any other branch of his Majesty's revenue, the solicitor of the City of London, and the assistant of the " council for the affairs of the admiralty or navy," and the solicitor to the board of ordnance need not be qualified under the Solicitors Act (e). Some of these offices are held by barristers. 2. For the following appointments barristers are eligible, but jointly with solicitors and in some cases other persons. A salaried clerk of a petty sessional division or a clerk to the justices of a borough must be either a barrister of not less than fourteen years' standing or a solicitor, or must have served for not less than seven years as clerk to a police or stipendiary magistrate, or to a metropolitan police court or to one of the police courts of the City of London, or must have served for not less than fourteen years as, or as assistant (a) 31 & 32 Vict. c. cxxx., s. 17. (6) 53 & 54 Viet. u. 5, s. 151 (2). (c) K. S. C, O. xxxvii., r. 40. (d) 51 & 52 Vict. c. 41, s. 42 (14). (e) 6 & 7 Vict. c. 73, s. 47 OFFICES. 149 to, a clerk of a petty sessional division, or a clerk to the justices of a borough (a). The Director of Public Prosecutions must be either a barrister or solicitor in actual practice and of not less than ten years' standing (b). The representative of the Director of Public Prosecutions on the trial of an election petition must be either a barrister or solicitor of not less than ten years' standing (e). A District Eegistrar in the Land Eegistry must be either a barrister or solicitor or certificated conveyancer of not less than ten years' standing (d). A Eegistrar, or Assistant, or Deputy Eegistrar in Admiralty must be a barrister or solicitor of ten years' standing (e). An Assistant Director of Public Prosecutions must be a barrister or solicitor in actual practice and of not less than seven years' standing (/). A person is not qualified to be appointed a Master of the Supreme Court, unless he is or has been a practising barrister or solicitor of five years' standing or has practised for five years as a special pleader or as a special pleader and barrister (g). An Assistant Eegistrar (h) or an Assistant District Eegis- trar (i) in the Land Eegistry must be a barrister or solicitor or certificated conveyancer of not less than five years' standing. No person can be appointed Clerk of Assize, unless he has, during a period of not less than three years, been either a barrister in actual practice or a special pleader or con- veyancer in actual practice or a solicitor in actual practice (a) 40 & 41 Vict. a 43, 8. 7. (6) 42 & 43 Viet. o. 22, a. 4. (c) 46 & 47 Vict. c. 51, s. 43 (7). (d) 38 & 39 Vict. c. 87, s. 119. (e) 24 & 25 Vict. u. 10, s. 27. (/) 42 & 43 Vict. c. 22, s. 4. lg) 42 & 43 Vict. c. 78, s. 10. (h) 38 & 39 Vict. c. 87, s. 106. (0 n. 150 BARRI8TER-AT-LAW. or a subordinate officer of a Clerk of Assize on circuit (i The expression " Clerk of Assize " includes " Clerk of t Crown and Associate on circuit and any other office t duties of which were on the 9th August, 1869, or may any time afterwards be performed by the Clerk of Assize" ( The following offices may be held by either a barrisl or a solicitor, but in the case of a barrister no standing specified — deputy of a borough coroner (c), judge of inferior Court of Record (d), the deputy judge of such court if appointed under 8 and 9 Vic. c. 127, s. 12, t Registrar or District Registrar in the Probate and Divoi Division (e), and an Examiner in Admiralty (/). As regards some of the above-named appointmei there are express provisions forbidding the holder to pract at the bar, e.g. County Court Judge (51 and 52 Vi c. 43, s. 14), Master of Supreme Court (7 W. IV. and 1 Vi c. 30, s. 15), Director and Assistant Director of Pub Prosecutions (42 and 43 Vict. c. 22, s. 4), Registrar District Registrar of the Probate and Divorce Divisi (20 and 21 Vict. c. 77, s. 21). The District Registrar a Assistant District Registrar in the Land Registry m practise with the consent of the Lord Chancellor (38 a 39 Vict. c. 87, s. 119). The Clerk of Assize and the As ciate cannot while the circuit lasts be " of counsel with a persons within the circuit otherwise than to that office oj appertaineth " (33 Henry VIII. c. 24, s. 6). Some of the above-named appointments barristers usua hold and continue to practise while holding them, e.g. following : Recorder or Deputy and Assistant Record Conveyancing Counsel to the Court, Revising Barrisl Examiner, Judge or Deputy Judge of a borough court. The Attorney and Solicitor-General are precluded b (a) 32 & 33 Vict. c. 89, s. 3. (6) lb., a. 8. (c) 45 & 46 Vict. c. 50, s. 172. (