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Analytical Digest of Cases : Law of Costs.

31

DEMURRER.

DISMISSAL OF BILL.

EVIDENCE.

ANALYTICAL DIGEST OF CASES,
REPORTED IN ALL THE COURTS.

See Pauper, 2.

DISCOVERY.
Law of Costi.

Order 125 of Orders of 1845.- It is not a

sufficient reason for refusing to a successful [UNDER this head, we have arranged the de- defendant the costs of a bill of discovery, that cisions on Costs between party and party. In he has asked for a discovery of many matters our last number, p. 8, ante, will be found many his defence. Robinson v. Wall, 33 L. 0. 303.

of which he has not been able to make use in decisions relating to Costs between solicitor and client, and the taxation of such costs.]

Replication.-Notice of motion.- Where deADMINISTRATION SUIT.

fendants gave notice of motion to dismiss the 1. Real and personal estate. — The plaintiffs, bill, but such notice was given for a day not stating themselves and some of the defendants, being a seal-day, and previously to the sealto be next of kin, filed a bill for the adminis- day, replication was filed: Held, that the detration of a testator's estate. Their claim was fendant was not entitled to the costs of the displaced upon inquiries directed by the court, motion, the notice being irregular. Steedman and other persons, not parties to the cause, v. Poole, 33 L. 0. 113. established their right and became entitled to a large residue. The case being one of great difficulty and doubt, and an investigation being settlement. — Voluntary settlement by a younger

Witness.-Solicitor and client. — Voluntary absolutely necessary for the administration of

sister, of the whole of her present and future the estate, the plaintiffs and defendants were allowed their costs out of the fund. Costs of property principally in favour of her eldest suit apportioned between real and personal sister, set aside, the eldest sister having obestate. Johnston v. Todd, 8 Beav. 489.

great ascendancy and influence over the 2. Under intricate circumstances arising being open to suspicion, the settlement being

younger, the circumstances of the transaction from events not contemplated by the testator; very improvident, and the settlor not having the costs of an administration suit were ordered bad the benefit of independent professional to be paid rateably out of the realty and per- advice. sonalty according to their value. Christian v. Foster and Bunnett v. Foster, 33 L, O. 209.

A solicitor acted for both parties in the matter of a voluntary settlement, which was

set aside for undue influence. He was made a Motion. It is not necessary that all the af- defendant to the suit for that purpose. The fidavits filed on a motion should be read, in court, though exonerating him from culpability order to entitle the successful party to the costs in the matter, made him bear his own costs, of them. Frier v. Rimner, 14 Sim. 391.

because he had not acted with proper prudence

in the matter. APPEAL.

Solicitors are justified in obtaining from a A defendant having been ordered to pay witness, prior to his examination, a statement costs, he appealed. A motion, that upon pay- of the facts, but it is improper to obtain a statement of the amount into court, proceedings to ment upon oath, unless required for the purcompel payment might be stayed, pending the poses of the cause. appeal, on the ground that the plaintiff would Plaintiffs entitled to the general costs of the be unable to repay them, was refused. Archer suit, deprived of the costs subsequent to the v. Hudson, 8 Beav. 321,

replication, on the ground that they had entered BANKRUPTCY FEES.

into a mass of unnecessary evidence. Harvey

v. Mount, 8 Beav. 439. Where a bankrupt had obtained his certificate, and the fees of the official assignee and of

EXECUTOR, the messenger had been paid, but no creditors' Legacy.--A party was unable to obtain payassignee had been chosen, the solicitor to the ment of his legacy and his portion of the fiat had a bill of costs, and applied that the residue without suit. The case being clear, same might be paid out of a sum of money and the remaining portion of the residue having standing to the credit of the bankrupt's estate. been paid by the executor, he was charged with Held, that the fees of 101. and 201. directed by costs. Curtis v. Robinson, 8 Beav. 242. the stat. 1 & 2 W.4, c. 56, were payable before

INJUNCTION. the solicitor's bill was paid, and the petition was dismissed. Exparte Henbury, re Cavendish, 1. A party will not be restrained from re33 L. 0. 407.

covering such portion of his law costs as may

have been incurred in proceeding, under a CREDITOR'S SUIT.

breach of a subsequently dissolved injunction Staying proceedings.—Bill in a creditor's suit of this court. Newman v. Ring and others, dismissed, on motion by defendant before de- 33 L. O. 90. cree, on payment of the debt, with interest at 2. Where an injunction has been properly four per cent., and costs. Manton v. Roe, 14 obtained, but the purpose for which it was obSim. 353

tained has been answered, the court will not

AFFIDAVIT.

32

Analytical Digest of Cases : Law of Costs. only give the plaintiff the costs of the applica- But a judgment so signed was set aside tion for the injunction, but the costs of the suit without costs, upon an affidavit of merits. also. Larpent v. Richmond Railway Company, Nderton v. Sill, 2 C. B. 249. 33 L. 0. 91.

PAUPER.

LEGATEE.

PAYMENT INTO COURT.

REPLICATION.

SECURITY FOR COSTS.

Solicitor.-A legatee has a clear right to

1. The court will not compel a pauper to pay have a satisfactory explanation of the state of costs by reason of his giving a notice of trial the testator's assets, and an inspection of the which he afterwards duly countermanded. A accounts, but he is not entitled to

a copy

notice of trial duly countermanded is the same thereof at the expense of the estate.

as if none had been given. Doe dem. Pugh v. An estate was represented to a legatee by the Price, 33 L. O. 355. personal representatives as barely sufficient to

2. The court will not allow, as a matter of pay the debts, but the accounts were not shown. right, that a plaintiff who sues in forma pauperis A bill was filed, and afterwards an offer was

shall amend the declaration, after special demade to produce the accounts, which was de murrer thereto, without payment of costs. clined. Ultimately, a small surplus was as

Foster v. Bank of England, 6 Q. B. 878. certained to exist, and to be due from the representatives, but which was totally insufficient to pay the legacies, which were of a very con

Where a defendant pays money into court in the litigation, and gave the plaintiff no costs; and there are other pleas to the residue of the siderable amount. The court disapproved of respect of part of the plaintiff's claim, and the

plaintiff accepts such payment in satisfaction, but directed the representatives to retain their balance in discharge of their costs. Duty of claim upon which issues are joined and found solicitors to check useless litigation. Ottley v. entitled to all the costs relating to the payment

for the defendant, the plaintiff is, nevertheless, Gilby, 8 Beav. 602. And see Executor.

into court. Harrison v. Watt, 33 L. O. 456. LESSEE. The lessee having recovered damages upon See Dismissal of Bill. the covenant in the action directed by the court, to which the devisees were parties, was held entitled, as against the devisees, to the 1. If a plaintiff goes to reside out of the juris. amount of such damages,—to his coste of the diction, the court will order that he give se“ejectment,—of the action brought against the curity for costs, or that the bill be dismissed executors,- of the action on the covenant to within a limited time, but will not make any which the devisees were parties, and of the order as to the costs of the suit. Giddings v. suit ; and also, to interest on the damages and Giddings, 33 L. O. 501. costs, to be computed from the time the amount 2. Where a plaintiff is bankrupt or insolvent, was ascertained and judgment entered up in and has assigned the debt for which the action the action to which the devisees were parties. is brought, and is suing for the benefit of the Morse v. Tucker, 5 Hare, 79.

assignee, the court will require security for Case cited in the judgment: Hyde v. Price, 8 costs. Perkins v. Adcock, 14 M. & W. 808. Sim. 578.

3. The fact of the plaintiffs having com

pounded with their creditors, and one of them Power of sale.- Oppressively exercised. being resident abroad, is no ground for

calling

upon them to give security for costs. Thornel Sale under a power of sale contained in a

v. Roelants, 2 C. B. 290. mortgage deed, the power being proved to have been oppressively exercised by the mortgagee, set aside with costs as against the mort

An order that, in setting off costs due from a gagee. Matthie v. Edwards, 2 Coll. 465.

plaintiff to a defendant against costs due from

that defendant to the plaintiff, costs due to the See Dismissal of Bill.

plaintiff from that defendant and another should be included is not a common order, but must

be specially asked for. Duncombe v. Levy, 1. When waived.-No notice of taxation is 33 L. O. 284. necessary where the plaintiff appears for the defendant sec. stat., although the defendant's attorney afterwards takes out and serves a

In trespass for taking plaintiff's goods in summons for time to plead. Such summons is execution under a warrant of attorney and judgnot tantamount to an appearance, within the ment which were afterwards set aside as illegal, rule of Hilary Term, 4 W. 4, s. 17. Welch v. the plaintiff cannot claim as part of the damage Vickery, 15 M. & W. 59.

his costs incurred in vacating the warrant of Case cited in the judgment: Pope v. Mann, 2

attorney and judgment. Holloway v. Turner, M. & W. 881.

6 Q. B. 928.

See Notice of Taxation, 2. 2. Setting aside judgment. - Quære, whether a judgment in debt by default, signed without notice of taxation, is irregular.

A party who successfully shows cause in the

MORTGAGE.

SET-OFF.

NOTICE OF MOTION.

NOTICE OF TAXATION.

SETTING ASIDE EXECUTION.

SHOWING CAUSE.

Analytical Digest of Cases.--Superior Courts : Lord Chancellor.

33 first instance is entitled to costs in cases where RECENT DECISIONS IN THE SUPEa rule nisi would, if granted, have operated to

RIOR COURTS. his prejudice. Rennie v, Beresford, 3 D. & L. 464; Higgins v. Ede, 3 D. & L. 470.

REPORTED BY BARRISTERS OF THE SEVERAL

COURTS.

SOLICITOR AND CLIENT.

See Evidence ; Legatee.

Lord Chancellor.
Landor v. Parr. March 26th, 1847.

SUIT FOR COSTS.

REMOVAL OF NEXT FRIEND, -SECURITY FOR

COSTS.

TAXATION OF COSTS.

TENDER.

VENDOR AND PURCHASER.

Where the demand of the plaintiff is submitted to, and the only question between the par- In a suit in which one of the plaintiffs, all of ties is the costs of the suit, the cause ought not uhom were out of the jurisdiction,

appeared to be proceeded in, but an application ought to

by her next friend, an order to substitute a be made to the court to prevent the expense of new next friend for the then existing one, further proceeding. Sivell v. Abruham, 8 Beav.

alleged to be a person of insufficient sub598.

stance, and a menial servant of the solicitor who conducted the suit, and was also a de

fendant, or to give security for costs, was See Notice of Taxation.

varied by allowing such next friend to continue security for costs being given by con

sent. Where, after writ issued, the defendant applies to a judge to stay proceedings on payment

Quære, whether a defendant can demand se

curity for costs in a case where all the of a certain sum and costs, and the plaintiff re.

plaintiff's are beyond the jurisdiction of the fuses to accept the sum offered, alleging that more is due, but at the trial recovers no more,

court, but one of whom, not being an infant, he is entitled to full costs, unless the amount

appears by a next friend within the juris

diction. offered has been paid into court.

Clark v. Dann, 3 D. & L. 513.

Mr. Stuart and Mr. Welford stated, that in this suit the bill had been filed by a married

woman by her next friend on behalf of herself A defence to a bill for the specific perform- and her children against the trustees of her ance of a contract for the sale of a leasehold marriage settlement, and the bill alleged certain estate, (upon an allegation that the vendor had breaches of trust. The plaintiff had been in employed puffers at the sale,) having failed, reduced circumstances, and her next friend and a reference being made to the Master to in- was a cook in the service of Mr. Gedye, the soquire as to the title, the defendant (the pur

licitor for the plaintiff, and also a defendant in

the cause. chaser) objected to the title upon the ground

Mr. Gedye's interest in the suit that fulfilment of a covenant to insure had not arose from his having advanced a sum of money been proved, nor any waiver shown, supposing

on the reversionary interest of the plaintiff and a breach had been committed. A waiver being her children in the fund in question. All the produced, and the Master having reported in plaintiffs were out of the jurisdiction, and the favour of the title shown in February, 1846, the Master of the Rolls, on the motion of one of cause having been heard in November, 1845, the defendants, had ordered all proceedings to Held, that all costs subsequent to the decree for be stayed until a new next friend should be apreference ought to be paid by the defendant. pointed, or security given for the costs. The Woodward v. Miller, 33 L, 0. 452.

learned counsel urged, that such removal would be tantamount to putting an end to the suit; that the next friend was a person of come

means, being in the receipt of wages and If a plaintiff examines a defendant as a witness, he must pay the defendant's costs of the bill had been filed bona fide; and that no

possessing money in the savings' bank; that the suit. Duke of Leeds v. Lord Amhurst, 14 thing could be alleged against the conduct of Sim. 357.

Mr. Gedye. They cited Anon. 1 Ves. jun., 409; See Evidence.

Ogilvie v. Hearne, 11 Ves. 598; Dowden v.

Hook, 8 Beav. 399, and the cases there referred [The decisions, as well on the Law of Costs, to. as of Attorneys and Solicitors, are selected both Mr. Freeling said, that the order of the from the law and equity reports, because it is Master of the Rolls had been made upon the more useful and convenient to bring all the ground that the solicitor had caused a bill to points under one view. On other subjects the under the circumstances, his lordship’s order

be filed for his own benefit, and submitted, that cases are arranged according to the courts ought to be sustained. wherein they have been decided.]

The Lord Chancellor, having remarked that the defendants were protected by the court in requiring security for costs to be given whilst the plaintiffs were out of its jurisdiction, and that, of course, it could not intend such security

WITNESS.

34

DEMURRER,

Superior Courts: Rolls.-- Vice Chancellor. to be merely nominal, asked if there was any Cr. 63, to show that the admission of assets to case which decided that the necessity of giving one legatee by an executor was an admission to security for costs by plaintiffs abroad was ob- all. viated by the fact that one of them appeared by The Master of the Rolls said, it was clear a next friend : it being stated at the bar that that no claim was made until many years after no such authority occurred to the counsel, his the death of the testator. His lordship then lordship observed, that he could see nothing referred to the dates of the testator's death and against the present next friend, who seemed to of the proof of his will, and added, that after have been actuated by real friendship; nor so great a lapse of time the legacy and annuity could he see anything against the conduct of must be presumed to be satisfied; that alone the solicitor, whose interest in the result arose was sufficient ground for dismissing the bill. from his interest in the cause, and who might

Bill dismissed with costs. notwithstanding be well disposed to do justice to his clients; but his lordship thought the best course would be to discharge so much of

Vice-Chancellor of England. the order appealed against as directed the substitution of a new next friend, and that security

Gatland v. Tanner. for costs should be given by consent.

- CONSTRUCTION OF 38TH As the order of the Master of the Rolls was

ORDER OF AUGUST, 1841. varied, Mr. Freeling's application for costs was not granted.

Where a bill is generally demurrable, a defendant may, under the 38th Order of

August, 1841, decline to answer any parts Rolls Court.

of the bill that he may not choose to answer, Pattison v. Hawksworth.

although he may have answered several

other parts. LEGACY.-PRESUMPTION OF SATISFACTION.

The suit in this case was instituted to reAfter the lapse of several years without claim cover possession of an estate which was claimed

or payment on account, the court will pre- by the plaintiff as the right heir of the testator sume a legacy to be satisfied, although the named in the pleadings, who had created an benefit of the Statute of Limitations may estate tail in the estate, with an ultimate limita

not have been taken by the answer. tion in favour of his right heirs. The defendThe testator, Martin Hawksworth, by his ant answered a considerable portion of the bill, will, dated in January, 1815, gave to his wife, and then stated that the plaintiff's claim was Grace Hawksworth, for her life, an annuity of barred by a recovery suffered by the tenant in 251., and also 701. to be paid within one month tail through whom he, the defendant, claimed, after his decease. He also gave to his daughters, but declined stating the particulars of the rethe plaintiff, and Ellen Pattison, legacies of covery, or giving any further answer, and 1,550l. each.

claimed the benefit of the 38th Order. To this The testator died in May, 1815, and his will answer the plaintiff filed exceptions, all of was proved in June, 1815, shortly after which which, after considerable discussion, were althe defendant, as his executor, realized his lowed by the Master, and the matter was now assets, and, as was alleged by the answer, paid argued upon exceptions to his report. legacies and debts (including the two legacies

Mr. Bethell and Mr. Lewin, for the defendof 1,5501.) to the amount of 3,8211., although ant, urged, that inasmuch as the bill was genethe testator's personal estate produced only rally demurrable, the defendant was not bound 3,3421.

to answer any part of it, and cited Tipping v. The testator's widow died on the 18th of Clarke, 2 Hare, 392; Mason v. Wakeman, 10 June, 1843, having by her will appointed the Jur. 628. plaintiff her sole executrix and residuary

Mr. Cooper and Mr. Miller, contrà, urged, legatee, who instituted this suit to recover the 1st, that the bill was not demurrable, and that legacy and arrears of the annuity bequeathed to even if it were, the 38th Order of August 1941, her mother by the testator's will, which she al- did not admit of the construction sought to be leged had never been paid.

put upon it by the defendant. The ViceMr. Barrett for the plaintiff.

Chancellor Bruce and nearly all the Masters Mr. Kindersley and Mr. Acworth, for the were opposed to such a construction. defendant, urged, that although the benefit of

The Vice-Chancellor said, that he had conthe Statute of Limitations was not claimed, the sulted both Vice-Chancellor Bruce and Vicecourt would allow the objection, and that was Chancellor Wigram, before giving his judgan answer to the plaintiff's claim, independently ment in Mason v. Wakeman, and although the of which the court would not take notice of so opinions of those learned judges differed, he stale a demand.

considered that as Vice-Chancellor Wigram Mr. Barrett, in reply, said, that in Harrison was more cognizant of the intention of those v. Bowell, 10 Sim. 382, the Vice-Chancellor of who framed the orders, his opinion upon a England held, that a defendant cannot take ad- question of construction, his Honour thought, vantage of the Statute of Limitations without should be preferred. He should therefore claiming the benefit of it by his answer. He allow the exceptions to the report. also referred to Barnard v. Pumfrett, 5 Myl. &

Superior Courts : Vice-Chancellor Wigram.-Queen's Bench.

35 Vice-Chancellor CH igram.

liable to pay the costs. Carr v. Appleyard, 2

Myl. & Cr. 476 ;Brydges v. Branfill, 9 Sim. Hughes v. Williams. Feb. 24th, 1847.

643 ; Chuck v. Cremer, 2 Phillips, 113. MASTER'S ORDER.-IRREGULARITY.- Mr. Chandless, for the defendant Lawrence,

COSTS.-116TH ORDER OF MAY, 1845. asked for his costs.
The court refused to strike out a cause from The Master clearly had no jurisdiction; and the

Mr. Freeling, on behalf of the De Wintons.
the registrar's book, on the ground that it
had been improperly set down before publi- defendants, the De Wintons, were entitled to
cation, inasmuch as an order of the Master treat his order as a nullity. It was true, that,
which was irregular and had been treated on the 18th of January, the De Wintons had
as a nullity, ought not to have been so

been informed by letter of the order in question, treated so long as it remained undischarged. but they had not been served with it, and they The defendant who had obtained the irregular of it. The cause had been set down only as

could not be deemed to have legal knowledge order was allowed his costs, having been improperly made a party to the motion.

between the plaintiff' and the defendants, the

De Wintons, but not as to the defendant, Mr. Wood, (with whom was Mr. Shapter,) Lawrence, as to whom, as he had been brought moved that this cause, which had been set down before the court unnecessarily, upon this mo. at the instance of one of the defendants (De tion, the plaintiff must pay his costs. Winton) might be ordered to be struck out of

Sir James Wiyram, Vic. I cannot enter the registrar's book, having been improperly into the question, whether the irregularity of set down before publication had passed ; that the Master's Order of the 11th of January was the subpæna to hear judgment issued in the more or less obvious. The regularity or irregucause and bearing date the 9th day of February larity of the order is immaterial. Here is the instant, together with the service thereof re-order, of which, on the 18th of January, the despectively, might be set aside ; and that either fendants, the De Wintons, had notice, and the defendants at whose instance the cause until the order was set aside, they were bound had been set down, or the defendant Lawrence, to respect it. Lawrence must be paid his costs might pay the costs of this application, and all of this motion. It is true he obtained the costs, consequent thereupon. The facts ap- order, but that order is good until set aside, peared to be these:-On the 7th of January and the plaintiff is proceeding upon it as a valid last, publication in the cause had passed. On order. As he is unnecessarily brought before the same day, ore of the defendants (Lawrence) the court, the plaintiff must pay him his costs. obtained a warrant, returnable on the 11th, to attend application to enlarge.

This warrant was served upon the plaintiff, but was not

Queen's Bench. served upon the other defendants. On the 11th

(Before the Four Judges.) the Master enlarged publication until the 20th of February; the plaintiff and Lawrence at

Bulmer v. Bousfield. Hilary Term, 1847. tended the Master on this occasion, but not the PLEADING.-SEPARATE COUNTS UNDER NEW defendant De Winton, who threatened to dismiss for want of prosecution. The plaintiff

A surveyor contracts for the performance of wrote, on the 18th of January, informing the

certain surveys for a railway, payment to defendants of the order of the 11th, enlarging

be made by instalments, the two first at cerpublication. Notwithstanding this notice, the defendants, the De Wintons, (pursuant to the

tain fixed periods, the third when the plans

and sections are deposited, and the last 116th of the General Orders of May, 1845,)

when it is certified that the standing orders set down the cause for hearing on the 9th of

of the House of Commons have been complied February, and issued subpæna to hear judgment.

with. In an action on the contract by the In support of the motion, it was admitted that

surveyor, a count on the special contract, it might be urged that the Master had no juris

and the common count for work and labour, diction to give leave to examine witnesses after

are allowable under the Reg. Gen. H. T. publication had passed, and that even suppos- 4 W. 4, rule 5. ing the Master had jurisdiction, one defendant could not regularly obtain the order without This was an action of assumpsit by a railnotice to his co-defendants, by service of the way surveyor. The declaration consisted of warrants upon them. But, it was submitted (two counts, one upon a special contract, and that the plaintiff was not blameable, it being the other for work and labour, and materials his duty to treat the Master's order as regular provided. The plaintiff was employed to suruntil it was set aside, and that all the defend-vey a district preparatory to an application to ants were also bound to do so. As to the costs parliament, and an agreement was entered into of the motion, it was not material whether they that the plaintiff was to be paid by instalments, were paid by the defendants, the De Wintons, the two first at certain periods specified in the who had disregarded the Master's order, or the defendant, Lawrence, who had erroneously + 14 L. 0. 354.

b 33 L. O. 112. obtained it. The motion was in the alternative, e On the 26th of March, 1847, the De but, it was submitted that the De Wintons, Wintons appealed from so much of the order (by whose conduct, in particular, the motion as related to them. The Lord Chancellor dishad been rendered necessary,) were primarily I missed the motion with costs.

Ex relatione.

RULES.

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