ATTORNEY AND SOLICITOR—(continued.) held by Lord Tenterden to be confined to communications relating to a suit, 21. but now held not so limited, ib. otherwise, were one attorney employed for both parties, ib. Duties of Attorney to ascertain facts, evidence, and law, before suit, 21, 53. should be well assured of sufficient evidence, 21, 53. when to examine witnesses in first instance, 21. and that in absence of the client, ib. Lord Tenterden's observations on duty of attorney in this respect, ib. if law of case questionable, should suggest expediency of obtaining opinion, 22. when thereby protected from liability, ib. not protected, if case improperly stated, ib. or stated too generally, ib. or without drawing counsel's attention to particular facts, ib. or has not raised material points, ib. or has drawn a conclusion from deeds without laying the same before counsel, ib. in these cases, he would be liable for negligence, ib. if opinion doubtful or ambiguous, should require further opinion, ib. observation of Lord Tenterden in such cases, ib. of Lord Stowell, where the client is ignorant or illiterate, ib. when attorney should attend to proceedings himself, ib. and not delegate to a clerk, ib. in case of neglect will have to pay costs himself, ih. duty of attorney to ascertain proper parties, and cause of action, Negociations, duty of attorney in respect of, 24; and see 58, and tit. should be conducted with candour and liberality, 24. but when honor of opponent unknown, communication to be cautious, ib. and this, though expressed, to be without prejudice, ib. when negociation for amicable adjustment, reciprocal duty not to conceal, 24. or proctor, attorney, &c. may have to pay all costs, ib. Taking securities for client, his duty therein, 24, 25. when arrangement beneficial to client, should instantly obtain written agreement, 25. lest party should fly from engagement, ib. Expenses, impropriety of increasing same, ib. Expedition, duty of, 25. paramount importance of expedition, 25. courtesy to opponent should not be shewn at expense of client, ib. instances of delays, ib. when proceeds recovered, should be immediately paid to client, ib. stipulations for remuneration out of usual course illegal, 26. or require guarantee of third person, ib. in writing. expressing the consideration, 27. cannot take a prospective mortgage to secure future costs, 27. client should unasked offer advance of money, or security, 27. attorney may refuse to proceed without advance, 27. at end of action, fees and bills to be promptly paid, 27. unless there has been gross negligence, &c., ib. or charges be for unnecessary and useless business, ib. or excessive, ib. if the latter, and any taxable item, then bill must be delivered one month before commencing action, ib. if not taxable, then tender should be made, ib. should not stipulate for remuneration to depend on the event, ib. or stipulate to receive part of estate in lieu of costs, ib. or to receive a named sum in case he should recover, ib. ATTORNEY AND SOLICITOR-(continued.) any stipulation out of usual course illegal and void, 28. and Court of Equity will in general set it aside, ib. even a compromise on terms of not taxing, illegal, Balme v. Paver, 1 Jacob R. 307. Bill of Costs, construction of 2 G. 2, c. 23, s. 23, as to necessity of month's act should be construed liberally in favour of suitors, ib. preparing replevin bond a taxable item, ib. or procuring an insolvent's discharge, ib. or for business done under a commission of lunacy, 29. but it seems there must be some formal step perfected, or at least prepared, constituting the commencement of some legal proceeding, 29. as drawing and engrossing an affidavit to hold to bail, ib. or preparing a warrant of attorney, ib. or a charge for a dedimus potestatem, ib. or attending at a lock-up house and filling up a bail bond, ib. or attending and advising a party in a suit, ib. an item for business done under an extent, ib. What charges are not within the act, 29. all business unconnected with any suit, 29. as for searching to see whether satisfaction of judgment had been entered, 29. or whether an issue had been entered and docketed, ib. or attending attorney of opposing creditor to resist insolvent's discharge, 29, 30. or where attorney had paid money in consequence of his undertaking to pay debt and costs, 30. or a bill for proceedings in bankruptcy, ib. though a charge for obtaining a certificate would be otherwise, ib. Taxing Bill of Costs. when illiberal to tax, 30. when proccedings have been conducted faithfully, ib. unless charges are exorbitant, ib. when client resolves to tax, should do so within the month, ib. or pay the amount and then tax, ib. if charge improper, Court will, on motion, oblige attorney to refund, ih. but no action for amount can be sustained, ib. When delivery of Bill unnecessary, and how to proceed if unreasonable, 30. statute 2 G. 2, c. 23, s. 23, only applies to proceedings relating to some suits or proceedings in Courts, ib. does not apply to charges for conveyancing, ib. but where charges exorbitant, money may be paid under protest, 31. or tender made, 31. without prejudice to an action, to try propriety of charges, 31. when an action may be sustained, 31. provisions of Usury and Annuity Acts with regard to solicitors procuring loans of money, 32. penalties under the same, 32. provisions evaded by attorney making extravagant charges for deeds and withholding a portion of the money, 32. in some cases held to invalidate annuity, 32. but in a late case held otherwise, 32. party may be compelled to refund, 32. and perhaps have to pay costs of application, 32. Liabilities of Attornies, &c., 32. generally not liable for a mistake on a point of law, when doubtful, 32. not absolutely protected by acting under counsel's opinion, 32, 22. especially when case not properly stated, 21, 2, 33. otherwise perhaps when case properly drawn, 33. liable for errors in practical department, ib. in these cases remedy by action, ib. and Court will not summarily interfere, ib. unless attorney guilty of want of integrity, ib. and then although no suit or proceeding pending, ib. INDEX. AWARD. See Arbitration, Reference to. in general power given to arbitrator, ib. must be duly made according to terins of order of reference, ib. when would be set aside for not allowing sufficient time, ib. may be made according to equity and conscience, 97., without regard to strict rules of law, 97, 108. though most expedient to do so, 97. proceeding before the arbitrator, 97 to 102. of revocation of agreement in fact or law, when it avoids award, 102. when void if made after death, 103. when delivery of to be to executors, &c., ib. surety when liable for fulfilment of, 104. executors, and when liable under, ib. bankruptcy, its effects, ib. when not conclusive against assignees, ib. award must conform to authority in submission, 105. or will be void for even slight informality, ib. arbitrator cannot award further when power limited, 106. and must in terms or substance decide on all claims referred, ib. and award must notice same, ib. or will be void for omission, 106, 7. award to do an illegal act, when void, 107. must be final, and when deemed so, 107, 8. when defective for not ordering payment, 108. attachment refused for omission, ib. when not made according to strict rules of law, Court will in general refuse to set it aside, ib. unless real injustice appear on the face of it, 109. should be according to law and equity, ib. except reference made to avoid a legal and technical objection, arbitrator should not notice it, ib. as to awarding costs, ib. when just to divide expenses of, ib. when costs of reference, costs in the cause, when not, 110, 111. forms of awards, 111. See Forms. when certificate in lieu of, 112. 109, 110. award, when good as to part and void as to residue, 114. when published, 115. is so when notice given that same is ready for delivery, ib. cannot in general be amended, ib. unless parties consent, ib. Court cannot interfere to alter terms of, ib. when may be set aside, 116. provisions of statutes respecting, 81, 2, 116. on what grounds may be set aside, 116. disobedience of, when made a rule of Court, treated as contempt of Court, 116. where arbitrator misbehaved himself, 117. or procured by corruption, ib. will not on a question of fact, ib. or on point of law, when arbitrator a barrister, ib. or on account of improper rejection or admission of evidence, ib. may relieve against a harsh right, ib. though the same would prevail in a Court of Law. ib. if legal rights referred, must be according to law, ib. may be set aside, if arbitrator exceeds his jurisdiction, 118. when not, 119. when may be opened, 120. or set aside when void on face of it, ib. will not when party objecting has adopted it, ib. within what time motion to be made, 121. practical proceedings in setting aside award, ib. the submission must be made a rule of Court, ib. T AWARD (continued.) when sufficient, if stated in affidavit, 122. if application made on slight grounds, will be discharged with costs, ib. proceeding to enforce performance of, 122. 1. By attachment, 123. how opposed, ib. 2. By action, 123. AWARDS, Forms of. See title Forms. BACHELOR OF ARTS. when proposed clerk has taken degree of, service for three years to attorney, &c. will suffice, 8. same exception in favour of students for the bar, 38. BACHELOR OF LAW. when proposed clerk has taken degree of, service for three years to attorney will suffice, 8. same exception in favour of students for the bar, 38. BARRISTERS. See Students for the Bar. no precise course of study or examination prescribed to become one, 37. before practising must have been a member of one of the Inns of Court for five years, 3, 4, 37. exception in favour of bachelor of laws, 38. rules respecting the admission of, 38, 39, 40. must obtain a certificate of approbation before he can be called to the bar, legal qualification not attended to by the benchers, & 4, 39. may appeal to the judges when admission refused, 3 & 4, 39. such appeal rarely successful, 3 & 4, 40. cause of failure at the bar considered, 41. course of study recommended, 41. other attainments beyond the law requisite, 41, 2. the functions of, 42, 3. their opinions and the requisites of, 43. should be direct and positive, ib. reasons in support of succinctly stated, ib. statutes and decisions shortly referred to, ib. should suggest where case ambiguous, ib. and what precautionary measures should be taken, 44. their duty with respect to pleadings, 44, 5. general character of, 45. retainer of, 71, 2. BATTERY. See Assault and Battery, Justices of the Peace. BEAST. penalty for stealing of, 135. BILL OF DISCOVERY. See fully, tit. Proceedings between Retainer, &c. when necessary, to discover who to be defendant, 49, 52. when parties bound to answer, 49. when landlord may file, against tenant, ib. lies against lessee and mortgagee, when, 50. cannot be enforced, when on face of it no remedy, ib. to compel defendant to admit or deny a promise of marriage, 52. or signature to a memorandum taking case out of Statute of Limitations, ib. or to discover assets, ib. to exhibit an account of assets, &c. in Ecclesiastical Court, ib. when, to discover whether a particular person is in existence, 53. or where he resides, ib. provisions of 6 Ann, c. 18, to discover death of party, ib. of costs on bills of discovery, 54. BILL OF COSTS. See Attorney and Solicitor. construction of 2 G. 2. c. 23, s. 23, as to necessity for a month after delivery of, 28. what are or not taxable items in, 28, 29, 30. to be taxable, must be for business connected with a suit, &c. 28. when illiberal to tax, 30. when action for amount may be sustained, 29, 30. when not, 30, 31. form of justice's dismissal of information for an assault and battery, 195. CERTIORARI. See Justices of the Peace. convictions under 7 & 8 G. 4. c. 29, 30, not to be removed by, 139, 142. unless taken away by statute, 219, 139, 142. when conviction may be removed by, 219, 220. conviction under 9 G. 4. c. 31, not removable, 134. 7 & 8 G. 4. c. 29, 139. 7 & 8 G. 4. c. 30, 139, 142. 1 & 2 W. 4. c. 32, 139, 143. course to pursue when certiorari taken away, 220. within what time to be moved for, 221. what notice required, 221, 222. what it should contain, 222. who must sign it, ib. affidavit of service of notice must be made, ib. how to be entitled, ib. should specify grounds of objections, 223. form of affidavit of service of notice of motion, ib. in support of motion, 224. grounds on which Court will grant or refuse application for certiorari, ib. CESTUI QUE TRUST. should not employ a trustee who is an attorney, 17. nor should he act as such, ib. CHOSE IN ACTION. assignee of, must sue in name of obligor, 47. CLASSICAL EDUCATION. See Education of Articled Clerks. of articled clerks, considered, 13, 14. of students for the bar, considered, 38 to 45. CLERKSHIP, ARTICLES OF. See Attorney and Solicitor. must be with legally admitted attorney, &c. 5, 7. and not to one who has left off practice, 7. or not practising on his own account or serving another attorney, ib. but may be to a prothonotary or secondary of Superior Courts, ib. or to the Master of the Crown Office, ib. in writing, to serve for five years, 5, 7. but need not absolutely be continuous, 7. and which must be prospective, 5. must not be antedated, ib. nor executed after five years have commenced, ib. T2 |