PROCEEDINGS declaration, or inventory, or account of assets and expenditure, CHAP. II. in the Ecclesiastical Court; (n) and in cases within its proper BETWEEN, jurisdiction, that Court has power to compel a discovery as well as a Court of Equity. (0) It is said, however, that a bill does not lie in equity to discover whether a particular person exists, or where he is, so as to enable the plaintiff to make him a party to a bill; but the authorities do not agree upon that point. (p) The statute 6 Ann, c. 18, enables persons having an estate in remainder, reversion, or expectancy, after the death of any person, upon affidavit of his belief of the death of such person and the concealment thereof, once a year to move the Lord Chancellor for his order to produce such person or persons, not exceeding two; and if the production be refused, and no sufficient evidence of the continuance of the life be established by affidavit, the person so concealed is to be taken to be dead, and the person entitled in remainder, &c. may enter upon the estate. (g) A personal annuity payable during the lives of several named persons, would not be within this act; and therefore it would be well for a grantor of an annuity to stipulate in the deed for the production, from time to time, of sufficient evidence of the continuance of the lives, in order to avoid the necessity for filing a bill of discovery; and which, it is apprehended, he might effectually do. (r) tained. &c. We have suggested the expediency of ascertaining the evi- Fourthly, what dence in the first instance, before even giving any intimation to and how it is is the evidence, the opponent of intended litigation (s); and we have seen, that to be ascerit is the duty of an attorney to ascertain, at least, that there will be sufficient evidence to sustain the proceeding before he commences it; (t) and, if he should proceed to trial without seeming adequate evidence, and the plaintiff be nonsuited, he would be liable to an action for such negligence. (u) Too frequently proceedings are commenced merely upon the client's statement; but the safest course is, in the first instance, to examine, at least, the principal witness, so as to ascertain that probably the client may safely proceed, especially as the evidence may affect even the form of action, or the pleadings; or at least, the attorney should secure proof that he has suggested (n) Ante, 1 Vol. 517, tit. Executors. (0) Dun v. Coles, 1 Atk. 289, and other cases, 1 Mad. Ch. Pr. 208. (p) Chancey v. Tahourdin, 2 Atk.393, accord; but see 1 Vern. 93, cited Redesd. Tr. Pl. 227, contra, cited 1 Mad. Ch. Pr. 209. (g) Ann, c. 18, ss. 1, 2, 3, and 4; (r) Semble, 1 Madd. Ch. Pr. 206. (u) 4 Bar. & Ald. 202. BETWEEN, &c. CHAP. II. to his client the expediency of an immediate examination of PROCEEDINGS. the evidence, and that such client has, to avoid expense, or on some other account, expressly dispensed with it. If the evidence be in any respect doubtful, then after a proper written application to the defendant, a bill for a discovery may be filed against him; or if the death of one or more material witnesses should be apprehended, we have seen some instances when it may be proper to file a bill to perpetuate the testimony. (v) We have seen, that it rarely occurs that an answer to a bill will contain so unqualified an admission as to enable a plaintiff to use it in proof of his case at law; but still there are cases in which it will be expedient to endeavour to obtain some admission by the defendant. (w) Fifthly, bills for discovery, and costs there of. Fifthly, the full consideration of bills for discovery more properly belongs to the fourth part, relating to Suits in Equity; (x) but we will, nevertheless, here notice the principal points in connection with proceedings at law. Upon a bill, praying nothing but a discovery (and not also relief), it has been held, that the plaintiff shall not have his costs, and even that the defendant is entitled to his costs, and those even as between attorney and client. (y) It is presumed that this rule has prevailed upon the supposed principle, that it was originally the plaintiff's own fault not to secure evidence, and that, therefore, he ought to pay the costs of any trouble he may afterwards occasion the defendant by requiring him to communicate such evidence. Where there was no privity between the parties, that reason may, perhaps, be just; but certainly not so where there has been any privity, and an implied duty or contract at all reasonable times to disclose the requisite information, as in the case of agents. (z) Mr. J. Buller thought, the rule thus laid down was too general; and was of opinion that if the plaintiff is entitled to the discovery, and goes first to the defendant to ask for the accounts to which he has in justice a right, especially if he goes in such a civil manner as men ought to observe (v) Ante, 1 Vol. 733; 2 Madd. Ch. Pr. 250, 1; but note that the suit at law must have been previously commenced, to sustain a bill to perpetuate; id. ibid.; so that, in strictness, this suggestion should be introduced in a subsequent chapter. (w) Ante, 1 Vol. 440. (x) See in general 1 Madd. Ch. Pr. 196 to 218; and Chitty's Eq. Dig. tit. Pleading, Answer 3, 4, 5, page 756 to 764, and 778 to 780; id. 889; and id. title Practice, Costs, p. 929. (y) Simmonds v. Lord Kinnaird, 4 Ves. 476; Cartwright v. Haloly, 1 Ves. j. 293; Noble v. Garland, 1 Madd. Rep. 344; Hewart v. Semple, 5 Ves. 86; Redes. Tr. Pl. 164. (*) Semble; When a defendant has previously covenanted to discover, and to answer any bill, of discovery, he is compellable to discover, although it might endanger his pecuniary or other interests; i Strange, 168; and 1 Madd. Ch. Pr. 215, note (m). CHAP. II. PROCEEDINGS in asking for their rights; then if the defendant refuse, and the plaintiff is thereby compelled to file a bill for a discovery, BETWEEN, &c. he (the defendant) ought not to have his costs; though when a bill is precipitately filed, it may be just that the plaintiff should pay them. (a) In a case at law, the counsel complained of the hardship of a plaintiff in equity being obliged to pay the costs of a discovery; upon which Lord Kenyon observed, that he had once heard Lord Mansfield say, he thought in such a case, the court of law ought to allow the costs paid by the plaintiff to the defendant in equity as costs at law; and that he was struck with the propriety of the observation, and thought it would be a good rule to be observed. (b) it mand of a legal security, in lieu of one defec tive. Sixthly, it is essential, when the claim of a client is founded on Sixthly, desome written security, to ascertain first whether it is sufficient in its terms; and, secondly, whether it is properly stamped; for if has been framed contrary to the understanding of the parties, as joint security, when one joint and several was intended, or otherwise, it will be necessary, before any proceedings at law thereon, which might be considered an adoption of the security, to make a formal application to the other party for a correct contract, signed by him and all the other parties; and if refused, then a bill to enforce the delivery may be necessary; (c) and where there was an express agreement to give a valid note, and the party gave one on an improper stamp, a court of equity would enforce the delivery of a valid note, (d) though it has been supposed that in general a court of equity cannot relieve against a defect in the stamp, as the parties acted illegally in accepting a security not properly stamped. (e) If there were a valid agreement sufficient at law, then indeed the party, after requiring the delivery of a proper security, might sue at law separately for not giving it, and thereby avoid the necessity for any proceeding in equity. In one case, under particular circumstances, where it was the duty of the defendant to have got an agreement stamped within twenty-one days, but he neglected to do so, in conse (a) Weymouth v. Boyer, 1 Ves. j. 416; and 1 Madd. Ch. Pr. 217, note (y), where that author states he had heard Lord Eldon approve that doctrine; and why ought not a plaintiff to receive costs where a defendant has unnecessarily compelled him to file a bill, the same as in case of an interpleader bill; 1 Madd. Ch. Pr. 181; Aldridge v. Mesuer, 6 Ves. 419. If even a trustee refuse to join in a conveyance, he may be decreed to pay all the costs of a bill for specific performance thereby rendered necessary; Jones v. Lewis, 1 Cox, 199; 2 Madd. Ch. Pr. 552. (b) Grant v. Jackson, Peake Rep. 203; (c) Ante, 1 Vol. 710, 711, 859, 860; CHAP. II. PROCEEDINGS quence of which omission the plaintiff was obliged to pay the BETWEEN, &c. duty and 57. penalty, the Judge permitted the plaintiff to recover the amount as damages. (f) In general, when an instrument (excepting a bill of exchange, promissory note, or receipt) has not been duly stamped, it suffices to get the proper duty impressed at any time before the trial at law or in equity; (g) and it will be better to delay that expense until it has become absolutely necessary, as it may, perhaps, be prevented by compromise or by admission of a copy of the document to be read in evidence, or sometimes by a Judge's order. (h) Seventhly, pro tended defend and of making a proper demand. As attornies and solicitors should never allow themselves to priety of attor- be contaminated by the angry feelings of their clients, or their ney's writing a letter to the in- quarrels inter se, so it is essential that they should conduct all ant before any stages of the suit with all possible courtesy towards the oppoproceedings, nent, and write a civil letter to him in sufficient time before any proceedings be commenced, so as to enable him to prevent expense; unless, indeed, it be expected that he will abscond to avoid arrest, or keep out of the way to avoid the service of process, in which cases only the omission of a previous letter can be excused. The omission of such a letter generally excites angry feelings towards the attorney as well as the plaintiff, and induces the party afterwards to take advantage of any trifling error, which he would otherwise be ashamed of even noticing. Formerly, on taxing costs, no charge for such a letter was allowed to an attorney for the plaintiff against the defendant; but the propriety of encouraging this preliminary step Terms of such has of late induced a contrary practice. (i) The letter need only state, "that the attorney has been instructed by A. B. to letter. commence proceedings against the party for £ [or whatever may be the subject of the intended suit], and that unless "the same is paid before a named day (allowing sufficient time "to raise the money), the expense of proceedings will be in"curred without further notice." (f) Esp. Rep. But that decision must not be brought into precedent.See case of a motion against an attorney on account of an insufficient stamp. 2 Smith. Rep. 155, 6. (g) Chitty's Stamp Acts; where see the excepted cases, and Middleton v. Briscoe, 11 Ves. 395. (h) Semble, under 3 & 4 W. 4, c. 42, s. 15. (i) On a trial before Sir J. Mansfield, of an action between an attorney and his client, an arbitration was proposed, but in consequence of some previous high words upon the subject of such a If the plaintiff's claim would letter having been written by such attorney without authority from his client, and his therefore refusing to pay it, the attorney refused to refer the cause, unless the charge of 3s. 6d. for writing such letter was at all events paid; and the cause being in consequence about to proceed, Sir J. Mansfield declared that he thought the charge legal and reasonable, and ought to be paid, and actually paid the 3s. 6d. in Court out of his own pocket, in order that the cause might be so settled; but which the attorney immediately afterwards very properly returned to the judge's clerk. by a proper demand under the recent Act 3 & 4 Wm. 4, c. 4, s. 28, entitle the plaintiff to interest, then, in addition to the usual language of the attorney's letter, a demand of interest, in the subscribed form, should be added. () At law it is not material that the demand should be of the precise sum; for if the plaintiff demand too much, the defendant must, nevertheless, tender or pay into Court a sum to cover what is really due, and pay costs to the time of such payment; but in equity, it is important that the demand, or at least the suit, be not for too large a sum; for if the claim, as in a tithe suit, be larger than the plaintiff can support, the Court will give costs against him for the excess, up to the time of his giving notice of abandoning any part of the excessive demand made by the bill. (k) CHAP. II. PROCEEDINGS BETWEEN, &c. We have in a preceding page observed upon the propriety Eightly, of and mode of asking for or proposing an apology. (1) Many proposals for an apology or causes of action and claims may with propriety be brought for- a compromise. ward principally, if not entirely, with a view to clear up character, (1) or obtain explanation, or prevent the repetition of affront or small injury; and no sensible party would willingly continue a suit which may rather amuse the public than obtain any substantial compensation. Hence it is the peculiar duty of an attorney in such cases to afford opportunities for apology, though it might be injudicious absolutely to ask it at the risk of contemptuous rejection. On the other hand, no gentleman or liberal minded man ought to require too humiliating an apology, which would reduce even the value and utility of the explanation; and if rejected on that ground, the very circumstance of the parties having insisted upon it, would probably reduce the damages to the smallest coin. (m). (j) And I do further, for and on behalf of the said A. B., and by his directions and without prejudice to any prior demand or right to recover any antecedent interest, hereby according to the recent statute in that behalf, give you notice that the said A. B. doth and will claim interest on the said debt and sum ofl. from the date of this demand, and until the term and time of actual payment of the said debt; and I do hereby, as such attorney as aforesaid, demand and require of you to pay such interest accordingly. Dated, &c. Yours, &c. E. F., attorney for the plaintiff. To Mr. (k) Woolley v. Brownhill, 13 Price, 500; 1 M'Clel. 317, S. C. (1) Ante, 1 Vol. 562, 3. (m) In a recent case, a collector of poor rates had by mistake levied for Form of a writ- |