CHAP. II. PROCEEDINGS The very object of requiring the notice of action was to enable BETWEEN, &c. the Justice to know to whom he might apply before the com Indorsement on notice of attorney's abode. Other peculiar protections in different statutes. mencement of an action, and tender amends; it was therefore required, that on the back of the notice shall be indorsed the name of the attorney or agent for the intended plaintiff, together with the place of his abode. The 24 Geo. 2, c. 44, does not also require the place of the plaintiff's abode to be stated, but only that of the attorney; that being considered sufficient to enable the Justice to go and make a tender. But the Custom and Excise Acts expressly require the abode of the plaintiff to be stated. (p) It has been held sufficient if the surname of the attorney be stated, although only the initial of his Christian name be given. (q) And although acts, in protection of public officers, are generally to be construed strictly, yet it has been holden, that if the name and place of the attorney's abode be stated in the body, it suffices, although the statute, in terms, requires an indorsement of the same. (r) It usually suffices, to describe the place of abode of the attorney, as generally of a particular town, however considerable, as "of Birmingham;" but this does not extend to such a metropolis as London; (s) and at least" of London," when the residence was in Westminster, was considered insufficient; (t) and certainly the preferable course is to name the number of the house, and the street, and the part of the town where the street lies, when there is the least risk of there being several streets of the same name. Under the Customs and Excise Acts, which require the place of the intended plaintiff's abode to be stated in the notice, his abode at the time of serving the notice must be stated distinctly; and therefore it was held, that a notice of action against a Custom-house officer for breaking the plaintiff's house in Cable Street, &c., was not a sufficient description of the plaintiff's then abode, for he might have removed since the trespass was committed, or he might have had two houses. (u) The constructions upon this principal act are in general equally applicable to all other enactments in pari materia and passed with the same object, as in the instance of officers of Customs and Excise, and other public officers; and in doubtful cases, therefore, reference should always be had to such decisions, but with this general precaution, that in each particular case every varying (p) See infra. (q) Mayhew v. Lorke, 7 Taunt. 63; 2 Marsh. 377, S. C.; and James v. (r) Crooke v. Curry, Tidd. 9th ed. 30, (s) See Ward v. Folliott, 3 Bos. & Pul. 551; Stears v. Smith, 6 Esp. R. 138; 6 Bing. 90. (t) Mills v. Collett, 2 Man. & Ryl, Mag. Cases. 262. (u) Williams v. Burgess, 3 Taunt. 127, PROCEEDINGS BETWEEN, &c. word in the general or local act, must be particularly examined, CHAP. II. in order to ascertain whether it could lead to a conclusion different to that recognised, as relates to the general statute respecting Justices; as for instance, the enactment relating to Justices, requires that the notice of action shall state even the name of the intended process; whereas the statute relating to the Customs, does not perhaps even virtually require that specification. (u) The act requires "at least" one calendar month's notice, and When the month expires. therefore it would seem that the day of service of the notice, and that on which it expires, ought to be excluded, but it has been decided otherwise. (*) cautions. In all cases, where the wrong complained of may, by any General prepossibility, have been committed under color of some local act, great care must be observed to comply with its regulations, as well as those of any general act, before the commencement of any action or other proceeding. notice of solicitor to op ponent, to secure his lien. In cases where the ability, as well as the probity of the client Thirteenthly, are doubtful, it is prudent, however unpleasant and obnoxious, attorney or to give the defendant an early notice that such attorney requires the latter to pay or give security for the debt and costs to such attorney, and not to his client; nor otherwise to prejudice his general or particular lien; and further requiring that no compromise shall take place, or security be delivered or taken, or arrangement made, unless with the express concurrence of the attorney or solicitor, for otherwise the latter may lose such lien or security; (v) and where, no such notice having been given, the plaintiff, pending the suit, compromised it with the defendant without consulting the plaintiff's attorney, it was held, that the latter could not afterwards proceed in the action to recover his costs; (w) though it would be otherwise if he could establish that there was an actual fraudulent agreement to cheat him of his costs. (x) But in general, if after such a notice has been (u) Tidd. Prac. 8th ed. 27; Chitty's Col. Stat. 263, note (i), and 646, note (1). (*) In 3 T. R. 623, and 2 Campb. 294, the day of service was included; but see 4 Man. & Ryl. 300, note b; 3 B. & Ald. 581; 5 Bing. 339. The six months are reckoned exclusive of the first day; see Hardy v. Ryle, 9 B. & Cres. 603, semble over-ruling 4 Moore, 465. (v) Ex parte Hart, 1 B. & Adolph. 660; Welsh v. Hole, 1 Dougl. 238; Read v. Dupper, 6 T. R. 361; Chapman v. Haw, I Taunt. 341. (w) Graves v. Eades, 5 Taunt. 429; 1 Marsh, 113, S. C.; Rooke v. Wasp, 5 Bing. 190; 2 Moore & P. 304; Nel son v. Wilson, 6 Bing. 568; Charlwood v. (x) Swain v. Levate, 2 Bos. & P. new BETWEEN, &c. CHAP. II. given the defendant should pay the plaintiff, he would continue PROCEEDINGS liable to pay the attorney the amount of his lien, (y) and a collusive release would be inoperative. (2) An exception to this rule seems recently to have been established, where the damages are purely unliquidated, as for an excessive distress, and in which it was held, that provided there was no actual fraud, a release might be effectually given and executed, after notice not to compromise. (a) The same rules also prevail in equity; and therefore where a plaintiff's solicitor, with notice, suffered the defendant to make a collateral arrangement for satisfying the plaintiff's demand, without taking effectual security for the payment of his costs, as by suffering his client to take from the defendant his undertaking to the plaintiff, instead of to his solicitor, to pay the costs, the Court would not suffer him to proceed in the suit against the defendant for recovery of them.(b) Fourteenthly, several descrip tions, and The already enumerated precautionary measures having been Proceedings of considered and taken when necessary, and some description of litigation having become necessary, the important question then which to select. will be, which of several remedies must or should be preferred. The least hostile is an arbitration; the most expeditious and less expensive, a summary proceeding before Justices; or in some inferior Court, as of Requests; or, lastly, as regards proceedings in Courts of Common Law, an action; or in Criminal Courts, a prosecution by information or indictment. With respect to arbitration, it is sometimes compulsory, and must be adopted; but it is in general optional, and will be considered in the next chapter. For small injuries, whether to the person or to personal or real property, when not indictable, and where the damages do not exceed 57., modern acts enable the party injured to proceed before one or two justices of the peace, though in form rather for punishment than compensation, and leave the party injured the option of proceeding by action. Other statutes punish small offences by pecuniary penalties, the proceeding before justices for which also operates as preventive for the repetition of similar injuries, rather than as private satisfaction. These will be considered in the fourth chapter. The remedies for considerable injuries, or for any injury where an important or permanent right is in question, are in (y) Ex parte Hart, 1 B. & Adolph. 660; Welsh v. Hole, 1 Dougl. 238; Read v. Dupper, 6 T. R. 361; Chapman . Haw, 1 Taunt. 341. (2) Ormerod v. Tate, 1 East, 464; Gould v. Davis, Cromp. & J. 415; 1 Tyr. 380, S. C. (a) Ex parte Hart, 1 B. & Adol. 660, sed quære. (b) Morse v. Cooke, M'Clel. 211; and 13 Price, 473, S. C. CHAP. II. PROCEEDINGS general by action in one of the superior Courts, the practical modes of conducting which in the superior Courts will consti- BETWEEN, &c. tute the principal subjects of inquiry in the Fifth and subsequent chapters of this part of the work. We have, in some preceding pages, adverted to the importance of a judicious choice of a remedy proportioned to the nature of the right and of the injury. The intelligence and judgment of an attorney cannot be more strikingly evinced than in this part of his professional conduct. (c) Counsel. Immediately after it has been resolved that proceedings by Fifteenthly, and against certain parties shall be instituted in any particular Retaining Court, and where there is a probability of a trial or hearing on any particular circuit, or at any particular sessions, it is the duty of the attorney to consult with his client as to the counsel to be retained on his behalf, and which should be effected without the least delay, so as not to be anticipated by the opponent. (d) Such counsel should be retained who will be certain to attend at the place of trial or hearing, (e) and whose knowledge and experience, either generally or on the particular subject, will render them most able to conduct the cause. In choosing counsel, care must be observed that their interest or particular opinions are not calculated to interfere with the interest of the client. In general, when there is a strong preponderance of law and fact in favour of the client, his cause would probably succeed, whoever may conduct it; but unquestionably where the merits are nearly balanced, the weight of superior talent of a particular counsel would probably turn the scale; and therefore it is always the duty of the attorney, in every cause that will be substantially defended, to secure the best counsel. In causes of any difficulty, and where there are two or more witnesses for the party on whose behalf the brief is to be delivered, briefs even to three counsel may be allowed on the taxation of costs between party and party, and sometimes there should be as many retainers. (ƒ) (c) Ante, 1 Vol. 15 to 31, as to the choice of one of several proceedings, and in particular, page 23, as to actions in the Superior Courts for small injuries. (d) In prudence, where resistance is anticipated, counsel should be retained, even before the plaintiff's attorney has written his letter to the defendant, as advised in the following section. (e) Before retaining counsel, it should be resolved in which Court the action is (f) Chitty's R. 544; Tidd, 9th ed. CHAP. II. PROCEEDINGS But in taxing costs only the retainer of the leading counsel BETWEEN, &c. is allowed against the opponent, it being considered most probable that abundant counsel will be found upon the circuit or sessions competent as juniors, and that therefore there could be no absolute occasion for retaining more than a leader. When on behalf of an expected plaintiff or defendant it is not quite certain who will be the exact parties, it is usual to deliver a general retainer, which secures the counsel for the client in all matters that may arise during the life of the party on whose behalf it is given, so that he do not omit to offer to the counsel retained a brief in every case where he could hold the same. But the cost of a general retainer is never allowed on taxation between party and party. |