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Keate v. GOLDSTEIN and another.
Where one case, under the following circumstances. The plaintiff had of two defend
ants removes commenced a suit, by foreign attachment, in the Court of the a cause from Lord Mayor of London, against the two defendants, which
Mayor's suit one of the defendants had removed by habeas corpus Court, a pro
cedendo will cum causâ into this Court. The plaintiff thereupon took be awarded, out, and served upon both the defendants, a rule for bail, unless bail be under which the one defendant, who had removed the cause, put in bail for himself only. The question was, whether that one defendant was compellable to put in bail for the other defendant, as well as for himself.
Goulburn shewed cause. This is an attempt on the part of the plaintiff, to engraft upon the practice of this Court, the practice of the Court below; which he cannot be allowed to do. According to the practice of the Lord Mayor's Court, proceedings commenced there, whether against the persons of defendants, or against money of their's attached in the hands of a third person, cannot be got rid of, until bail has been put in for all the defendants. But no such advantage arises to the plaintiff from the practice of this Court; and advantages peculiar to proceedings in an inferior Court, cannot follow those proceedings when they are removed into a superior Court. In the present case, great hardship might result from compelling one defendant to put in bail for the other; for the other defendant may be abroad, or under other circumstances which would render it impossible for bail to be procured for him. [Bayley, J. We can do no injustice, and inflict no hardship, by merely sending the cause back to the inferior Court.]
Comyn, contrà, was stopped by the Court, and —
Per CURIAM.–We must not allow a defendant, by his own act, and for the sake of the advantage he seeks to derive from it, in removing the suit, to deprive the plaintiff of the advantage which he would have had, if the suit had remained in the Court below (a). The principle of compelling one defendant, under circumstances like these, to put in bail for his co-defendant, is founded in reason and justice (6). At all events we are bound, under such circumstances, to send the cause back to the original jurisdiction.
Rule absolute (c).
(a) So where the privilege of an attorney of King's Bench, to be sued only by bill in this Court, would oust the plaintiff of the benefit of foreign attachment, the Court will not remove a suit in respect of such privilege. Turbill's case, 1 Saund. 67.
(6) See Nicholson v. Bownass, 3 Price, 263; Dwerryhouse v.
Graham, in notis, ibid. Petty v
(c) And as to the persons to whom the custom of foreign attachment extends, in respect of the locality of the cause of action, see the order made by Lord Eldon, C. J., on 19th Dec. 1817, in Traub v. Schmidt, Manning's Nisi Prius Digest, 2d edit. 350.
In re HORSFALL.
2 B 528. An attorney A JUDGE'S order had been obtained, commanding an when ordered to deliver up attorney of this Court to deliver up to his client, for whom the papers of he had transacted certain professional business, the drafts his client, must deliver up the of certain deeds which he had prepared for him in the drafts of deeds course of that business.
course of that business. A rule nisi was afterwards obfor which he has charged
tained for setting aside that order, for the purpose of raisand been
paid, ing the question, whether the attorney, having delivered deeds them- up the deeds themselves, was compellable to deliver up selves.
also the drafts or rough copies of them, which he had prepared, and for which he had charged, and had been paid by his client. Upon the rule being brought on for argument, the Court consulted the Master, who certified that
it was the practice for attorneys under such circumstances to retain the drafts.
J. Evans, on the part of the client, contended that such a practice could not be supported. Hughes v. Mayre (a), and Er parte Grubb (6), are decisions at variance with such a practice; but independently of authorities, and upon principle only, it is clearly bad. When an attorney has concluded the business in which he is employed, and is paid his bill, he is bound to give up to his client all papers connected with that business, whether drafts, or rough copies, or of whatever nature they may be. What right can he have to retain possession of drafts for the trouble and expense of drawing which he has charged, and been paid? They are as much the property of the client, as the deeds or documents themselves. The possession of the drafts may, by possibility, enable the attorney, at some future time, to prejudice the interests of the client, by improperly communicating their contents to parties who may be hostile to him; and it would be a dangerous and unjust thing to clothe the attorney with such a power. (Here the Court stopped him).
Tindal, S. G., contrà. The Master has certified that in practice it is usual for attorneys to retain possession of papers of this nature. The danger supposed to attend such a practice is merely imaginary, and would apply to the attorney's own books, which must often contain entries which it might be injurious to his former clients to disclose to third persons. The Court will not presume that their officers would be guilty of so flagrant a breach of professional confidence as is suggested on the other side. [Lord Tenterden, C. J. has been paid by his client for drawing these drafts : are they not the property of his client? Bayley, J. (a) 3 T. R. 275.
(b) 5 Taunt. 206.
1827. What good reason can the attorney have for wishing to
retain them?] The client has received the documents Horsfall. themselves, which are all that he can call his property, or
that can be of any service to him. The drafts may be very useful to the attorney as precedents.
Lord TenteRDEN, C. J.-He who pays
the expenses attending the preparation of the drafts, has, in my opinion, a right to the possession of them. It may be advantageous to the attorney to keep them, but the client is entitled to say whether he chuses or not to allow him that advantage. If he does not, the attorney is bound to deliver them up.
BAYLEY, J.-The attorney may have a right to copy them into his precedent book, if he wishes to make use of them as precedents; but he has no right to keep the drafts themselves, after he has charged and been paid for preparing them.
The rest of the Court concurred.
Biggs v. Dwight. A., the ac
DECLARATION, in assumpsit, upon two bills of exbills for 251., change, drawn by William Webb upon, and accepted by and 50l., both the defendant, payable to the order of Webb, and indorsed over due, paid 221. 10s. to
by Webb to the plaintiff; with the money counts. Plea, B., the holder; non assumpsit, and issue thereon. At the trial before B. said, “ be Gaselee, J., at the last Lent assizes (a) for the county of wished to have the full (a) Counsel for the plaintiff, · fendant, Storks, Serjt. amount of Robinson and Monro ; for the dethe 251. bill." A. replied, “ he had no more money then, but would pay some more soon.” B. then indorsed on the 251. bill, "received 221. 10s. in part of two bills:”—Held, that B. might appropriate the payment to the 251. bill, though void for want of a stamp.
Bucks, the facts of the case, as proved, were in substance