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commissions were sometimes issued on the common law side, it was always by consent.

On the part of the defendant, an attorney who had practised in the Lord Mayor's Court for upwards of twenty-six years, stated that he had never known a commission issued on either side of the court, except by consent; and that, if a bill were filed for discovery, the plaintiff must pay the costs. And the defendant's attorney *stated, that [*625 the particular average on the policies in question (the amount being disputed by the underwriters) could only be settled by information from Calcutta as to the nature and extent of the damage the goods had sustained, the expenses of sale, &c.; that the only mode of doing that would be by a bill of discovery in the Lord Mayor's Court, and the issuing of letters inquisitorial, the expense of which would be from 2007. to 3007.; and that, on settling with the underwriters in this case on behalf of Mr. Leech, he had been obliged to submit to a deduction of 1027. for their costs,-which he thought a judicious settlement.

On the part of the defendant, it was insisted that the suing in the Lord Mayor's Court for the enforcement of a claim which could only be established by means of a proceeding which could not be taken in that court except at a ruinous expense to the plaintiff, was such a degree of negligence as to disentitle the plaintiff to recover any costs.

For the plaintiff, it was submitted, that he was justified by his instructions in bringing the actions in the Lord Mayor's Court, and in assuming that the only objection on the part of the underwriters arose out of their claim of set-off against Gibson, as in Chadwick's case; and that, at all events, assuming that there was negligence, he was still entitled to recover in respect of the letters written to the several underwriters before action, the charge for which was 6l. 158.

The learned judge was of opinion that there was evidence to show that a commission to examine witnesses at Calcutta would be necessary, and that there was no sound reason for thinking that the Lord Mayor's Court had power to issue such commission; that the instructions which the defendant received did not warrant his proceeding in the Lord Mayor's Court, unless that court was legally suited to the claim; and that there was evidence *to warrant the jury in finding that the [*626 defendant had been guilty of such a degree of negligence as to disentitle him to recover: and he accordingly directed a verdict for the defendant, reserving to the plaintiff leave to move.

J. Brown, in Michaelmas Term last, in pursuance of the leave reserved, obtained a rule nisi to enter a verdict for the plaintiff for 641. 68. 2d., or for a new trial on the grounds,-first, that there was no such negligence or want of skill on the part of the plaintiff as to disentitle him to recover,-secondly, that he was at all events entitled to recover for the letters written before action brought,-thirdly, that the work was not wholly useless to the defendant -fourthly, that the judge

misdirected the jury to the contrary of the above points,-fifthly, that the verdict was against the evidence. He submitted, that, the Lord Mayor's Court having so recently been thrown open to general practitioners, and its course of proceeding not so well defined as that of the other courts, the plaintiff could hardly be held guilty of gross negligence or gross ignorance for being unacquainted with the fact that commissions for the examination of witnesses were not as of right granted on the common law side. [CRESSWELL, J.-A gentleman who assumes to practise in a particular court, warrants that he is reasonably conversant with its modes of procedure.] No doubt. But, the question is, whether the evidence showed a case of gross negligence. It was competent to the plaintiff to have removed the causes into a superior court; and then, according to the 117th rule of Hilary Term, 1853 (13 C. B. 30 (E. C. L. R. vol. 76)), the costs in the court below would have been costs in the cause. [WILLES, J.-Is that so, if the certiorari is applied for by the plaintiff who goes to the inferior court?] The words of the rule are general," If a cause be removed from an inferior court having *jurisdiction of the cause, the costs in the court below shall be costs in the cause." The objection, at all events, does not apply to the charge for the letters.

*627]

Bovill, Q. C., and Honyman now showed cause.-The first question is, whether the plaintiff was guilty of gross negligence. Was he not guilty of gross negligence, when he commenced proceedings, in an action which he must have known could not be sustained without a commission for the examination of witnesses at Calcutta, in a court by the practice of which he was bound to know that such a commission was obtainable only at an expense which must render the entire proceedings impracticable and unproductive? It is said the plaintiff's instructions were, to proceed in the Lord Mayor's Court. That, however, is not so: he was instructed "to take such steps as might be needful to obtain a settlement." But, assuming that he was desired by Mr. Murray to proceed in the Lord Mayor's Court, that did not, as was observed by Erle, J., dispense with the obligation on his part to use ordinary diligence. He chose to sue in a court with the practice of which he was imperfectly acquainted. He must take the consequences. No court has any inherent power to issue commissions for the examination of witnesses: it is only by force of certain statutes that it is done in the courts at Westminster: Regina v. Wood, 7 M. & W. 571.† The actions here clearly became fruitless in consequence of the plaintiff's negligence and want of skill. The case comes very nearly within the principle of a recent decision of this court,-Long v. Orsi, 18 C. B. 510 (E. C. L. R. vol. 86). There, an attorney received from O. & A., agents of C. L. & Co. of Paris, instructions to sue the acceptors upon five foreign bills of exchange, which they (O. & A.) alleged to be "unpaid and duly protested in their hands." A copy of one of the bills was sent to the attorney, with a

[*628

note stating them to be all endorsed to C. L. & Co. *The attorney thereupon brought the action in the names of O. & A., and discovering afterwards, when the bills were for the first time shown to him, that there was no special endorsement to O. & A., as required by the law of France, he discontinued, and brought another action in the names of C. L. & Co.: and it was held, that the suing in the names of O. & A. without having first ascertained that they were in a position to maintain an action on the bills, was such gross negligence as to disable the attorney from recovering the costs of the abortive action. "The plaintiff," said Jervis, C. J., "when he commenced proceedings upon the bills in the names of Orsi & Armani, knew or had the means of knowing what the law of France required. It was his duty to see the bills before he took any steps. He would then have known that the action could only be brought in the names of Cusin, Legendre & Co., and so the expense of the abortive action he first brought would have been avoided." If an attorney, in conducting a suit, commits an act of negligence by which. all the previous steps become in the result useless, he cannot recover for any part of the business done: Bracey v. Carter, 12 Ad. & E. 373 (E. C. L. R. vol. 40). The same was held in Stokes v. Trumper, 2 Kay & J. 232. With regard to the distinction attempted to be made as to the letters, it is to be observed that letters before action form part of the costs of the action; and only one is allowed,-Capel v. Staines, 2 M. & W. 850. The particulars are for costs in the actions; and the payment into court was not applicable to the costs of the actions. The letters were clearly useless. As to the suggestion that the actions might have been removed into a superior court by certiorari, it seems at the least very doubtful whether the 117th rule of Hilary Term, 1853, applies to a case where the certiorari is issued at the suit of the plaintiff. Norman, in support of the rule.-To disentitle an *attorney to recover his bill of costs for business done, on the ground of [*629 negligence, it must appear that the negligence was of such a description as to render the work wholly useless to the client: Potts v. Sparrow, 6 C. & P. 749 (E. C. L. R. vol. 25); Hill v. Featherstonhaugh, 7 Bingh. 569, 5 M. & P. 541; Huntley v. Bulwer, 6 N. C. 111 (E. C. L. R. vol. 37), 8 Scott, 325; Bracey v. Carter, 12 Ad. & E. 373 (E. C. L. R. vol. 40). Assuming that the special instructions he received did not justify the plaintiff in commencing the actions in the Lord Mayor's Court, there is no pretence for saying that it was any other than a prudent course to adopt. It being notorious that commissions had repeatedly issued from that court for the examination of witnesses abroad, was he bound to inquire whether they had been issued adversely or by consent? [CockBURN, C. J.-Is he not bound to be cognisant of the practice of a court in which he professes to carry on business?] At all events, all would have been right if the causes had been removed into one of the superior courts by certiorari, which is matter of right,-Anonymous, 1 Ventr.

46; and then the plaintiff would have been entitled to the costs in the inferior court,-Reg. Gen. H. 1853, r. 117. [CRESSWELL, J.-Is it so clear that the plaintiff might have removed the causes by certiorari ? Edwards v. Bowen, 5 B. & C. 206 (E. C. L. R. vol. 11), 7 D. & R. 709(a) (E. C. L. R. vol. 16), seems to show that some cause must be assigned for the removal. The cases seem to have been abandoned in the Lord Mayor's Court because it was not competent to that court to issue a commission. No suggestion was made by Mr. Cox at that time that the difficulty could be overcome by means of a certiorari. CockBURN, C. J.-It is now suggested for the first time.] The particular course was not pointed out: for, the business was taken out of the plain

tiff's hands; and the substituted attorney chose *to settle the

*630] claims without insisting upon the costs. The plaintiff is clearly

entitled to a verdict for the 67. 158. for the letters of application for payment before action. They were properly written, and would have been allowed if the proceedings in the Lord Mayor's Court had been abandoned, and fresh actions commenced in a superior court. [CRESSWELL, J.-Possibly the attorney may have a right to recover that charge as against his own client, though not as against the parties sued.]

COCKBURN, C. J.--I am of opinion, that, so far as relates to the costs incurred from the issuing of the process, there was evidence of negli gence sufficient to sustain the verdict. If an attorney, with or without express directions from his client, takes out a writ and proceeds thereon in a court of special and peculiar jurisdiction, he is bound to acquaint himself with the machinery by which the practice of that court is regulated, and to see that it is adequate to the carrying out of the objects of the suit. Here, it appears, that, not only did Mr. Cox not bring to bear upon the business of his client that competent degree of knowledge; but there is this further circumstance in the case,-that he had taken the trouble at an antecedent period to ascertain whether or not a commission for the examination of witnesses out of the jurisdiction could issue from the Lord Mayor's Court, and he had then been informed that on the common law side of the court it could not, but that it could only issue on the equity side, and that upon a bill filed, the expense of which was very considerable, and would fall upon the party seeking to obtain it. In that respect, therefore, I think that Mr. Cox was guilty of what the law calls crassa negligentia. From the nature of the actions he was instructed to bring, he must have known that he could not possibly proceed to trial without a commission. It is no answer for him now to say, that, when this obstacle to the conducting the case to a success*631] ful issue presented itself, it might have been got over by the removal of the cause by certiorari into the superior court,-first, because Mr. Cox never suggested such a course,-secondly, because that point

(a) 2 Russ. 153; 2 Sim. & Stu. 514. And see Perreau v. Bevan, 5 B. & C. 284 (E. C. L. R. vol. 11).

was not made at the trial. As far as regards the other part of the costs, however, the letters written to the underwriters before any proceedings were taken, I think the verdict ought to be entered for the 6l. 158. It seems to me that these letters are distinguishable. They might have produced the desired result. The negligence occurred only at a later stage,—when the process was sued out of a court having no machinery adapted to the particular case.

CRESSWELL, J.-I entirely concur in what has fallen from the Lord Chief Justice.

The rest of the court likewise concurred.

Bovill, Q. C., asked the court to give some special direction as to the

costs.

PER CURIAM.-We do not think it necessary to make any special order as to costs. They will follow the ordinary rule.

Rule absolute.

*GILBERT v. CROSIER.

Jan. 31.

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Upon a motion by a defendant for costs under the 86th section of the Bankrupt Law Consolidation Act, 1849, on the ground that the plaintiff had without reasonable or probable cause made an affidavit in bankruptey for a larger amount than he ultimately recovered, the verdict of the jury, though entitled to consideration, is not conclusive.

And, for the purpose of ascertaining whether or not there was reasonable or probable cause, the judge's notes of the trial may be had recourse to.

The plaintiff made an affidavit in bankruptcy, alleging the defendant to be indebted to him in the sum of 631. 68. At the trial, the jury returned a verdict for him for 107. in addition to 37%. 108. paid into court on a plea of tender. The judge who tried the cause reporting that he was of opinion there was evidence to show that the plaintiff was fairly entitled to recover the whole amount:-Held, not a case for costs under the 12 & 13 Vict. c. 106, s. 86.

THE defendant was on the 4th of October last served with a demand in bankruptcy, under the 78th section of the Bankrupt Law Consolidation Act 1849 (12 & 13 Vict. c. 106), at the suit of the plaintiff, claiming payment of 631. 68., being 77. 148. for goods sold and delivered, and for repairing and japanning a treacle-can, and 557. 128. for work and materials. The defendant, admitting his liability in respect of the 77. 108. and also his liability for the work and materials to the extent of 301., on the 7th, through his attorney, tendered to the plaintiff 377. 148., in discharge of his claim. The plaintiff declined to accept the sum tendered, and on the 8th commenced an action to recover the 631. 68., and on the following day caused an affidavit of debt to be filed in the Court of Bankruptcy, and summoned the defendant to appear in that court pursuant to the statute. The defendant attended and admitted his liability to the extent of the sum already tendered, and resisted the demand as to the rest. The defendant pleaded to the action never indebted and a tender of 371. 148. before action brought, and paid that sum into court. At the trial a verdict was found for the plaintiff for 107. only beyond the sum paid in under the plea of tender.

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