Vol. 7.] THE LAW REPORTER SWEENEY v. Spooner. parish of B. was made and duly served with the other documents on the 23rd Oct. 1861. On the 6th Nov. the apps. applied to the resp. overseers for a copy of the depositions, "as (as they stated) it is intended to appeal against such order of removal" The resps. took no notice whatever of this application and on the expiration of twenty-one days they removed the paupers. On the 10th Dec. the apps. gave notice of appeal, and on the 20th they applied to the justices' clerk for copies of the depositions. At the ensuing January sessions the apps. applied to enter and respite their appeal, which was entered and respited accordingly; but upon the order of sessions for such entry and respite being brought up to be quashed, it was Ield, that the apps. had lost their right of appeal by not giving their notice in time, their application on the 6th Nov., for copies of the depositions, being made to the wrong parties (ie., to the parish officers instead of to the clerk to the justices), and that such application was not of itself a notice of appeal. This was a rule to quash an order of quarter sessions ordering an appeal to be entered and respited. It appeared that on the 23rd Oct. 1861, an order of removal was obtained for the removal of a woman of the name of Hudson and her three children, from the parish of Crick to the parish of St. Alkmond; that a copy of such order was duly served with the other documents upon the app. parish officers; that on the 6th Nov. following the as-istant overseer of the parish of Crick wrote the following letter to the parish officers of St. Alkmond: "Parish of Crick, Nov. 6, 1861. "To the parish officers of St. Alkmond, Derby. "Gentlemen,-The churchwardens and overseers of the parish of Crick have ordered me to apply to you for a copy of the depositions of the grounds of removal of George Hudson, a pauper lunatic, now Also, I charged to the parish of St. Alkmond. hereby apply for a copy of the depositions of the grounds of removal of Hannah Hudson, wife of George Hudson and Isaac George, aged six years, Elizabeth and Sarah Ann, their three children, as it is intended to appeal against such order of removal.-I am, Gentle"R. H. SMITHI, men, yours, &c. "Assistant Overseer of Crick." [Q. B. have been sent by the overseers or guardians of the removing parish to the overseers or guardians of the parish to which such order shall be directed, unless within such period of twenty-one days a copy of the depositions shall have been applied for as aforesaid by the last-mentioned overseers or guardians, in which case a further period of fourteen days after the sending of such copy shall be allowed for the giving of such notice of appeal; but in such case no poor person shall be removed under such order of removal until the expiration of such further period of fourteen days." Care now appeared in support of the order of sessions, and contended that the apps. were not in default in not giving their notice of appeal before they did, inasmuch as they had applied to the resps. for a copy of the depositions, which they had never furnished. [CROMPTON, J.-You seem to have applied to the wrong party. Why should you have applied to the parties who had not got the depositions?] It gave them notice that we intended to appeal, and so they would know when they might remove the paupers. [WIGHTMAN, J.-But you applied for a copy of the depositions to the overseers, who had not got them. You must show that you are within the Act, and by the 9th section you must give your notice of appeal within twenty-one days, unless within such period yon apply for a copy of the depositions. Now, here it appears you did not apply to the proper parties for a copy of the depositions.] We knew nothing of the justices' clerk; we applied to the overseers from whom we had received the order of removal. [CROMPTON, J.-Do you mean to say that you need only go to the overseers for the copy depositions, and so escape the payment of the fees? MELLOR, J.-You say that you can put it upon the overseers to go and get the copy depositions, pay for them and send them to you?] However that may be, we were led into the mistake by the other side by their taking no notice of our letter of the 6th Nov. They knew by that letter that we intended to appeal. [WIGHTMAN, J.-The letter does not state as a fact that you intended to appeal. MELLOR, J.-It is not a positive notice of appeal; it is in effect a letter asking for a copy of the depositions to see if you can appeal.] of the other side to put you right. The letter itself is The other Judges concurred. WIGHTMAN, J.-It is perfectly clear that the statute requires the application for a copy of the depositions to be made to the clerk to the justices. To this application the parish officers of St. Alk-That you did not do, and it was no part of the duty mond gave no reply, and took no notice whatever of it, and on the 21st. Nov., not having received any notice of appeal, they removed the paupers. On the 10th Dec. the apps. gave notice of appeal, and on the 20th they applied to the justices' clerk for copies of the depositions. At the ensuing January sessions the apps. applied to enter and respite their appeal, which was resisted by the resps. on the ground that they had forfeited their right to appeal by not giving notice of appeal in due time. The learned recorder, however, received and respited the appeal, and the order of sessions thereon having been removed by certiorari, the present motion was made to quash it. By sect. 3 of the 11 & 12 Vict. c. 31, it is enacted, "That the clerk to the justices who shall make any order of removal shall keep the depositions upon which such order was made, and shall within seven days furnish a copy of such depositions to the overseers or guardians as aforesaid of the parish to which the removal is by such order directed to be made, if such overseers or such guardians shall apply for such copy and pay for the same at the rate of 2d. for every folio of seventy-two words," &c. By sect. 9 it is enacted, "That no appeal shall be allowed against any order of removal, if notice of such appeal be not given as required by law within the space of twenty-one days after the notice of chargeability and statement of the grounds of removal shall SWEENEY (app.) v. SPOONER (resp.) Vagrant Act-Rogue and vagabond-Running away and leaving wife chargeable-What not sufficient proof of. To make a party liable as a rogue and vagabond for running away and leaving his wife chargeable to the parish, he must leave her wilfully, and reasonably believe at the time that she would become chargeable. This was a case stated under the 20 & 21 Vict. o. 43, upon a refusal of justices to convict a party as a rogue and vagabond in running away and leaving his wife chargeable to the parish, The case stated, that upon the hearing of the said information it was proved on the part of the app., and found as a fact, that the wife of the resp. became chargeable to the parish of Birmingham on the 27th Nov. last, and had continued to be so chargeable until the day of hearing the said information, and that the said resp. had been for some time and was then employed as schoolmaster at Quarry-bank, Brierley Hill, near Dudley, and about twelve miles from Birminga salary not exceeding 98. per week, ham, at Q. B.] MORLEY V. GREENHALGH. [Q. B. CROMPTON and MELLOR, JJ. concurred. MORLEY (app.) v. GREENHALGH (resp.) with house-rent and firing found in addition thereto. | parish, and the statute plainly contemplated a running But it was not proved that any communication away of a purpose and wilfully, he at the time knowing of the fact of the wife's chargeability had ever that his wife would thereby become chargeable. Here been made by the app. to the resp. before the issuing a different state of things appears altogether. The of the warrant in this case. It was stated on behalf parties had parted by mutual consent, and when he of the resp. and not denied by the app., that the place left her the wife was living on her own means. There of legal settlement of the resp. and his wife was is no evidence that he ever knew those means had Swansea, in South Wales, where they had lived and becoine exhausted, or that she became chargeable. A cohabited for several years previously to the year 1858, man cannot become guilty by relation in this way. when they parted by mutual consent and had had no per- He seems to have had no knowledge of her condition. sonal communication from that time till the hearing of There is nothing, therefore, to support a conviction for this information. That the said resp. was recently this offence. convicted of bigamy in the county of Stafford; and the only occasions when he saw his said wife, after their separation in 1848, was on the preliminary investigation before the magistrates, on the charge of bigamy, when his wife appeared in court for the pur-Cock-fighting-Assisting at, not at a place kept for pose of identification; and once in Birmingham aforesaid, after the resp. was discharged from prison, after sentence on conviction for his said offence of bigamy, but without any knowledge on the part of the resp. that his said wife was then likely to become chargeable to the said parish aforesaid. It was also stated on the part of the resp., and not denied by the app., that on the separation of the resp. and his wife in 1858, at Swansea aforesaid, she was left in possession of certain mines and other property, in which she had a life-interest under the will of a former husband. I, however, being of opinion that the evi dence given before me did not bring the case within the operation of the said 4th section of the Act 5 Geo. 4, c. 83, gave my determination against the app. in the manner before stated. the purpose. By sect. 3 of the 12 & 13 Vict. c. 92, it is an offence to keep or use any place for the purpose of fighting cocks; and by the same section it is also as offence in every person who shall in any manner encourage, aid, or assist at the fighting of any cock as aforesaid: Held, that under this section no legal offence is committed by a person who assists at a cock fight at a place not kept for the purpose, e. g., in a stone quarry, and for one occasion only. This was a case stated under the 20 & 21 Vict. c. 43, upon a conviction for assisting in a cock-fight and acting in the management of a certain place then and there being used for the purpose of fighting cocks. The app. also tendered the wife of the resp. as The case stated that "at the hearing of the infor a witness to give evidence against her said husband in mation it was proved on the part of the resp., that on support of the information, but I refused to receive her the 10th day of March last, at a stone-quarry belongevidence. ing to Godfrey Wentworth, Esq., in the township of The questions of law arising on the above state-Woolley, several cocks were fought in the presence of ment for the opinion of this court therefore are: 1st, Whether under the facts stated the resp. was or was not guilty of the offence of running away from the said parish of Birmingham on the day and at the time mentioned in the said information, whereby his said wife became chargeable to the said parish, and liable therefore to be deemed a rogue and vagabond within the meaning of the said stat. 5 Geo. 4, c. 83, s. 4? and 2nd, Whether the evidence of the wife of the resp. was or was not by me properly refused? If the court should be of opinion that under the facts and circumstances stated the resp. was liable to be deemed a rogue and vagabond within the meaning of the statute, then the court to have power to convict him of each offence, and deal therewith in such manner as the court may deem fit. And hereupon the judgment of the said Court of Q. B. is requested as to whether or not I, the said justice, was correct in point of law in my determination as afores id, or as to what should be done in the premises. Given under my hard at the borough aforesaid, the 20th day of April 1862. Spooner, for the app, contended that the justice ou hit to have convicted. The statute spoke of the offence as consisting in running away and leaving the wife chargeable or whereby she became chargeable. Now here he left the wife, and she became chargeable [CROMPTON, J.-Still the man knew nothing about this. Is he to be imprisoned for something he never knew of or intended to do? You cannot in general make out a man to be guilty without showing a guilty mind.] The knowledge of the man has nothing to do with the statutory offence. It is enough that he leave his wife and she becomes chargeable. Now it appeared he had committed bigamy. That alone was strong evidence of the offence of desertion. WIGHTMAN, J.-The resp. was charged with running away and leaving his wife chargeable to the upwards of 100 persons; that one of the cocks was taken out of the ring by one of the apps. Job Morley, and that the said Job Morley was in the ring at the time the said cocks were fought, and that on the appearance of some police officers (witnesses for the resp.) in disguise, John Peel, another of the apps, was seen running away with a cock. It was also proved that the other apps. who were there took no other part than by throwing stones at the same police officers and preventing the said police officers from approaching the quarry at the time the said fights were going on. We were of opinion, on this evidence, that the said apps. did resort to the said quarry with the intention of causing the said cocks to fight toge ther there, and that they did encourage, aid and assist at the fighting of the said cocks at the said place then and there being used for the purpose of fighting cocks, and did use the place for such fighting, but it was not proved before us that in any other instance cocks had been fought there. Upon the hearing of the sail information, it was contended, on the part of the apps., that there was no offence committed within the intent and meaning of the 3rd sec tion of the 12 & 13 Vict. c. 92, inasmuch as that section only applies to encouraging, aiding, or assisting at the fighting of cocks in any place regularly kept or used for that purpose as mentioned in the first clause of the said section, so as to subject the keepers of such place to the penalty fixed by the said section, and that there was no evidence to show that the said stonequarry was a place so kept or used, and the case of Clarke v. Hague, reported in the L. T. Reports as having been decided in the Court of Q. B., was a case in point. It was further contended that the facts as adduced did not support the information. We were of opinion that the stone-quarry before mentioned was a place within the meaning of the 3rd section of the statute before mentioned, inasmuch as that part of the Q. B.] PINARD V. KLOCKMANN. [Q. B. section applied to a place, and was not limited in its | some subsequent set of the bills, but he declared he construction to a place specially kept for the purpose had not got them, and had never received them. of cock-fighting, &c., and that it was used on the 10th The plt. thereupon brought his action on the supposed March last by the said apps. as a place for fighting obligation on the part of the deft. to obtain the other sets cocks, and that the evidence before us brought the of bills, or one of them, and to deliver them to the plt. case within that section, and we accordingly convicted The declaration stated that Alphonse Pinard, each of the said apps. of the offence set forth in the director of the Comptoir d'Escompte de Paris, being copy conviction annexed. The question of law arising a company constituted and carrying on business at from the above statement is, whether it is an offence Paris, in the empire of France, according to the law within the intent and meaning of the 3rd section of of the said empire, and which said A. Pinard as such the said statute to assist at the fighting of cocks, and director as aforesaid was authorised by the law of act in the management of any place then and there the said empire to sue as the nominal plt. for and on being used for the purpose of fighting cocks, as set behalf of the said company, sued Adolphus Klockmann forth in the summons hereunto annexed, or only in a and John Nepomuceno Fesser. That Messrs. Rinz, place specially kept for that purpose." Brothers, and Co., in parts beyond the seas, made their bill of exchange dated 27th Oct. 1860 in divers to wit four parts, and directed the same to Messrs. Escorica, Sainz, and Co., at Seville, in parts beyond the seas, and thereby required the said persons at sixty days' sight of that first of exchange, second, third, and fourth of the same tenor and date being unpaid to pay to Messrs. Noreiga, Olino and Co. or order 2500 dollars. By sect. 3 of the 12 & 13 Vict. c. 92, it is enacted, "That every person who shall keep or use, or act in the management of any place for the purpose of fighting or baiting any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic or wild nature, or shall permit or suffer any place to be so used, shall be liable to a penalty not exceeding five pounds for every day he shall so keep or use, or act in the management of any such place, or permit or suffer any place to be used as aforesaid; provided always, that every person who shall receive money for the admission of any other person to any place kept or used for any of the purposes aforesaid shall be deemed to be the keeper thereof; and every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal as aforesaid, shall forfeit and pay a penalty not exceeding five pounds for every such offence." Hawkins, Q. C. now appeared in support of the conviction. [WIGHTMAN, J.-In Clarke v. Hague, 29 L. J. 105, M. C., the same question arose; and the question there was asked, whether it was an offence under the statute to assist at a cock-fight, at a place not kept for the purpose? and we said that it was not.] That case is hardly decisive of the present one, as the court, in its judgment, seemed to reserve its opinion as to whether or not the offence could be committed in any other than a place regularly kept for the purpose. It is an offence to assist at a cock-fight. [WIGHTMAN, J.-Only when it is at a place kept or used for the purpose, as mentioned in the first part of the section.] Keane, for the resp., was not called upon. WIGHTMAN, J.-It seems to me that this case is precisely within that of Clarke v. Hague, which, it it will be remembered, was a considered judgment; we cannot reverse that decision. CROMPTON and MELLOR, JJ. concurred. Friday, Jan. 16. PINARD V. KLOCKMANN. Bill of exchange-Liability of intermediate indorser to hand to holder further sets of bills. The indorsee of a foreign bill of exchange, drawn in sets, cannot maintain an action for the other sets against an intermediate indorser who has them not. This was an action by the plt. as the director of the Comptoir d'Escompte de Paris against the deft. to obtain the second or some subsequent set of bills under the following circumstances. Several bills for considerable sums were drawn in four different sets on a firm at Seville, payable at sixty days after sight, and were indorsed to Hamborough and Co., and by them to the deft., who sold them to another firm, by whom they were endorsed to the plt.'s banking company, who sent the first set to Seville for sight and acceptance; in the course of their passage thither they were lost, and of course could not be accepted. Thereupon the plts. applied to the deft. for the second or The plt. also sued on other similar bills. That the said payees of the said bills respectively indorsed the said bills respectively to Messrs. Escauriza and Serpa, who indorsed the same respectively to the defts., and the defts. sold the said bills respectively to Messrs. C.J. Hamborough and Son, and indorsed to them the said firsts of the said bills respectively, and they indorsed the same respectively to the said company whereof the plt. is such director as aforesaid, and the said company being the holders of the said firsts of the said bills as aforesaid, transmitted the same respectively to certain persons at Seville aforesaid, to be presented by them, for the said company, to the said persons at Seville aforesaid, upon whom the said bills were so respectively drawn, as aforesaid, for sight and acceptance of the said firsts thereof; and the same were, by accident, lost in the course of such transmission, for such purpose as aforesaid, so that the same were not, nor could be, presented for such sight and acceptance thereof, of all which the defts. had notice; and thereupon the said company, whereof the plt. is such director as aforesaid, required the defts. to deliver to the said company the seconds, thirds and fourths of the said bills respectively, or some or one of such parts of the said bills respectively; but the defts. did not, nor would, deliver the same, or any of them, to the said company, and withheld and detained, and still withhold and detain, from the said company all such last-mentioned parts respectively of the said bills respectively, whereby the said company were prevented from presenting, and were unable to present the said bills, or any of them, for sight and acceptance thereof within the time during which the same could and ought, according to the laws of the country in which the said bills respectively were so drawn as aforesaid, and in which the same respectively were so made payable as aforesaid, to have been so presented as aforesaid; and the same have thereby, according to the said laws, become, and are, wholly worthless and void, and the said company have wholly lost, and have been, and are, deprived of the value and amount thereof. Fourth plea to first count.-That the said Messrs. Escauriza and Serpa indorsed to the defts. the said firsts of the said bills of exchange respectively, and that the said Messrs. Escauriza and Serpa never did indorse to the defts. the seconds, thirds and fourths of the said bills respectively, or any or either of them, and that they never did deliver to the defts. the said seconds, thirds and fourths, or any or either of them; and that the said Messrs. C. J. Hamborough and Son did not, at the time of the said sale and indorsement by the defts. to the said Messrs. C. J. Hamborough and Son, or at any time until long after the indorsement by the said Messrs. C. J. Hanborough and Son to the said company, and long after the said alleged loss, require the defts. to deliver to them the said seconds, thirds and fourths respectively, or any or either of them, and the defts. say that they never at any time had, nor have they in their possession or control, the said seconds, thirds and fourths respectively, or any or either of them, and that they were and are wholly unable to obtain possession of the said parts, or any or either of them. Demurrer and joinder in demurrer. Bovill, Q.C. (J. A. Russell with him) for the plts., in support of the demurrer to the plea. The question is, how far a foreign indorser of a set of bills is bound to hand over the whole, whether he has received them or not. What is the extent of the obligation imposed by law on an indorser? Does he engage to hand over all the parts of the set of bills? Is each indorser entitled in succession to all the parts? Here the deft. says he never had them, and is wholly unable to obtain them; but he does not allege that they are lost. [WIGHTMAN, J.-Ought you not to have applied to all the other parties to the bill? CROMPTON, J.There is no dispute that you are entitled to have them from any one who holds them, but your case is, that this indorser is bound to get them. It cannot be supposed that all the indorsers are to have all the sets always; that is impossible. The deft. is not your immediate indorser; there was one intervening. WIGHTMAN, J.-Ought you not to have applied to your own indorser? CROMPTON, J.-Your own argument is, that the indorsement passes the interest and property in all the parts; then if so, the property in them passed from the deft. to your own indorser. How, then, does the deft. continue liable ?] It is not in the deft.'s mouth to deny that he once had all the parts: (Perreira v. Jopp, 10 B. & C. 450, note; Holdsworth v. Hunter, 10 B. & C. 454.) In Bayley on Bills, 6th edit. 170, it is stated that, "on the transfer of a bill Crawn in sets, each part must be delivered to the person in whose favour the transfer is made." [MELLOR, J.-That seems to be founded on the authority of Laing v. Smith, 7 Taunt., which is not applicable to this case.] In Byles on Bills, 8th edit. 363: "The whole set, of how many parts soever composed, constitutes but one bill." And again: "As between bona fide holders for value of the different parts of the same bill, he who first obtains a title to one part has the title to the others." So in Chitty on Bills, 10th edit., by Russell and Maclachlan, p. 104, sect. 8:-" If a person is engaged to deliver a foreign bill, he is bound to deliver as many parts as may be applied for ;" but Story, in his Treatise on Bills of Exchange, sect. 66, questions and qualifies this. All the writers refer to Pothier Traite de Contract de Change, and Pardessus Droit de Commerce. [WIGHTMAN, J.-If a second or third set of bills were given and paid to them, and then the first set was found and presented, an awkward question might arise. It should seem that if the holder were entitled to another set, he ought to give an indemnity]: (2 Pothier, 837, c. 5, s. 130; 2 Pardessus, s. 409, were also cited.) Lush, QC. (Honyman with him) contra.-The plt.'s right must be put either on the ground of contract or detention of the bill; the plt.'s contract was with Hamborough- (Stopped by the Court). WIGHTMAN, J.-The plt. has not applied to the drawer, or to his own immediate indorser, but he sues an intermediate indorser, who does not appear to have the other set or sets of these bills. The authorities, which have all been most fairly laid before us, seem to me to be against the maintenance of this action. CROMPTON, J.-I am of the same opinion. It is impossible to say that there is any obligation on the [C. B. deft. on this record to hand over parts of bills when Nicholson, attorney, for the plt. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. Mard, Esqrs, A Barristers-at-Law. June 12; Nov. 5, 10, 11, 13; Jan. 16. KENNEDY V. BROUN AND WIFE. Barrister's remuneration-Recovery of fees. barrister became the advocate of the female deft., and during the continuation of the litigation she made repeated requests to him for exertions as such, and repeatedly promised to remunerate him for the same; and after the end of the litigation she spoke of the amount of this remuneration, and admitted the amount of debt due for such remuneration to be a certain sum, and promised to pay it: Held, that these facts did not constitute any obligation on the part of the deft. to pay; that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litigation, had no binding effect; and that the relation of counsel and client rendered the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation. This was an action on account stated with deft.'s wife dum sola. 4. That Pleas-1. Never indebted. 2. Payment. 3. That the action is maintained for the recovery of charges for business done by the plt. as an attorney, &c. the accounts were stated of and concerning moneys claimed by the plt. for and in respect of work, journeys, care, skill and attendances, done, bestowed and applied, and moneys paid by the plt. for the deft. Patience Swinfen, whilst she was unmarried, in pursuance of divers illegal agreements before then made between them, for the unlawful maintenance by the plt. of the said Patience Swinfen in and about divers actions, suits and proceedings at law and in equity, touching and relating to certain lands, tenements, and other property claimed by her, and which in no way belonged to the plt., and wherein he had no right, estate, title, or interest, contrary to law, &c. Replication, that no agreement for unlawful maintenance was made as alleged, nor was any account stated as alleged in the plea. Issue thereon. The cause was tried before Cockburn, C. J., at Warwickshire spring assizes 1862: verdict for the plt., 20,000l. The material facts are as follows: (a) The plt. is a barrister. The alleged account had been stated with a Mrs. Patience Swinfen before her marriage with Mr. Broun. It appeared that in 1855 Mrs. Swinfen was in possession of the Swinfen estate as devisee under the will of her late husband's father. A suit had been instituted against her by the heir-atlaw to recover the estate, and an issue devisavit vel non had been directed by the Court of Ch. to try the validity of the devise, which the heir impeached on the ground of undue influence on her part over the testator. In March 1856 the issue came on for trial, and chiefly from the dread of two of her own witnesses, Mrs. Lishman and Mr. Charles Swinfen, her counsel compromised her claim for an annuity. The plt. was soon after introduced to Mrs. Swinfen, who had been, She conand then was, in possession of the estate. sulted him about the compromise which her counsel had entered into; he disapproved of it, and by his advice she determined to resist it. According to plt.'s (a) We are largely indebted for the facts to the report of the case at Nisi Prius as given in 2 Fos. & Fin. 803. Vol. 7.] C. B.] THE LAW REPORTER. the evidence, she told him that she desired that he should conduct her case, and he conferred with her attorney about it, the plt. stipulating that he should have the entire control of the case both at law and in equity. He subsequently received briefs from her attorney in the usual way. In or about Sept. 1856 plt. had a conversation with Mrs. Swinfen respecting his remuneration, which, as he represented, was to this effect, "that she could not remunerate him now, but would amply hereafter, and that he must wait." In Dec. 1856 the case came on in the Court of C. B., and the plt. conducted it for Mrs. Swinfen, receiving fees in the usual way. The court were divided in opinion, and compromise was not enforced. After this there were proceedings in Chancery to set aside the compromise, In which he conducted on his part with success. April 1856 the court set aside the compromise, and ordered a second trial of the issue as to the validity of the devise. Pending these proceedings plt., as he said, at the request of Mrs. Patience Swinfen, made the acquaintance of Mr. and Mrs. C. Swinfen, the former of whom was one of the witnesses to the will, his wife being the other witness, whose statement to the attorney had been the main reason of the comproBoth of them Mrs. mise which had been entered into. Patience Swinfen considered as doubtful or dangerous witnesses, and therefore desired that plt. should become He saw Mrs. Charles Swinfen, acquainted with them. and learned certain particulars from her, which he deemed unfavourable to Mrs. Patience Swinfen's cause, and he represented that he therefore advised her to accept an offer on the part of the heir of an estate for life. Mrs. Swinfen, however, desired him to press Mrs. Charles Swinfen to come forward at the second trial as a witness for the will, and to urge upon her, in order to induce her to do so, that she would otherwise be involved in a charge of conspiracy. The plt. [COCKBURN, C. J. declared that he had not done so. -You were asked to do what, as a member of the bar, you could not properly do.] The plt. said he had met Mrs. Charles as an acquaintance at Mrs. Swinfen's. After he had seen and conversed with Mr. Charles Swinfen she was placed in confinement as a lunatic. It did not appear who was the promoter of this proceeding; the result, however, was, that an order was obtained to read her evidence at the trial. A like order was obtained to read the evidence of the other witness Mrs. Lishman (whose cross-examination at the first trial proved so dangerous) on the ground of illness. The plt. stated that he told Mrs. Swinfen that her prospects were much improved by this. At this time he said she was constantly talking of the suit as one in which they were both interested, and in which success would be to his advantage as well as hers; expressions such as, "We will stand or fall together," being used by her. In allusion to plt.'s loss of time and business, she "would make it up to him." Before the second trial plt. had prepared and printed a report or statement of the case, which she caused to be circulated in the county. In June 1858 the second trial of the issue came on at Stafford, and neither Mrs. Charles Swinfen nor Mrs. Lishman being called, she obtained a verdict. There was an application in Chancery against it, at which plt. conducted her case, and the verdict was confirmed. In Feb. 1858, after the suit was thus settled, in consequence of a letter from Mrs. Swinfen's attorney about fees (upon the occasion of the taxation of costs), plt. wrote that he had undertaken the case without fees, out of friendship; but that, as he knew that if he did not receive fees the other side would not have to pay them, he would accept fees. He accordingly received above 7001. for fees as allowed between party and party. The plt. stated that before the second trial Mrs. Swinfen had several times spoken to him of his reward in case he should obtain the verdict, and that on one [C. B. occasion she said, "It will be 20,000 in your Не In March 1859 occurred the conversation, on which sum ?" In May 1853 this deed was executed, reciting that the plt. had rendered her services, for which sho desired to remunerate him, and charging the estate with 20,000l. In Nov. 1851, Mrs. Swinfen being then married to the co-deft. Broun, repudiated the deed as having been obtained unfairly, and proceedings were instituted in Chancery to test its validity. The deft. Patience Swinfen was called as a witness, and denied any agreement before the deed as to the amount of remuneration, or indeed any mention of any particular sum prior to the deed. The jury, however, found a verdict for the plt. for 20,000. Cockburn, C. J., before putting the case to the jury said: "There is evidence for the jury of an actual accounting. Whether the substratum of the account was a debt and can be maintained is another question, and a question of law. I shall direct the jury that, as far as the fees of counsel are concerned, there was no sufficient consideration. I have a very strong opinion that the fees of counsel constitute only an honorarium, and cannot be recovered at law. There may be cases Under any cirin which counsel could sue on contracts for their services, but this is not one of them. cumstances the point must be reserved; the only question for the jury is, whether the account was actually stated as alleged." A rule having been obtained on a former day calling on the plt. to show cause why the verdict found for him should not be set aside and entered for the deft., pursuant to leave reserved, on the grounds: 1. That the account relied upon was of a matter in respect of which no legal liability existed; 2. That it was stated concerning alleged debts and contracts contrary to law ; 3. That there was no debt upon an account stated established by the plt.'s evidence, or why a new trial should not be had on the grounds: 1. That the verdict was against the weight of evidence; 2. That the judge did not leave to the jury any other question than whether they believed the version given by the plt. or the deft. of the alleged promise,— Nov. 10.-Kennedy showed cause, and having on a previous day stated the facts, and the court having directed that the question of misdirection should be postponed till after the judgment had been pronounced on the points reserved, and it having appeared that the plea of maintenance was abandoned at the trial, now resumed his argument on the points reserved, viz., whether there was a valid contract and whether there was an account stated.-I contend, first, that I am entitled to recover under the rule laid down in Lumpleigh v. previous request, wil Brathwaite, Hob. 105, 1 Smith L. C. 135, that a voluntary courtesy, moved by uphold a subsequent promise of payment; secondly, that I have a good right of action under the promise to compensate me for loss and damage, irrespectively of the claim for services as counsel; thirdly, that remuneration for my services as counsel is recoverable under the express contract, and that the count on an account stated is applicable to each of these cases: (Harris's case, Dyer, 272, note 29; Sidnam v. Worthington, Cro. Eliz. 42; Townsend v. Hunt, Cro. Car. 408; Bosden v. Thinne, Yel. 400.) In Marsh v. Rainsford, 2 Leo. 111, where judgment was given for 2001. |