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It was objected, that the plaintiff could not recover for his services in the prosecution of these actions, inasmuch as it was not proved, nor did it even appear from the bill itself, that the consent of Jackson's creditors, or the approbation of a commissioner of the Insolvent Debtors' Court, as required by 1 Geo. 4, c. 19, sect. 11 (a), had been obtained, and that the statement of charges in the action against Clarke was too general (6). Under the direction of the learned Judge, a verdict was found for the plaintiff, damages 231. 16s. 7d. (making with the sum paid into Court, the 591. 16s. 70. claimed), with leave for the defendant to move to enter a nonsuit.
In last Easter term, Pollock moved accordingly, and referred to Montriou v. Jeffrys (c).
Jones, Serjt., now shewed cause. It is contended, that
(a) Which provides, that “ (6) 2 Geo. 2, c. 23, sect. 23, suit at law be proceeded in fur- directs, that “no attorney or solither than an arrest on mesne pro- citor of any of the courts aforesaid, cess, or suit in equity by any shall commence or maintain any assignee or assignees of any such action or suit for the recovery of prisoner's estate and effects, with- any fees, charges, or disbursements out the consent of the major part, at law or in Equity, until the in value, of the creditors of such expiration of one month or more prisoner, who shall meet together after such attorney or solicitor pursuant to a notice to be given, respectively shall have delivered to at least fourteen days before such the party or parties, to be charged meeting, in the London Gazette' 'therewith, or left for him, her, or or other newspaper, which shall them, at his, &c., dwelling-house, be published in the neighbour- or last place of abode, a bill of hood of the last residence of such such fees, charges, and disburseprisoner, for that purpose, and ments, written in a plain, legible without the approbation of one of hand, and in the English tongue the commissioners of the said (except law terms and names of court." By 7 Geo. 4, c. 57, sect. writs), and in words at length (ex24, the consent of creditors, and cept terms and sums), which bills the approbation of the Insolvent shall be subscribed with the proper Debtors' Court, or a commissioner, hand of such attorney or solicitor are required only for the sub- respectively," mission of disputes to arbitration, (c) 1 Ryan & Moody, 317. and commencing suits in Equity. And see 2 C. & P. 113. S. C.
the plaintiff was not entitled to recover, because he was not prepared to shew the assent of Jackson's creditors to the bringing of the actions, against Horsfall, and Clarke. In Doe d. Clark v. Spencer (a), and Doe d. Spencer v. Clark (6), the court of Common Pleas held, that in an action brought by the assignee of an insolvent debtor, the circumstance of his having omitted to call a meeting of the creditors, or to obtain the approbation of a commissioner, was no defence. The absence of the consent of the creditors, and of the approbation of the commissioners, might have been a ground for applying to this Court to stop the action, or the Insolvent Debtors’ Court might have been called upon to interfere. Should the defendant's argument prevail, it would be necessary for an attorney to come prepared, not merely to prove the retainer, and the work done upon that retainer, but the number of the insolvent's creditors, the meetings of such creditors, and a variety of other particulars, which must materially increase the trouble, and enhance the expense of such an action. The object of the act was to prevent the assignee from speculating upon an action, and to give the creditors an opportunity of preventing a useless expenditure of the assets. [Lord Tenterden, C. J. Have you any affidavit shewing that the authority of the creditors was obtained ?] The plaintiff is taken by surprise, having supposed that the rule was obtained upon the objection to the form of the bill. If there was no authority, yet the assignee might chuse to run the risk in order to prevent a party's getting out of the way. [Lord Tenterden, C. J. Is it not the duty of an attorney to tell his client, that if he does so proceed, he does it at his own peril ?] It will be necessary, besides the retainer, to prove what passed in private between the attorney and his client. [Lord Tenterden, C. J. The attorney should take a written retainer. Bayley, J. The assignee may commence an action without first waiting to obtain the consent of the (a) 3 Bingh. 203.
(6) 3 Bingh. 370.
creditors). Where work is proved to have been done, it lies upon the defendant to shew that no advantage was obtained from it; 361. was paid into Court, on account of the work for which it is now pretended the defendant was not liable. If the defendant discovered that the items relating to the actions against Clark ought to have been set out fully in the bill, he should have paid money into Court specifically, with reference to one action only. Neither of the objections go to a nonsuit; for the first part of the bill, for general business done before these actions were commenced, is not open to either of them. At all events there was a primâ facie case. In Montriou v. Jeffrys (a), the misconduct of the plaintiff appeared in evidence; and it lay upon the defendant to shew it in this case; Templer v. Mc Lachlan (6).
Lord TenTeRDEN, C. J.-It is an important part of the jurisdiction of this Court, to see that their officers perform their duty towards their clients. Here it was the duty of the attorney to inform his client, that if he proceeded further than an arrest on mesne process, without the consent of a meeting of creditors, he would do it at the risk of paying the costs out of his own pocket. It was a material point in this case, whether such consent had been obtained, and the question is, whether the attorney was bound to prove the affirmative. It is a rule, that where the interest of any person rests upon an affirmative, it is for him to prove the affirmative. The interest of the attorney in this case rests upon the affirmative. I think, therefore, he was bound to prove it, and that not having done so, he is not entitled to recover.
Bayley, J.-I am of the same opinion. I
(u) 1 Ryan & Moody, 317; 2 Carr. & P. 113, S.C.
(6) 2 New Rep. 136, ante, 230(a).
(c) 2 N. R. 136; and see Tabram v. Horn, ante, 228.
did not go to the whole for which the party sued; here I think it does (a). I think there was some evidence of the fact, that no meeting of the creditors to consent took place; for no charge is found, in the attorney's bill, for such an attendance. Then you deprive the defendant of the means of reimbursing himself, by not informing him of the necessity of so doing.
HOLROYD, J.---I am of the same opinion. It was the duty of the attorney to see that his client proceeded in such a way as to be able to reimburse himself out of the estate,
LITTLEDALE, J., concurred.
Rule absolute (b).
Jones, Serjt., then applied to have it referred to the Master, to inquire whether there were in the bill any items not coming within the rule.
Lord TENTERDEN, C. J.-You may do that at your own expense (c).
(a) And see Havelock v. Geddes, 10 East, 555; Farnsworth v. Garrard, 1 Campb. 38; Duncan v. Blundell, 3 Stark. N. P. C.6.
(6) And see Dar v. Ward, 1 Stark. N. P. C. 409; Tabram, gent. one, &c. v. Horn, ante, 228.
An attorney's bill is not vitiated by a mistake in dates, by which the client cannot be misled; Williams v. Barber, 4 Taunt. 806. S. P., as to mistakes in bills of particulars of demand, Millwood y. Walter, 2 Taunt. 224. See also
Forman v. Drew, 6 D. & R. 75,
(c) Nothing further appears to
Attwood v. SMALL and others.
of a pro
A., B., and ASSUMPSIT. The declaration stated, that on the 10th C., directors
of June, 1825, at, &c., by a certain agreement then and jected joint
there made, by and between plaintiff of the one part, and stock company, contract defendants of the other part, plaintiff agreed to sell to in their own
defendants, and defendants agreed to purchase of plainnames with D., a share- tiff, the freehold and leasehold estates, iron-works, colholder, for the purchase of a
lieries, and other property mentioned and comprised in mine, and the schedule thereunder written, at and for the price or after the formation of the sum of 600,0001. to be paid as thereinafter mentioned. And company,
it was agreed that the sum of 25,0001. in Exchequer bills, enter into further agree- should, on the signing of the said agreement, be paid by ments with D., respecting
the defendants into the hands of Messrs. Hoare, Barnetts the purchase, and Co., Lombard Street, in the city of London, bankers, with a clause, exempting
to the joint account of defendants and plaintiff, by way of them from
deposit, which Exchequer bills were to be paid over to personal liability upon plaintiff, on giving possession as thereinafter mentioned. of the con
And defendants agreed to pay to plaintiff, the further tract :-Held, sum of 200,0001. on the 1st day of October, then next; that A., B.,
and plaintiff agreed, on payment of such sum of 200,0001. be sued by
and on the title's being accepted, to give full and complete those parts of possession of the several freehold and leasehold estates, the contract to and other property thereby contracted to be sold unto exemption
defendants, and at the same time, if required, to convey, does not apply.
assign, and assure by good and sufficient conveyances
and assurances, to trustees, in trust to secure the residue agreement, duly stamped, of the purchase money and interest, by the instalments contains
thereinafter mentioned, and subject thereto, in trust a special clause for re- for the purchasers, or as they should direct and appoint (a): ferring dis
and plaintiff agreed on his part, forth with, or within one putes to arbitration, and in
(a) Post, 249 (a). a second agreement between the same parties, it is stipulated that disputes as to the construction of the second agreement shall be decided by arbitration, according to the provision of the first agreement, a stamp adapted to the number of words actually written in the second agreement, without counting the clause referred to, is sufficient.
and C., may