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1827.

KEATE V. GOLDSTEIN and another.

COMYN had obtained a rule for a procedendo in this
71348525
case, under the following circumstances. The plaintiff had
commenced a suit, by foreign attachment, in the Court of the
Lord Mayor of London, against the two defendants, which
suit one of the defendants had removed by habeas corpus
cum causâ into this Court. The plaintiff thereupon took
out, and served upon both the defendants, a rule for bail,
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

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Where one

of two defend

ants removes

a cause from

the Lord Mayor's Court, a pro

cedendo will

be awarded, unless bail be put in for both.

1827.

KEATE

บ.

GOLDSTEIN.

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 (b). At all events we are bound, under such circumstances, to send the cause back to the original jurisdiction.

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In re HORSFALL.
7 BH 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. 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 up the deeds themselves, was compellable to deliver up 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

as well as the deeds themselves.

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 Ex parte Grubb (b), 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. The attorney 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.

IN RE HORSFALL.

1827.

IN RE

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.

Rule absolute.

A., the acof two

bills for 251.,

and 501., both over due, paid 22/. 10s. to

B., the holder;

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on account."

B. said, "he

wished to have the full amount of

the 251. bill."

BIGGS v. DWIGHT.

DECLARATION, in assumpsit, upon two bills of ex-
change, drawn by William Webb upon, and accepted by
the defendant, payable to the order of Webb, and indorsed
by Webb to the plaintiff; with the money counts. Plea,
non assumpsit, and issue thereon. At the trial before
Gaselee, J., at the last Lent assizes (a) for the county of
(a) Counsel for the plaintiff, fendant, Storks, Serjt.
Robinson and Monro; for the de-

A. replied," he had no more money then, but would pay some more soon." B. then indorsed on the 257. 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 as follows:- Webb, the drawer of the bills, being indebted to the plaintiff, and being pressed by the plaintiff for payment, applied to the defendant, who, to assist him, agreed to accept the bills in question. They bore date, both, the 7th of February, 1825. One was for 251. at four months, and the other for 501., at six months, after date. Upon examining the first, it appeared to have been altered in its date, the " 7th of February, 1825," being evidently substituted for the 19th of January, 1824. Webb, the drawer, who was examined on the part of the plaintiff, proved that both the bills remained in his possession, unindorsed, till some time in February, 1825, when he endorsed them both to the plaintiff, at the same time altering the date of the first as above mentioned; which alteration, he stated, was made in the presence, and with the knowledge, of both the plaintiff and the defendant. In September, 1825, when both the bills were over due, the defendant, in Webb's presence, paid the plaintiff 221. 10s. " on account." The plaintiff then expressed a wish that the full amount of the first bill, for 251., should be paid; but the defendant excused himself, saying," he had no more money about him then, but that he would pay some more in three weeks or a month." The plaintiff then made the following indorsement on the bill for 251. :— "15th September, 1825. Received in part of two bills, the sum of 227. 10s.-Joseph Biggs," which he read over to the defendant, who made no objection to it. Matters thus rested until the spring of the year 1826, when the defendant's attorney proved that he called upon the plaintiff, and paid him 297. on account of the defendant, at the same time telling him, that the former payment of 227. 10s., must be considered as made entirely on account of the bill of 501., as the defendant denied all liability upon the bill for 251. The plaintiff replied, that he would accept the money only on condition, that it was paid on account of both the bills, to which the witness an

1827.

BIGGS

บ.

DWIGHT.

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