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1827.

ALLISON

V.

RAYNER.

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 (b). Under the direction. of the learned Judge, a verdict was found for the plaintiff, damages 237. 16s. 7d. (making with the sum paid into Court, the 591. 16s. 7d. 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 " no suit at law be proceeded in further than an arrest on mesne process, or suit in equity by any assignee or assignees of any such prisoner's estate and effects, without the consent of the major part, in value, of the creditors of such prisoner, who shall meet together pursuant to a notice to be given, at least fourteen days before such meeting, in the London Gazette or other newspaper, which shall be published in the neighbourhood of the last residence of such prisoner, for that purpose, and without the approbation of one of the commissioners of the said court." By 7 Geo. 4, c. 57, sect. 24, the consent of creditors, and the approbation of the Insolvent Debtors' Court, or a commissioner, are required only for the submission of disputes to arbitration, and commencing suits in Equity.

(b) 2 Geo. 2, c. 23, sect. 23, directs, that no attorney or solicitor of any of the courts aforesaid, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements at law or in Equity, until the expiration of one month or more after such attorney or solicitor respectively shall have delivered to the party or parties, to be charged therewith, or left for him, her, or them, at his, &c., dwelling-house, or last place of abode, a bill of such fees, charges, and disbursements, written in a plain, legible hand, and in the English tongue (except law terms and names of writs), and in words at length (except terms and sums), which bills shall be subscribed with the proper hand of such attorney or solicitor respectively,"

(c) 1 Ryan & Moody, 317. 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 (b), 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 commis-
sioner, 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 in-
crease 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 affi-
davit 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.
(b) 3 Bingh. 370.

1827.

ALLISON

v.

RAYNER.

1827.

ALLISON

v.

RAYNER.

creditors]. Where work is proved to have been done, it lies upon the defendant to shew that no advantage was obtained from it; 367. 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 (b).

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 agree to

Templer v. Mac Lachlan (c); but there the objection

(a) 1 Ryan & Moody, 317; 2 Carr. & P. 113, S. C.

(b) 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.

(b) And see Dax 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, S. C. 4 B. & C. 15; Reeves v. Lambert, ib. 214; Nias v. Nicholson, 1 R. & M. 322, 2 C. & P. 120, S. C., as to mistakes in the scheIdule of an insolvent debtor in describing the creditor, and the amount of the debt.

(c) Nothing further appears to have been done; the 367. paid into Court far exceeded the claim for general business beyond the costs of the two actions.

1827.

ALLISON

v.

RAYNER.

1827.

C., directors

of a projected jointstock com

pany, contract

in their own names with

D., a share

purchase of a mine, and after the formation of the company, enter into

further agree

ments with

ATTWOOD V. SMALL and others.

A., B., and ASSUMPSIT. The declaration stated, that on the 10th of June, 1825, at, &c., by a certain agreement then and there made, by and between plaintiff of the one part, and defendants of the other part, plaintiff agreed to sell to defendants, and defendants agreed to purchase of plaintiff, the freehold and leasehold estates, iron-works, colholder, for the lieries, and other property mentioned and comprised in the schedule thereunder written, at and for the price or sum of 600,000l. to be paid as thereinafter mentioned. And it was agreed that the sum of 25,000l. in Exchequer bills, should, on the signing of the said agreement, be paid by 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, to the joint account of defendants and plaintiff, by way of deposit, which Exchequer bills were to be paid over to plaintiff, on giving possession as thereinafter mentioned. And defendants agreed to pay to plaintiff, the further tract-Held, sum of 200,000l. on the 1st day of October, then next; that A., B., and plaintiff agreed, on payment of such sum of 200,0007. and on the title's being accepted, to give full and complete possession of the several freehold and leasehold estates, and other property thereby contracted to be sold unto defendants, and at the same time, if required, to convey, assign, and assure by good and sufficient conveyances and assurances, to trustees, in trust to secure the residue duly stamped, of the purchase money and interest, by the instalments thereinafter mentioned, and subject thereto, in trust clause for re- for the purchasers, or as they should direct and appoint (a): putes to arbi- and plaintiff agreed on his part, forthwith, or within one

exempting them from personal liability upon

certain parts

of the con

and C., may

be sued by
D., upon
those parts of

the contract to

which the exemption does not apply.

Where an

agreement,

contains

a special

ferring dis

tration, and in

a second agreement

(a) Post, 249 (a).

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.

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