THIS was an action brought against the London, Brighton, and South Coast Railway Company, to recover damages for an injury sustained by the plaintiff, a passenger by the defendants' railway, on the occasion of the collision which took place between two of their trains in the Clayton Tunnel, near Brighton, in August last.

The cause went down to trial at the last Spring Assizes at Lewes, when the parties agreed to a compromise, the defendants consenting to pay 501. in addition to 500l. which had been paid into Court.

The defendants had originally pleaded not guilty: but, on the 14th of February (the commission-day at Lewes being the 24th), they obtained leave to withdraw that plea and pay money into Court.

On the taxation of the plaintiff's costs, the master allowed the copying into the briefs of the whole of the evidence which had been given at the inquest held upon the bodies of a great number of persons who were killed on the occasion of the accident out of which this action arose. He also allowed three counsel, and their fees to the amount of 30, 25, and 20 guineas respectively.

Bovill, Q. C., on a former day in this term, moved for a rule calling upon the plaintiff to show cause why the master should not be at liberty to review the taxation. He submitted that the evidence at the inquest was perfectly irrelevant, and ought not to have been set out in the brief; and that the number of counsel and the amount of the fees allowed was necessarily influenced by the improperly increased bulk of the briefs.(a)

[*244 ERLE, Č. J.-The rule may go as to the evidence given at the inquest and also as to the number of counsel allowed. As to the amount of fees, we are unwilling to interfere with the master's discretion: but, if the master would not have allowed such an amount for fees if the irrelevant matter had not been set out in the briefs, he may be at liberty to reconsider that also.

Lush, Q. C., now showed cause, upon an affidavit which stated, amongst other things, that one copy of the proceedings and evidence on the inquest had been made for the purpose of instructions to counsel to advise on evidence, and that the other two copies were made six weeks before the commission-day. He submitted that the proceedings at the inquest were by no means irrelevant, it being highly important that counsel should be accurately informed of all the circumstances under which the accident occurred, and that even after the defendants had by paying money into Court admitted that they had been guilty of negligence; that the master, upon the objection being taken before him, read the briefs and the proofs, and in the exercise of his discretion allowed the charge; that the Court is not in the habit of interfering with the master's discretion where no principle is involved; and that the number of counsel to be allowed, and the amount of their fees, was purely for the master.

*Bovill, in support of his rule.-The evidence given before

the coroner could not possibly have any legitimate influence [*245

on the matter in issue between these parties: and in no event could three copies of those voluminous proceedings be necessary. [ERLE, C. J.-The copy made for instructions for counsel to advise on evi

(a) The application had already been made to Williams, J., at Chambers; but he declined to interfere.

dence may perhaps be considered necessary; but the other two should, I think, have been disallowed.] Then, as to the number of counsel and their fees. [ERLE, C. J.-The master intimates to us, that, looking at the number of witnesses (fifteen) that the plaintiff had to call, and to the fact that there were three counsel engaged on the part of the Company, he did not consider three counsel too many or the fees exorbitant: and this is a matter which is peculiarly for his discretion.] Upon this intimation of the opinion of the Court, it was agreed that the cost of the two copies of the evidence taken at the inquest should be deducted. Rule accordingly.

*246]

*FULLALOVE v. PARKER. April 26.

An objection that an attorney is not duly certificated should be taken before the master. If made the subject of an application to the Court, it should at least be shown clearly that the party could not by the exercise of reasonable diligence have ascertained the fact in time to bring it to the master's attention.

GARTH, for the defendant, moved for a rule calling upon the plaintiff to show cause why he should not be disallowed his costs of this action (which were taxed on the 13th of February last), or why the matter should not be referred back to the master, on the ground that the plaintiff's attorney was not duly qualified. The alleged disquali fication was this:-The attorney had two places of business, one at Croydon, and the other in London; and. instead of taking out a London certificate, had only obtained the lesser certificate applicable to country practitioners.(a) It was therefore submitted that he was precluded from recovering any costs, by reason of the 26th section of the 6 & 7 Vict. c. 73, which enacts that "no person who as an attorney or solicitor shall sue, prosecute, defend, or carry on any action or suit, or any proceedings in any of the Courts aforesaid (s. 2), without having previously obtained a stamped certificate which shall be then *247] in force, shall be capable of maintaining any *action or suit at law or in equity for the recovery of any fee, reward, or disbursement for or in respect of any business, matter, or thing done by him as an attorney or solicitor as aforesaid whilst he shall have been without such certificate as last aforesaid." [BYLES, J.-Has the client paid the attorney?] If he has not, he is not bound to pay him, and it cannot be recovered. [BYLES, J.-When did the fact come to the knowledge of the defendant?] Since the taxation: and an application was made to Keating, J., on the 20th of February; therefore there has

(a) The amount of duty where the attorney has been admitted three years or upwards, is 97. if he reside within ten miles of the General Post Office, London, and 67. if he reside at a greater distance; and half those sums respectively where he has not been three years admitted: see 18 & 17 Vict. c. 63, Sched.

The 23 & 24 Vict. c. 127, s. 19, enacts, that, "for determining the rate of stamp-duty payable on the certificate, the place or places where the attorney or solicitor shall carry on his business shall be deemed to be the place or places of his residence, within the meaning of the Acts relating to the stamp-duties on certificates."

And see the 25 G. 3, c. 80, s. 61, which provides that attorneys residing forty days or more in any one year within the limits where the higher duties are payable, shall become liable to them.

been no undue delay. All the costs were incurred in the action, and all the business was done within three miles of London.(a)

WILLES, J.(b)—I am of opinion that there should be no rule in this case. I do not come to this conclusion on the ground that there has been delay in the making of the application, but, because, after a taxation without any objection taken before the master, I am of opinion that it is too late to make the application in any form. Undoubtedly, if the plaintiff's attorney is uncertificated, he is disabled from recovering costs; and the plaintiff would not be entitled to recover for payments made in respect of services rendered by the attorney under such circumstances, except where he has made advances to his attorney without notice of his disability. Where such advances have been made, they cannot be recovered back; for, the debt is due, though the attorney is disabled from bringing an action to recover it. There is, however, another difficulty in the way of this motion. We must not be understood as at all intending to discourage applications of this *kind: but I find this Court in a case of Punter v. Lord [*248 Grantley, 3 M. & G. 295 (E. C. L. R. vol. 42), 3 Scott N. R. 647, lay down that which we consider to be a very convenient rule, viz., that this is an objection which should be taken before the master. The only ground that could be urged by Mr. Garth on this occasion was, that neither the defendant nor his attorney was aware of the attorney's position when the bill was under taxation. But I think his affidavit should have gone further, and should have shown that he could not by the exercise of reasonable diligence have made himself acquainted with the fact in time to avail himself of the point before the master. Upon this affidavit, it is clear that there has been no such reasonable diligence. I therefore think there is no ground for our interference.

BYLES, J.-I am of the same opinion. The case referred to by my Brother Willes shows that this was properly matter for the master, and not for the Court in the first instance. It may be, for anything that appears, that the attorney has received all the money from his client. When relief of this out of the way sort is asked, the party should at least be prepared to bring all the facts before the Court. Rule refused.(c)

(a) See Greene v. Reece, 8 C. B. 88 (E. C. L. R. vol. 65). (b) Erle, C. J., and Keating, J., were in attendance in the Court of Criminal Appeal. (e) See Meekin v. Whalley, 4 M. & Scott 494 (E. C. L. R. vol. 30), 1 N. C. 59 (E. C. L. R. vol. 27), and Humphreys v. Harvey, 4 M. & Scott 500, 1 N. C. 62.

*BARTLETT v. LEWIS. May 13.

[*249

It is no ground of objection to interrogatories under the 51st section of the Common Law Procedure Act, 1854, that the answers, if given in the affirmative, would render the party interrogated liable to a criminal prosecution, though it may be ground for refusing to answer.

Semble, that the staute does not in all respects place interrogatories upon the footing of bills for discovery in Courts of Equity.

Remarks upon Osborn v. The London Dock Company, 10 Exch. 698,† and Tupling v. Ward, 6 Hurlst. & N. 749.†

THIS was an action against the defendant as the acceptor of several bills of exchange. The defendant pleaded bankruptcy, and payment. C. B. N. S., VOL. XII.-11

Honyman, for the plaintiff, in Hilary Term last, obtained a rule calling upon the defendant to show cause why the plaintiff should not be at liberty to deliver interrogatories to the defendant pursuant to the 51st section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125.(a) The object of the interrogatories was, to show that the defendant had been guilty of one of the offences specified in the 251st section of the Bankrupt Law Consolidation Act, 1849, 12 & 13 *250] Vict. c. 106,(b) and therefore that his certificate was *void by s. 201. The application was founded upon an affidavit of the plaintiff which stated that the defendant had been insolvent in 1849; that, in January, 1855, he was adjudicated a bankrupt upon his own petition, but the bankruptcy was afterwards annulled; and that he was again adjudicated a bankrupt in June of the same year, and, in February, 1856, obtained a third-class certificate. The deponent also swore that very shortly after his bankruptcy the defendant was found to be in possession of large sums of money, under circumstances calculated to excite suspicion.

The matter had been before Byles, J., at Chambers; but the learned Judge refused to make any order.

The interrogatories proposed to be delivered were as follows:"1. When, after your bankruptcy in 1855, did you enter into or resume business? What was the business, and where did you carry it on? "2. Did you not immediately or soon after obtaining your *251] certificate, and, if so, when, open or reopen an account at Messrs. Rogers's bank, Clement's Lane, Lombard Street, in the city of London? Did you not then lodge a considerable sum to your credit? Did you deposit any, and what, security? State the day of opening such account, and of the first deposit of money and security. State the amount of the first deposit. Were not other large sums of money or securities lodged to your credit in the said bank within the ensuing three months? State the entire amount of the deposits or lodgments so made.

(a) Which enacts, that, "in all cases in any of the superior Courts, by.order of the Court or a Judge, the plaintiff may with the declaration, and the defendant may with the plea, or either of them by leave of the Court or a Judge may at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter,) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or, in the case of a body corporate, any of the officers of such body corporate, within ten days to answer the questions in writing, by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought, within the above time, or such extended time as the Court or Judge shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against accordingly."

(b) The 251st section enacts, that, if any person adjudged bankrupt, upon his examination "shall not discover all his real and personal estate, and how, and to whom, upon what consideration, and when he disposed of, assigned, or transferred any of such estate, and all books, papers, and writings relating thereunto (except such part as shall have been really and bonâ fide before sold or disposed of in the way of his trade, or laid out in the ordinary expense of his family);" or "shall not deliver up to such Court all such part of such estate, and all books, papers, and writings relating thereunto, as shall be in his possession, custody or power (except the necessary wearing apparel of himself, his wife and children);" or "shall remove, conceal, or embezzle any part of such estate to the value of 107. or upwards, or any books of account, papers, or writings relating thereto, with intent to defraud his creditors,-every such bankrupt shall be deemed guilty of felony, and be liable to transportation for life, or for such term not less than seven years as the court before which he shall be convicted shall adjudge, or shall be liable to imprisonment, with or without hard labour, for any term not exceeding seven years."

"3. Did you soon after obtaining your certificate open or reopen an account with the Unity Bank, in London? State the date of opening or reopening the same, the amount of money or securities then lodged to your credit, and also the gross amount of the deposits or lodgments made during the ensuing three months.

"4. Have you not since your said bankruptcy opened accounts with other banks, and more particularly in Messrs. Gurney & Overend's, in the Bank of England, and in Messrs. Masterman & Co.'s bank? State the several banks in which you have so opened accounts, the time at which they were opened respectively, and the lodgments made to your credit on the opening of each.

5. Did you not, on resuming business after your bankruptcy, enter on large transactions, requiring the command of considerable sums of money? and, did you not, in point of fact, a short time after your bankruptcy advance large sums of money in carrying on your business? State the amounts advanced by you within six months after you obtained your certificate in the said bankruptcy.

"6. What capital were you possessed of on so entering into business after your bankruptcy?

*7. Did you not soon after your bankruptcy advance a large sum of money on the bonds or other securities of the Rome [*252 and Frascati Railway? When was such advance made, and what was its amount? Was all or any portion of this advance your own money ? "8. Did you not at or about the same time pay to the Swiss Bank a sum of 10,000l. or some other sum to guaranty the said railway securities, or for some other purpose? What amount did you so pay, and where? "9. Did you not in the year 1858, or at some other time after your said bankruptcy, advance large sums of money to the Cork and Youghal Railway Company? What amount did you so advance, and when? Do you not hold a large amount of the stock, shares, debentures, or other securities of the said Company? Did you not on or about the 30th of August, 1861, at a meeting of the said Company, state that you were the principal owner of the stock of the said Company? "10. Have you not recently bought from the Duke of Devonshire an estate for the sum of 80,000l., or any other and what sum? When did you buy the same, and what purchase-money has been paid? Was it not paid out of your own moneys and on your own account?

"11. Were you within three months of obtaining your certificate in possession of a sum of 10,000l., or, if not, of any sum exceeding 1000l.? If not, are you now in possession of the same? and at what period after the allowance of the said certificate were you first possessed of that amount?

"12. Did you not before your bankruptcy employ one William Tingay to dispose of Westminster bonds on your account? State as nearly as you can the amount of bonds so disposed of by the said William Tingay. Was not the said William Tingay in the #habit of offering the said bonds for sale by advertisement in [*253 the Times and other papers? and was not this done by your direction or with your sanction and consent?

"13. Had you not in the interval between June, 1852, and January, 1855, extensive dealings in bills of exchange with one George Hennett? State as nearly as you can the amount of the acceptances of Hennett which passed through your hands.