application to tax: a rule nisi for taxing was obtained in Trinity term, and before cause could be shown the present act passed, by the first section of which several statutes were repealed, "save and except so far as relates to any matters or things done at any time before the passing of this act, all which matters and things shall be and remain good, valid, and effectual, to all intents and purposes whatsoever, as if this act had not passed." Mr. Justice Patteson thus states the arguments urged upon this head, and his own opinion upon them. "The whole question depends upon whether this act applies or not. It is urged, on behalf of the parties contending for the power to tax, that the rule to refer to taxation having been obtained before the passing of the act, in Trinity term last, and the section already referred to containing a saving of all matters and things done before the act, which it is declared are to remain as good, valid, and effectual, as though the act had not passed; they cannot be said to remain good, valid, and effectual, unless the rule be made absolute. But I am quite of opinion, on looking at the whole act, that that is not the meaning of the statute. The rule must have been a good rule when granted, and, being once obtained, remains so, for the purpose of bringing the question before the Court. But the new act is not restricted to bills which shall be hereafter delivered, but applies to all bills. It might be urged that the words, any such bill,' may be understood as applying to bills delivered under this act, but to justify that construction, there should have been a saving of the former acts relating to the subject, and they are repealed by the present act. This bill, then, was paid more than twelve months before the commencement of this act, and that is a fatal objection to this application." If we may be allowed to express a difference of opinion from so learned and able a judge, we would observe that if the rule nisi to refer to taxation in Trinity term was, according to the words of the 6 & 7 Vict. c. 73, to be and remain as good and valid as if that act had never passed, the bill should be referred last term, unless cause were shown as under the old law. For if the act had not passed, the rule for taxation should be made absolute, unless cause were shown. How then can it be a saving of what was done under former statutes to set aside a rule, conditional only for cause on the merits, on account of the passing of this very statute?

The 37th section enacts, "that no attorney," &c. "shall commence or maintain any action or suit for the recovery of any fees," &c. "for any business done by such attorney or solicitor" until the expiration of a month after the delivery of his bill. This does not alter the law with regard to the power of setting off a bill of costs without being delivered a month beforehand, and therefore it would seem that an attorney may now set it off as formerly, provided he deliver it in time enough for the plaintiff to have it taxed before the trial.1

The word "maintain" in the above section may produce some difficulty. Suppose an attorney commenced an action, before this act passed, for the amount of a conveyancing bill, might not the defendant now plead that the plaintiff could not further maintain the action "until the expiration of one month after such attorney or solicitor" &c. should have delivered his bill? We do not see how such an objection could be met, and we can imagine that there are many cases now in Court in which it might be taken.

Heretofore it was a general rule that a bill of costs could not be taxed at the trial of an action brought upon it, or after verdict, or judgment by default and writ of inquiry executed.3 Though this was the general rule, a bill of costs has been referred for taxation after a verdict recovered, on a suggestion that some of the items would not have been allowed by a master, but only on the terms of the defendant paying the costs of the application and of the taxation, with the costs of the cause as between attorney and client, the plaintiff being at liberty to take out forthwith the money which had been paid into Court.4

By the present act a great practical alteration is effected in this respect as special circumstances will be easily found to support applications of this kind unless the Courts adopt some more stringent rules for the protection of attornies than any which they have hitherto done.

A question of importance to Welsh attornies was brought before the Court in Ex parte Reece and Davies, at the request of the Masters of the Queen's Bench. By 1 Will. IV. c. 70, (Lord Abinger's Act), s. 16, it was enacted, that attornies of

1 Martin v. Winder, 1 Doug. 198, note 63. 3 Barnes, 124.

2 Doug. 199.

42 Chit. Rep. 65.

5

7 Jur. 1061.

the Courts of Sessions in Wales should be entitled upon payment of ls. to have their names entered upon a roll to be kept for that purpose in each of the Superior Courts at Westminster, and thereupon be allowed to practise in such Courts, &c. &c. Reece was duly entered upon that roll, and continued to practise as an attorney in Wales. By the 3rd section of the late act it is provided, that no person shall be capable of being admitted and enrolled as an attorney or solicitor unless he shall have been articled "to a practising attorney or solicitor in England or Wales ;" and by the 8th section it is provided, "that whenever any person shall be articled to an attorney or solicitor, such attorney or solicitor shall swear or cause to be sworn an affidavit of his having been duly admitted." Davies having been articled to Reece, the question which the Masters wished to raise was, whether Reece was 'duly admitted," they appearing to think that those words implied an admission at Westminster. For Reece and Davies it was contended, that they meant only admitted as an attorney, no matter whether in England or Wales; in this construction Mr. Justice Patteson entirely concurred; but the applicants, wishing to have the matter fully discussed, obtained a rule nisi, which was to be argued last term. We confess that we can see very little difficulty about it.

66

With regard to the admission of clerks and of attornies and solicitors of inferior Courts to the Courts at Westminster, and the renewal of the certificates of those who neglected to take them out in proper time, the following decisions occurred in the Bail Court in Michaelmas term. In Ex parte Patrick,1 Mr. Justice Patteson observed, that though applications by attornies and solicitors of the Durham and Lancaster Courts for admission to the Westminster Courts, under sect. 43 of 6 & 7 Vict. c. 73, were generally made at chambers, he did not know that there was anything against their being made in Court. By the 25th sect. of the 6 & 7 Vict. c. 73, it is provided, "that if any attorney or solicitor shall neglect to procure an annual stamped certificate, authorizing him to practise as such within the time by law appointed for that purpose, then, and in such case, the said registrar shall not afterwards grant a certificate to such attorney or solicitor without the order of the 1 7 Jur. 993,

Master of the Rolls, in the case of a solicitor, or of one of the Courts of Queen's Bench, Common Pleas, or Exchequer, or of one of the judges thereof, in the case of an attorney, authorizing such registrar to issue such certificate; and it shall be lawful for the Master of the Rolls, or for such court or judge, to make such order, upon such terms or conditions as he or they shall think fit." An application being made in the early part of the term to re-admit, without the usual term's notice, a Mr. Gude, whose certificate, owing to the misconduct of his town agent, had not been taken out for two years, Mr. Justice Patteson, after observing that now there was no such thing as re-admission, allowed him to renew his certificate on payment of the arrears of duty.1 Later in the term a somewhat similar application was made before Mr. Justice Wightman, who, considering that it was in fact the same as an application under the old law, by a person disabled to practise, to be allowed to do so, thought that one of the conditions which might be properly imposed, was, that the due notices should have been given as under the old law, and, on consulting the full Court, found them to coincide with him. The consequence was, that a rule of Court is to be framed on the subject of these notices, and that the applicant in that case is to come again to the Court after giving the requisite notices. There can scarcely be a doubt that the application for leave to renew the certificate is the same in substance as the application formerly to be re-admitted; that the same notices which were required for this should be required for that, and that Mr. Justice Wightman exercised a proper discretion in the course which he thought fit to pursue.

In our last Number, we expressed, in very moderate terms, an unfavourable opinion of the mode in which this measure was framed. Some of our readers may have thought us unjust to the framer of it, as we then stood alone, before the public at least, in condemnation of it. Since that time, some of the most learned judges on the bench have expressed, in a thousand-fold stronger language, their disapprobation of the manner in which it has been got up.

P. M.

1 See Ex parte George Gude, 7 Jur. 1016.

2 See 8 Jur. 20.

VOL. XXXI. NO. LXIII.

I

ART. VII.-PRACTICAL POINTS IN CONVEYANCING.

1. Memoranda on the Purchase of a Share of a Reversionary Trust Fund.

ELIZABETH THOMPSON, who was a widow, and possessed of 50007. three per cent. consols, married Jervis Coates, and previous to the marriage the said sum of 50007. three per cent. consols was transferred into the names of trustees and settled upon trust for E. T. during her life, after her decease for J. C. during his life, and after the decease of the survivor of them upon trust for the child if only one, in all the children equally if more than one of the marriage, with the usual trusts for the maintenance and advancement of the children; and with a proviso that if there should not be any child who attained a vested interest, then, but subject to the trusts aforesaid, the said trust fund should be held upon the trusts following:-if E. T. survived J. C., then upon trust for her absolutely; but if she died in his lifetime, then upon trust for such persons as she should by will appoint; and in default of appointment upon trust for such persons as would have been entitled at her decease to her personal estate, under the statute for the distribution of intestate effects, in case she had died intestate and without having been married, and, if more than one, for them in the shares prescribed by the said statute.

E. T. died a few years after the marriage, leaving one child only, a son, who also died when of the age of twelve years, leaving his father, J. C., surviving, and of the age of fifty-one years.

The next of kin of E. T., at the time of her decease, were three brothers; and one of the brothers contracted to sell his one-third of the reversionary trust fund to an Insurance Company, when the following requisitions were made on behalf of the company:—

A certificate of the baptism of J. C., and also of the burial of his wife and son, should be obtained, and a declaration by J. C., that there was not any other issue of the marriage than the deceased child, and that his wife did not make any appointment under her power. Certificate of the marriage of E. T. with her first husband should also be produced.