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the expected day of sailing of the Traveller. Generally speaking, it is not necessary that the assured should communicate the time at which the vessel sailed; it has been so determined; but, if the time be such as to make the ship a missing ship, then it becomes material. Neither is it necessary for the assured to communicate such facts as lie properly within the knowledge of the insurer. According to the evidence for the plaintiff, the expected time of sailing was communicated before the insurance was effected. But this is denied in the evidence for the defendant. It seems that in Lloyd's lists, there was an account of the sailing of the vessel in question, on the 25th of November.

His Lordship left the contradictory evidence to the Jury, who found their

Verdict for the plaintiff.

Wilde, Serjt., and Maule, for the plaintiff.

Spankie, Serjt., and Barnewall, for the defendant. [Attornies-Oliverson & Co., and Blunt & Co.]

1831.

ELTON

v.

LARKINS.

EVERETT and Others v. LoWDHAM and Another.

ASSUMPSIT on a guarantie given to secure advances of money made during an election for members of Parliament for the borough of Camelford.

Spankie, Serjt., for one of the defendants, applied to have the witnesses ordered out of Court, with the exception of the attorney who instructed him, and who had been subpoenaed on the part of the plaintiffs.

July 4th.

A defendant's attorney, who

has been subpœnaed on the part of the plaintiff may, at the

desire of his

counsel, remain

in Court during cause, although

the trial of the

an order has been made for

the witnesses on both sides to

Wilde, Serjt., for the plaintiffs, objected to the attor withdraw. ney's remaining.

1831.

EVERETT

บ.

LOWDHAM.

Russell, Serjt., who was with Spankie, Serjt., suggested, that if the objection were to prevail, it would always be in the power of one party to deprive his opponent of the assistance of his attorney by subpœnaing him as a witness. The case of Pomeroy v. Baddeley, reported in R. & M. 430, was referred to, in which Mr. Justice Littledale excepted the attorney in the cause from a general order for the witnesses to withdraw, on a statement by counsel that he could not conduct the case without his assistance.

BOSANQUET, J., under the circumstances, allowed the attorney to remain in Court.

Wilde and Jones, Serjts., and D. Pollock, for the plaintiffs.

Spankie and Russell, Serjts., and Tomlinson and Butt, for the respective defendants.

[Attornies-Sweet & Co., and Lowdham & Co.,

Coles.]

See the case of Beamon v. Ellice, Vol. 4 of these Reports, p. 585, and the cases there collected.

COURT OF EXCHEQUER.

Second Sitting in London in Trinity Term, 1831.

BEFORE MR. BARON VAUGHAN.

June 7th.

An attorney

an ac

FISHER V. FILMER.

ASSUMPSIT on an attorney's bill. The defendant was

tion against the the petitioning creditor in a commission of bankrupt, and

petitioning cre

ditor, under a

commission of bankrupt, for business done previous to the assignment:-Held, that, notwithstanding the 14th sect. of the bankrupt act, (6 Geo. 4, c. 16), he might maintain the action without proof that his charges had been allowed by the commissioners, according to the provisions of that section, as the whole was matter of investigation before the taxing officer.

the charges were for business done previous to the assign

ment.

Cooper, for the defendant, submitted that the plaintiff must be nonsuited, because it did not appear that the bill had been taxed by the commissioners, as required by the 14th section of the bankrupt act (a).

Andrews, Serjt., for the plaintiff, referred to Crowther v. Davis, MS., as having already decided the point.

Cooper.-In that case the bill was for costs incurred after the assignment. There has not been any decision upon this point, which relates to costs incurred previous to the assignment. By the bankrupt act, at a specific time the amount is to be ascertained. And it is the duty of an attorney to get his bill for costs previous to the assignment allowed by the commissioners; and, unless he has done so, he is not in a situation to maintain an action upon it.

1831.

FISHER

V.

FILMER.

(a) The 14th sect. of the 6 Geo. 4, c. 16, enacts, "That the petitioning creditor or creditors shall, at his or their own costs, sue forth and prosecute the commission until the choice of assignees; and the commissioners shall, at the meeting for such choice, ascertain such costs, and by writing under their hands direct the assignees (who are hereby thereto required) to reimburse such petitioning creditor or creditors such costs out of the first money that shall be got in under the commission; and all bills of fees or disbursements of any solicitor or attorney employed under any commission for business done after the choice of assignees,

shall be settled by the commissioners, except that so much of such bills as contain any charge respecting any action at law, or suit in equity, shall be settled by the proper officer of the Court in which such business shall have been transacted, and the same, so settled, shall be paid by the assignees to such solicitor or attorney: provided that any creditor who shall have proved to the amount of 201. or upwards, if he be dissatisfied with such settlement by the commissioners, may have any such costs and bills settled by a Master in Chancery, who shall receive for such settlement, and the certificate thereof, 20s. and no more."

1831.

FISHER

v.

FILMER.

VAUGHAN, B.-May not all this be matter of inquiry before the officer? It strikes me, that when a retainer and cause of action are proved, then the rest is matter of investigation on taxation. It is in effect calling upon me to tax the bill. Cannot the attorney recover for the retainer and the other part of the suit?

Cooper. I apprehend that an attorney cannot bring an action for his bill during the progress of a suit.

VAUGHAN, B., after some further consideration, at first intimated an intention of reserving the point for the consideration of the Court; but afterwards, on the request of Andrews, Serjt., said that he would not do so.

The Jury, therefore, under his Lordship's direction, found a verdict for the plaintiff, for the full amount of the bill. His Lordship telling them that, in his opinion, it must go to be taxed by the proper officer.

Andrews, Serjt., and Talfourd, for the plaintiff.

Cooper, for the defendant.

[Attornies-Fisher, and Sutton.]

June 7th.

SMITH and Another v. BROWN.

When two per- ASSUMPSIT on an attorney's bill. At the time when

sons are in part

nies, it is suffi

nership as attor- the business was done, the two plaintiffs were in partnership as attornies; but, the partnership was at an end at the time when the bill was delivered. One of the plain

cient, under the statutes 3 Jac. 1,

c. 7, and 2 Geo. 2, c. 23, if their

bill for business

done is signed in the name of the firm, without the Christian name of either partner.

tiffs signed it in the name of the firm, viz. "Smith & Jago."

J. Williams, for the defendant, objected that this was not evidence of the delivery of a signed bill, as required by the statutes 3 Jac. 1, c. 7, s. 1, and 2 Geo. 2, c. 23, s. 23, inasmuch as, without the Christian name, the signature of neither partner could be said to be complete.

VAUGHAN, B.-I think there is so much in the objection, that I will reserve the point. It appears to me that the object of the statute was, that the client should know the name of the attorney. And when mention is made of the name of a party, I think it must mean the Christian and

surname.

Verdict for the plaintiff.

Talfourd and Swan, for the plaintiff.

J. Williams and Wightman, for the defendant. [Attornies-E. Smith, and W. Murray.]

1831.

SMITH

v.

BROWN.

In the course of the Term, a rule nisi was obtained on the part of the defendant; which, after argument, was discharged, the Court being of opinion that the signing was sufficient. Vide Crompt. & Jervis, Vol. 1, p. 542.

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