Слике страница
PDF
ePub

the privilege, and require the court to exclude the evidence on that ground. The witness may waive it, and testify in spite of any objection coming from the party or his counsel. If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or to complain of the law."

(C.)

1. In an action by C. against D., a witness called by C. is permitted by the court to refuse an answer to a question put by D., on the ground that it is a criminating question. The decision is improper, for it is not a criminating question. D. may make this a ground for error in the rejection of testimony (9).

In case 1 the court said that this differed from Illustration B, as the party had been improperly deprived of testimony to which he was entitled.

It has been held in England that when a witness refuses to answer, and without his evidence the prosecution must fail, and the judge commits him for contempt, he will, to prevent a failure of justice, discharge the jury (10).

RULE. Where a witness testifies voluntarily to one circumstance in a criminating transaction he must answer all inquiries concerning the same transaction (a), but not as to other and unconnected criminating matters (11) (b).

(A.)

[blocks in formation]

2. A., a man, is asked if he knows of B., a fe(9) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, 35 Cal. 89 (1868); Close v. Olney, 1 Denio, 320 (1845). (10) R. v. Charlesworth, 2 F. & F. 327 (1860).

(11) "If a witness purposely states a part of a transaction, such as will make for him or the party calling him, even though but slightly, he should not be protected, but where it is apparent that he intends to disclose nothing that may require his going further, and what he does disclose may well enough stand without affecting the point at issue, and moreover is drawn out by questions where the full effect of the answers cannot readily be seen by him, his privilege should not thereby be taken from him. If it is it can be worth but little, for very few witnesses, without the fullest instruction, could, upon the spur of the occasion, readily apprehend the effect of their answers to many questions the shrewd counsel might put, while the counsel themselves might be well aware that the answers would lead directly to the point desired." Coburn v. Odell, 30 N. H. 546 (1855); Pleasant v. State, 15 Ark. 624 (1855); People v. Lobman, 2 Barb. 216 (1848); Dixon v. Vale, 1 C. & P. 278; East v. Chapman, 2 id. 570; Chamberlain V.Wilson, 12 Vt. 491 (1840); Brown v. Brown.5 Mass. 320 (1809); Mayo v. Mayo, 119 Mass. 290 (1876): East v. Chapman, 1 Mood. & Malk. 47 (1827). It seems to be the rule now in England that the witness is entitled to claim the privilege at any stage of the inquiry, and it makes no difference that he has already answered the inquiry in part. R.v. Garbett, 2 C. & P.474 (1847); Paxton v. Douglass, 18 Vesey, 239-contrary to the American rule, as stated above. It has been ruled in Massachusetts that a judge is not required to instruct a witness that if he wishes to avail himself of his privilege he must raise the objection before answering any thing. Com. v. Howe, 13 Gray, 26 (1859). But in the same State it was subsequently held that when it appears to the judge that the witness did not understand that if he answers upon any subject having any tendency to criminate him he must answer every thing about it, the judge may allow him to claim his privilege afterward, and strike out his previous testimony. Mayo v. Mayo, 119 Mass. 290 (1876).

(12) Com. v. Price, 10 Gray, 472 (1858).

male, having had sexual intercourse with any one during a certain time. A. answers that he does. A. cannot afterward refuse the name of the person with whom such intercourse was had (13).

3. K. was indicted for body-snatching. M. be- ' ing called, testifies that he knows K. to be innocent. M. cannot refuse to answer why he knows it, even though it may criminate him (14).

4. In a prosecution for selling spirituous liquors without a license, F., the defendant's clerk, testifies that he had sold rum at the store, but never brandy. He is then asked whether he did not, on a certain day, sell T. some brandy. He refused to answer for fear of criminating himself. His refusal cannot be sustained (15).

5. In an action for divorce from a wife, a witness testifies that he knows that the wife has committed adultery. He must go on and tell with whom, even though it may be himself (16).

In case 1 it was said: "He must have been fully aware of his privilege from the beginning, and should have claimed it earlier in order to have secured it. If a witness consents to testify at all, so as to criminate himself as well as the defendant in the matter on trial, he must answer all questions legally put to him concerning that matter. He cannot be allowed to state such facts only as he pleases to state, and withhold other facts. If he could be allowed so to do injustice might be done to the defendant, either by the keeping back of testimony which would tend directly to his acquittal, or which would so discredit the witness as to induce the jury wholly to disregard his previous testimony.

In case 2 A. might have refused to answer the first question, because he might be the man himself, and the answer was a link in the chain. But having furnished that link, he could not refuse to furnish more. "Can the witness," said Oakey, J., "proceed to state material facts bearing upon the case, and favorable to one party, and when crossexamined by the opposite party in reference to the same subject, decline answering by reason of his privilege not to criminate himself? It would seem quite reasonable to go somewhat further than the present case requires, and adopt the broad principle that the witness must claim his privilege in the outset, when the testimony he is about to give will, if he answers fully all that appertains to it, expose him to a criminal charge, and if he does not he waives it altogether."

* *

*

In case 3 it was said: "The witness is not to be compelled to answer any question if the answer will tend to expose him to a criminal charge. But if he state a particular fact in favor of the respondent, he will be bound on his cross-examination to state all the circumstances relating to that fact, although in so doing he may expose himself to a criminal charge. We shall not compel the witness to state that

(13) Foster v. Pierce, 11 Cush. 437 (1853).
(14) State v. K., 4 N. H. 562 (1829).
(15) State v. Foster, 23 N. H. 353 (1851).

(16) Brown v. Brown, 5 Mass. 320 (1809); Southard v. Rexford, 6 Cow. 258 (1826).

he knows the respondent to be innocent if a full account of his knowledge on that subject will tend to furnish evidence against himself. But if he chooses to testify that fact, we shall permit the attorney-general to inquire how the witness knows that fact, and compel him to answer the question. It is clearly inadmissible to permit a witness to give a partial account of his knowledge of a transaction, suppressing all the circumstances, whether the evidence is to be used in favor of or against the State." In case 4 it was said: "Where a witness discloses a part of a transaction in which he was criminally concerned, without claiming his privilege, he is then bound to go forward and state the whole. Especially ought this to be so where the facts disclosed are in favor of the party calling him. In this case the witness had testified to facts tending to show that the testimony of the government's witness was untrue. He also testified that he had sold rum for the respondent at the store, but did not recollect ever to have sold brandy. But when the question was put to him directly, if he did not himself that afternoon, after his brother had gone away, sell Jefferson any brandy, he then for the first time claimed his privilege. This he could not do, having told a part of the truth, he should disclose the whole."

(B.)

1. A witness has testified, without objecting, that she has had criminal connection with A. She is not afterward obliged to answer whether or not she has had criminal connection with B. (17)

2. A. testifies that he is destitute of property. He then admits that he had considerable money several years previous. Being thereupon asked what has become of it, he declines to answer, as it may criminate him. His refusal at this stage is proper (18).

In case 1 it was said: "The rule that a witness is not obliged to criminate himself is well established. It is contended however that if the witness waives that privilege when testifying to one fact in the cause, he cannot claim it while testifying to any other fact material to the issue. If he consents to testify to one matter tending to criminate himself, he must testify fully in all respects relative to that matter, so far as material to the issue. If he waives the privilege, he does so fully in relation to that act. But he does not thereby waive his privilege of refusing to reveal other unlawful acts wholly unconnected with the act of which he has spoken, even though they may be material to the issue. His consent to speak of one criminal act cannot deprive him of that protection which the law affords him, so far as respects other criminal acts not connected with it. Thus the prosecutrix was not obliged to answer whether she had an illicit connection with another man."

In case 2 it was said: "There are instances in which a witness cannot be heard to relate a part of

(17) Low v. Mitchell, 18 Me. 373 (1841); Tillson v. Bowley, 8 id. 163 (1831). (18) Amherst v. Hallis, 9 N. H. 108 (1837).

a transaction, and refuse to disclose the rest on the ground that he is thus privileged. But this does not seem to be a case of that character. The witness was called to prove the fact of his poverty, and to this he speaks fully. He is then inquired of whether he had not property to a considerable amount in some previous years, and admits that he had. Then comes the inquiry how he had disposed of that property; and this, although not entirely independent of the facts he has testified to, is so far distinct that we think he was authorized to stop there, and claim his privilege, notwithstanding he had given some testimony on the subject. In fact that seems to be the proper place in which to make the claim. When asked in the first place if he was destitute of property, there is no obvious propriety in his alleging that he could not disclose that without subjecting himself to a prosecution. If he had gone on to speak in part of the disposition that had been made of his property, it might have presented a different case."

JOHN D. LAWSON.

SENATOR TITUS NON-IMPRISONMENT BILL.

THE

HE question of the abolishment of imprisonment as a means of enforcing judgments in civil actions, has for several years been before the Legisla ture of this State; and as it is probable that it will be disposed of in some manner at the present session, it seems desirable to call attention to the generally defective condition of the existing law of arrest and imprisonment, as worked out by judicial interpretation of the statutes relating thereto, and of its impolicy and inhumanity as a system of coercive or retributive justice.

The subject of arrest is one of great importance, involving as it does the liberty of the citizen, which in a free government is the vital principle of the Constitution. The Senate, sensibly impressed with the gravity of the question, has for four successive years (including the present) passed at an early day the bill introduced by Seuator Titus, abolishing imprisonment on final judgment, except in cases of contempts of court and actions for working women's wages. Definite legislation on the subject has been defeated heretofore however by the dilatory action of the successive judiciary committees of the House, in reporting the Senate bill when referred to them.

The charges to be made against the existing law of imprisonment on final judgment in civil actions, are: First, That it fails in many cases to accomplish the object for which it was created.

Second, That in its present condition it is grossly inconsistent and unjust.

Third, That it is unsound in principle, and permits a man to be deprived of his liberty without a trial by jury.

Fourth, That it is impolitic and inhumane. Fifth, That it is unsound on economic grounds. Sixth, That it is subject to great abuse, and is an instrument of oppression in the hands of a merciless creditor.

Seventh, That it is unnecessary, as there are abundant and sufficient remedies in the law, for the collection of judgments without it.

It has been decided by the highest court of this State, in construing the statutes for the discharge of insolvent debtors, that a judgment debtor imprisoned

on execution, who has disposed of his own property with intent to defraud the creditor at whose suit he is imprisoned, is not entitled to his discharge, but may be imprisoned perpetually. Matter of Brady, 69 N. Y. 218; below 8 Hun, 437; Coffin v. Gowlay, 20 id. 308; Matter of Watson, 2 E. D. Smith; Matter of Fowler, 8 Daly, 548.

In the Matter of Brady the Court of Appeals said: "That this construction of the statute may lead in some cases to unlimited imprisonment is possible, but we have nothing to do but to construe the law and enforce it as it is; we have no power to abrogate it or soften its hard features."

And this although the fraudulent disposition was made before suit was commenced, and although the debtor shows satisfactorily that he has no property at the time he applies for his discharge, but has lost it through misfortune. 8 Daly, 548. So that even nowin the language of Judge Savage

"He may be imprisoned not because he will not pay, but because he cannot."

How then does such a law accomplish its object in practice in such a case if it is admitted to be coercive in its intention?

But those who seek to uphold the law say: "The law is also intended to punish fraudulent debtors." "Men who commit frauds should be punished." Even 80! But should a man be doomed to perpetual imprisonment for such an offense?

Besides it is not the office of the civil law to punish crimes; the criminal law takes cognizance of them, its penalties are adjusted with reference to the turpitude displayed in the offense, and its mode of procedure is better calculated to secure a proper administration of retributive justice and to protect the liberties of the citizen.

In strange contrast to the severity of the rule In re Brady, and illustrating the inconsistency and injustice of this branch of the law, is the doctrine of Sydam v. Belknap, 20 Hun, 87, where the petitioner was arrested in an action for converting moneys and securities belonging to plaintiff, while he was acting in a fiduciary capacity. The petitioner was duly examined under proceedings for his discharge, and his testimony showed that after accepting the trust reposed in him he fraudulently and in violation of said trust used the money and property of the plaintiff for his own personal use. It was held that the petitioner was entitled to his discharge, on the ground that the evidence did not show that he had disposed of or made over any of "his own property with intent to defraud creditors. The General Term distinguished the case from In re Brady, by saying that in the latter defendant was charged with disposing of his own property, and could be imprisoned perpetually, while in the present case defendant had disposed of the property of another and could accordingly be discharged under the statute.

[ocr errors]

Judicial interpretation has worked out the condemnation of these statutes, for it has made them declare that it is an unpardonable offense in some cases for a man to dispose of his own property; while if under the same circumstances he disposes of the property of another, which he holds in the sacred character of a trust, he may go free. So much for the consistency and justice of the law.

It might be urged as a grave objection to the existing law that it permits a man to be deprived of his liberty without a trial by jury, where the natural term of his life may be at stake.

Where the facts upon which a defendant is arrested are extrinsic of the cause of action he is tried upon affidavits. 1 Abb. Pr. (N. S.) 419.

Another serious objection to the existing law is that a creditor residing in a community where imprison

[ocr errors]

ment for debt does not prevail may come into this jurisdiction and enforce his judgment by our harsh remedies, when he could not resort to them at home, and thus it gives to the judgment of the foreign State a greater force than it was intended to have by the tribunal which rendered it, for the judgment there, when read in connection with the statutes of that State, would be a qualified judgment in this sense, and would say in effect: "A. has judgment against B. for $1,000, but which is not enforceable by execution against the person of B." To give it a contrary effect would seem not to be "giving full force and effect to the judgments, decrees, and statutes of such State, in the spirit of the United States Constitution. Besides there is this practical difficulty: The debtor might defend the action successfully if sued originally in this State, because by reason of its highly penal nature here, he would be entitled to hold the plaintiff to strict practice, and would be protected by the presumptions which are raised in favor of liberty in such cases. Abb. Pr. 412. But in the foreign tribuual there is no need of these safeguards because the action there is not regarded as being highly penal; but is enforced here as if it were, and the iniquity of the practice is that the defendant cannot open the judgment in our courts, but is limited to questioning the jurisdiction of the original tribunal.

This is an intrinsic defect in the law; it is wrong in principle and vicious in practice. It also imposes a tax upon the citizens of this State to support a debtor (may be for life)¡for the benefit of a non-resident who pays no taxes here, and whose own State will not assume a reciprocal burden for the benefit of our citi

zens.

Considered from an economic standpoint a law which renders a human life useless; which ties a man's hands and forces him into idleness and ruin, because he has nothing, and then calls upon him to retrieve himself, is palpably absurd;- enforced and unlimited idleness, having for its object the enriching of the creditor, and maintained at great expense to the State.

The Romans made the debtor work out his debt for the benefit of his creditor, and he was his slave accordingly; there was a frugal policy in this, and stern justice, which although it seems barbarous to us had nevertheless the merit of being reasonable.

We read with horror of the primitive Roman law which condemued the judgment debtor to be cut in pieces and his body distributed among his creditors, unless his friends would pay his debts (see Hunter's Roman Law); but we countenance a law which prolongs the debtor's agony, killing him by inches, where its black-mailing process fails to extort a satisfaction of the judgment from his distressed family or friends.

What lawyer does not know of the efforts made by unscrupulous practitioners to frame their actions and conduct their proceedings so as to get the judgment debtor into jail, when they know he is insolvent, and for the open and avowed purpose of filching the money from his family; of the extortions of sheriffs, the annoyance and disgrace of public arrest, arranged at a time when it will most embarrass and distress the debtor, and the hundred and one hardships to which the poor debtor is subjected.

These are not imaginary cases, but the actual experiences of every day.

There will be abundant and sufficient remedies left in the law for enforcing honest dealing and also for the collection of judgments, if the law of imprisonment is abolished as provided in the Titus bill.

The Penal Code, enacted in 1881, makes the obtaining of property by false pretenses a larceny. It also provides (§ 544), "that a purchase of property by means of false pretenses is not criminal where the false pre

8

tense relates to the purchaser's means or ability to pay, unless the pretense is made in writing and signed by the party charged." A most salutary provision which prevents perjury and injustice. A protection however which is not extended to the civil debtor. This is the punitory remedy which will exact good faith in commercial transactions if enforced. And the law favors the prosecution of criminals.

Caveat venditor (as has been suggested), is the rule which should govern transactions involving credit. No man is obliged to give credit to another, he acts on his own good judgment, he is usually paid for the risk which he takes as he includes it in his price; the custom of "discounts for cash," among merchants, illustrates this.

The creditor should be entitled to absolutely fair dealing, and protected from fraud and misrepresentation as to the debtor's ability to pay, and this the criminal law affords him.

If there is any offense now punishable by imprisonment in a civil action which is not a crime or a misdemmeanor, it should be made so.

The remedy by execution against the property of a judgment debtor is assisted by the proceeding supplementary to execution, which is a most efficient remedy when carefully pursued; you are more likely to find property by the examination under direction of counsel than from the debtor's schedule presented on application for a discharge; it is more prolific of discovery, and if you find property which is all you want, the court will direct it to be paid to a receiver, and in default of so doing he will be committed for contempt.

Here is a strong coercive remedy, beginning at the right end of the matter, after it has been discovered that the debtor has property and not before. The debtor may still be imprisoned, but his affair is with the court, which may discharge him in its discretion. He is under its control and care but not at the mercy of a relentless creditor.

Who will say that the community has suffered since the passage of the Stilwell Act, exempting honest debtors from imprisonment. Every argument which was urged in favor of its adoption, applies with equal force to the adoption of the Titus bill.

Many of the States have already passed similar laws abolishing imprisonment in civil actions altogether, including Maryland, Missouri, Minnesota, Mississippi, Alabama, Tennessee, Texas, and District of Columbia.

In Indiana, Virginia and Vermont, arrest is allowed in cases where it is made to appear that defendant is about to depart from the State.

In California imprisonment is allowed in same cases as here but limited to two years.

Even the opponents of the Titus bill agree that the law needs serious amendment. Is it not best that a law so full of defects and inconsistencies, so subject to abuse, so grossly unjust and inhumane, and withal so impolitic, should be swept away altogether? The Senate has declared for four successive years that it should be; it remains to be seen what the statesmen and law-makers of the House will do for the cause of humanity and higher civilization, and to place the Empire State abreast of sister States in enlightened legislation.

J. NOBLE HAYES.

ATTORNEY-INDIGENT SUITOR- AGREEMENT AS TO COMPENSATION.

NEW JERSEY COURT OF CHANCERY. OCTOBER TERM, 1884.

HASSELL V. VAN HOUTEN.*

Under the statute authorizing the assignment of counsel to indigent suitors, the complainant was assigned to assist

To appear in 39 N. J. Eq. Reports 105.

[blocks in formation]

S. H. Baldwin, for defandant, Mrs. Van Houten, THE CHANCELLOR. This suit is brought to recover one-half of a fund, represented by a bank check, given by the Masonic Mutual Life Insurance Company, of Newark, in payment of the debt and interest due on the decree of this court in Van Houten v. Pine, 11 Stew. Eq. 72. For the taxed costs and interest thereon the company gave its check to the complainant in this suit, Abram M. Hassell, Esq., who was solicitor for the complainant (Mrs. Frances L. Van Houten) in that one, and for the debt and interest gave her its check payable to her order. That check was certified to be good by the bank on which it was drawn. Mr. Hassell took possession of it to secure him for the amount of his fee for collecting the money, according to an agree ment between him and Mrs. Van Houten on that head, made before the suit was begun. She refused to indorse the check, or to authorize him in any way to receive the money for it, or to pay him the fee, according to the agreement. This suit is brought against her and Messrs. Pine and Ingalls, in their official capaci ties (one is president and the other secretary and treasurer of the company, which is unincorporated), and the bank, for relief in the premises, to establish Mr. Hassell's lien for the fee on the check and the fund which it represents, and to compel Mrs. Van Houten to indorse the check, or authorize him or some one else to indorse it for her, so that he may draw the money, and after taking out his fee, pay the balance to her. The bill also prays that the company may be required to give to him a new check for or pay to him the amount of the fee, and pay her the balance. A general demurrer to the bill by Messrs. Pine and lugalls has been allowed, on the ground that the bill presents no claim for relief against the insurance company (infra p. 113). Since this suit was begun the money has, by agreement of parties, been drawn upon the check, and after paying $250 to the complainant on account of his demand, and the like sum to the solicitor of Mrs. Van Houten, the balance has been paid into court to the credit of the cause.

The complainant alleges that Mrs. Van Houten agreed with him, before the suit to recover the insurance money was brought, that if he would undertake to collect the claim upon the policy, which was for $1,000, on the life of her deceased husband, she would pay him for his fee for the service one-half of the amount recovered, whether obtained by suit or compromise. If he failed to collect or settle the claim, he was to have nothing. She denies that she agreed to pay him any specified sum for his services, but in her answer admits that before the suit was begun she offered to pay him $500, but says he declined to accept that sum and declined also to enter into any agreement for payment of his fee out of the money to be recovered, on the ground that the existence of such agreement, if known, might prejudice ber in the suit, and told her he would charge her only what was right. The proof establishes, by weight of evidence, the fact that the agreement was made as alleged in the bill. Not only does the complainant swear to it positively and distinctly, but he is corroborated by proof of the

admissions of Mrs. Van Houten that such was the agreement between them. Jacob H. Van Ness testifies that after the suit was ended, she said that she had agreed with Mr. Hassell to give him half of the claim for his services. William M. Smith says she said he had agreed to give Mr. Hassell half of the principal for his services. William M. Clark testifies that she told him while the suit was in progress, and soon after it was begun, that she had employed Mr. Hassell to prosecute it, and that he was to have half of whatever he should recover. There is also evidence that she made a like offer to another lawyer before she employed Mr. Hassell, but the former declined to undertake the business for a contingent fee. There is nothing opposed to this testimony by and on behalf of the complainant, except her own denial (notwithstanding what is said in the answer on the subject) that she ever agreed or offered to pay him any sum for his services. Mrs. Van Houten was in indigent circumstances, and unable to pay a lawyer for his services in endeavoring to collect her claim. According to the bill, she had offered to settle it with the company if they would pay her a comparatively small sum of money (from $300 to $500), enough to buy a lot in a cemetery. The answer does not deny it. Mr. Clark testified that after the suit was brought she requested him to get a settlement with the company on those terms, but he declined. Before Mr. Hassell undertook the business, she appears to have been unable to get any one to prosecute or undertake to collect her claim, because she was unable to pay for such service. The amount recovered was $1,339.27, of which $339.27 was interest. The suit was in progress for over a year and a half. After the decree had been obtained, she said she was willing to pay Mr. Hassell $500, one-half of the principal, and in her answer she says, as before stated, that she originally offered him that sum. He and she disagree as to his right to one-half, $169.63, of the interest. There is no legal objection to the enforcement of the contract in question. It has been held by the Supreme Court that the law of champerty and maintenance does not exist in this State. Schomp v. Schenck, 11 Vr. 195. And I do not see any reason for denying the validity of such an agreement. such agreenments cannot be enforced, there must be many cases in which the poor will be unable to assert their rights. It is true our law and practice provide for the furnishing by the court of the requisite professional assistance to poor persons having a cause of action or suit, and for the rendering by the attorney or solicitor and counsel, and of all other officers of the court, of their services in the litigation, without compensation, yet there are services, such as the procuring of the necessary proof, and expenses, such as the cost of printing, etc., which may be requisite to the vindication of the suitor's rights, which are not thus devolved upon the attorney or solicitor or counsel so assigned. In this case, such an assignment of Mr. Hassell was made. Out of the taxed costs recovered he paid all the fees to which, by law, the other officers of the court who had rendered services in the suit would have been entitled had there been no assignment. It is urged that under that, assignment he was bound to render his services without compensation, and therefore is debarred from enforcing the agreement. But the object of the humane provision under consideration is to furnish to indigent suitors the means of vindicating their rights, which otherwise, because of their poverty, they would not be able to assert; and if they are unsuccessful, the officers of the court whose aid has been required under it must of necessity go without compensation. The fact that he has been so assigned will not debar the lawyer from enforcing an agreement for compensation dependent upon success in establishing the right, by which suc

If

cess the suitor will be provided with the means of remuneration. The complainaut in this case has established a valid contract for the payment to him, for his services, of one-half of the sum recovered, besides his costs, and he should be decreed to have a lien accordingly upon the fund in court for so much of his claim as still remains unpaid, besides his costs of this suit.

NOTE.-By an old order in chancery, after a party had been admitted to sue in forma pauperis, and counsel had been assigned, no fee, profit, or reward could be taken by him from the pauper, nor could any agreement be made for compensation afterward. Beames on Costs, *118; 1 Dan. Ch. Pr. *41.

In Philipe v. Baker, 1 C. & P. 533, in an action of assumpsit for business done as a solicitor, with the common counts, it appeared that the defendant had employed the plaintiff to defend him in a suit in chancery; that the plaintiff, before filing an answer therein, had prepared a petition that the plaintiff be allowed to proceed in forma pauperis, which was ordered, and the answer thereupon entered, but that the suit proceeded no further. Held, that the plaintiff, as solicitor, could only recover the amount of money he had actually paid out.

In Dooly v. Great Northern Railroad, 4 El. & Bl. 341; 2 El. & El. 576, the plaintiff sued in forma pauperis, and recovered £150, and the court certified for costs. The plaintiff's attorney thereupon paid fees to his counsel, and claimed in the bill of costs the fees so paid, and also remuneration for his own services. The master on taxation disallowed both. Lord Campbell, at chambers, approved the master's decision. On rule to show cause, Lord Campbell's ruling was affirmed. See also James v. Harris, 7 C. & P. 257; Hoare v. Coupland, 14 Jur. 247.

In Wright v. Burroughes, 3 C. B. 344, a pauper plaintiff having behind the back of his attorney, and under circumstances showing an intention to deprive him of his costs, agreed with the defendants, in an action for unliquidated damages, to execute a release, and the defendant having pleaded the release, the court, at the attorney's instance, set aside the plea, Tindal, C. J., saying: "It is the spes spolii alone that induces the attorney to undertake the conduct of a pauper cause." See Quinnan v. Clapp, 10 Abb. N. C. 394, note.

In Holmes v. Penney, 9 Exch. 584, the plaintiff brought an action for work and labor, as an attorney. At the trial it appeared, in June, 1851, the defendant retained the plaintiff as his solicitor in a chancery suit, in which he was a defendant; that he stated to the plaintiff that he was a poor man, but that he would be entitled to some property upon his father's death. The plaintiff agreed to do the work "upon the ordinary terms," and consented not to press the defendant, but to wait until he should come into the possession of his property.

On July 29th the defendant obtained an order to proceed in the chancery suit in forma pauperis, and the plaintiff was appointed his solicitor therein, and the defendant had counsel also appointed to him.

On October 31st, defendant's father died, of which the plaintiff became aware, but took no steps to have the defendant dispaupered. On December 8th an order was made that the defendant should be dispaupered as from October 31st. On March 10, 1852, the bill in chancery was dismissed.

This action was brought to recover compensation for services performed in the chancery suit, including counsel fees, which however had not been paid. The plaintiff recovered a verdict for £180, the full amount of his claim, with leave to the defendant to move to reduce it to such sum as the court should think fit. On a rule to show cause, held, that plaintiff could not re

« ПретходнаНастави »