The Express.
London, England, 1863-01-16 00:00:00

COURT OF COMMON PLEAS.

dittimp in Banco.—(Baton Lad Chief Justice Ed. and
Justices Williams, Willis, and Keating.)
KIDDIZDY r. BDOUN AND Wilt —THI BWINfIN CABE.
This we having been frequently before the public, it is
only necessary now to state that the female defendant was
formerly Mrs. Swinfen, and that the plaintiff acted as her
counsel and legal adviser in conducting various proceedings
including those which resulted in her being declared en-
titled to the Swinton estate. After this result was arrived
conversations took place between the female defendant
and the plaintiff, which, according to his evi-
dence, amounted to this, that she admitted that she
owed and promised to pay him the rum of 20,0004 for
anion rendered, and the present sake was brought to
remover this sum upon an "account stated." The case was
tried at Warwick Luisa before Lord Chief Justice Cook-
barn, when the jury found for the plaintiff for the 20,000 i.,
bat subsequently • rule was obtained sailing upon the plain.
tiff to show cause why this verdict should not be set aside, and
a verdict for the defendants or • uoasuit entered, or why
there should not be • new trial. varlets. points were
mated in the ride, but the principal qualm was whether
an action upon an account stated could be maintained when
the foundation of that aooount was DeTViDDI rendered by •
barrister to a client. The matter was argued at great
length on previous occasions and to-day judgsnent was given.
A good many members of the bar were present to heir the
decision, but there was no greet number of other persons
present.

The Lord Chief Justice maid that in this case the de-
fendant' had obtained • rule calling upon the plaintiff to
show cause why the verdict for the plaintiff should not be
set wide and a verdict entered for the defendants because
there was no evidence of a debt, or fora new trial upon the
ironed that the verdict was against the weight of endows.
The material faces upon the first question were that in the
course of thecae' of " Swinton v. Swinfea," the plaintiff, who
was • barrister, biome the advocate of the female defen-
dant, and during** continuance of that litigation she ramie
repeated appeals to him for exertions u an advocate, and
repeatedly prorated to remunerate him for the same, and
after the end of the suit, spoke of the amount of remuneration,
sad for tie purr:egad the present judgment the court as.
Famed that she admitted that 20,000 f. was due, and pro-
mised to pay that amount. These facts were no evidence to
sup port the verdict for the plaintiff. The oourt °mol-
dered that • promise of a client to pay money to • counsel
for his advocacy, whether made before or after the litigation,
Woo binding effect, and further that the relation of counsel
and client rendered them incapable of making any contract
with reference to the counsel's services. In all the records
of our law from the earliest time until now there was no
trace whatever, either that an advocate bad ever maintained
• suit wins& his client for fees incurred in litigation, or
that a client had maintained an action against his counsel
for breach of contract as an advocate, and as the number of
pneedenta was immense the fact had proportionate force.
To this might be added the traditions of the profession and
the practice existing within living memory. Sir John
Davis declared this when he said, "Few are not •
debt certain growing due for labour or services, but
a gift; not maroon, but honorarium." Hs would
have knowledge upon this subject, and indeed Lord Stowell
9oke of him as • poet, lawyer, and statesman, and highly
distinguished in all thaw characters, Lord Hale declared
the game thing when he said that a counsel could not bring
an action for his fees, for the fee was an honorarium,
and lot • debt ; and for Shit he cited Lord Not-
tingham t and others. Blackstose also elated that
a counsel could maintain no action for his fees which
wan given not as salary or hire, but as • mere gratuity.
There was no authority to conflict with these, and in sit
port of them there were the opinion of Lord •lierdwickep,
Lord Kenyon, Vice-Chacoellor Kindersley, Chief Baron
Piggott, and Justices Bayley and Beet. These were
authorities for holding that a counsel could not
contract for his hire in litigation, and there were
satherities also for holding that a client could not
contract with his counsel, added to the fact that
there was no precedent for an action under such circum-
stances. The plaintiff, in his argument, referred to • great
member of authorities ; but, instead of referring to them in.
dividinlly, the court would mention them by dares. The
first class referred to contracts with counsel, not in respect
of litigation, and this elms, the court considered, tot
relative to this cage. Counsel were formerly ma
nedretai se
standing counsel to give advice is general affairs; but the
clangs in the practice of the bar moos this class of cages
vu decided was perhaps as great se the change in the
Position of the church, it having been formerly held that
chaplains could be prosecuted forrefusing to perform services,
wider the statute of Edward 111., which referred to /s-
-howers. With respect to the dicta cited by Yr. Kennedy
as to the liability of counsel for their conduct as advocates
they were all considered mad overruled in the ease of
' Strafe° v. Lord Chelmsford." A coesiderable portion of
Kr. Kennedy's research resulted in producing anec-
dotes as to the practice of barristers in ancient times,
which were not relevant to the present question. Such
also were those relative to the alleged endeavours of
barristers to obtain larger fees, for even if this had occurred
the nature of the contract would not be thereby
altered, nor would the right to sue be given. In
England the general lassie was to have prepayireot
fees, bat on the costrary under the Roman law ;
under the French law, and in particular cases is
England, the payment wan subsequent, but this did not
affect the nature of the cootract. Certain dicta were also
cited to show that • banister had the capacity to make him-
self liable under • spacial contract, though he was not liable
under an implied contract ; bat it only amounted to
this, that the difference between an express and as
implied contract was only • difference in the mode of proof.
Kr. Kennedy urged that, tied./ the civil law, an advocate
could sue for his fee, ad that Blackstone made a mistake
in referring to the authorities to support • cookery opinion •
but it appeared to the court that the mistake was on the
part of the plaintiff. Throughout the whole growth of the
eivillaw,f Tom the foundation of Rome tothe time of Justinian,
advocates were unable to make contract., and during a
large portion of that time they were under prohibition from
receiving gifts. This prohibition against receiving gifts
ems again enforced by Augustus, and for breach of this law
advocates were ordered to return fourfold. This prohibition
Meant gifts was relaxed is times of great debseement. Tim
mate sought to enforce the law forbidding all gifts to ad-
vocates, bat Zuilius, an advocate of singular infamy, offered
Nome of the arguments that had been given in favour of pay-
ing advocates, and the Emperor took a medium course aod
allowed the taking of • fee amounting to about 801., mod insti-
tuted a Bee for taking more. The senate made a further law,
that way suitor should swear that be had not given nor
*Detracted to give soy money for advocacy. A contrast
with an advocate during litigation was not shown to have
been it any time sanctioned by the laws of Rome. His
lordship having gone through the authorities, referred
to the high position which the bar had attained under the
present system, and the serious consequences which would
DO likely to result if the practice were sanctioned of allow-
lot an advocate to contract for the remuneration for his sea-
tier, ; and that upon principle as well as authority they
thought that there was good reason for holding that the re-
Wien of counsel and client created so incapacity to make a
contract for hiring as an advocate, and it followed that the
request and promise of the defendant, and the services of the
Plaintiff crested neither an obligation nor an inception rd
obligation capable of being incorporated and made into •
contract bytes bsequent promise. There was another head
of claim by
plaintiff for leaving his place at Birroingbass
and corning to reside in London, so as to attend to the dent's business beeieseg but this was merely ancillary to the principal
matter, which was service mediated as as advocate, and it
ins Marvel =attar could sot 6e nude the subject of an
action, wither could the ancillary matter. Upon them I

grounds the court came to the conclusion that the plain-
tiff had not established • cause of action, and the rule
must be absolute to enter a verdict for the defendants
and if the judgment upon this part of the rule
should be reversed in a court of error, it would be their
duty to dispose of the remainderof the rule for • new trial,
they therefore ordered that the part of the rule relating
thereto be suspended until further order.
Rule absolute to enter a verdict for the defendants.

COURT OF RXCHEQUER.
Bitting' in Banco.—(Before Lord Chief Baron Pollock and
Barons Martin, Manna and Wilde.)
This morning Mr. Osborne, of the Chancery bar, and Mr.
Burke, the parliamentary barrister, having been appointed
Queen's counsel, were waled within the bar.

COURT OF PROBATE AND DIVORCE.
(Before the Judge Ordinary.)
Mr. Osborne and Mr. Burke h►ving been appointed
Queen's Counsel, took their seats this morning within the
bar.

POOL V. PITT.

Mr. Ruddlesion, for the plaintiff ;
Dr. Swabey sod Mr. H. Mathews for the defendant.
The testator, Mr. John Pool, late of Redhill Farm,
I King's Stanley, Gloucestershire, died on the Bth of Sept.,
1861. He was about 70 years of age, and on the
20th of October, 1860, he contracted a second marriage.
The same day he met Mr. Pitt, the executor, an attorney's
clerk, who had made a will for him in the previous January,
and who told him that if it was true he had taken another
wife the instrument would be invalid. The testator imme-
diately desired him to make a new one for him. Mr. Pitt
asked whether a copy of the old one would do? The tes-
tator replied that it would, but that he wished to give his
brother George le. per week, instead of Bs. On the 29th
of the same month Mr. Pitt took the will to him, and he in.
quired if it was all right? Mr. Pitt said it was;
whereupon the testator took up • pen and was going to sign
it at 0000 ; but the defendant told him that two witnesses
would be necessary. The testator said that he (Mr. Pitt)
would do for one, and Sarah Jones, the servant for the other.
The girl was accordingly called in, and the will was signed
and attested with all due formalities. Probate was taken
out in common form, but the widow bad since called it in
and now disputed the legality of the execution.
Mr. Pitt having given this amount of the transaction,
said that Mrs. Pool had asked him to intercede with the
testator to leave her something, and he at last persuaded
him to offer bar 4s. per week. The UMe evening witness
communicated the result of his efforts to Km. Pool, and she
not only appeared very much annoyed at the smallness of
the sum, but distinctly refused to accept it.
On the other aide Sarah Jones was called, and she deposed
that she did not see either of the other signatures.
Sir C. Cromwell said that no will would be safe if a year
and a half after its execution a stupid servant girl, ques-
tioned by an interested party, was to be listened to. He
most, therefore, pronounce for the will, but he would make
no order as to costs

BANKRUPTCY COURT.-RE J. STEVENS.