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

THE SUN, LONDON, FRIDAY EVENING, JANUARY 16, 1863.

LAW INTELLIGENCE—This Day.

COURT OF COMMON PLEAS.

(Before Chief Justice Erle, and Justices Williams, Willes,
and Keating.)
KENNEDY V. BROWN AND WIFE-THE SWINFEN CASE-

J I'D GILENT.

In consequence of their lords having signified their in-
tention of giving judgment in this case the court was
densely crowded both by counsel and the general public.

The matter was before the Court last term. It will be
recollected that Mr. Kennedy, a barrister, acted on behalf
of .Mrs. Swinfen in her litigation in reference to her claims
to the Swinfen estate, the result of which was that ehe re-
covered the property. Subsequently to this she married
Mr. Brown, the defendant in the present action against her
and her husband, to recover £20,000 upon "an account
stated," which wss founded upon the services rendered by
Mr. Kennedy. The case came on for trial before
Lord Chief Justice Cockburn at Warwick, when the
verdict was for the plaintiff for £20,000. but, subsequently,
a rule was obtained by Mr. Macaulay, Q.C., on the part of
the defendants, to enter a new writ upon certain points of
law; also upon misdirection, and that the verdict was
against the weight of evidence. The principal question of
law raised was, whether services rendered by a barrister
could bo made the subject of an account stated. During
the arguments before their lordships last term, Mr. Kennedy
proceeded at great length to show their lordships reason■
why the verdict he had obtained should stand ; and at the
termination of arguments, their lordships intimated that
they would reserve their decision.

Chief Justice Erie this morning delivered judgment.
His lordship commenced by remarking that in the case of
Kennedy v. Brown a verdict had been given for the
plaintiff, and a rule had been obtained for a new trial on the
ground that the verdict was against evidence. It appeared
that the plaintiff became acquainted with the defendant, and
afterwards he became her advocate in a suit in which she
was engaged. During the proceedings she made repeated
appeals to Mr. Kennedy for exertion on her behalf, and a
promise was made, in the event of success, of a certain sum
which the Court would admit, for the sake of argument, to
amount to £20,000. The Court was of opinion that there
was no evidence to support the verdict which had been
given, and their lordships considered that a promise made
under such circumstances was not binding on either party.
The Court considered there was no case to suppers such a
proceeding ; on the contrary, the tradition of the profes-
sion, and the greatest authorities that oould be cited, alto-
gether repudiated the object contended for. The late Sir
John Davis, than whom a more learned man never existed,
was clearly of opinion that foes were but gifts and hone-
dumb. Lord Stowell was of a similar opinion, and Lord
Hale clearly laid it down, the Court saw, in a note in "Coke
on Lyttleton" that no counsel could bring an action for
the recovery of his fees, because such fees were honorium,
and could not be regarded as a debt. Blackstone
also maintained that no action could be supported
for such a purpose, because fees could not be considered as
a salary or a hiring, but simply as a gratuity. Mr. Ken-
nedy, in the course of his argument., which showed the
greatest research, had cited a number of cases upon which
he relied, and in which it was set out that barristers had
contracted to act as relieving officers or auditors, or for an
annual sum, by way of retainer, but neither of these in-
stances met the case of a barrister involved in litigation.
Mr. Kennedy, in his argument, had cited a number of
at. ecdotes to show that the custom had in early years
existed, but the rights and duties of the profession had not
been clearly ascertained, The relation of client and counsel
during the time of litigation was of such a nature that
it was of the greatest importance that promises made at
that peculiar period should not be held binding. If it were
otherwise, the Court was clearly of opinion that the in-
tegrity and dignity of their honourable profession would
be lessened. No doubt there were bad men in every class,
but then it was of the highest importance that in a pro-
fession where its members were in close relation with those
involved in litigation no promise or contract should be
held binding, and were it otherwise it would affect the
integrity and dignity of the profession. In every class
there were bad men, but it was of the last importance that
nothing should be done to lessen the confidence that
existed in the high honour, the integrity, and devotion of
the bar. Where gentlemen were entrusted with secrets of
the most vital importance, where fortune, character, and
even life was trusted to the keeping of another, it was im-
possible to estimate the value of certain services. The Court
thought them beyond all price to a client, and if it was
sought to reward those services other than by gratuity, the
status of their calling would be lowered. If it were open to
counsel to make an agreement with his client as to remune-
ration, litigation might be increased, and that was not
to be desired. The learned judge• during his judg-
ment cited an immense number of authorities
in accordance with the view the Court took of the matter,
and concluded by saying that, under all the circumstances,
Mr. Kennedy had not established his case, and the rule for
anew trial must be made absolute. If it was thought de-
sirable that this decision should be taken to the Court of
Error, that course was open, but the second part of the rule
would be suspended until further orders.
The decision of their lordships is thus decidedly against
the claim of Mr. Kennedy.

COURT OF QUEEN'S BENCH.
(Before Justico4 Crompton, Wightman, and Mellor.)
NEW QUEENS COUNSEL.

This morning Mr. Osborn and Mr. Burke were called
within tho bar, her Majesty having been pleased to confer
upon them tho dignity of Queen's counsel.

SHERIFFS' COURT.
(Before Mr. Gibbons.)
THE QUEEN'S HERALD AND THE HATTER-SINGULAR

CASE- CHAMBERLIN V. WOODS.

This was an action to recover for a hat and cap, plaintiff
being described as a hatter, and defendant as of Herald's
College, Doctor's Commons.
Mr. Angell, for plaintiff, called his client, who stated that
he had supplied the goods in question to the defendant's
son. On previous occasions defendant had paid for goods
which had been supplied to the son, who was a minor.
Cross-examined by Mr. Buchanan—I remember defen-
dant paying me a bill on January, 1859. I do not recollect
his cautioning me against his son. I will not swear he did
not. The goods were actually sent to defendant's office, in
Herald's College.
His Honour—Was the son living with his father when
the goods were supplied ?

Plaintiff—l think not.
His Honour—You see, a son who is a minor would be in
the same position as a servant, and after leavinghis father's
house could not bind the parent.
Mr. Buchanan—l shall call the defendant, and he will
expressly declat e that he cautioned plaintiff.
Defendant—When I paid plaintiff in January, 1859, I
told him that unfortunately my son had gone wrong, and
he was not to trust him. I had previously remonstrated
with him for trusting the young man. My son left my
house in February, 1859.
His Honour—Well, Mr. Angell, I do not think you will
go on after this. You see defendant swears positively as
to the caution, and plaintiff will not contradict him. I
must find for defendant, with costs.
Verdict for defendant.

SPORTING INTELLIGENCE.

TATIERSALL'S -TIIIIRSD AY

There was but a mere sprinkling of members in the sub-
scription room this afternoon, and the few bets laid were of
an unimportant nature. An offer was made very early
to back Lord Clifden for £l5O at 6 to 1 ; but those odds
could not be obtained, 11 to 2 being the very highest offer
against the favourite. Twelve to 1 was taken to £lOO about
Hospodar, and 2,100 to 100 about Carnival. Fmty to 1 was
booked to a " pony" about Michael Scott, who, in the City
in the morning, had been backed at 100 to 6 for the Two
Thousand Guineas. Two thousand five hundred to 100
was taken about Blue Mantle. Closing prices :

DERBY.
11 to 2 agst Lord St. Vincent's Lord Clifden (take 6 to 1 f)
12 to 1 agst Count F. de Lagrange's Hospodar (taken)
21 to 1 agst Mr. Naylor's Carnival (taken)
25 to 1 agst Capt. Lane's Blue Mantle (taken)
40 to 1 agst Lord Durham's Michael Scott (taken)
RACING FIXTURES FOR 1863.

FFBRUARY.

Lincoln 25

Nottingham Spring 3 Doncaster Spring l7
Derby Spring , 5 Warwick Spring 17
Liverpcol Spring.... 10 Northampton 24
Shrewsbury l2 Croxton Park 27
APRIL.

Newmarket Craven 6
Durham
Catterick Bridge.. 8
T hirsk l4

Epsom Spring 16
Newmarket F. S 20
York Spring ...28
Salisbury

Chester 5
Bath
Marlborough ..14
Ju:

Harpenden l5
Epsom l9
Manchester
rE.

Ascot 2
Newton 10
Hampton ..10

Odiharn 16
Bibury Club .17

Ju
Worcester 2
Newmarket July .. 7
Abingolon 14 I
Hungerford l6

Auor
Brightai
Brighton Club 6
Lewes
Reading l2
SEPTE'
Derby Summer
Ltchtield ......... 1
Leicester lO
Doncaster 15

OCTO
Newmarket S. 0 ..12
Lincoln Autumn 21
NOVE:
Worcester .. • • ... t

Stockbridge lB
Chelmsford 23
Newcastle 23

Carlisle v 3O

Nottingham 21
Winchester 2l
Goodwood ...28

York August
Devon and Exeter 15
Eghaul 29

Brecon 2l
Monmouth 24
Manchester Autumn 25
Newmarket Ist Oct. 29

IBER.
Newmarket Houghton ..26

IMBER.
Shrewsbury Autumn....i7