« ForrigeFortsæt »
objections in principle, but it is unquestionably right in its practical effects; not that it is to be reasonably presumed more actual knowledge can be exhibited by a young Barrister, at the commencement of his professional career, than by an experienced Attorney; but because the latter is, perhaps, reluctantly obliged, and frequently unconsciously seduced, to mix, with his professional services, no inconsiderable degree of local prejudice, and jealous irritability; from which the stranger Barrister may reasonably be expected to be exempt. Viewing the exercise of this duty, however, as confined to these two descriptions of persons, we have only to see what official engagements operate as a prohibition upon individuals.
Or Barristers it is sufficient to observe, that they are de- Barristers. fined to be “ Counsellors learned in the Law,” admitted to plead“ at the bar, and there to take upon them the protection and defence of clients.”* Serjeants, and King's Counsel, do not usually plead at sessions, it being considered infra dignitatem, except by special retainer on extraordinary occasions; but among Barristers below these degrees, called utter or ouster Barristers, or Barristers without the bar, there seems to be no exception either of law or courtesy, so they be not constituent parts of the court, as justices on the bench, or clerk of the peace.
Respecting Attorneys, there are many restrictions, both Attorneys. instituted certainly by private individuals, in which the name of his Majesty is used; but in none of them is it ever thought that the person prosecuting has a right to address the jury. The course taken on every occasion of a criminal prosecution is, where there are depositions, that the judge refers to them, and examines the witnesses one by one according to those depositions. Where there are no depositions, as in cases of this description, it has been usual for the judge to consult the person prosecuting as to the manner of bringing his case before the court, and as to the witnesses proper to be examined. That is the way in which justice is administered in such cases, and that is the course of proceeding I mean to adopt on the present occasion. Mr. Hunt will comtounicate with me, and give me the names of his witnesses. If he is disposed to proceed in that way, it shall be done. This is the only course I shall allow ; and if you do not choose to have justice admipistered in your case according to the ordinary and established rules and opinions of the judges of the land, the record must be withdrawn.”
* i Black. Com. 23.-Wood's Inst. 418.
general and particular. “No person shall act as Solicitor, Attorney, or Agent, or sue out any process at any general, or quarter, session of the peace, without being admitted and inrolled according to law, on pain to forfeit 50l. to him who shall sue within twelve months, with treble costs; and if any Attorney or Solicitor shall permit any person not admitted and inrolled to make use of his name in such session, he shall forfeit 50l. in like manner.
“ And no clerk of the peace or his deputy, nor any under sheriff or his deputy, shall act as a Solicitor, Attorney, or Agent, at any general, or quarter, session of the peace of the county or place where he shall execute his said office, on pain of 501. as aforesaid.”*
These prohibitions, however, only extend to persons who, having some pretensions to act as Attorneys, have either omitted to entitle themselves to such privilege, by a neglect of the previous forms prescribed by law, admission and inrolment; or who have become disqualified from acting in the capacity of Attorneys, from having been invested with some office which the law declares to be incompatible. On the latter point the statute referred to is sufficiently specific; for the former ground of disqualification, it is necessary to resort to the other statutes on the subject in a general way, and in the order in which they were passed. The very early ones, however, being considered as obsolete, or irrelevant, it is sufficient to notice the effect of the more modern ones in the following order.
No recusant convict shall practice as an Attorney in any court, on pain of 1001.; half to him that shall sue, and half to the King.” ť
If an Attorney be convicted of having delayed his client's suit, or of having demanded more than fees and disbursements, besides being liable to pay costs and treble damages to his client, he is declared to be disabled from acting." I
“ No person convicted of forgery, perjury, or common barretry, can practise as an Attorney or Solicitor, but shall be transported for seven years."$
“ No person shall act as an Attorney or Solicitor, unless
* 22 Geo. 2. c. 46,
3 J. 1. c. 7.
+ 3 J. 1. c. 5.
he shall have been bound for five years, and served the same. * And the whole service must have been with the same Attorney, or by his assignment,t except in case of death, when such clerk may be turned over. I And he must be admitted, sworn, and inrolled before he can act as an Attorney, under a penalty of 501. and being disabled thereafter. But quakers may be admitted on their affirmation.” ş
Admission, and inrolment, presupposing a compliance with all the conditions enacted by statute, such as the payment of stamp duties, &c. it is unnecessary to notice those which are imposed on articles of clerkship, or any others which may be necessary in the process of qualifying to act as Attorneys, merely as duties; but it must be observed that every Attorney, to entitle himself to practise in that capacity, must “annually take out a certificate from the commis- Certificate nesioners of stamps, under a penalty of 501, and being disabled cessary. to practise:"|| Any Attorney, therefore, who may have omitted to take out such certificate, has forfeited his right to act in that capacity in the court of quarter session. **
It is almost unnecessary, in the last place, to observe, Having been that any Attorney who has been struck off the rolls of the struck off the
rolls, courts above, as sometimes occurs, for dishonourable practices, although not especially provided against by any positive law, is no longer an Attorney of such superior courts, and cannot, therefore, be permitted to practise in the inferior ones, and, of course, is not admissible in that of the quarter session of the peace.tt
Under the term fees, it is not to be presumed that any Fees, &c. thing relative to the remuneration to counsel for their assistance, or other voluntary payments, of which the law takes no cognizance, can have place here. Fees, as they appertain to the present subject, are such payments as the law allows, or prohibits, to persons who, by their offices or their callings, are in some way or other appurtenant to the court of sessions of the peace. They chiefly relate to the
• 2 Geo. 2. c. 23.
+ 7 Term R. 456. 2 Geo. 2. c. 23.
§ 22 Geo. 2. c. 46. 11 37 Geo. 3. c. 90.39 & 40 do. c. 72.-48 do. C. 149. and 54. do. c. 144. * 2 Wils. R. 382.
+ + Cowp. 829.
officers of the court, properly so called, to witnesses, and to Attorneys. Enough has already been said respecting this subject, as it applies to the superior constituent parts of the court of session; any consideration of the fees to constables and others, in the various preliminary steps of prosecution, anterior to the sitting of the court, is foreign to the purpose here; those which the sheriffs used to demand on the acquittal or discharge of a prisoner have long been abolished ;* those which are allowed to the clerk of the peace at the commencement of the proceedings before the court, are regulated by a recent statute before noticedit and by another nearly as recent, I all prison fees, except in the King's Bench, the Fleet, the Palace Court, and the Marshalsea prison, are entirely abolished; and all fees paid to the clerks of assize, of the court, of the peace, or their deputies, as well on the acquittal as other discharge of a prisoner, are done away, and the officers forbidden to receive them; and any transgressions of these regulations are declared to be misdemeanours in the parties demanding them, and punishable accordingly. To indemnify the officers, however, it is provided by the same statute that they shall be paid out of the county rate sums proportioned to the amount of the fees they have been accustomed to receive.
Fees, for so they have been frequently, though erroneously, denominated, which are given with subpænas to secure the attendance of witnesses, demand but very brief notice. It has been frequently decided, that, in civil cases, a witness is not bound to attend, in pursuance of a subpæna, unless a tender be made to cover all the reasonable expenses of his journey and necessary stay.Ş Attendance upon criminal prosecutions stands on a different ground. In those for fraud and felony, the prosecutor and witnesses, on petitioning the court, will be allowed reasonable expenses, not only for their journey, &c. but if poor, for loss of time also; Il it therefore appears that the necessity for making any advance of
money with a supona is rather a mere matter of prudence, in order to prevent the witness from being im
* 14 Geo. 3. c. 23. + 57 Geo. 3. c. 91. 55 Geo. 3. c. 50. § Fuller v. Prentice, i H. B. 49.-Holme v. Smith, Marsh, R. 419. || 18 Geo. 3. c. 19.
peded, by lacking the means of removing himself, than of necessity; nevertheless it should not pass unnoticed that the statute, which says that subpoenas may be served“ in any part of the kingdom," provides, that no attachment shall issue for disobedience, unless reasonable charges of going to, and returning from, the place of trial, shall have been tendered. * This was doubtless inserted with a view to the very great distances to which witnesses might occasionally be called under the authority of this statute, without the means of bearing their expenses until they could make application for recompence.
No compensation, however, is made by statute for the attendance of witnesses in cases of misdemeanour, and therefore in criminal prosecutions for offences of that description, it behoves the prosecutor, in order to secure the attendance of his witnesses, to tender them sufficient to cover all reasonable expenses.
Respecting the demands of Attorneys upon their clients, it is sufficient here to observe, that they are compelled by statute t to deliver their bills duly signed a month before they can commence an action for payment; and that this provision extends to charges for business done at the sessions of the peace, as well as in the superior courts, I and such bill for such business must abide taxation, in the same manner as in other cases. $ This observation is elicited by the notorious practice of persons acting in the capacity of Attorneys at sessions of the peace, who are not qualified by a compliance with the requisites of the statutes, who therefore do not presume to act in the other courts; and who, it appears by the decisions here referred to, cannot enforce the payment of any remuneration for their services in that of the sessions of the peace.
+ 2 Geo. 2. c. 3.
45 Geo. 3. c. 92.
Clarke v. Donovan, 5 T. R. 694. $ Ex parte Williams, 4 T. R. 496.