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in this species of property; and the defendant's counsel intimated his intention of bringing the subject before the Court of King's Bench.
Lord Lc Despeneer v. Eveleigh, Clerk.—This was an issue directed by the Court of Exchequer to try whether certain woodlands belonging to the plaintiff were titheable; and secondly, whether the loeut in quo was within the district, called the Weald of Kent. The cause, from the amount of property which depended upon its result, excited a very considerable degree of interest. The main question was, as to- the boundary that divided the Wealds of Kent, Upon this depended whether the plaintiff's property was or was not tithe free; for by an ancient and immemorial custom the Wealds of Kent are exempt from tythe. It was therefore the object of the plaintiff to phew that his estate was within the boundary line, and with this view, he contended, that the road known as the Pilgrims'-road, was the true and exact boundary line. This road passed along the range of white chalk hills that run from West Peckham by Maidstone, and Oh to the eastern parts of the county. As a proof that this was the boundary, the Solicitor General said he should prove that all the lands south of this line were tithe free, and he should also prove that tbey were snbject to an ancient custom, called Land Peerage, in virtue of which the trees on the waste were not the property of the Lord of the Manor, but of the tenants nearest to; them, A vast number
of witnesses were examined, who clearly deposed to the Pilgrims road being the boundary Hnr, and to the lands south of that line being tithe free. Earl Stanhorstated his opinion to that effect in the most positive manner. He spoke of it as a circumstance which tradition verified—he said his father had assured him the Pilgrims'-road was the boundary, and that no tithe was paid within it. The case consequently, on the part of the plaintiff, appeared to have been completely made out. On the part of the defendant it was contended by Mr Serjeant Best, that the Pilgrims'road and chalk hills did not form the boundary, but that the boundary of the Kent wealds was the Red-hills. He said he should prove that tithe was paid within the line described by the plaintiff as the boundary, and if he did so, there would be an end of the plaintiff's Case. He accordingly produced as many witnesses as the plaintiff, all of whom as positively and distinctly stated that the Red-hills were the boundary. It was alio proved, that nearly all the parishes within the district, which the plaintiff said was part of the weald, paid tithe to the clergy men. Endowments, terriers, and a variety of ancient documents, shewed the whole district to be titheable. It followed, that the foundation of the plaintiffs case was taken away, and the Jury, after a trial of ten hours, without suffering the learned Judge to sum up the evidence, returned a verdict for the defendant, br which the right of the dejjy to tithes, within a wide dismn, is completely established. ■'
Before-ike Lord Chancellor.— Cholmondeley (Earl of) v. Clinton (Lord) .—Whether aa attorney or solicitor employed for one of the parties in a cause, and discharging himself from being so employed, can legally become the solicitor or attorney of the other party in the same cause? This question, so important not only to solicitors and attornies, but to every branch of the profession of the law, and to the public, now remains for decision in the Court of Cuancerj. It was brought forward upon motion in the above cause, under the following state of facts, being all that appeared to the Lord Chancellor necessary to be attended to for the decision of the general question. Messrs. Seymour and Montriou, or some such name, partners, were employed as the solicitors for the defendant, Lord Clinton- hi September last, they agreed to dissolve the partnership; and one of the conditions in the contract of dissolution was, that Mr. Seymour alone was to remain Lord Clinton's solicitor, to which stipulation Lord Clinton assented. Lord Cholmondeley afterwards appointed Mr. Montriou his solicitor in this cause, and that appointment, after consulting several legal friends, Mr. M. thought himself justified in accepting. The motion on the part of Lord Clinton, or Mr. Seymour, or both, was that the court should restrain Lord Cholmondeley from appoint-' ing Mr. Montriou, and Mr. Montriou from accepting the appointment, orat'tingfor Ld. Cholmonde* 5 in this cause; and also that Mr. might be restrained from commnojeating to Lord Cholmondeley Vot. LVII.
such material facts as had come to his knowledge, while he was solicitor for the defendant, Lord Clinton. It appeared that, while the partnership subsisted, Mr. Seymour alone had been the confidential solicitor of Lord Clinton j and that Mr. Montriou had, according to his own affidavit, been concerned merely in the open ma; nagement of the cause, or public part of it, and that he knew nothing of a secret nature to communicate to Lord Cholmondeley; and Sir A. Pigott stated, that Mr. M. was perfectly ready to deny, in the most positive terms, on oath, that he was the person who had given Lord Cholmondeley the anonymous information which had 'led him to institute this suit in behalf of himself and Mrs. Darner; and it was admitted on all hands, that for any thing that then appeared, Mr. M. might have honestly thought he was justified in accepting the appointment, though it was insisted that he was in possession of confidential inform at ion.
In the course of the argument in support of the motion; it was asked, speaking to the general question, whether it was proper to place the suitors of the court in such a situation that their solicitors might, in the middle of a cause, discharge themselves, and take the opposite side in the same cause, in opposition to the general principles that solicitors were bound to keep the secrets of their clients? The court, dealing with its own officers, had clearly jurisdiction to order in terms of the motion; and even if the right were out of the question, a sense of propriety ought to prevent X Lord Lord Cholmondely and Mr. M. from placing themselves in the relation of client and solicitor in this cause. On the other hand, it was asked, how far it was intended to carry the principle,—whether clerks having got some confidential knowledge of a cause in the offices of their masters were to be prevented from accepting appointments on the other side, after they set up for themselves? &c. But suppose it were a general rule, that a solicitor who had been employed for one party could not discharge himself and take an appointment from the other party in the same cause, this case must be an exception, as Lord Clinton had agreed to the discharge.
The Lord Chancellor.—When a client employed two partners as his solicitors, he was entitled to the services of both. If they dissolved the partnership, he must retain one or both, or neither. Whether a man would choose to entrust important interests to two, who were unwilling to act together, was a question to which the answer could not be doubtful. If he employed neither, were either of them to be at liberty to take the opposite side; and if he employed only one of them as the least evil, was the other to be considered as discharged by him? No: the discharge was the consequence of the contract of dissolution between the partners, and not the act of the client. As to honour, and delicacy, and propriety, and so forth, he had only to say, as Lord Thurlow had said in a case where the question was, whether a noble Lord who then sat by Lord Thurlow ought
to allow interest on a debt whivb he admitted he ought to have paid, "Go to him with your arguments about delicacy and propriety,—I have nothing to do with any thing but the right.'' So he (Lord Eldon) said in this case—" Go to Lord Cholmondeley and Mr. Montriou with these arguments-—I have only to do with the dry question of right." lie therefore dismissed entirely from his mind all the facts of this case, except as they bore on the question of right, and on those consequences, as far as they could be foreseen, which the decision of the question of right in oneway or the other would involve. It appeared that the intention of the Court had never before, as far as he could ascertain, been called judicially to a question of this kind. They were therefore totally without any precedent to guide them; and the question must therefore be decided on general principles. Whatever the decision might be, it must apply to all the Courts; and therefore it was fitting that the attention of all or most of the Judges should be called to it before it was determined; and the matter must stand over in the mean time till he had an opportunity of consulting with the Judges.
Cmirt of Chancery, Jan. 25.— The Lord Chancellor stated as follows :—" In this case, in which a solicitor has become concerned for two opposite parties, I requested the two Chief Justices xif the Courts of King's Bench and Common Pleas, and the Chief Baron of the Exchequer, to procure for m« the opinion of the •Judges. Judges. I have not yet hart the opinion of the Barons of the Exchequer; but the opinion of the Judges of the Courts of King's Bench and Common Pleas was laid before me yesterday, and that opinion is,—" That no solicitor is authorized so to act." "The same is the opinion of the Master • of the Rollg, and of the ViceChancellor likewise."
Baillie v. Warden.—This was a writ of error from the Common Fleas, in an action of trespass and false imprisonment. In the Court below the names of the parties were reversed, Warden v. Baillie, and the facts that appeared were shortly these :—The late Mr. Whitbread, as LieutenantColonel of the Bedfordshire Local Militia, issued an order that the Serjeants and other non-commissioned officers, whose duty it was to make certain official returns, in order to render them more competent to their duty, should attend a school, at the head of which was placed the Adjutant. Warden was a serjeant in the Bedfordshire Local Militia, and with others was directed to attend this school, which he neglected. For this disobedience he Mas reprimanded by Mr. Whitbread, on the 1st December, but repeating it, he wa9 ordered to attend parade on the 2d December, where the Adjutant, Baillie (the defendant in the Court below), put him under military arrest. From thence he was conveyed, by order of the Lieutenant-Colonel, by a military escort to the public gaol, and delivered into the hands of the gaoler, where he remained until
the 24th December, when he was liberated from prison, and put under a guard in his own house; from whence he was sent to Stilton Barracks, remaining in confinement there till the 12th of March. The action for this assault and false imprisonment was commenced on the 27 th June foU lowing. Such was the plaintiff's case; and on behalf of the defendant it was urged at the trial, that the school had been established because the serjeunts were incompetent to discharge the duties assigned them by the articles of war; that when another serjeant, named John Hooper, was admonished for not attending it, the plaintiff Warden addressed him in these words—" D— your eyes Jack, don't give up—don't go to school. I will soldier it with any body, but I will not go to school. I will not be made a boy of: I hope they will settle it before post, that I may write to my father, who will see me righted though it cost 2001." Upon which a serjeant, named Smith, observed, that such language was enough to excite a mutiny. It was also proved! for the Adjutant Baillie (the defendant below) that he acted under orders of Lieutenant-Colonel Whitbread, who, in consequence of the conduct of Warden, and the language he had used, wrote to General Pigott, commanding the district, through whom Warden was brought to a General Court Martial at Norman-cross, and being acquitted, was discharged on the 12th of March, after the sentence had been confinned.
Upon these facts a verdict wai
found for the plaintiff, in the Common Pleas, and a bill of exceptions was tendered to the learned Judge, Sir James Manslield, by the Counsel for the defendants, in which three objections were stated,—l»t, That the Judge at the trial had declared and delivered his opinion to the Jury that the several matters proved on the part of the defendant, were not sufficient to bar the plaintiff of his action against the defendant. 2. That the verdict ought not to have been for the plaintiff. 3. That it ought to have been in favour of defendant. The bill of exceptions also contained a detail of all the particulars of the facts above stated. The question afterwards came before the Court of King's Bench for argument, and stood over for decision.
Lord Ellenborough this day delivered the judgment of the Court, after reading the bill of exceptions. The first question that naturally arose from the statement was, whether the original arrest of Warden by Baillie, the Adjutant, on the 2d December, was or was not legal; but as the act of Parliament required that the action should be commenced within six months after the cause of action occurred, and as the action in this case was not brought until the 2;th June, it became material to consider whether any part of the confinement fell within that period of six months; for though the limitation in the statute was not specially pleaded, yet, under the general issue, the defendant might take advantage of it. The arrest under the authority of
Baillie took place on the 2d *f December, but it ceased on the 4th, or at furthest on the 24th of December; and the action not being commenced till the 27th of Jnno, that imprisonment was clearly not within the six months required by the statute, and Baillie would not be liable unless he were responsible for the subsequent confinement when he acted under the orders of LieutenantColonel Whitbread. The question was, therefore, reduced to this point, whether LieutenantColonel Whitbread was warranted by law in ordering the imprisonment of Warden.firstin his own house, and afterwards preparatory to the Court-Martial? Certain expressions had been proved against Warden, and it was important to sec whether they came under the description given in the 24th section of the articles of war, as "disorderly conduct, to the prejudice of good order and military discipline." If they did (and no doubt could be entertained upoa the suhject), Warden might be brought before a general CourtMartial. This proceeding would not be less legal, even supposing that the original order of the Lieutenant-Colonel for the attendance of the Serjeants at the school was not valid; for an erroneous command would not justify disobedience or the employment of inflammatory language, to the subversion of military discipline. The only remaining question then was, whether it was lawful for the Lieutenant-Colonel to order the arrest of Warden, that h« might be forthcoming at the Court Martial. This power was given br