decision in Veitch v. Russell, established that it was competent to a physician to contract for payment of his fees, but that no implied contract arose from attendance only. By sect. 32 the Legislature has imposed registration as a condition to the recovering charges in a court of law for medical or surgical advice. There was a similar clause in the Apothecaries' Act, 55 Geo. 3, c. 191, s. 21; and in Wagstaffe v. Sharpe (3 M. & W. 521), it was held that that Act was an answer in an action by an apothecary. I am of opinion that though heretofore no action could be maintained by a physician for his fees, unless a special contract existed, such an action may now, under the Act, be maintained, if the jury find, as they found in this case, that the plaintiff's attendance was given in the expectation of receiving payment for the same. BRAMWELL, B.—I am also of opinion that the plaintiff is entitled to recover. The jury found that the attendance of the plaintiff was not of a friendly, but of a professional character; so that we have now only to consider whether, within the Medical Act, the action can be supported? It What was the state of things before the Act? was never more happily explained than by Lord Den man in Veitch v. Russell. "It must be assumed as clear that physicians and counsel usually perform their duties without having a legal title to remuneration. Such has been the general understanding. To prevent that from operating, some express agreement must be shown; but, in considering whether such an agreement existed we cannot lose sight of the general understanding. The one party in a case of this kind expects and trusts that he will be paid according to the practice; the other expects and hopes so to pay him; but that does not raise a contract; indeed the inference is rather the other way." On the part of the defendant, it has been said, there was no necessity for any alteration, as it was a matter of presumption simply, that the physician attended without a legal claim to payment, which presumption an express stipulation by the parties themselves would suffice to rebut. I think the 31st sect. should be read, "Every person, physician, surgeon, or apothecary, shall, if registered, be entitled to recover;" for, otherwise, the words, as applied to a physician, would be without meaning, and unless they apply to a physician, they are to no purpose, inasmuch as the other branches of the profession could recover without them. The proviso at the end of the 31st sect. that enables the College of Physicians to pass a bye-law to Attorneys and Solicitors Act, 6 & 7 Vict. c. 73, 8. 48-Plea of Delivery of Bill of Costs. A told B, his attorney, that communications might be addressed to him at the office of C. B delivered at that office his bill of costs for A, more than one month before, but A did not receive the bill until a fortnight before action brought thereon : Held, that there was a sufficient delivery within sect. 48 of the Attorneys and Solicitors Act (6 & 7 Vict. c. 73). This was a questions arising upon the Attorneys and Solicitors Act, 1843. By sect. 48, no attorney or solicitor shall commence fees, &c., for any business done by such attorney or or maintain any action or suit for the recovery of any solicitor, until the expiration of one month after such attorney or solicitor shall have delivered unto the party to be charged therewith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill action to recover 597. Os. 10d., the amount of his bill. of such fees, &c. Plaintiff, an attorney, brought an Plea, that plaintiff did not deliver his bill one month before action brought. Middlesex, that defendant, Bernard, had told plaintiff It appeared at the trial, before Channell, B., in that he might communicate with him at the office of Mr. Murray, an attorney. The plaintiff, accordingly, sent his bill of costs in an envelope by a boy to Mr. Murray's office, more than a month before bringing the action, with a request that it should be given to defendant when they saw him. The bill was laid on before the action. The jury found for the plaintiff a shelf, and defendant did not get it till a fortnight aside the verdict, and for a new trial, on the ground upon the facts; leave being reserved to move to set that there was no sufficient delivery. Barnard moved accordingly, contending that the bill not having reached the defendant till a fortnight before the action brought, the statute, which required it to be delivered one month previously, had not been complied with. Cur, adv. vult. 30 APRIL, 1863. POLLOCK, C.B.-The point reserved by my brother Channel is this:-Whether the bill of the attorney has been sent to the proper place so as to reach the defendant in proper time. It was delivered at the office of the attorney Murray more than a month before the action was brought. The ground of negligence was this, that the defendant did not get it a month before the action was brought. It was argued that the bill was not delivered at the proper place; but the way in which the bill was served was this: the defendant's attor ney, Murray, lived at No. 104, Gray's Inn-road, and the defendant referred to his attorney's office as the place where communications might be directed to him. Accordingly, several communications were directed to him there, and answers were received from him. My brother Channell left it to the jury whether he had made it his office for the purpose. They thought he had. Under these circumstances, therefore, no rule can be allowed, on the ground that the bill was left more than a month before action brought, at a place used by defendant as his office. Ex. Rule refused. THORNTON v. WILKINSON. 29 APRIL, 2 MAY, 1863. Ejectment-Costs-Small Tenements-19 & 20 Vict. c. 108-Common Law Procedure Act, 1852, s. 221. An action was brought in the county court, under 19 & 20 Vict. c. 108, for the recovery of a tenement. The defendant, having no interest, defended the action at the request of H, who was interested in keeping the plaintiff out of the property. conduct the case for him. But there was, in reality, no defence at all. The plaintiff, accordingly, had judgment; but, owing to the poverty of Wilkinson, the defendant, he could not obtain payment of his costs. A rule having been obtained calling on the said Ann Hawksworth to show cause why she should not pay the costs in the said action, D. D. Keane, now showed cause. The defendant was not liable to pay these costs, as she was not a party to the action. It has always been the rule in ordinary actions, that strangers to the record are not to be called upon to pay costs. In the action of ejectment, it is true, the Court used to have this jurisdiction. The question is, whether they will exercise it since the Common Law Procedure Act, 1852. They did not unanimously do so in the case of Hutchinson v. Greenwood, 4 El. & Bl. 324. There, Erle, J., differed from the other two Judges, and it cannot be called a settled point. That learned Judge said:"Here the parties are strangers to the record; and I do not see on what principle we have this summary jurisdiction over them." In Trustout v. Shenton, 10 B. & C. 110, the person ordered to pay was a party to the consent rule. Mrs. Ann Hawksworth never claimed or received any rent. The defendant, Wilkinson, was put into the house by the deceased insolvent, and no bargain was made about the rent. Mrs. Ann Hawksworth claimed no interest, and had received no rent. The attorney says, by affidavit, that he was instructed to defend by Wilkinson himself. Has Mrs. Hawksworth, then, such an interest as to oblige the Court to make her pay the costs? Judgment passed for the plaintiff, who, in conseDoe d. Wright v. Smith, 8 Dowl. 517, quence of the poverty of the defendant, applied to the decides that where in an action of ejectment an superior court for a rule to compel II to pay the costs. insolvent defendant had been induced to defend the The Court made the rule absolute against H for pay-action, by a third person, who employed the attorney, ment of the costs, the Common Law Procedure Act, 1852, having, by s. 221, preserved this power in the courts. This was a question arising out of a plaint for the recovery of a tenement, under the 19 & 20 Vict. c. 108. The case was heard in the Barnsley County Court, when the facts appeared to be as follows: One James Hawksworth, had become insolvent, and had assigned his property for the benefit of creditors, under which assignment the plaintiff became entitled. The said James Hawksworth had put the defendant Wilkinson into a house belonging to him. James Hawksworth died, leaving his property to Thomas Hawksworth, who also died, having devised his property to his widow, Ann Hawksworth, the person to whom the present application relates. Wilkinson having been summoned to appear to the said plaint, the said Ann Hawksworth prevailed on him to defend the action in his own name, and procured a solicitor to and furnished money to carry on the defence, but who claimed no interest in the property sought to be recovered, the Court would not compel the latter to pay the costs of the lessor of the plaintiff. The action of ejectment, as there stated, was a peculiar and altogether fictitious proceeding, but it is not so since the Common Law Procedure Act, 1852. [MARTIN, B.]-This woman does not appear to have been landlady to the defendant: it seems a very vexatious proceeding.] Anstey v. Edwards, 16 C. B., 212, meets this case; it decides that to entitle a plaintiff in ejectment to call upon parties, who are strangers to the record, to pay the costs, it must be clearly shown that the defence was conducted by them for their own benefit, in the name of a pauper defendant. But that was not so here. Mrs. Hawksworth, it is submitted, had no such sufficient interest to entitle the Court to give costs as against her. Cleasby, Q.C.-The principle in ejectment is this: you are obliged to go against the person in possession of the land. The rule qui facit per alium facit per se, does not apply here: but the question is, who is to pay the costs? Mrs. Hawksworth puts forward Wilkinson, who has no interest to defend, and she herself produces the will. Ought she not to pay the costs? The rule applies quite as much since the Common Law Procedure Act, as it did before, for it was always a rule founded on the justice of the case, and the necessity of making the person really interested in the defence responsible for the costs. [MARTIN, B.-Suppose a poor man was in possession of a house, and I procured an attorney to take up his case, surely I am not answerable for the costs? But it appears to me that she was anxious to retain this property. Would she not have had it, if Wilkinson had succeeded in keeping Thornton out?] That is evident. It must be admitted that she had an interest in retaining the property. [MARTIN, B.-It is a jurisdiction I should not like to part with, viz., that of making the real party pay the costs.] If there were any doubt about it, I should suggest the 221st sect. of the Common Law Procedure Act, 1852. [BRAMWELL, B.-It is quite clear that Mrs. Hawksworth was looked upon in the matter as the real party by the attorney, who went to her.] Bail-Bankruptcy intervening-43 Geo. 3, c. 46, s. 2. Where the defendant was arrested, and in order to get released, paid to the sheriff the money for which he was to be held to bail, together with 101. for costs, the sherif duly paying the same into Court, but the defendant was prevented, by reason of his bankruptcy intervening, from paying the additional sum of 101. in lieu of putting in special bail, as required under the 7 & 8 Geo. 4, c. 71, s. 2 :— Held, that, notwithstanding the bankruptcy, the plaintiff was entitled to have the money in Court paid over to him, together with such sum for costs as should be allowed by the Master. On the 30th January, 1863, the defendant was arrested at the suit of the plaintiff, by virtue of a warrant under the " Absconding Debtors Arrest Act, 1851" (14 & 15 Vict. c. 52), and thereupon he deposited with the messenger of the said Court the sum of 517. 18s. 6d., being 417. 18s. 6d., the amount for which he was to be held to bail, and 101. for costs. He was then discharged. On the 6th February, 1863, copies of a writ of capias, and of the writ of summons in this action, were served on the defendant, and thereupon the messenger of the Court of Bankruptcy paid the said sum of 517. 18s. 6d. to the sheriff, who paid the same into Court in this action on the same day. On the 19th February, 1863, the defendant presented his petition for adjudication in bankruptcy, and on the same day was adjudicated bankrupt. The defendant did not put in special bail, nor did he, in pursuance of the 7 & 8 Geo. 4, c. 71, s. 2, pay into Court an additional sum of 107., his default in so doing being caused solely by his bankruptcy having intervened. He obtained his order of discharge under the bankruptcy on the 9th of April following. Upon the above state of facts the assignees of the bankrupt having claimed the money paid into Court on behalf of the creditors, application was made, on the 21st February, to Baron Channell, at Chambers, for payment out of Court to the plainCur. adv. vult. tiff of the amount of debt so deposited with the sheriff, as aforesaid. The learned Judge then refused an order [vide Geach v. Coppin, 3 Dowl. 75], but left the plaintiff at liberty to move the Court. A rule, accordingly, having been obtained, Lord Campbell, C.J., in Hutchinson v. Greenwood, p. 326, says: "The principle is, that the individuals who order an appearance to be entered in ejectment, in the names of those not really defending the suit, abuse our process, and that, as they substantially are the suitors, we have jurisdiction to make them pay the costs.' The jurisdiction then is the same as before; the principle equally applies: and the case of Anstey v. Edwards, cited contrà, directly supports this proposition, as Mrs. Hawksworth is clearly shown to have conducted the defence for her own benefit in the name of a pauper defendant. 2 MAY, 1863. POLLOCK, C.B. now delivered the judgment of the Court. By the Common Law Procedure Act, 1852, sect. 221, all possible means are preserved which were available before in the old action of ejectment. It appears from the affidavits that Mrs. Hawksworth did not deny having employed the attorney, or that he was employed for her. The rule must, therefore, be made absolute. Rule absolute. J. Simon now showed cause. be The words of the statute 43 Geo. 3, c. 46, s. 2, and the cases decided thereon, would, undoubtedly, against me, provided the question lay between a plaintiff and defendant, simpliciter. But here bankruptcy had intervened, and the assignees, as third parties, and acting on behalf of the creditors, had laid claim to the bankrupt's property. There time limited for putting in special bail, and the payment of the second 10. required by the statute was Payment of money into Court in lieu of Special in lieu of special bail. There has, moreover, been no Ex. COOKE v. BELL. 5 MAY, 1863. no judgment, and the bankrupt has duly obtained his certificate of discharge. It has been held that bail is discharged by the fact of bankruptcy intervening. He cited, Tuton v. Gale, 1 Dowl. (N. s.) 383; Johnston v. Wall, 4 Dowl. 315; and Mannin v. Partridge, 14 East, 599. Hannen supported the rule, and cited, Geach v. Coppin, 3 Dowl. 75; and Ferrall v. Alexander, 1 Dowl. 132. POLLOCK, C.B.—The opposition to this rule is founded on the supposition that the money paid into Court must be considered in the same light as special bail. Here money was paid in, but it was paid in imperfectly. The rule should be made absolute. MARTIN, B.-I am of the same opinion. The words of the statute are as plain as can be. BRAMWELL, B.-At first I thought that there was some weight in Mr. Simon's argument; but the case of Ferrall v. Alexander convinces me that the rule should be made absolute. Trover-Conversion-Foreign AttachmentCustodia legis. Plaintiff had purchased wine lying at a bonded warehouse, and had several times had samples thereout delivered to him by defendant, on production of his delivery warrant. Afterwards, on plaintiff's assignee presenting the same delivery warrant, the delivery was refused by defendant, upon whom a foreign attachment from the Mayor's Court of London against the wine had been served, defendant stating that the goods were in the custody of the law : Held, firstly, that in such a case goods are not in the custody of the law. Held, secondly (BRAMWELL, B., dissentiente), that the refusal to deliver the wine upon the presentation of the delivery warrant, notwithstanding the foreign attachment, was a conversion. Action of trover "for converting to defendant's own use, and wrongfully depriving the plaintiff of the use and possession of forty-nine cases of champagne, the goods of plaintiff, whereby he was prevented from selling the same.' Pleas-first, not guilty; second, traverse of plaintiff's property in the goods. At the trial, before Pollock, C.B., it appeared that the conversion relied upon took place in July last, when champagne was at a fictitious price. The wine in question had been delivered by M. Aron, fils, Marchand de Paris, to a Mr. McHenry, for shipment to Henry & Co. (J. Henry), of Salters' Hall Court, London. The wine was shipped by the said Mr. McHenry, in accordance with a bill of lading dated the 14th June, 1860. The first and second parts of this bill of lading were indorsed by McHenry, and J. Henry (Henry & Co.) became possessed of it so indorsed. On the arrival of the wine in London, J. Henry sought, and obtained, from the Messrs. S. Bennett & Co., ship and insurance brokers, and custom-house and commission agents, an advance thereon. Messrs. S. Bennett & Co. received from J. Henry (Henry & Co.) the said bill of lading, indorsed by McHenry, and on the 25th June, 1862, entered the wine, in the name of S. Bennett & Co., at defendant's bonded warehouse, procuring from the defendant two warrants for the same, one of which represented the wine in question in this action, and was as follows: "Deliver to Messrs. J. Henry & Co., or order. BENNETT & Co." In July, 1862, one Jean Rupport called at the plaintiff's counting-house, and saw plaintiff's clerk, Berenberg, and produced to him a sample bottle of champagne, saying there were fifty cases of it for sale. Berenberg agreed to purchase it for the plaintiff, and, a sampling order being brought by Rupport, he and Berenberg went to Botolph Wharf to sample the wine, which they were allowed to do on the production of the warrant. Berenberg took a bottle away with him, the following memorandum being consequently in dorsed on the warrant : "41. One bottle taken, duty paid, 6d. G. O. 3/7/62." On the following day, the 4th July, Berenberg bought the wine on behalf of the plaintiff; and on the 5th July, J. Henry sent the plaintiff an invoice, and Berenberg at the same time gave a cheque for the amount made payable to Messrs. Henry & Co.'s order. This cheque was then handed over indorsed to the clerk of Messrs. Bennett & Co., who thereupon handed to plaintiff's clerk the warrant above set out, indorsed as follows: "Deliver to Messrs. J. Henry & Co., or order. "BENNETT & Co." "J. Henry & Co." On 7th July, Bereneberg sent plaintiff's boy to defendant's wharf, with the warrant to get three sample bottles, with which the boy returned, the following memorandum having been indorsed on the warrant :"41. Three bottles taken, duty paid, 1s. 6d. G. O. 7/7/62." On the 14th July Berneberg again sent the boy with the warrant for four more bottles, which were sent, a memorandum to that effect being indorsed. On the 23rd July plaintiff, having agreed to sell the wine, sent an invoice to a Mr. Wilhelm, (the purchaser), and received a cheque in payment. On that, or the next day, Wilhelm sent for the wine, and produced the delivery warrant, but was refused, on which Wilhelm withdrew from the purchase. Plaintiff, and Mr. Digby, his attorney, accordingly went the next day to defendant's wharf, when they were told there was an attachment against the warrant, and that the wine could not be parted with in consequence of that attachment. The plaintiff, therefore, brought the present action. For the defendant, it was proved that upon the affidavit of the said M. Aron, that the said J. Henry was indebted to him in the sum of 1007. for goods sold and delivered, a notice of attachment or warning from the Lord Mayor's Court was served by the serjeant-at-mace upon the defendant in this action as garnishee or warnee, to the effect following : "To Mr. Thomas Wilkinson, of Botolph Wharf. "Take notice, that by virtue of an action entered in the Lord Mayor's Court, London, on the 22nd day of July, 1862, against John Henry, trading under the firm of J. Henry & Co., defendant, at the suit of Michel Aron, plaintiff, in a plea of debt upon demand of one hundred pounds, I do attach all such moneys, goods, and effects as you now have, or which hereafter shall come into your hands or custody of the said defendant, to answer the said plaintiff in the plea aforesaid, and that you are not to part with such moneys, goods, or effects, without licence of the said Court. 7th July Wilkinson, the defendant, delivered three bottles of it to the plaintiff, as a sample. This was a consent by the warehouseman to hold the wine for plaintiff, who had the warrant. Again, on the 14th July, the plaintiff sent for four more sample bottles, which he received from the defendant. Yet after these several acknowledgments of his title the defendant disputes that the wine is the plaintiff's. Having acknowledged plaintiff's title, he refuses to deliver the wine to plaintiff's vendee, upon plaintiff's order indorsed upon the warrant. He says: "You can't have it, for I have an attachment upon it." That attachment was lodged in the hands of the defendant, Wilkinson, against John Henry. But notice of that attachment was not served till the 22nd July, whereas the defendant had permitted the plaintiff to exercise acts of ownership over it in the beginning of that month, and had, therefore, consented to hold as his agent. The defendant says, however, these goods are in the custody of the law. The first answer to that is, that the law has no custody in the case of foreign attachment. Smith v. Goss, 1 Camp. N. P. 282, decided that the right of a consignor to stop goods in transitu is not divested by the goods, while in their transit, being attached by process out of the Court of the Mayor of London at the suit of a creditor of the consignee, Mallalicu v. Laugher, 3 C. & P. 551, is distinguishable. Best, C.J., said, at p. 553, "In he leaves them still where they were, in the possession the present case, the man does not remove the goods; of Smith." In the present case there was a change of possession from J. Henry, the original consignee, to the plaintiff, Henry's assignee. Therefore that case is also in the plaintiff's favour. The only thing that throws any doubt on my proposition is a dictum of this Court in the case of Verrall v. Robinson, 2 Cr. M. & R. 495, where a chaise having been left by its hirer with a livery-stable keeper in the city of London, it was attached by process out of the Sheriff's Court, and was said by Lord Abinger, C. B., and Alderson, B., to be in the custody of the law. But whether the process was from the Sheriff's Court or from that of the Lord Mayor, is not very clear. [POLLOCK, C.B.-Whatever may be the value of that case, there is a wide difference between a man who merely takes the custody of a chaise, and a wharfinger who has the custody of goods.] [BRAMWELL, B.-If the officer of the Lord Mayor's Court had taken the goods from the hands of the wharfinger, then could he not have pleaded that the goods were taken by process of law?] I don't know what custom might have to do with that. At p. 101 of Brandon on Foreign Attachment, it is stated that, as the proceedings are equitable proceedings, the Court will allow almost any matter of |