would have had a day given. So in Chaplin v. Chaplin (1), it was held that the parol did not demur; but the legal estate, being in the son, could not have been got from him till twenty-one, and the decree must have given him a day to show cause. In Fountain v. Caine (2), there was a trust to pay debts, and the parol did not demur, but a day was given to the infant. Powell v. Robins (3) was a case in which the parol demurred, and no sale was directed till the heir attained twenty-one. In Pope v. Gwyn (4) the assets were held to be equitable; and the parol did not demur, but a day was given to the infant heir. Spencer v. Boyes (5) was not a case of the parol demurring, but a day to show cause was given to the infant heir. All *cases of foreclosure and partition, and all others in which a conveyance is required from an heir, except those in which the parol would demur at law, are cases in which a day is given, but the parol does not demur. Of all such cases the statute takes no notice, and affords no remedy for them, except that by the eleventh section it enables the Court to take from the infant the legal estate of property decreed to be sold for the payment of debts, but for that purpose only. In all other cases in which a conveyance is required from an infant, the law remains as before, and the practice, therefore, must remain the same. There must be a decree for the infant to convey at twenty-one, and he must have a day to show cause, as before (6). The present is precisely such a case; and I think, therefore, that the decree, if taken in its present form, must be according to the former practice, which I apprehend to be as the minutes stood altered by the plaintiff. The form of the decree is here set out in the original report.] (1) 3 P. Wms. 365; see p. 368. (2) 1 P. Wms. 504. (3) 7 Ves. 209 (legal estate in infant). (4) 8 Ves. 28, n.; 2 Dick. 683. (5) 4 R. R. 215 (4 Ves. 370). (6) See Scholefield v. Heafield, 40 R. R. 215 (7 Sim. 669). PRICE v. CARVER. [ *163 ] 1837. Aug. 9, 11. Lord COTTENHAM, [ 171 ] [179] FRANK v. FRANK. (3 My. & Cr. 171–179.) A feme covert is not competent, during the coverture, to elect between a jointure made to her after marriage and her dower at common law. [UPON the point mentioned in the head-note, the LORD CHANCELLOR Said :] The statute which regulates this question, the 27 Hen. VIII. c. 10, provides, in the ninth section, that in case of a jointure made after marriage, the wife, if she outlive her husband, shall be at liberty, after the death of her husband, to refuse to accept the lands given to her in jointure. There is, therefore, an express provision that her election shall be made at the time when the right is claimed, that is to say, after her husband's death; and a case in the 19 Eliz. reported in Dyer (1), proceeds upon the authority, or rather is a judicial exposition, of that clause in the statute, and decides that the period of election shall not be until after the right has accrued. 1837. Dec. 20, 22. Lord COTTENHAM, L.C. [183] HESLOP v. METCALFE. (3 My. & Cr. 183-190; S. C. 7 L. J. (N. S.) Ch. 49; 1 Jur. 816.) Order made on a solicitor, who withdrew from the conduct of the plaintiff's cause, that he should deliver up to the plaintiff's new solicitor the briefs of the pleadings, counsel's opinions thereon, office copies of the several answers, and all such other papers and documents, connected with the cause, as, upon inspection, the new solicitor might deem necessary for the hearing; without prejudice to any right of lien for costs, and upon an undertaking to return them undefaced within ten days after the hearing. RICHARD TILLYER BLUNT was employed as the plaintiff's solicitor in the conduct of this suit, from the period of its institution, in the month of September, 1834. On the 12th of January, 1836, he delivered his bill of costs, from which it appeared that, after giving credit for certain sums advanced by the plaintiff, there was due to him, on account of his charges in this cause, independently of other charges, a balance of 971. On the 12th of February, 1836, Mr. Blunt sent a letter to the (1) Anon, 358 b. plaintiff, in which he stated that he had no funds in his hands. available to the prosecution of the suit, and that he must, therefore, request payment of the balance of 215l. 1s. 4d., due on his general bill of costs delivered, and the subsequent costs; otherwise, the plaintiff must abide the consequences. On the 9th of the same month, Mr. Blunt had sued out a writ against the plaintiff for the amount of the alleged balance; and upon that writ the plaintiff was, on the 15th of February, arrested and held to bail. A second bill of costs, amounting to 36l. 19s., and including the charges for business done in this cause from. the 12th of November, 1835, to the 15th of February, 1836, was subsequently delivered; and, on the 26th of May, 1836, the plaintiff received a letter from Mr. Blunt, in which, referring to an application made to him by the clerk in Court in the cause of Heslop v. Metcalfe, the petitioner stated that he (Blunt) should proceed no further in that cause, unless the request contained in his letter of the 12th of February were complied with before one o'clock on the following day. On receiving this communication, the plaintiff instructed another solicitor, of the name of Green, to take the *necessary steps for proceeding with the cause. Those steps were accordingly taken, and the cause was afterwards set down for hearing before his Honour the Vice-Chancellor. On the 18th of October, 1836, Blunt commenced an action to recover the amount of his second bill of costs. To this action the plaintiff put in a plea, on the 13th of December, and since that time no further proceedings had been taken in the action. Pending the proceedings at law, the cause in this Court being likely to be soon in the paper for hearing, the plaintiff's solicitor, Mr. Green, applied by letter to Mr. Blunt, requesting him to give up the papers in the suit, upon his (Green's) undertaking to hold them subject to any lien which Blunt might have upon them. In reply to that application, Mr. Blunt declined to part with any of the papers, alleging that he had a lien upon them for costs of proceedings both in equity and at law; but he offered to allow the plaintiff or his solicitor to inspect, peruse, and take copies of them at all reasonable times, and offered to undertake to produce them at the hearing. Some further negotiations were afterwards HESLOP v. METCALFE. [ *184 ] HESLOP v. METCALFE. [ *185] had to induce Mr. Blunt to give up the papers in his hands, with a view to their being used at the approaching hearing, but without success; Mr. Blunt declining to part with them unless his costs were paid. The VICE-CHANCELLOR then made an order, upon the petition of the plaintiff, that the briefs of the pleadings in the cause, counsel's opinion thereon, office copies of the answers of the several defendants, and all such other deeds and papers, documents and proceedings, in or connected with the cause, as, upon inspection, his solicitor might deem to be necessary on the plaintiff's behalf, on the hearing of the cause, should be delivered over by Mr. Blunt to Mr. Green, on the latter giving *his undertaking that they should be received without prejudice to any right of lien, and also that they should be returned, undefaced, to Mr. Blunt within ten days after the hearing of the cause. An appeal-petition, presented by Mr. Blunt against his Honour's order, now came on to be heard. Mr. Jacob and Mr. Addis, in support of the appeal : No case has occurred in which an order, at all similar to the present, has been made, with the exception of Colegrare v. Manley (1), which occurred in the year 1823, and which is at variance with the whole current of authorities both before and since. There, the solicitor had discharged himself by selling his business to another solicitor; and the main question in the cause had reference to the legality of that transaction. The order for the delivery of the papers was, apparently, not much discussed, the question of lien being only a subordinate point. In Ross v. Laughton (2), which occurred in the year 1813, and is the earliest reported case upon the subject, it was not the client, but his assignees, who discharged the solicitor. Lord ELDON thought that circumstance made no difference, and held that a solicitor, who was discharged, was bound to produce, but not to deliver up, the papers of his client. The papers there in question were vouchers, that is, original documents, and not, as in the present instance, papers (1) 24 R. R. 83 (T. & R. 400). (2) 12 R. R. 232 (1 V. & B. 349). prepared by the solicitor, or copied and made out at his expense. The next case was Commerell v. Poynton (1), where the solicitor had himself declined to proceed, and the order made was of the same kind, for production and inspection only. [They also cited Lord v. Wormleighton (2), Clutton v. Pardon (3), and other cases.] THE LORD CHANCELLOR (without calling upon Mr. Wigram, who was on the other side): Since this question was first brought on, I have taken the opportunity of looking at all the cases; and I have now to consider whether I will act on Colegrave v. Manley (4), or will undo what Lord ELDON did in that case. The point was there directly raised, whether, if the Court is of opinion that there should be a production, the order ought to go beyond giving liberty to inspect and take copies. Lord ELDON, in his judgment, first considered the question arising upon the sale of his business, by the solicitor; an act which he held to amount to a discharge. by the solicitor of himself. His Lordship says, "I look upon Mr. Raphael as having dissolved the connection of solicitor and client; for it is not enough that he was willing to superintend the plaintiff's business. Now, where the solicitor discharges himself, the rule is quite different from what it is where the solicitor is discharged by the client;" and afterwards he adds, "so far as the use of papers is concerned, the suitor, when his solicitor discharges himself, must have his business conducted with as much ease and celerity, and as little expense, as if the connection of solicitor and client had not been dissolved." the Accordingly, the order in Colegrave v. Manley was almost in very terms of the present order. It is true that in several preceding cases, where the solicitor had discharged himself, orders were made, giving to the client the right of inspection only: but it cannot be supposed that Lord ELDON, who, with all his experience, had decided Colegrare v. Manley, in the year 1823, was not acquainted with the prior (1) 18 R. R. 1 (1 Swanst. 1). see p. 304). (4) 24 R. R. 83 (T. & R. 400). HESLOP บ. METCALFE. [187] |