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only encroach on his time but must try his temper. There is one barrier under Order XXV. rule 15, are apparently conditions precedent to the issue which unnecessarily impedes the intending suitor at an early stage in his of a judgment summons where there has been no payment for four months ?
I refer to the restrictions involved in the present requisites for No suitor would be such a fool as to summons a man who is out of work, as obtaining leave, when leave to commence is required under section 74. I he knows that the judge would promptly order him to pay the debtor's am aware how narrowly the public escaped a ridiculous increase of these expenses, and the last thing a plaintiff-and particularly a plaintiff's agent restrictions under the lately withdrawn Rules, but I nevertheless venture to - cares about is to figure as a “biter bit.” These things appear unimportant suggest that even the existing restrictions could well be relaxed with advan. in theniselves, but they immensely increase labour, and anything which tage to everybody concerned. The vast majority of cases in which leave is serves no useful purpose should be abolished. I have never yet met anyone sought is where the action is for the price of goods sold or services rendered. who understood Order IX rule 16 (a). It is an enigma; and why the In all these cases where the original creditor is suing the discretion which admission of a fraction of the plaintiff's claim should saddle a counterhas to be exercised is apparent rather than real; for since the decision in claimant with a court fee, when a wholly disputed claim may be counterNorthey v. Gidney (1894, 1 Q.B. 99) it has been clear that such a plaintiff claimed to any amount without fee, I have never been able to understand. can invariably sue where he resides or carries on business, since it is there A great deal has been made of the alleged delays in the office of the high where the money must be paid, and there, accordingly, that the cause of bailiff. One cause of such delay occurs to me that might well be removed. action in part arises. The registrar, therefore, in all such cases grants leave At present it is necessary—if the court to which the process is sent happens as of course, and it is surely ridiculous to have to ask for something which not to be that within the district of which the defendant resides—to return is matter of course. Personally, I have never since this decision refused it the summons to the home court—although may be the bailiff knows perfectly in these cases, or heard of its being refused, though I am aware that a well which is the right district, and could just as easily send it there direct registrar may refuse it with impunity (Regina v. Turner, 1897, 1 Q. B. 445). instead of returning it to the home court, and leaving it to them to find out. So long as Northey v. Gidney stands—and it is to be hoped that may be for Nor does the 500 yards indulgence avail anything in this case, since good - no leave to commence an action by an original creditor for the price (apparently per incuriam) sec. 77 of the Act only empowers the bailiff of the of goods sold and delivered or services rendered should be required, or if it home court to go 500 yards across his boundary. If he is serving a foreign is, it should be granted without affidavit and upon the precipe only. No summons he cannot go a yard across. And hereon it would be an incalcul. one who has not experienced it can appreciate or even conceive the vast able boon if there were some authorised large scale map correctly indicating amount of trouble and annoyance that these truly formidable affidavits for the boundaries of each district; as things are at present-and especially in leave entail ; in fact, to my knowledge, heaps of would-be litigants for view of the frequent changes that are being made-it is not always easy to small sums are thereby choked off. Apart from the trouble of filling them ascertain which is the right court in which to sue your man. The official up-and they frequently have to be rejected for erroneous filling in, unless “alphabetical index” is by no means a satisfactory or an infallible guide. the creditor can make it convenient to attend the registrar's office, which Sec. 156 of the Act requires a claimant of goods taken in execution--if he may mean a morning wasted-he has to pay a solicitor 1s. 6d. to be sworn, wish to avoid a sale-either to deposit or give security for their value, or and he cannot get this 18. 6d. back, nor can his own solicitor recover any else a sufficient sum to pay the costs of keeping possession. The words of costs for preparing it or attending to be sworn. It is a sufficient answer to the section are plain; nevertheless some high bailiffs presume to place their the argument that an unrestricted power to sue a defendant outside the own construction upon it--a construction quite at variance with the meandistrict might lend itself to abuse to point out that Order XII., rule 9, ing, and one which I have known to operate harshly upon the execution already reduces any such possibility to a minimum, by enabling a creditor. Take a frequent case: An execution for £5 is levied at a house defendant-who has a good defence, and who lives more than twenty where there are, say, £100 worth of goods. The goods are frivolously miles from the court-to claim his expenses of attending court claimed by the wife or some relation. Instead of requiring the claimant to
a condition precedent to the continuance of the action. I deposit or give security for “the value of the goods claimed," the high would remind you that no such leave is necessary in the City of London bailiff only demands a deposit of the sum endorsed on his warrant; this Court, and why there should be such an invidious distinction between the comparatively small sum is readily forthcoming, and an interpleader issue, City of London Court and the City of Manchester Court I cannot imagine. involving vexatious trouble and expense, follows. The issue results in judgWith reference to the judicial powers of registrars, it would unquestionably ment for the execution creditor, with attendant costs which are never be an excellent thing to adopt the recommendations of the Council, raising recovered. My point is, that if the high bailiff required – as he certainly his contentious jurisdiction to £5, though why it should be confined to ought-the "value of the goods" to be deposited, a vexatious claimant contract, as guggested, is difficult to see. At present a registrar, by the would not raise the money, and the execution would be paid out. I don't general permission of the judge, and the rarely refused assent of the parties, fancy the ordinary outsider has any conception of the vast number of has contentious jurisdiction in tort up to £2, and, if my experience is fictitious claims with which it is sought hoodwink the bail and anything to go by, the difference between £2 and £5 in actions of tort wherever the practice I allude to obtains it constitutes a considerable certainly does not involve any greater legal ability or entail any increased grievance and should be desisted from. In view of the decision in Haddon responsibility. In fact, anyone with county court experience knows that, V. Moreton. (1894, 1 Q.B. 165), that the effect of a successful execution especially in tort, the amount involved is quite an unsound test of responsi- creditor taking the amount of the deposit was to estop him from afterwards bility. Why then hesitate to give the power up to £5, irrespective of denying the title of the claimant to the specific goods, it would seem desir. whether the cause of action is ex contractu or ex delicto ? Such a change able for the successful execution creditor to ignore the deposit and take the would cut down the remanets and involuntary adjournments, which are goods. There is a point under sec. 160 of the Act, the harsh operation such a frequent cause of vexation, and for this reason alone would be an of which upon weekly tenants (who form the vast majority of execution incalculable boon to suitors. When we recollect that, in the exercise of debtors) is so striking that it is extraordinary it has not been ventilated bankruptcy jurisdiction, a registrar is called upon to decide points of the before.' As is well known, under this section the landlord of an execution greatest nicety and importance, including the trial of disputed proofs up to debtor can step in as against the execution creditor and claim the rent in £200, without any appeal except to a divisional court, it is difficult to see arrear, which the bailiff must then retain, and if a sale becomes the logic of the suggested limitation. An expedient for relieving the judge's necessary he has to sell so much of the goods as shall be required to satisfy list was recently adopted in some districts with marked success. Certain “ First, the cost of and incidental to the sale; next the claim of such landdays were set apart each month on which were held was termed a "regis- lord, not exceeding the rent of four weeks where the tenement is let by trar's court,” for which were entered all cases looked upon as undefended. the week
and lastly, the amount for which the warrant was The registrar presided over this court, exercising such jurisdiction as he is issued.” The hardship to which I would diri ct attention arises where empowered to by sections 90 and 92 of the Act. Some doubts appear to the execution debtor—as so frequently happens - desires to pay out the bailiff have arisen as to the legality of this expedient, as to the power of the within the five days, and so avoid a sale. In this case, whatever the amount registrar to exercise judicial functions in the absence of the judge ; and it of the rent in arrear-short of six years--the unfortunate tenant must find appears to have been discontinued. Such a practice might well be it, or the bailiff must sell, since it is only when he sells that the four weeks' authoritatively re-organised, as there can be no doubt that it would greatly I limit must be observed. The result is a hardship on the tenant where he facilitate the dispensation of justice in that it would leave practically wants to avoid a sale, or else an injustice to the landlord where a sale nothing but contentious business for the judge's sitting. So far as I am actually takes place. An example will illustrate the absurdity of the aware, the only objection is a sentimental one; but it is not always a com- position :-The bailiff executes a fi. fa. on a weekly tenant for 59. The pliment to registrars to countenance the idea—I say it with all respect- landlord steps in with a claim for £18, being twelve months rent at 58. per that their forensic prowess is reflected from the judge. I commend this week. If the tenant wished to avoid the expense and house-wreck of a sale system to your notice as a ready solution of the "block" problem that he must plank down £18 58. and costs, whereas if he lets the sale proceed he troubles so many of the heavier courts. There would be no more complaints gets out of the hole fo: £1 58. and costs. Query, Why should the bailiff be of over-crowded lists, and that greatest of all grievances, procrastination, compelled to seize for £18 58. when he can only sell for £1 5s. ? Another would disappear.. It is suggested that suitors ought to be able to have a great hardship on the tenant, in which the Treasury is also concerned, occurs special jury. This is, however, a very unsubstantial grievance, as any party to me. A landlord enters a plaint against his tenant for possession under can, as things are, have a special jury by merely suggesting its desirability sec. 138, alleging that defendant is a weekly tenant at a rent of 5s. per week ; to the registrar. I know at least one genial registrar who prides himself on this plaint he pays 39. for plaint and hearing. On the trial defendant on his juries, and I have on occasions heard five or six county justices satisfies the judge that he is not a weekly tenant, and of course obtains “breathing out threatenings and slaughter" against this disciple of the law judgment, but his joy is short lived, as he finds—subject t, the operation of at being afforded an opportunity of earning a shilling. His idea is that sec. 119, which is very limited—that he can get no costs at all except it was an excellent thing now and again to disabuse the minds of big men witnesses' nor has the judge even power to award any, because his costs have of the notion that his court was merely a small debts collecting agency. (under Order L. rule 1); to be taxed “on the scale applicable to the rent or There are several respects in which the practice might be amended or value of the premises on which the court fees are assessed," viz., 5s. The elucidated with advantage, and one thing that occurs to me is what a lot of result is, that by entering his case on the footing of the tenant being a time is wasted in filling up superfluous forms, for I take it any form that no weekly tenant, the latter is compelled- if he fights - to fight at his own cost one ever reads must be superfluous. For instance, Nos. 10, 19, aud 172 are in any event, and the Treasury is done out of fees, because both fees filled up by the score quite unnecessarily, the receipt of the summons or the and costs ought to te charged on the nature of the tenancy as ultimately warrant being a sufficient indication to the high bailiff of what he is required determined by the judge, since it is the real tenancy, and not what to do. Then, whoever reads the pile of affidavits in proof of means, which, the plaintiff chooses to call it, that ought to be the determining factor,
But the question of costs is a very large one, and any registrar could fill a are the bane of the small shopkeeper, is wonderful; and then the laborious paper with lacuna, anomalies, and absurdities under the existing practice. part of his labour only commences. Executions against this class of It has been suggested that county court practitioners are handicapped by debtor are useless. The money has to be dragged out of them in the absence of pleadings, but I can confidently say that I have never yet shillings on judgment summonses. It is at this stage that his aid geen any.sach case. The few notices of special defence required fulfil all is simply invaluable. He knows all about every one of his debtors; he that is needed, and the absence of pleadings has the decided advantage of can tell the judge where he works, what he is earning, how many sharpening the wits of the county court practitioner, who has to be always children and what sort of a wife he has, whether he is an honest fellow, on the alert for “ points,” and is never taken by surprise when he has done or an idle scoundrel : in short, he not only assists the court, but a conrt that his work properly. 'Tis to be hoped that the advent of pleadings in the has to dispose of some hundreds of judgment summonses in a day would be county court is far distant. I have one suggestion to make, however, which paralysed without him. Let anyone who doubts this, or imagines I am would, I think, be distinctly beneficial, and that is, that the defendant hyperbolical in my advocacy, attend the sitting of a large court on a judgshould be required under Order X. rule 10 to give notice of the defence of ment summons day, and watch a single debt collector going through the no jurisdiction. There are some cases where under the rules an alternative ordeal of bringing to book as many as 150 or 200 judgment debtors without procedure is provided; this entails confusion, as the practice is not uniform, leaving the box, and then ask him-without fear of contradiction-how the and the practitioner finds his own registrar doing things one way and a court could do without the debt collector, and how any solicitor can be so neighbouring registrar another. Perhaps the procedure for discovery is the foolish as to be jealous of him. If you destroy the vocation of the debt best illustration. Leave for discovery can be had either ex parte under collector by silencing his voice in court, you will deal a blow at the county Order XII. rule 11 (a), or on notice for directions, under Order XV. rule 1. court system from which it will never recover. Do not then “ kill the The former would seem in ordinary cases to be the better plan, but I believe goose that lays the golden eggs." Does anyone suppose the small shopit will be found that the latter is more generally adopted, it being thought keeper could or would do this work hinself ? Not he; he would rathar undesirable-especially where the opposite side is not legally represented strike the names off as irrecoverable debts than have the worry of personally
to make so stringent an order behind an opponent's back. Again, whilst collecting them through the agency of the county court. And does anyone on this subject, some judges will not allow their registrars to make orders seriously suggest that he ought to employ a solicitor for such work, or that for discovery and assume the right to approve the specific interrogatories. there is a solicitor in this assembly who would do it? Why then advocate a Although this is done ostensibly to prevent abuse and keep down costs, I policy that is worse than "dog-in-the-manger. “Oh!" I hear someone respectfully suggest that it fails to serve this or any useful purpose. A
say, these fellows are harpies, who prey upon the misfortunes of the poor.” practice prevails in some districts which might well be authoritatively and Bathos! A dishonest or oppressive debt collector is a suicide, for I have a therefore universally recognised. At my court as many as 500 judgment shrewd belief he would not be dishonest or oppressiva twice, even were he summonses are frequently entered for a single day, and it is obviously inclined that way. He is too anxious to stand well with the judge, for he necessary to economise time. With this object-and in order to enable the knows that success depends on his having a good name with his honour, and judge to deal more efficiently because better armed) with the debtors, and woe be to that agent who in a fit of mistaken zeal essays to mislead the judge ; also to keep down the costs—a circular (stamped and addressed for return) the judge would never trust him again, and his occupation would be gone. is sent by the court to each employer inquiring the average earnings of the As a body, they are a hari-working, trustworthy, and conscientious lot of debtor, with an intimation that the employer is not bound to give the men, and well deserve the 20 per cent. which represents their commission. information, but may by acceeding avoid being required to attend on I hold no brief for the debt collector, but I feel very strongly on this subpoena. It is found that the employer invariably responds, and thns the subject, and am sure that the committee's recommendation would—if acted court is placed in possession at first hand of direct and unequivocal upon-work a great injustice to a deserving class of men, handicap suitors evidence of " means with which to check the statement of the judgment in the collection of their debts, seriously increase the worry of the judge, debtor in the box. These returns are frequently "a source of innocent and assuredly deplete the national Exchequer. Just one fact to supplement merriment" in the eye-opener they prove to the wife. How familiar it is these remarks and clinch the argument. At my court, which is a comparato us to hear it so frequently. The debtor's wife-they nearly always send tively small one, I frequently pay out to individual debt collectors hundreds their wives-in answer to the stereotyped question, “ Well, what is he earn of pounds at a time, and at a time receive batches of plaints running well ing ?" glibly responds, “ He's only getting 188. a week.” (Q) “Is that all into three figures. "Anent the credit system, there is one phase of it which you get?” (4.) "Yes, yer honour."., (Q.) “Well, would you like to know should be controlled. I refer to the travelling drapers and others who go that he is earning 268. ?" says the judge, who has it on the return. Then round from house to house in the day time, "when the good man is not at as it gradually dawns upon the gocd lady that she has been “ spoofed” by home,” prevailing upon the “ foolish ones” to pledge their husband's credit her wily spouse she portentously mutters, “ You don't say! Well, wait till for finery. Judgment summonses are continually showing up the abuse of I get home: I'll warm him.” It should be added that a fee of 3d. is this practice; time after time the defendant comes into the box and tells the allowed against each debtor whose case
one of these returns judge that he did not know his wife was dealing with the "Scotchman is used, being just sufficient to cover postages and printing; and as the until the summons came. Sometimes, indeed, the advent of the bailiffs is judge has power under Order XXV. rule 22 to allow the expenses of his first intimation, as his wife not infrequently suppresses the summons. witnesses summoned on the hearing of a judgment summons, and every I am, of course, aware that a husband who allows his wife sufficient money, purpose served by subpoening an employer is achieved by these returns, it or who forbids her to pledge his credit, is out of the reach of this class of will be conceded that they considerably mitigate the burden and thus creditor. But to get at the facts of each case is so difficult and involves redound to the advantage of the judgment debtor, and certainly of the such a lot of perjury, and the system lends itself to such great abuse, that cause of justice. Whilst on judgment summonses 1 should like to direct some restriction might be well placed upon it. One of the ablest of our attention to the abominable and wholly unnecessary complexity of detail county court judges suggested to me the other day that something on the lines which their preparation involves. Just examine that monstrosity intituled of the Statute of Frauds should be introduced, preventing any action being “50 B.,” and if you have ever seen anything to approach it (except, of brought against the husband in such circumstances unless he had signed a course, an income tax return or an inland revenue affidavit) I shall be sur memorandum of the transaction, or the goods were delivered to and accepted prised. No one who has not experienced it can have any conception of the by him, or he had personally paid something on account thereof. I take trouble and worry involved in working out the details requisite to properly this opportunity of commending the suggestion to your notice, even if it fill up the form where thers have been previous judgment summonses.
I had nothing more to back it than the experience of the high authority defy any ordinary mortal, certainly a poor judgment debtor, to understand from whence it came. Another point on section 72 of the Act. What is them, and it is perfectly monstrous that they are retained in their present this cry for amendment to enable one solicitor to represent another? It is form. The word "and" in the eighth line from the bottom of this form a class cry, emanating from the large firm only. It is surely to the advantage should surely be “ or. And before quitting the suvject of judgment of the younger solicitors that things should remain as they are, since they summonses I should like to refer to a matter upon which the Council has are thereby enabled to get work that would otherwise be lost to them. It made the following strong recommandation - viz., " That the provisions of results in a more equable distribution of work, as a firm is at present section 72 of the County Court Act, 1888, and of Order LI. rule 1, relating dissuaded from taking cases which none of the partners can conduct through, to parties appearing by agents, other than solicitors, be amended, so as to and so the large firms have to decline the business, which finds its way into prevent debt collectors appearing for suitors or as advorates under the guise younger hands, who would never have a chance at it if the family solicitor of witnesses or otherwise, either on the hearing of claims or judgment could take it and then pass it on to his nominee. The rights of the younger summonses.' This is the only recommendation of the committee with solicitors, and, I submit, the interests of the public, are best served by letting which I have any disposition to quarrel, but I do wish to record my things remain as they are. There is another thing that is crying aloud emphatic opinion that this recommendation is not only uncalled-for, but is for redress. Up in Lancashire we have two local courts, the Salford inimical to the interests of suitors, and therefore of the profession, and Hundred Court of Record, and the Liverpool Court of Passage, whose strikes at the very root of the growth and efficiency of this tribunal. I jurisdiction competes with that of the county court on unfair lines. As is have always been an uncompromising stickler for the rights of our pro- well known, under section 122 of the Bankruptcy. Act, the county court fession, but I protest against its being suggested that the ordinary debt judge has power in certain cases to make administration orders for the collector is an enemy of our craft, a poacher upon our preserves. The protection of debtors whose aggregate indebtedness does not exceed £50, suggested suppression of the debt collector reminds one of the policy of and the preservation of their small estates. Now what happeas? Through those keepers who slay the owls and the magpies in the foolish belief that the medium of these two favoured courts an alert and rapacious creditor is they are ridding themselves of a pest. A person who would silence the able the moment he receives--as he must do - notice of the intended honest debt collector does not know what he is talking about. It is application to issue a writ, get judgment by default, or at any rate under notorious amongst those who have a practical experience of those much-Order XIV., and sweep away the whole of the poor fellows assets under the abused individuals that they are the very life of the court, filling a place very nose of the County Court judge, for there is no stay under the Art until that is essential to success, and performing work that, so far from infringing the order is made (sub.sec. 5). This is an intolerable and iniquitous state of the rights of the profession, no solicitor could or would do. As at present affairs, and the marvel is that it has not been stopped long ago, as it so constituted a heavy court conld not get along without the debt collector; frequently rouses the ire of the judge. A simple remedy would be to he is an integral factor in the machinery. The dogged pertinacity with provide that the request (not the order) should operate as a stay under which an energetic man of this class will hunt up--and finally succeed in sub-sec. 5. I would now 'mention another matter which is, I know, of a obtaining orders against-that large class who feed on the credit system, and more controversial character, but which has an important bearing on the
status and efficiency of the county court. I refer to the pressing necessity only cond-mplates a removal“ to enforce by commitment,” and not absofor arming county court judges with some short and summary method of lutely. At present the position seems incomprehensible and its possibilities counteracting the truly frightful amount of perjury which is daily disastrous, and something should be done to get a plaintiff out of such a ridicommitted with the utmost impunity. No one who is not familiar with the culous cul de sac as this decision would seem to land him into. These are a court can have any conception of the alarming extent to which it prevails. few of the thoughts that occur to me as the result of a not inconsiderable And is it any wonder while the only expedient is indictment at the assizes ? experience of county court practice. I don't pretend that they are Without wishing to apologise for or appear to underrate the moral exhaustive-10 one knows better than I do that this is far from being the delinquency of such perjury I would say that it is altogether too trumpery, case–nor have I presumed to reiterate many other acknowledged grievances too lenial for indictment. What is wanted is that the county court judge that are already receiving consideration. It is because it seemed to me that should be empowered to commit an obvious offender right in the face of what there was more to be said upon the subject than the Council's report would would be an awe-stricken audience to prison for fourteen days, with a seem to suggest, and because there are indications on all hands that the right of appeal (to guard against remotely possible hastiness) to the judge immediate future will be a momentous epoch in the evolution of the county of assize. Not till then shall we succeed in cleansing our administration court, that I determined to use the opportunity afforded by this meeting of from this great blot, and be able to say with Wilmot, C.J., "Procul o! making the foregoing observations, in the hope that others might be induced to procul este, profani.” Is there any sound reason why an action of tort do likewise, so that before it is too lats a period sy pregnant with possibilities should not be remittable to the county court under the same circumstances may not be allowed to pass without a determined concentration of effort to as an action of contract under section 65? The only case where such an secure that justice be done to the county court. action is remittable at all is that provided for by section 66, when the Mr. W. T. Rogers (Liverpool) could not agree with the proposition plaintiff has no visible means. The anomaly seems to be more ridiculous that debt collectors should be allowed to appear in court and act for when one has experienced the mortification of finding that such an action suitors. cannot be remitted even by consent. The necessity for an alteration in this Mr. J. T. ATKINSON (York) spoke in favour of enabling one solicitor to respect was forcibly brought home to the writer quite recently when in two employ another. Why should some of them, to whom had been denied cases the solicitors on both sides asked the district registrar to remit, and on the gift of eloquence, be debarred from employing another solicitor his necessarily declining, both plaintiffs were compelled to abandon honest instead of having to go to the expense of briefing counsel. claims, simply because they could not face the expense of an assize trial. Mr. A. H. Colex (Birmingham) was in favour of the simplification of The plaintiff subsequently obtained a partial remedy by beginning de novo forms in the county court. in the county court, but the damages were inadequate. Seeing that “forms Mr. H. Bevir (Wootton Bassett, said that when debt collectors handed of action” are supposed to have gone the way of the ichthyosaurus, it seems in plaints running into three figures it was obvious that they must occupy strange that we should at the end of the nineteenth century have occasion a good deal of the practice of the court. under certain circumstances to wrestle with the subtleties involved in Mr. J. MILLER (Bristol), Mr. G. H. Finch (London), Mr. H.P. CHARLES distinguishing between causes of action ex contractu and ex delicto--subtleties (Neath), Mr. McLellan and Mr. C. W. SLATER (Swansea) also spoke. the exquisite involvement of which may delight the soul of the black letter lawyer, but have nevertheless bewildered registrars and taxing masters, and
REGISTERING DEEDS IN YORKSHIRE, even worried the Lords Justices of Appeal (Taylor v. The Manchester, Sheffield, and Lincolnshire Railway Company, 76 L.T. 596). Again, why should sect. 64 be
Mr. W. C. AUTY (Sheffield) read a paper entitled, “A Few Remarks on confined to Common Law actions? It works one of the greatest hardships in the Manner of Registering Deeds in the West Riding of Yorkshire”: actual practice, that a friendly equity suit—of which there are scores In Yorkshire the largest share of work falls to the West Riding Registry cannot be worked out through the medium of the county court on the spot, of Deeds, and it may be of interest to note the practical working of the and that the subject matter of such suits should therefore be driven into the registry, particularly as we are in the West of England, and presumably insatiable maw of the Court of Chancery, from which the residuum emerges many present are unacquainted with the practice of the Yorkshire registries. emaciated beyond recognition. There is one class of clients which has The following remarks apply, with slight modification, to the East and always had my deepest compassion, in that, like Solomon's "Three Things,' North Riding Registries. Registry is permissive, and not compulsory but it is "never satisfied,” simply because satisfaction is impossible as things in practice it is always usual to register. The instructions for record on the are. I refer to the parties to a “ friendly" Chancery suit. Shades of register are generally by way of " memorial,” and until recently memorials “ Bleak House," but the thing still lives! Let the county court have were engrossed on parchment of oblong form, sealed with wax, and were jurisdiction by consent to deal with equity suits of any amount, and you directed “To the Registrar of the West Riding of the County of York, or his will knock the bottom out of a substantial grievance and lighten the burden lawful deputy.” Formerly one of the witnesses had to attend personally at the of many an unjustly abused solicitor. Another bête noir of the county court registry to be sworn to the fact of witnessing the execution of the deed practitioner is the defendant who incurs obligations in England and then proposed to be registered. The journey was often made on horseback. It blithely steps over the border to Scotland or Ireland, or, for that matter, the was usual for practitioners to delay registration, and wait until a number of domiciled Scotchman or Irishman. I venture to say there is not a man in deeds were ready, and then send to the registry. This attendance was one this room who has not experienced the annoyance of being unable to bring of the picturesque little incidents of clerkship. Now, all documents can be such a person to book in the county court. It is in reference to this flaw sent by post and registered without delay. Deeds and wills form the greater that I have heard Mr. Bamble's aphorism most frequently repeated. The number of the documents registered. Of deeds, a conveyance or mortgage look of blank amazement and disgust on the face of your client when of freehold, and an assignment or mortgage of leasehold, are the most you bave to tell him, with apologetic and downcast mien, that he must frequently registered. A memorial of these deeds is prepared upon printed follow his 308. debtor to Aberdeen or Cork is a thing to be remembered. (paper) forms, issued by the West Riding Printing Co. by authority. The It is, in truth, a reproach to the law, when one bears in mind memorial commences with a short description of the deed to be registered, the extensive and close business relations existing between the several followed by the date of the deed, the names, addresses, and occupations of divisions of the United Kingdom, that she should not provide a creditor the parties to the deed, and a description of the lands to be registered; residing in Manchester with the same local remedy against a debtor sometimes by a short reference to a prior registration. The names and in Glasgow as he has against a debtor in Swansea. We make all sorts of addresses of the witnesses to the deed are lastly given, so that it can be exertions to swallow the public international camel, but we still strain at the readily ascertained by reference to the memorial if any interest in the private international goat. One point on court fees seems to have escaped property had not passed at the date of registration. The memorial is attention. A voluble lady defendant comes into the witness-box, and after signed and sealed (printed seal) by one of the parties to the deed, or if he is an excited harangue, which may last for ten minutes, you discover she really dead, or an infant, by his legal representative, and the signatrire is attested admits the debt, but is bent on what she calls “speaking her mind." You by one or more witnesses (in practice generally one witness), one of whom at never hear this expression from a man. You thereupon make an order for least shall have been a witness to the execution of the deed. The memorial payment, and for this lengthy “hearing" you debit her 18. in the £. In bears a stamp of 2s. 6d., or a stamp of similar amount to that on the deed if the next few cases defendant does not turn up; you make half a dozen orders less than 23. 6d. If distance is not convenient for personal attendance at in two minutes, and defendant is rewarded for considerately expediting the the registry, the deed and memorial may be sent by post, addressed to the business of the court by having to pay 2s. in the £ for the hearing." registrar, enclosing a postal order for 5s., the registration fee, and also a Why should this unfairness continue ? That it is illogical, unjust, and stamped directed envelope for return. Postal registration is optional. The accidental can be seen when it is borne in mind that for entering judgment deed is usually returned duly registered by the next post. Acknowledgment on a default summons, when defendant, after giving notice of defence, fails of its receipt is not required. The minute of registration was formerly to appear, the fee is 1s, in the £. The common notion that a defendant who written upon the deed. It has been for some years past impressed with a clear owes the debt will save money by staying away is clearly a fallacy, which I and compact stamp in characters of old English text, stating that a memorial have a shrewd belief is not as widely known as it deserves to be. I cannot was registered at Wak afield, the date, the hour, the volume at the registry in close this already long paper without referring to the recent extraordinary which the memorial is recorded, with the page and number. The minute is decision by the Court of Appeal in the case of Montgomery v. De Bulnes signed by the registrar or his deputy. The statement as to the hour of registry (referred to in the L.T.N. for June 25th last, but not yet authoritatively has been of importance in settling questions of priority of title. If there is a reported, as, if permitted to pass unchallenged, it would have a detrimental | plan on the deed, a copy is required to be registered. If there is sufficient operation upon our courts by dissuading one class of creditor-the High space the copy may be drawn upon the memorial, if not, it may be drawn Court judgment creditor-from seeking our aid to enforce his judgment. In upon tracing cloth and annexed. A will (on production of the probate, &c., that case it appears to have been held, by a strong court, that after a High thereof) is generally registered if it includes freehold. It is often registered Court judgment creditor had taken the requisite steps under section 5 of the for leasehold, but as a matter of title this is optional. The memorial does Debtor's Act, and rule 17 of Order XXV., to enforce his judgment by commit- not require a stamp. The date of the will, the date of testator's decease, his ment in the county court, he was debarred from thereafter issuing execution name, residence, and occupation, a description of the lands in the riding in the High Court. As I am not aware how he could issue execution in the affected by the will, and the names and additions of the witnesses to the will, county court, the result appears to be that he cannot in such case issue form the particulars required. The memorial may be signed by the trustee, execution at all, in spite of the provision in section 5 of the Debtor's Act executor, or a person claiming an interest in some of the land situate in the that “no imprisonment under this section shall deprive any person riding affected by the will. It is a matter of convenience for registration if of his right to take out execution,” and of the fact that the rule (rule 17) in drawing a will a short but clear description is given of any property so
situated. A copy of a will may also be enrolled at full length. A lease and the present registry suppressed the Treasury had to make good to the counterpart may have the official stamp of registry impressed upon each, if the county of York any loss that might be sustained thereby. The Yorkshire witness to the memorial is a witness to the lease, otherwise it is usual for the county, he believed, derived a considerable income from the existing solicitor to place upon the counterpart a written copy of the official registry. memorandum of registration on the lease. Transfers and reconveyances Mr. ATKINSON : £7,000 a year. being generally by endorsement, the memorial gives particulars of regis Mr. Hunter thought it would be probably a very considerable time tration of the previous deed, as the parcels of the endorsed deed are usually before that county had the Land Transfer Act imposed upon it. "All those the premises described in the within-written deed." memorandum of deposit, lien, or charge may be registered at full length,
JURISDICTION OF THE COUNTY COURTS. and although this makes the form as a rule more lengthy, there is the advantage of exemption from stamp duty on the memorial, and th full Mr. MOLELLAN moved : “That the Council be requested to give their nature of the document is shown on the register. A special form is provided attention, at the earliest opportunity, to the observations of the president for registration of a statutory receipt. The statement or memorial is, in his address as to county courts, so that concurrent jurisdiction up to equally with the receipt, exempt from stamp duty. No provision for a date £500 may be given to them with the High Court under the reservations is made in the statutory form, but for convenience it is usual to add the date suggested by the president, or such other reservations as the Council may at the foot of the receipt, so that the requirement of the date in the state- deem expedient. ment may be complied with. A witness to the receipt is not necessary. The
Mr. P. DOBELL (Liverpool) seconded the motion. statement contaics a description of the mortgage deed upon which the
Mr. HUNTBR remarked that the Council had already embodied in a report receipt is endorsed ; a note of the registry of the mortgage; particulars of their view that there should be unlimited jurisdiction in the county court, the name, residence, and occupation of the person on whose behalf the with unlimited right to the defendant to remove the trial to the High receipt is to be registered; the date of the receipt; the township in which court. the property affected by the receipt is situate. The statement is then The motion was adopted by 14 votes to 8. signed by the person requiring the same to be registered, a witness to such signature not being necessary..
PRIVILEGE UNDER THE BANKRUPTCY ACTS. practice deeds of enfranchisement are registered. Documents of more infrequent occurrence which may be registered are the discharge of a cor Mr. G. W. EDWARDS (Liverpool) read a paper entitled "The Question poration charge, order of court or Charity Commissioners, certificate of of Privilege as between Solicitor and Client under the Bankruptcy Acts," appointment of trustee in bankruptcy, private Act of Parliament, or order
as follows: or award of land commissioners. The newest innovation under the last “It is of the highest importance that a man should be able to consult his Registry Act was probably allowing the registration of a caveat. The solicitor without fear.”—Per Cave, J., in Re Arnott, Ex parte Chief Official printed form for registry constitutes the caveat, and requires the date, the Receiver (60 L. T. 109). names, addresses, and occupations of the grantor and grantee, the length of The personal relations of solicitor and client are of such widespread and period for which the caveat is given, and a deseription of the lands affected. far-reaching importance to the general public, as well as to our own It is signed and sealed by the person by whom the caveat is given, and its profession, that a brief consideration of that relationship and of some points execution must be attested by one witness at least. The registry fee is 2s. affecting it will not, I venture to think, be uninteresting to this influential To discharge the caveat from the register is a more difficult matter, and meeting of lawyers. From the earliest times the privilege of a solicitor the steps necessary apply also to the discharge of a memorandum of deposit with regard to communications passing between himself and his client has of other lien or charge. In the first place an official form, called an affidavit been fully recognized by our courts of law. Whether the advice and of discharge, is required for enrolment. It must bear a 28. 6d. stamp, and assistance have been in respect of the client's property or the conduct of his must be sworn before a commissioner. A form of consent to the enrolment litigation, the principle is well established that the solicitor cannot and will of the affidavit of discharge must be signed by the persons entitled to the not be allowed to divulge the secrets of his client.
"The secrets were charge and witnessed by an independent witness. Upon the last-mentioned imparted to the solicitor for the client's benefit and should not be used to form is also an affidavit of proof of the due execution of the consent. Such his detriment” (Smith v. Kay, 7 H. L. Cas. 750-779). The privilege has affidavit requires a 2s. 6d. stamp, and must be sworn before a commissioner. not been accorded on the ground of confidence alone, otherwise protection The registry fee is the usual one of 58. If the document registered is a could be claimed for the confidential communications intrusted to a man's memorandum of deposit or written charge, the official certificate-- viz., that medical adviser or clergyman. The protection is strictly limited to the legal of registration of "An affidavit of discharge"—is endorsed. A search for adviser, and has never been extended to other persons except officials of registered documents may be either ordinary or official, the latter being the state, who cannot be compelled to disclose any State affair, the publication more usual, and, affording as it does an official certificate of the result of of which would be prejudicial to the community. Nor is the protection such search, it is a matter of title generally preferred. The fees for an afforded on account of any particular importance which the law attributes official search are 7s. 6d. for any one name for any period not exceeding ten to the business of legal advisers, but it has its origin, it is said, “out of years, and a further fee of 2g. 6d. for every additional period of five years. regard to the interest of justice which cannot be upholden, and the The form of requisition for an official search in the registry does not require administration of justice which cannot go on without the aid of men skilled a stamp. The name, address, and description of the person on whose behalf in jurisprudence, in the practice of the courts, and in those matters affecting the search is to be made is followed by similar particulars as to the person rights and obligations which form the subject of all judicial proceedings against whom the search is to be made, and if a search is requirod to be (Greenough v. Gaskell, 1 Myl. & K. 98). It was at one time thought that the made in more names than one, a separate requisition must be made in re doctrine only applied to the communications relating to actual or expe sted spect of each name. Dates of the period between which dates the search is to litigation, but it is now settled that the principle applies to all professional be made are then given, followed by a brief description of the lands in respect communications which pass in a professional capacity. With a knowledge of which the search is required to be made, or a reference to a registry of the security thus afforded him, a client has at all times been able to where they are described. The date is inserted, and the requisition signed fearlessly intrust his business to his solicitor, and has never felt it necessary by or on behalf of the person making it. In practice it is generally signed to withhold any matter bearing upon the subject of his affairs. His family by the solicitor. The form is then sent to the registrar, with the fee of secrets as well as his litigious work have always seemed to him safe from the 7s. 6d. if the search is in any one name and for a period not exceeding ten peering eyes of the outside public. Whether the business has been the years, and a further fee of 2s. 63. for every additional period of five years. carrying out of some family arrangement with its preliminary correThe official certificate of search states that the registrar, having received a spondence and delicate interviews and the preparation of the deeds necessary requisition for an official search, has caused the search to be made, and that for effectually completing the arrangement, or whether it concerns the the documents shortly set out in the schedule annexed to the certificate form adjustment of some of those domestic differences which from time to time a complete list of the instruments registered within the period mentioned. arise, the solicitor has always been able to assure his client that these were The certificate is signed by the registrar and bears the official seal. It is matters that need never get outside the family circle. The client, too, in his endorsed with the name of the party against whom the search is made, and litigious work following extensive commercial relations could make his the dates between which such search is made. We have only noticed the statements and reveal his business secrets, believing, as he was advised, that salient points connected with the practice in the registry; the subject is ex these, not being intended for the information of any other parties to the haustively treated in Mr. Barker's excellent manual. The registry is action who might ultimately turn out important creditors, could never come threatened by the Land Transfer Act of last year. The smooth working of to their knowledge. Privilege from inspection in respect of his professional the registry has been aided by the courtesy invariably shown by the officials, communications with his solicitor upon the subject of the action is claimed and personally I wish to acknowledge my indebtedness to Mr. William and as readily conceded, also for the opinions of his counsel, his brief, and Pickard, the present registrar, for his kindness in approving these notes.
other law papers.
Multifarious indeed are the subjects and occasions upon Mr. Atkinson spoke of the advantage of being able to register deeds at which the relations of solicitor and client become of the most confidential full length. If the present system of registration was to be altered it and private character, whether they be of the nature that I have mentioned, would have been better for the Government to have adopted the York or whether they involve other and not less important considerations, such as shire system in its entirety: With regard to the Land Transfer Act he the raising vf additional capital for the client's business or the conversion of was convinced the Council did the very wisest thing they could under the his concern into one of limited liability. The honour and integrity of both circumstances, but he was also convinced that the solicitors of Yorkshire solicitor and client are largely involved. In all these transactions the necesdid also the wisest act in fighting as they did and happily with success. sary documents are prepared carrying out the various proposals. The correIf the Act was ever to be applied to Yorkshire they had the machinery and spondence, probably voluminous, is of no less importance than the attend. should give it the most determined opposition.
ances and interviews themseives, expressing, as it generally does, the exact Mr. HUNTER thought the registry of Yorkshire was not likely to be put relations of the parties and the terms upon which each transaction is arranged. an end to. The more so because there was a provision in the Land In all these matters the solicitor necessarily and properly makes his entries Transfer Act that if the land registry was imposed upon Yorkshire and I in his draft costs, diaries, cash-books, and ledgers, and preserves other records.
It is never contemplated, while these prosperous relations continue, that a in the summons. The authorities have long since established and recognised time of adversity may overtake the client. Now, supposing that through that confidential relationship, and the Courts of Law have cast a duty upon reckless or indiscreet dealings, or perhaps misfortune not involving fault, the the solicitor to do or say nothing that should be a violation of the confidence client may be driven to consult his solicitor upon the complicated character reposed in him. To disclose communications thus made to him might lead his affairs may have assumed, and to seek his advice upon some conduct which to most mischievous results, and the privilege when it once exists always in the eye of the law would amount to an act of bankruptcy. He makes an exists (Bullock v. Corrie, 3 Q. B. D. 356); "once a thing is privileged it is unreserved disclosure and advice is given, and subsequent steps are taken always privileged,” and cannot again be questioned, even in different cireither to shield the clieat or to negative the effect of the act of bankruptey cumstances (Pearce v. Foster, 15 Q. B. D. 119). So far as the client is concommitted. A receiving order is, however, ultimately made against the client cerned, he naturally, objects to the disclosure by his solicitor of anything and adjudication in bankruptcy subsequently follows. What will then be the relating to his affairs. Section 27 is, however, emphatic, and appears to position of the parties under these altered circumstances ? Consider that of revolutionise the position of solicitor and client. The latter is clearly now the solicitor first. His client is probably largely indebted to him for work not entitled to waive or insist upon the privilege which before existed. done; but as a set-off against this he will have in his possession documents He is bound to disclose all that relates to his property and dealings, upon which he will claim his lien, which may seem to constitute a good and his solicitor cannot claim a higher privilege than himself. And security for such indebtedness. He thinks that they are at any rate privi. so it comes to pass that those confidential relations which our judges leged from production until he has been paid what is due to him. With have said should at all times be religiously observed, and the comrespect to the advice he has given his client, and the information he has munications passing between the client and his legal adviser, which should acquired while acting as his professional adviser, he believes that the fullest be so sacredly, respected, are now ruthlessly disregarded. Notice the privilege will be maintained. It is eminently desirable that this should be machinery which sets all this in motion--a mere statement in writing by so, for the bankruptcy may have been brought about by a former rival in the official receiver or trustee, without even being verified on oath! Such a trade, or an embittered creditor may, for his own advantage, be determined power may be made a serious instrument of oppression and injustice, and, to probe to the utmost the bankrupt's affairs and his former dealings with rather than face the ordeal, many legal advisers would say to the official his assets. In the light of these altered circumstances some of the solicitor's receiver or trustee, “I won't trouble about my lien. Take all the docuentries in his draft costs look somewhat ugly, and some of the correspondments out of my office, but don't worry me with a personal examination as ence might with prudence have been worded in a different way. And this to the debtor's affairs.". Moreover, it occasions serious loss of time as well may equally apply to the entries in the solicitor's c'ish book, ledgers, and as anxiety, to the solicitor. He may be under examination or crossbank-books. It is probably not until the debtor's answers to the numerous examination for hours, and yet cannot claim any adequate remuneration printed questions of the official receiver and the public examination have for his attendance. Points may be involved in the case which make it been given that any difficulty is anticipated. The debtor, as very imperative that he should employ counsel. But if the solicitor briefs often happens, is unable to give full details of many of the matters in counsel, he must do so at his own expense. The trustee himself is allowed which he has been concerned. It has been necessary, in his answers to the costs of both solicitor and counsel. The scope of the examination, too, frequently refer to and mention the name of his soliciter, who may have may be little short of that through which the debtor himself is put at his many if not most of the documents belongiog to the debtor and can give the public examination, the only difference being that the solicitor cannot be exact information required. When the solicitor is approached he objects to compelled to answer questions which may tend to incriminate himself. production of the documents before discharge of his lien. To give the in. Even in this respect he is not to be the sole judge. The court must be formation desired about the debtor's affairs would also tend to prejudice his satisfied that the apprehended danger is real and appreciable, and not of an security, and in any case that information he looks upon as privileged. He imaginary character. The past history of the whole of the debtor's dealings says that the information has been acquired by him when acting as the in which the solicitor has been concerned may be gone into, and the solicitor bankrupt's adviser, and he cannot disclose it without his client's consent. On may be interrogated and examined with the same minuteness as the debtor him the other hand, the client's position is admittedly completely altered. His selt. Let us suppose, for example, that the solicitor has acted for the bankrupt rights, whatever they may have been with regard to his property, have now in mortgaging a portion of his assets, and has als) in the same transaction passed to his trustee. The secrets which formerly existed cannot be set up as acted for the mortgagee. This is the kind of summons the solicitor may get against his trustee. He has no longer any power to give or to withhold' his when, say, the trustee desires no only information as tɔ the debtor's affairs, consent with respect to any matter affecting his affairs. His privilege has but also evidence which will assist him in threatened proceedings to set aside gone, and with it, as we shall presently see, that of his solicitor also. Both the transaction referred to: _“You are hereby required to attend the court are compelled to disclose all information in their power respecting the debtor, of
at o'clock in the forenoon, to give his dealings, or property. It bas no doubt been the intention of the framers evidence in the above matter, and then and ther: to have and produce all of the Bankruptcy Acts that the examination into the debtor's affairs should ledgers, cash, and other books containing entries of the various sums of be thorough, and that every facility should be given to the trustee for dis- money received by your firm from A B (the mortgagee), or other person or covery of the debtor's property. The revolution effected in the position of persons on behalf of the bankrupt, and of all moneys advanced and paid by the solicitor and his client by the working of the section could not, however, you to, or on his behalf, all cheques drawn by you in favour of the bankrupt I venture to think, have been fully foreseen. Let us see for a moment what or other persons on his behalf, or for moneys to be remitted to or on behalf powers are given by the Bankruptcy Act, 1883, with respect to the question we of the bankrupt, and counterfoils of the same cheques, your bankers' passare now considering. Section 27 is substantially a repetition of the section in books showing the payment of such cheques, the lease of the debtor's the former Bankruptcy Acts upon the same subject. Under this section the property situate at
and any assignment or re-assignment of the court has power, on the application of the official receiver or trustee, at any time same, the draft and fair copies of the above-mentioned or of any other after a receiving order has been made, to summon before it any person known deeds and documents of A B or of the bankrupt, all letters received cr suspected to have in his possession any of the estate or effects belonging by you from A B or the bankrupt and other persons on his behalf to the bankrupt, or any person whom the court may deer. capable of giving as his solicitor or the solicitor of A B, and copies of all letters information respecting the debtor, his dealings, or property; and the court written by you to the bankıupt or A B as his solicitor. All your may require any such person to produce any document in his custody or diaries, letter-books, day-books, draft costs, or bills of costs, books containing pogsession relating to the debtor, his dealings, or property. The object of entries of the work done for the bankrupt or A B in connection with the the section is clearly a sweeping one. It is first intended to reach the bankrupt and his affairs, and of your dealings with the bankrupt and his persons having or believed to have some of the debtor's assets under their property.” The summons may be made to extend over any period of the control ; but it also has a much wider application, and it is to the latter part debtor's affairs. The trustee is not bound to accept the solicitor's answers, but of the section that I desire more immediately to direct my remarks. It is may cross-examine him in order to test his credibility ( Re Scharrer, 20 Q. B. D. not necessary, as a preliminary condition to an examination under the 518). Neither need the questions relate directly to the bankrupt's property. section, that the person should have any of the debtor's property in his Thé solicitor is bound to answer all questions relating to the debtor, his dealactual possession, or under his control. In most cases, so far as the solicitor ings, or property, although in so doing he may expose himself to civil actions. of the debtor is concerned, no property of the bankrupt will be in mortgage He is bound to answer, even though it would seem that his replies would or pledge or otherwise vested in him. The fact that the solicitor has incriminate his client. He obviously receives harsher treatment than he acted for the debtor, and is conversant with his affairs, is enough would be liable to incur at the Bar of the House of Commons, if we may to bring bim under the jurisdiction of the court for examination. judge by the result of the recent appearance of an eminent solicitor before His position under his client's altered circumstances is at once that august tribunal. It may be said that the solicitor's former privilege changed. He is simply, when subpænaed, an ordinarv witness summoned is not altogether gone, as he is not compelled to disclose the actual advice to give evidence before a court of law. His lien on his client's documents given to his client. This may seem so in theory, but in practice, when the remains, it is true; but he is compelled, at the instance of the official receiver solicitor has gone through the ordeal of examination which I have described, or truste e, to produce all these papers for inspection. It becomes a lien in and when every scrap of paper in his possession relating to the debtor and name only, inasmuch as all information can thus be got from them, and the his affairs bas been examined, it is not difficult to find out what advice the official receiver or trustee afterwards probably finds that he can do very well solicitor gave It is at least doubtful, however, whether, even in this without the documents themselves. If there is a document which is respect, the privilege continues. The trustee, as I conceive it, could compel necessary for perfecting the trustee's title to some of the bankrupt's property, the bankrupt to disclose what steps he was advised to take and did take in then the solicitor's lien will remain of some value, but he will, in all dealing with his property, and the solicitor would be, it seems to me, under probability, find himself compelled to fall in with the general body of the same obligation. The privilege is the privilege of the client, not of the creditors, and prove for his costs. As to the examination itself, this can be solicitor. Sec. 27 is, I think, sufficiently wide to cover not only facts of the most scarching description. The first impression of a solicitor, when concerning the debtor's property, but the advice he received with regard to served with a summons under the section referred to, is one of surprise and his dealings with it. It is to the advantage of his creditors and his estate that perhaps consternation. If he is versed in bankruptcy practice, his feelings they should know whether or not their interests have been considered. To say may be more modified. The first question which naturally then arises is the that the subsequent result of the debtor's dealings with his property is sufficient degree of privilege to be allowed as to communications which have passed to prove this is not, in my opinion, a complete answer. The creditors have between the solicitor and his client. It is true that the information was a right to know the motives of the debtor in his dealings with the property, acquired at a time when the witness was acting as the bankrupt's solicitor, the residue of which he now offers them for distribution. I think they would and solely for the purpose of being advised upon the matters referred to also be entitled to know whether that which was done and which caused the