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solidated Gold Mining Company, before the Court of Appeal on the 7th iost., of the debts due to the partnership, or the names of the persons who owed a question arose as to the right of a person wbo bas filed an affidavit in a them, He stated as one of his assets, “Property as per list G. $1,936," and matter afterwards to withdraw it, so as to prevent the witness from being cross- in the list G. there was the following statement :-"I an a partner in the examined. An application was made by one Young, by motion under section firm of Leigh & Amor, and it appears, upon balancing the accoants, that there 35 of the Companies Act, 1862, to rectify the register of members of the is a surplus, after paying the trade creditors, of £1,936, which sum stands to company by omitting his name. Affidavits were filed on both sides, among the credit of my capital account in that business. I am informed that Mr. which were an affidavit by the applicant in support of his case and an afidavit Leigh claims the entire amount, under a penal clause in the partnership by one Roebuck on behalf of the company. An order was then made on the agreement, should the business be wound up through any act of mine." The application of Young for the appointment of a special examiner " for the creditors at their first mee:ing resolved to adjourn the meeting for fourteen purpose of taking the examination, cross-examination, and re-examination days, in order that an accountant named in the resolution might investigate of witnesses who have made affidavits for the purposes of the motion.” And the debtor's affairs, and report to the adjourned meeting. He was to be it was also ordered that the applicant and the company should be at liberty assisted by a committee, consisting of three creditors and the receiver. At to issue suopænas for the evidence in chief of any witness for the purposes of the adjourned meeting a report by the accountant was presented. It was not the motion. Young attended before the examiner and was cross-examined on signed by the debtor, or in any other way adopted by him. It confirmed the bis'affidavit. Roebuck afterwards attended, and, after he had been sworn, debtor's statement as to the amount of his share in the capital in the partner. the company's'counsel objected to his being cross-examined, on the ground sbip, and set forth an account, though not in full detail, showing how this that they had withdrawn bis affidavit and that he was no longer a witness for amount was arrived at, and it mentioned that the whole of the £1,936 was them, and could, therefore, only be examined by the other side in chief. claimed by Leigh under the terms of his arrangement with the debtor. At The question was referred to the court, and Kay, J., held that the witness the adjourned meeting the creditors resolvel by the proper statutory majority must attend and be cross-examined, and this decision was affirmed by the to accept a composition of 1s. 61. in the pound, payable in two instalments, Court of Appeal (JESSEL, M.R., and BRETT and Cotton, L.JJ.). The ques- and the resolutions were confirmed at the second meeting. One the distion turned partly upon the construction of section 40 of the Act sentient creditors opposed the registration of the resolutions, on the ground 15 & 16 Vict. c. 86, which provides that "any party in any
that the statement of affairs was insufficient. Mr. Registrar Murray, on the or matter may require the attendance of any witness before an authority of Ex parte Solomon (L. R. 20 Cb. D. 281, ante, p. 311), allowed examiner of the court, and examine saob witness orally
and any the objection, and refused the registration. The Court of Appeal" (JESSEL, party having made an affidavit to be used, or whioh shall be used, on any | M.R., and Brett and Cotton, L.JJ.) affirmed the decision, JESSEL, M. R., claim, motion, petition, or other proceedings before the court shall be bound, said that the Act required the debtor to make a statement of affaire. The on being served with such writ, to attend before an examiner, for the statement must be in writing, and must pledge the debtor to the amount of his purpose of being cross-examined.” And roles 7 and 11 of the order of the assets. In the present case the debtor had made a statement of his own Court of Chancery of the 5th of February, 1861, speak of the cross-examina- separate assets, and the creditors had before them the means of ascertaining what tion of "any deponent or witness, or of any party," and of" any witness, means he had of meeting his liabilities. A debtor who was a partner in business whether a party or not.” JESSEL, M. R., said that considering the date of with some one else must make a similar statement of the assets of the firm. He the decision of Wood, V.C., in Clarke V, Law (4 W. R. 35, 2 K. & J. 28),
must state the names of the creditors of the firm and the amount dae to that a party having filed or given notice to road an affidavit is not at liberty
each, and the names of the debtors to the firm with the amount due from to withdraw it, the practice must be considered settled. The Vice-Chancellor each. The creditors could then see for themselves the position of the firm. there said, "He bas propounded himself as a witness, and cannot be allowed But that was not enough. He must also make a statement of the account if not cross-examined to use his affidavit, bat if tbreatened with cross
between himself and his partner. The creditors could then see exactly what examination to withdraw it; having tendered himself as a witness, he is the share coming to him would be. In his lordship's opinion that was the bound to submit to cross-examination.” After that decision the practice proper mode of making the statement of his affairs, and there was no difficolty must be considered settled, notwithstanding the observation of Lord
as a rule in doing it. Of course there might be exceptional cases—if, for Selborne in Pike v. Dickinson (21 W. R. 862), that he was wholly unable to instance, the partner refused the debtor access to thë books of the firm. anderstand the reasoning upon which Clarke v. Law was founded, though he But, if for any reason it was impossible for the debtor to make a proper followed the dooision. If the observation was correctly reported, the Master statement of his affairs, be could not have the benefit of the provisions of of the Rolls said he could not anderstand it. He thought the case was
the Act as to liquidation or composition, but he must submit to be made a perfectly intelligible. A man having given notice of his intention to use an
bankrupt. In the present case the statement was that it appeared, on balancing affidavit was not at liberty to withdraw the witness in order to avoid his the accounts of the partnership, that there was a surplus of £1,936 standing
to the debtor's credit. Tbat told his creditors nothing. It did orose-examination. Of course he need not use the evidepoe if he did not
how it wish to do so, bat the opposite party could use it. It appeared to his lord. arrived at. Then he said he was informed that the whole of the
WAS Bhip to be a sound principle in the administration of justice that a having called a witness should not be at liberty to withdraw him after he had He was bound to set out what the claim of Leigh was, and what the penal
£1,936 was claimed by Leigh under a penal clause in the partnership agreement, been sworn, whether he was pat into the box or whether he made an affidavit.
clause was. The creditors could not really tell whether the debtor was en. As to section 40 of the Act of 1852, no doubt it was open to criticism. The titled to anything from the partnership assets or not. The statement was word "party" seemed to be ased in it in one sense at the beginning, and in wholly insufficient. Brett, L.J., thought that the rule which the court was another afterwards. But if the argument was right that the word "party"
laying down would be a hardship to the solvent partner, because the state of in the latter part of section 40 meant only one of the parties to the proceedings, his affairs would be disclosed, but still be thought that the rule ought to be there would be no means of examining a witness (not a party? who had made laid down. The argument of the appellant came to this, that
, whenever a an affidavit in a matter. There was a mode of doing this in a cause. In man who was desirous of having a liquidation by arrangement or a composi. practice it had always been considered that the word “party meant
tion with his creditors had a business of his own and also another business in * person,” and the rules of 1861 confirmed this construction. This having which he had a partner, he might, in the statement which he had to make been the settled practice for thirty years, it was too late now to discuss for the purpose of guiding his own creditors, if the partnership was solvent, whether it was right in the first instance. Brett, L.J., thought that the set down in a lump sum bis share in the business. It was admitted that, if principle laid down in Clarke v, Law was one common to the administration he were carrying on two dif-rent businesses, each of which was his own of justice in every tribunal, It was a most important rule, in order to pre exclusively, such a statement of his interest in each would not be sufficient. serve the administration of justice pure and undefiled, that no party should Bat how could the fact that some one else was interested in one of the busibe allowed to take a step in the proceedings for the purpose of winning, and then when he found that it was turning against him to withdraw it. It statement with regard to the affairs of the partnership business, which was his
nesses make any difference? Was he to be excused from making a proper would be most disastrous to countenance anything of the kind. . A part, although it was also some one else's, because he had a partner in it? His could not be allowed to take a step in proposing to use evidence if it should lordship could see no rule which absolved the debtor from making a not be questioned by his adversary, but the moment it was questioned, feel. ing the weakness of what he had proposed to do, to withdraw it. His lord proper statement of the affairs of the business because he had a solvent ship could not conceive anything more caloulated to bring the administration about the partnership business. His lordship was not prepared to say that,
partner in it. In the present case the debtor had pledged himself nothing of justice into contempt and ignominy. COTTON, L.J., was not at all if the accountant's report had contained all the necessary information, and the satisfied that the point was not concluded by the language of section 40, inde. debtor under his own band bad referred to that report in such a way as to pendently of any authority. But, at any rate, he thought the rule laid down incorporate it into bis statement of affairs, that might not have been safti. in Clarke v. Law was a good rule, and one which ought to be considered as established. The question was whether the role applied to a witness who insufficient for the purpose of guiding his creditors. CoTTON, L.J., said that,
cient. But he had done nothing of the kind, and his statement was clearly was not a party to the proceedings. Whatever might be the right view of by holding this statement iosufficient, some the construction of section 40, the practice was settled that it applied to a
difficulty might be
placed in the way of persons who desired to avail them. witness who was not a party to the proceedings as well as to one who was.
of the liquidation and composition clausés of the applied to an affidavit made by any person for the purpose of any motion.
Act. Bat the court could only consider what was required by the SOLicitors, Snell, Son, 8 Greenip; 8. Sydney.
Act in order that dissentient creditors should be bound by the resolutions of
the majority. The Act said that the debtor should produce a statement LIQUIDATION PETITION-STATEMENT OF AFFAIRS-SUFFICIENCY-DEBTOR showing the whole of his assets and debts ; it did not say a statement IN PARTNERSHIP-BANKRUPTCY Act, 1869, ss. 125, 126.-In a case of Ex of the aggregate of his assets or debts. One object was that the parte Amor, before the Court of Appeal on the 3rd inst., a question arose
creditors might be able to form an opinion what dividend he was able to as to the sufficiency of the statement of affairs of a debtor who bad filed a pay. Another object was that there should be a statement of the debtor liquidation petition. The debtor had carried on two businesses --one alone, the himself; and though the report of an accountant, if properly adopted by the other in partnership with one Leigh. Leigh remained solvent. The debtor, debtor himself, might be a sufficient statement, yet the debtor must give all in the statement of his affairs which he produced at the first meeting of the information wbioh he himself pogledged, and it was not enough to say his creditors, gave the names of the creditors of the partnership, with that by subsequent investigation everything could be discovered. The the amount of the debt due to each. He did not, however, state the amount debtor must make the statement himself, and must pledge himself to its
accaraoy. In the present case the debtor had pledged himself to nothing ; Venezuela. The petitioner alleged that the prospectus issued by the company no information was given which could enable the creditors properly to judge set forth false representations, and that the mining property contained no gold whether they should accept the composition which was offered. The debtor at all, and that the company was carried on only for the purpose of paying asked that he might be allowed to summon a fresh first meeting of his remuneration and salaries to its directors and other officers. The petition was creditorg. The court refused to allow this, saying that the jurisdiction to supported by the holders of some 3,000 or 4,000 shares, and was opposed by do this was purely discretionary. Solicitors, Beyfus f Beyfus ; H. A. some 180 persons holding between them 17,000 or 18,000 shares and by others Lovett & Co.
who held vendors' shares to the number of 15,000. CHITTY, J., said that even where a petition for winding up a company was presented by a contribu
tory who held a large number of shares, the court required a very strong case TRUSTEE-DISCRETIONARY Power—JURISDICTION OF COURT.-In a case
to be made out before it would substitute its own opinion for the wishes of the of Tempest v. Camoys, before the Court of Appeal on the 1st inst., the ques. majority of the shareholders. Here was a petition by the holder of a small tion arose whether the court should interfere to compel trustees to exercise number of shares, supported by a comparatively small section of shareholders, discretionary power of investing trust funds in the purchase of real estate, but opposed by a large proportion. It appeared that no less than three meeto there being a difference of opinion between the trustees as to the propriety of ings of shareholders bad been called, all of which it was open to any sharemaking a particular purchase. By the will of a testator the trustees were holder to attend. At these meetings there had been a fair attendance, and the empowered, at their or his discretion, to sell the devised estates and to re result was a unanimous vote of opposition to the company being wound up; in invest the proceeds of sale in the purchase of other lands, and also, in the other words, a unanimous desire that it should be continued to be carried on. exercise of their or his absolute discretion, to raise any money which they Another meeting had also been called in the interest of the petitioner, and the might think proper for the purpose of effecting any purchase which they result of that meeting was that a majority of those present opposed the wind. might, in the exercise of their absolute discretion, think proper, of any lands ing up. The sharebolders, therefore, "might be said to have generally shown in the West Riding of Yorkshire, by mortgage of all or any part of the a substantial opposition to a winding up. The prospectus issued by the comdevised estates. There being in court a sum of about £13,000 consols, pany had been carefully travelled through by the petitioner for the purpose of representing the proceeds of the sale of the testator's Lancasbire estates, showing that it set forth fraudulent and untrue statements, but the only which had been sold by direction of the court, and also accumulations ex. evidence in support of these statements was the statutory affidavit filed in ceeding £21,000, it was proposed, with the consent of one of the trustees, to support of the allegations in the petition. This was no doubt prima facie apply these soms towards the purchase for £60,000 of the Bracewell Hall evidence, but it was no more ; and the affidavit was met by the evidence to a estate, in the West Riding, and to raise the balance of about £30,000 by contrary effect produced by those who opposed the winding up. Amongst mortgage. A petition was presented to obtain the direction of the court that such evidence was an affidavit by a person who swore that he had found gold the proposed purchase should be carried out. The other trustee of the will on the property in question. The case was, therefore, a very different one objected to the proposed purchase on several grounds-1. That it was not a from that of the Wala Wynaad Indian Gold Mining Company recently before prudent exercise of their discretion for the trustees, who had only some him, and the petitioner here had not made out a case that entitled him to have £30,000 in hand, to purchase an estate which would cost £60,000, and might an order similar to the one there made. It had boen objected that the evidence not be worth that amount; 2. That a purchase of such magnitnde was never produced by the company was not such as could be strictly received by the contemplated or intended by the testator ; and 3. That the purchase with court. The evidence was, however, good in this respect-tbat it was good borrowed money of property with a large mansion upon it, involving great ex. enough to satisfy the shareholders. His lordship wished to repeat what he pense in keeping it up, was neither necessary nor desirable in the interests of bad already said-namely, that in the case of a shareholder's petition for a the trust. The Bracewell Hall estate had been in tho possession of the elder winding up, the court would decline to accede to a request to substitute the branch of the testator's family from the time of Henry I. down to 1657, when it the judgment of the court for that of the general body of shareholders unless was alienated by the then owner, and it was said to be very desirable to take a very strong case were made out by the petitioner. No such case was made advantage of this opportunity of recovering, at what was a moderate price, an out here, and the result was that the petition must be dismissed, with costs. estate which had been the cradle and for so many centuries the home of the Such costs would, of course, not include the costs of the shareholders who family. On the other hand, it was admitted that Bracewell Hall was not supported the petition, but would include the usual one set of costs to those intended as an immediate family residence, but that, if the purchase should be shareholders who opposed the petition.-SOLICITORS, Greenfield & Abbott ; effected, it was proposed to grant a twenty.one years' lease of the hall for the Walter Ellis ; Lewis Davis ; G. Davis, Son, & Co.; Beall. purposes of a lunatic asylum. CHITTY, J. declined to sanction the proposed purchase, being of opinion that when the two trustees in whom the discretionary power of purchasing was vested differed in opinion the court could not interfere to control that discretion by compelling them to exercise the power. This decision aförmed by the Court of Appeal (JESBEL, M.R.,
SOLICITORS' CASES. and Brett and COTTON, L.JJ.) JESSEL, M.R., said it was very important
COURT OF APPEAL, LINCOLN'S INN. that the law of the court on this subject should be understood. It was settled
(Before JESSEL, M.R., and Cotton, L.J.) law that, when a testator had given a pure discretion to trustees, the court
Aug. 8.-In re W. D. Tattershall. could not exercise it for them, although it could prevent them from exercising it improperly, as in the case when persons had a power to appoint new trustees,
This was an appeal from an order of a divisional court consisting of Field the court could not interfere with their exercising ibat power, but it could see that and Stephen, L.JJ., suspending from practice as a solicitor for the period of they did not appoint improper persons. But if there was a duty coupled with five years (ante, p. 600). The appellant, who was in practice as a solicitor in the exercise of the trust the court coald then compel the trustees to carry it Sheffield, was one of the trastees of a marriage settlement, and in this capacity ont. In the present case there was a power which amounted to a trust to
he bad received the rents of the trust property which were in the first instance reinvest the proceeds of the sale of real estate in land, and, if the objecting paid in by hi to his own account, and then paid out by cheque to the cestui trastee bad refused to invest the money in land at all, the court might que trust. The appellant had recently suffered heavy losses from forgery and hare interfered. But he had not pot done this; he was only exercising his embezzlement by a dishonest clerk, whom he had since prosecuted. Under discretion as to the time when this should be dore, and as to the particular pecuniary pressure occasioned by his losses he bad appropriated about £200 investment which was proposed. The court could not interfere with the of his trust money which was lying mingled with his own money at his exercise of that discretion. In addition to this, it appeared that about half that he had been forced under some pressure to dip into the trust fund, and
bankers. The loss was discovered in September last, when he wrote admitting the purchase-money would have to be raised by mortgage of the purchased offering, when he was able to replace what he had taken, at the same time estate ; and this most be done under a power to raise money by mortgage, enclosing a cheque for a small amount of rent recently received. One of his which was purely discretionary in the trustees. This also was a discretion clients, who was a near relative of the cestui que trust, owed him a sum of about which the court could not interfere with. Therefore, in his opinion, Chitty, £200, and it was in February, 1882, suggested that the client should pay this J., was right, and the appeal must be dismissed. Brett and Cotton, amount to the cestui que trust so as to make good the loss sustained. The LJI., concurred.-SOLICITORS, Cole & Jackson ; Ward, Mills, & Co.
appellant at once consented to this proposal and gave an authority to the client to pay over the money to the cestui que trust. The payment not
having been made, proceedings in April last were taken for the purpose of PetitioN-APPOINTMENT OF New Trustees—ANNUITANTS-SERVICE OF getting the appellant suspended from practice. The whole amount of the Petition. In the case of In re Marshall, before Chitty, J., on the 5th inst., money taken had, in the course of April and May, been replaced. On July a petition was presented for the appointment of new trustees of a will, the 6 the divisional court made an order suspending the appellant from practice petitioners being residuary legatees absolutely entitled. A question arose for five years as the least punishment that in their opinion could meet the whether two annuitants of £100 each should havo been served with the petition. justice of the case. It appeared that the whole estate of the testator was of the value of some
Waddy, Q.C., and Wilberforce, for the appellant, submitted that the divie £25,000, subject, however, as to the realty to a mortgage of £14,000. sional court had passed a sentence of extreme and undue harshness, being Cutty, J., said ihat annuitants were not necessarily made respondents to such apparently under the impression, wbich was erroneous, that the money had petitions, but the question whether they should be served was one in the dis- only been replaced in consequence of the proceedings taken against him, cretion of the court. Service might, in the present instance, be dispensed | whereas sometime before these proceedings were either taken or threatened he with.-SOLICITORS, Clutlon & Harris ; Farmer.
had consented that money owing to bim by one of his clients should be applied in making good the loss occasioned by his admitted misconduct, and it was
entirely due to the failure of the client to perform his promise that there LIMITED COMPANY-WINDING UP-SHAREHOLDERS' Petition-CONSENSUS had been the delay between February and May in replacing the money or SHAREHOLDERS-FRAUD.-In the case of In the Matter of the New Callao taken. Co. (Limited) before Chitty, J., on the 3rd inst., a petition was presented by the Stuart Wortley, for the cestui que trust. holder of eighty-five shares in the company praying that it might be wound JESSEL, M.R.--You do not, I suppose, press for punishment. up, on the ground that it was a bubble and a sham. It appeared that the Stuart Wortley.--No, but at the same time we do not wish to have it said company was incorporated in April, 1881, with a nominal capital of $750,000 that it is an application that never ought to have been made. in £1 shares, for the purpose of purobasing and working gold mines in JESSEL, M.R.-You will not be told that,
JESSEL, M.R., said that he had very great hesitation in interfering, at all and given another on his own bank, it would have been well enongb, bat with the order of the divisional court, and he could not conceal from himself he did not do 8o. Laurence seems to have been a man of some intelligence, that that order was right in substance. There could be no doubt that the and by no means disinclined to make eight per cent. ont of his money, bat appellant had received the income of the trast property and had mixed it with Mr. Graeber should not have mixed himself op in a money lending transachis own money at his bankers. His lordship did not call that an offence, as tion with his own client; it is a bad thing to join transactions of that sort the amounts from time to time received were small, and it was a very difficult with the work of a solicitor at all
. The daty of a solicitor when be entera matter to open a separate account with a banker for such small amounts, into personal relations with his olient is to throw off his duty as solicitor and, moreover, the sums were income, not capital. . But then, when the altogether, and say to his client, “I cannot deal with you in this matter amount exceeded £200, the appellant made use of it for his own purposes, know myself, but I wish you to lend me the £250, and I wish to bave a proper ing that it did not belong to him. His lordship could not call this anything agreement drawn up, and you had better go to some professional man and but a dishonest act. He could not differ from the view of the divisional have it done.” Bit what course did this solicitor adopt? He prepared court; it was a very wrong and dishonest act. That being so, the only thing the the agreement for his client without giving him the chance of learning court had to consider was the amount of punishment to be awarded. The divisional whether the agreement was fair or not. Now, his position was that of a court had suspended the appellant for a period of five years, and, if that court had borrower, and we find him unable to pay back the money borrowed. Can that been aware of all the facts which now appeared he would not have interfered position be explained ? What happens then ? £26 is paid back to with the exercise of their discretion, however severe their sentence might bave Laurence, and then a document is drawn op which, as Mr. Hollams saye, begins been. But there were two facts now before the court which were not fairly enongh, but which is calonlated to deceive a man like Laurence. apparently before the divisional court, and which, if they had been brought Its beginning is in form an ordinary receipt (his lordship read the document to their notice, would, he thought, have induced them to modify their sentence. given above). Then the next step is bad, Mr. Grueber inducing Laurence to In the first place, the appellant was over sixty years old, and in his case sos. sign that document ; that carries the matter further, and is, I think, a most pension for a period of five years would be equivalent to striking him off the improper transaction. A man who had made a fair agreement with his rolls altogether, a punishment which was not intended by the divisional court. client would give him a copy of it to refer to. In acting as he did, Mr. Then, in the second place, the judges of that court were under the impression Grueber was guilty of an offence, first against Laurence, and then against the that it was these proceedings which had occasioned the transfer of the debt, highly respectable body to which he belongs, his duty being to see that no act of and restitution of the trust fund, but this turned out to be erroneous.
It his should do harm to that roll on which his name appears. That being the now turned out that this arrangement was made in February, before any hos- state of things, Laurence appeals to this court as the guardian of public tile proceedings were either taken or threatened. l'he appellant bad done morality, and the court must take notice of it as the matter has been bronglet his utmost to make restitution before this application was made, though the before it. An affidavit was made upon which the court thought that proper payment of the transferred debt had not in fact been made, and this was a grounds existed for proceeding, and then came a circumstance which nearly circumstance favourable to him which was not before the divisional court. always happens. Having invoked the corrective and punitive powers of this Taking these two circa mstances together, and protesting against any idea that court an arrangement is tried between the parties. offences of this nature were not to be punished with wholesome severity, their
Now comes the most unpleasant task of considering what punishment we lordships, although they might be erring on the side of leniency, must award. It seems to have occurred to some one that striking off the would reduce the sentence to suspension from practice for the period of one rolls would be the proper punishment. At the same time, I do not say that, year,
serious as this offence is, it is serious enough to force us to proceed to extrema Cotton, L.J., concurred.
measures. The only alternative is suspension, and how long most that be for ? Solicitors, Peace & Waller ; Pilgrim & Phillips.
I admit that it is an unsatisfactory punishment, as it stops a man from earn
ing his living, but there is no other punishment of a less degree for us to in. High COURT OF JUSTICE.-QUEEN'S BENCH DIVision.
flict, there is nothing else for us to do. The agreement represented that the
money was to be paid within two years, but it has not been done. We do (Sittings in Banc, before FIELD and Cave, J.J.)
not desire to be harder than we need be, but, taking all matters into consideraAvg. 3.-Re Charles George Grueber, a Solicitor. *
tion, we must pronounce a sentence of suspension for three years, at the end This was a rule calling upon Mr. Grueber to answer the matter contained of which time, if he should have conduoted bimself in the meantime as he in certain affidavits, or in default to show cause why he should not be struck should, an application may be made to this court. ff the rolls.
oncurred. It appeared by a master's report that, on the 17th of December, 1880, Mr. Grueber received from one Charles Laurence a cheque for £276 18. 4d., and that a few days later Laurence was repaid a sum of $26 ls. 4d., the balance
Aug. 3.-R. Thomas Whitwell, a Solicitor.* in Mr. Grueber's bands being then £250.0a the same day the following In this case it appeared from the Master's report that on the 6th of Jane, agreement was drawn up :-“Received of you, Mr. C. G. Grueber, the sum 1879, a Mr. Taylor had agreed to purchase five cottages for the sum of £785, of £26 18. 4d., part of the sum of $276 1s. 4d., being the legacy payable to and he employed Mr. Whitwell as his solicitor. Mr. Taylor gave him £70 me under the will of George Read, deceased. And I hereby authorize and as deposit. The purcbase was to be completed on the 13th of June, but the empower you to retain the balance thereof, and employ the same in your date of completion was subseqnently postponed to the 27th of June. On that business or otherwise until such time as I may require the same, you paying day Mr. Taylor paid to Mr. Whitwell, as his solicitor, the balance of the pur. me therefor interest thereon in the meantime at the rate of eight per cent. chase-money (£715), to complete the purchase. Mr. Whitwell neglected to per annum. Dated this 21st day of December, 1880. One month's notice complete the purchase, and misapplied the money to his own use, and never to be given to you of my intention to withdraw all or any of the above-repaid the money to Mr. Taylor. In June, 1880, Mr. Whitwell filed a mentioned moneys.—Sigped, Charles Laurence.” The master reported that petition for liquidation, and scheduled Mr. Taylor, who lost bis money, as Mr. Grueber did not explain the agreement to Laurence, who is an uneducated creditor for the whole amount. man, nor did he give him a copy of the agreement. The master reported Murray appeared for the Incorpora'ed Law Society. further that Laurence gave his'evidence before him in a very unsatisfactory way, The Court (FIELD and Cave, JJ.) ordered Mr. Whitwell to be s'ruck off and was greatly influenced by a settlement that had been come to between the rolle. himself and Mr. Grueber, whereby a Mr. Nicholson_became surety to Laurence for the money due to him from Mr. Grueber. The settlement was that Mr. Nicholson was to pay down a deposit of £50 to Laurence, and the (Before LORD COLERIDGE, C.J., sitting as a Divisional Court.) balance of the debt within two years, but that if proceedings were to be
August 7.-Re Wilkins, Blyth, and Fanshawe, pressed against Grueber, and he were struck off the rolls, the guarantee was
This case was referred to the coart by Stephen, J., before whom it had to be void. W. G. Harrison, Q. O, and Glyn, for Mr. Grueber. -The money was lent involved in it were of considerable interest to the legal profession, and the
come on an appeal from the decision of Master Bennett. The questions to Mr. Grueber by Laurence under the terms of the agreement, and justice arguments lasted several hours. Mr. Wells had brought an action against will be satisfied by the court enforcing the re-payment of the money. As to the Mitobam Gas Company, in which he had made a claim that a balance the clause providing for the agreemeot becoming roid in the event of pro- of £1,596 was due to him for work done by him for the defendants in the conceedings being taken, I am given to understand that Nicholson is a money. lender, and was only willing to become security for Mr. Grueber if he could struction of a gas retort, &o. The company had set up a large connter-claim $0e his way to getting the money back again with interest. That he would amountiog to over £5,600, as damages for bad work, delay, &o. The action hardly do if Mr. Grueber were struck off the rolls; and hence the proviso.
bad been referred to a barrister, and had been heard before him on thirty1. Hollams for the Incorporated Law Society was not desirous of ondaly both claim and counter-claim, and had awarded him €518. The costs bad
two daye. In the resolt he had found in Maroh, 1878, for the plaintiff on pressing the matter. FIELD, J.-In this matter a role had been granted calling upon the had disallowed a very large number of items, among others the charges for
been taxed in the usual way as between party and party, and the master solicitor to answer the matters in certain affidavits, or, in the alternative, shorthand-writer's
notes, amounting to £524, also counsel's fees for attendto show cause why he should not be strook off the rolle. The facts under which the application arises, and upon which we are
anoe in chambers in each case where the master had not certified that the called upon to award punishment, appear to be these : Mr. Grueber was
summons was fit for counsel. Four years afterwards an application on behalf engaged in a chancery sait for Laurence, and in December, 1880, Larrence Wilkins, Blythe, & Fanshawe, and himself. In this taxation again the master
of Mr. Wells had been made to tax the costs as between his solicitors, Messrs. was entitled to a legacy of £276 18. 4d. This som ho daly received from had disallowed the whole of the cost of the shorthand notes, and substantially the Accountant-General and, according to the ordinary practice of solicitors, Mr. Grueber went down and took possession of the cheque. It is said that the question for his lordship, who byconsent took the case sitting Laurence baving no banker suggested that Mr. Graeber should take the tax costs as between solicitor and client were or were not wholly different
as a divisional court, was whether the principles upon which a master should money and take care of it for him. Had Mr. Grueber taken the cheque, from those upon which he was bound to act in taxing as between party and Reported by W. BLEW, Eeq., Barrister-at-Law.
* Reported by G. W. Blew, Esq., Barrister-at-Law,
party. The learned counsel for the solicitors did not shrink from pushing his regulating the remuneration of solicitors in matters of conveyancing, and in contention so far as to say that a master had no discretion at all where the o her non-contentious business; and oue month before any such order is made solicitor was able to satisfy him that the item claimed represented moneys the draft mast be submitted to the Incorporated Law Society for their observaactually disbursed. It is true that, as to some of the items, and more tions and suggestions, which are to be taken into consideration by the Lord especially the cost of the shorthand notes, it was shown that Mr. Wells had Chancellor and his colleagues before making the order. himself used them, and had been fully aware tbat tbey bad been taken from In anticipation of action being taken under this statute, the council of the day to day; but the contention on his bebalf was that he had been always Incorporated Law Society communicated with the committee of this society led by the solicitors to believe tbat if successf in his actioo against the gas and with the other provincial law societies, and invited an expression of company, as, indeed, he bad been, the defendants would have to bear the opinion as to the scale of conveyancing charges, which it would be expedient expense of the shorthand notes. Oddly enough, one of the items disallowed to get authorized by general order under the Act. Your committee, acting by the master in his taxation of the costs as between the solicitors and the in accordance with the repeatedly-expressed opinion of the society in general client had been the fee paid to a second counsel who had appeared for Mr. meeting, recommended an ad valorem scale of remuneration for conveyancing Wells in the case of Wells v. Mitcham Gas Company (L. R. 4 Ex. D. 1), a business, so far as practicable. Subsequently, a draft order was confidentially case which was an appeal upon the very question as to whether or not the submitted to the committee, and by them to the members in special general costs of the shorthand writer's notes ought to be borne by the unsuccessful meeting, and, with slight modification, approved. This draft was after. litigante.
wards further modified by the council of the Incorporated Law Society, after Edward Clarke, Q.C., appeared for the solicitors, the appellants.
consideration of the opinions expressed by the several provincial law societies, Holl, Q.O., and Attenborough, were for the client, the respondent.
and then submitted to the Lord Chancellor. The main items of the proposed Lord COLERIDGE, C.J., in giving jadgment, resused to interfere with the scale are as follows discretion exercised by the master in all the various cases, with the exception "In respect of sales, purchases, and mortgagees, £2 per cent, up to £1,000, of the item disallowed by him for the second counsel in the appeal of Wells v. with a minimum fee of £4; £1 per cent. on any further amount up to Mitcham Gas Company. Having substantially decided the case in favour £5,000 ; and a half per cent. on any further amount beyond £5,000, exclusivo of the client, he held that the respondent was entitled to the costs.—T'imes. of disbursements.
“In respect of leases, £74 per cent. on the rent up to £100, with a mini. mom fee of £5; £5 per cent. on any further amount of rent up to £200; and £24 per cent. beyond £200.
“In respect of settlements personal estate, the same remuneration as on SOCIETIES.
a purchase, at a price equal to the value of the property settled.
'" For other conveyancing business :-Ordinary attendances, 10s. ; journies
in ordinary cases, at the rate of £5 59. per day of seven hours; and, generally, INCORPORATED LAW SOCIETY.
remuneration regulated by the nature and importance of ihe transaction, The following is the report of the scrutineer3 certifying the result of the and the service performed, and the knowledge, skill, and labour employed election of ten members of the council:
thereon." Pursuant to the appointment made by the president at the meeting of the
The operation of the “Conveyancing and Law of Property Act, 1881," and society held on the 7th of July, 1882, in compliance of the 5th section of by the further projected legislation affecting the laws relating to land and the law 15, we, the undersigned, the scrutineers so appointed, beg to present to the practice of conveyancing, render it, in the opinion of the committee, most members of the society our report, certifying the result of the election, which has important in the interests of the profession, as well as desirable in the pablic been conducted in accordance with the charter and bye-laws of the society. The interest, that an ad valorem scale of remuneration for conveyancing business secretary handed to us on Tuesday, the 31st of July, a box containing the should be legally established without farther delay, voting papers, which had been placed in it as soon as they were delivered. The
Contract Fees to Vendors' Solicitors and Auctioneers' Fees on Auctio i first schedule bereto annexed contains the total number of voting papers the effect that the continuance in some quarters of the practice of charging
Sales.-In furtherance of the views expressed at the last annual meeting, to received, amounting in all to 1,410. The same schedule sets forth the num. ber of voting papers rejected and the grounds of rejection. Four have been contract fees, whilst in others it had b’en discontinued, as recommended by rejected on the ground that they were not received by midnight on the 29th the resolution of the annual meeting of this society in 1879, is unjust and of July, four because the voting papers were not signed, and one because one objectionable, the committee in November last issued a circular to all the name only was struck out. The total number of votes in favour of each can.
members, calling a:tention to that resolution, and urging that its recommendadidate is set forth in the second schedule bereto annexed. The third schedule tion should be adopted. They also opened a communication with the Bristol contains the names of those candidates wbom we find and certify to be duly Law Society on the subject, and have the satisfaction to report that, on the elected. The voting papers have been duly closed up under our seals, and 21st of December last, a meeting of solicitors practising in that city resolved will be retained in our care for the period of one month, which will expire on
that, in future, the practice in Bristol and its neighbourhood of charging pur. the 4th of September next, when we shall destroy them, as provided by section chasers with solicitors' contract fees should be abandoned ; and on the 23rd
of 2 of bye-law 18.-M. D. Osbaldeston (chairman), Samuel Day, A. J. Finch, December a similar resolation was passed at a meeting of the solicitors W. O. Hewlett, H. E. Gribble.-August 1, 1882.
practising in Gloucester. The resolution of this society in 1879 applied only The first schedula referred to in the annexed report :-Total number of to the contract fees of vendors solicitors, but the solicitors practising in the poting papers received, 1,410; A. Received after the prescribed date, 4; cities of Gloucester and Bristol have also condemned the practice of B. Unsigned, 4; C. Name struck out, 1.
charging auctioneers' fees to purchasers. This practice, although, in the Second schedule :-Joseph Addison, 1,162 votes; E. J. Bristow; 1,348 ; has also been objected to by the council of the Incorporated Law Society, and
opinion of the committee, more a matter for the public than the profession R. Canliffe, 1,347; R. R. Dees, 1,320 ; J. Dodds, M.P., 1,025 ; C. c. Druce, is confined to a few counties in the West of England and parts of Wales. The 1,344; John Hunter, 1,164 ; E. Kimber, 258 ; N. T. Lawrence, 1,348 ; J. V. Longbourne, 1,302 ; A. S. Munns, 577 ; Thomas Paine, 1,341; W. M. committee invite an expression of opinion on the part of the members of this Walters, 1,343.
society as to the advisability of taking steps to bring about, also, the general Tbird schedule : -E. J. Bristow, 1,348 ; N. T. Lawrence, 1,348 ; R. Can- discontinuance of this practice. liffe, 1,347 ; C. C. Druce, 1,344 ; W. M. Walters, 1,343; T. Paine, 1,341 ;
Stringent Conditions of Sale.—Common form Conditions. This subject was R, R, Dees, 1,320; J. V. Longbourne, 1,302 ; J. Hunter,'1,164 ; J. Addison, also under discussion at the last annual meeting, and the committee have given 1,162; J. Dodds, Í.P., 1,025. A vote of thanks to the chairman terminated it their consideration. The adoption by many members of the common form the proceedings.
conditions, settled some years since by this society, has had the desired eff ct of establishing, to a large extent, a reasonable practice in regard to the con.
ditions used at sales by auction in this county. The committee, however, fiud THE GLOUCESTERSHIRE LAW SOCIETY.
that this desirable result is still not universally attained, and they have bad The annual meeting of this society was recently held at Cirencester, when before them instances (some from the city and neighbourhood of Bristol) in chair. The report of the committee was received and adopted, and Mr. E. W. themselves in communication with the Bristol Law Society on the subject; Gloucestershire and Wiltshire, Mr. R. Ellett, president of the society, in the conditions of this or of the other provincial law societies which
The committee have, therefore, put Coren, of Gloucester, was elected honorary secretary and treasurer.,, An and the council of that society, although not admitting that more stringent adjourned general meeting, made special for alteration of rules, was held on the 8th of July at Gloucester, when Mr. Ellett was re-elected president for conditions are usual there than in other districts, have promised that tho five years, and Mr. R. T. Helps, of Gloucester, was elected vice-president.
matter shall receive consideration. The committee for the ensuing year was elected and certain
alterations made the following :
The conditions particularly referred to by the committee as objectionable are in the rules of the society. On the motion of Mi. L. W. Winterbotham, of Stroud, seconded by Mr. T. Taynton, of Gloucester, it was referred to the
1. That which makes recitals in any abstracted deed conclusive, without committee to consider the adoption of a scale of fees to be paid to auctioneers restriction as to the date of the deed. for conducting auction sales of real property.
2. That which throws upon the purchaser the expense of stamping any unstamped or insufficiently-stamped document of title, without restrictioa
as to the age of the document, or any information as to its nature or importThe following are extracts from the report of the managiog committee :- 3. That which not only makes a purchaser pay for the production of docile Members.—The present number of members is eighty.
ments of title not in the vendor's possession, but precludes him from calling Solicitors' Remuneration.—This important subject has engaged the earnest for them for any purpose. attention of the committee. “ The Solicitors' Remuneration Act, 1881," 4. That which makes the purchaser assume the identity of the property came into operation in August last, and empowers the Lord Chancellor, the without the usual declaration of possession in accordance with the title deLord Chief Justice of England, the Master of the Rolls, the president of the duced. Incorporated Law Society, and the president of one of the provincial law 5. That which, in addition to making the purchaser pay interest on his pursocieties (the Liverpool Society having been seleoted) to make general orders I chase-money in case of delay from whatever cause arising, deprives him of the
rents or income of the property, and in some cases actually requires him to pay to the vendor tho amount of back rents, which may never be repovered.
OBITUARY. 6. That which makes the purchaser accept from a vendor, notwithstanding tbat he is absolute owner, the qualified covenant for title which ordinarily is
MR. CHARLES CARNE LEWIS. only used or implied in the case of fiduciary vendors. 7. That which casts upon purchasers the expense of anythiog necessary for
Mr. Charles Carne Lewis, solicitor, of Brentwood and Ingatestone, died at bis perfecting or completing the vendor's title, a condition which may involve the of the
Rev. John Lewis, rector of Ingatestone, and was born in 1807. H.
residence, the Mansion House, Brentwood, on the 26th ult. He was the son costs of an application to the conrt for a vesting order.
The committee have had under their consideration the question whether it served his articles with Mr. Charles Parker, of Chelmsford, and was admitted is necessary or desirable to re-settle the common form conditions, having
a solicitor in 1828. In the following year he settled at Brentwood, where he regard to *The Conveyancing and Law of Property Act, 1881," and have practised until his death. He bad also an office at Ingatestone, and for severa) communicated with other provincial law societies on the subject. They find, years he had a London office in Mark-lane. Mr. Lewis was a perpetual com. however, that the general feeling is, that until further experience bas been missioner for the county of Essex, and had a large business at Brentwood and had of the working of that Act no material change in the conditions of sale the neighbourhood. He bad been for fifty years coroner for South Essex, and is necessary ; but the Birmingham Society is being advised by counsel on the bis daties had become very laborious, as his district was very extensive, and question, and it will continue to receive the attention of your committee.
the population was constantly increasing. On the occasion of the loss of The Legal Procedure.- Since the last annual meeting the report of the com
Princess Alice, he held an inquest on many bodies which wore washed ashore mittee on legal procedure, appointed by the Lord Chancellor, has been issued.
on the Essex side of the Thames. He was also registrar of the Brentwood That report proposed important changes in legal procedure, and, at the County Court (Circuit No. 38), and olerk to the county magistrates ; to the instance of the council of the Incorporated Law Society, your committee Commissioners of Land Tax for the Hundreds of Chafford and Bastable, and expressed their opinion upon those proposals. The subject came before a
to the Governors of the Brentwood Grammar School. Mr. Lewis leives a special meeting of the Incorporated Law Society in November last, and was
large family. He had, for several months, suffered from disease of the heart, then referred to a committee of members of that society. Representatives of but his death was rather sadden. the provincial law societies were invited to act opon the committee, and this society was represented upon it by the president and Mr. W. S. Jones. The
MR. JOHN CUTTS report of the Law Society's committee was presented to an adjourned special meeting of that society in February last, and adopted and ordered to ult., at the age of eighty-six. Mr. Catts, who was almost the oldest solicitor
Mr. John Cutis, solioitor, died at Little Bardfield Hall, Essex, on the 21st be sent to the Lord Chancellor and the judges. On some important points the in Essex, was born in 1796. He was admitted a soli -itor
about the year 1825, Liw Society's committeo differed from the Lord Chancellor's committee; as, and for fifty years he carried on a large practice at Great Bardfield. lle for instance, with reference to the necessity for pleadings, which
the Lord retired from business four or five years ago, and he had since entirely devoted Chancellor's s committee recommended should be abolished, but which the himself to farming operations on a very extensive scale. Notwithstanding Law Society's committee considered it necessary to retain to some extent, or in some form, with the object of defining the real point at issue.
his great age Mr. Cutts retained all his faculties unimpaired. mittee, however, observe that new rules are about to be issued by the rule committee of the judges, which it is understood will be based substantially
MR. THOMAS GIBSON CANT. on the report of the Lord Chancellor's committee. The members of this society will no doubt share the regret of their committee that this should Mr. Thomas Gibson Cant, solicitor (of the firm of Cant & Fairer), of be the case, but at the same time they may feel pesared that the valuable Peoritb, was drowned in the river Lowther on the 7th inst. He left home in report of the Law Society's committee will yet bear fruit.
the morning for a day's fishing, and afterwards seems to have bathed, and to Settled Land Bill
. -- This important Bill, which, notwithstanding the adverse have been carried by the current into a deep hole. His death has caused conditions of its Parliamentary career, is making progrees, has for its main great sorrow in Penrith, where he was very highly respected. He was ad. object to enable a tenant for life (which term is used to include generally mitted a solicitor in 1852. He was a perpetual commissioner for the counties the class of limited owners) to dispose by sale, lease, or otherwise, of any part of Cumberland and Westmoreland, and bad been for many years clerk to the of the settled land, or even of the whole of it, provision being made for securing lieutenancy for both counties. Mr. Cant was in partnership with Mr. Chris. the purchase-money on a sale and otherwise, for protecting the interests of the topher Fairer. remainderman and of others entitled to come in under the settlement. The Bill is not confined to future settlements,
MR. ARTHUR EVANS. The committee have expressed to the Incorporated Law Society and the associated provincial law societies their general approval of the Bill, and
Mr. Arthur Evane, solicitor, died on the 4th inst. at his residence, Crom. solicited for it the support of local members of Parliament. Upon one or two well House, Maldon, Essex, at the early age of thirty-nine. Commencing bis points of detail, however, your committee bave suggested amendments.
career as a junior clerk in the office of Digby & Son, Maldon, he earned his Conveyancing Act Amendment Bill.—This Bill
, which is proceeding simul. articles, and, notwithstanding heavy claims upon his time as their managing taneously with the settled Land Bill, has for its object to amend and supple. clerk, studied so successfully as to entitle himself, on his passing the inal ment the "Conveyancing and Law of Property Act, 1881." Its more material examination in 1871, to the gold medal of the Incorporated Law Society, his provisions are: the establishment of official searches for judgments, Orown age, however, precluding bim from receiving it. His firm soon afterwards debts, &c., the restriction of the doctrine of constructive notice, and the added his name, and he worked up the business to one of the best in the abolition of acknowledgment of deeds by married women. The committee have county of Essex. . In 1877 he was unanimously elected town clerk, clerk to also expressed their general approval of this Bill, bat lave pointed out the the borough justices, the urban sanitary autắority, the school attendance objections which they entertain to the proposal which the Bill contains to the committee, the Maldon Harbour Commission, and the income and land tax effect that when the solicitor of a purchaser finds that the title "bes been commissioners. He was also solicitor to, and a large shareholder in, most of previously investigated and accepted on behalf of a purchaser through whom the local companies. Three months ago be was appointed a perpetual comthe title is deduced," such solicitor may dispense with further
investigation missioner. He was a widower with two children. even when acting for trustees. It seems to your committee that this provision is objectionable, both in the interests of the public and the profession; of the public, because it will tend to the acceptance of bad titles from motives of false economy, or the carelessness of practitioners; and of the profession, because it
LEGAL APPOINTMENTS. will tend to introduce the practice of purchasers electing not to have the titles investigated, and expecting to have a corresponding reduction in the solicitors' charges.
Mr. GILBERT GEORGE KENNEDY has been appointed Revising Barrister for District
Registrars:-A Bill was before Parliament last session which pro. Leicestershire and Rutlandshire. Mr. Kennedy was called to the bar at the posed to make barristers eligible for the office of district registrars. The Inner Temple in Easter Term, 1870, and he practises on the Midland Circuit, committee felt that, having regard to the many offices and appointments to and at the Lincoloshire, Nottinghamshire, and Derbyshire Sessions. wbich members of ibe bar are at present alone eligible, and to the fact that Mr. EDWARD BAGNALL THORNEYCROFT, solicitor (of the firm of Phillips, the appointment of district registrar is one of the very few open to solicitors, Osborne, & Thorneycroft), of Sbifnal and Wolverhampton,fhas been appointed this proposal is unfair to our branch of the profession, and wholly uncalled for Clerk to the County Magistrates at Wolverhampton, in succession to Mr. in the public interest. The committee, therefore, sought the aid of the mem.
Horatio Brevitt, the new town clerk of Wolverhampton. Mr. Thorneycroft bers of Parliament for the district in opposing the proposal, and are glad to was admitted a solicitor in 1877. report that it was abandoned.
Mr. CLEMENT HIGGINS, barrister, has been appointed to be arst Recorder Bankruptcy Law.- Another Bankrupicy Bill has been introduced, but the of the Borough of Birkenhead. Mr. Higgins was cducated at Downing probability of its being proceeded with this session is at present so small that College, Cambridge, where he graduated in the second class of the Natural it seems unnecessary to discuss its provisions in this report. The Bill, with Science Tripos in 1869. He was called to the bar at the Inner Temple in others, will continue to receive the attention of the committee, and they will Michaelmas Term, 1871, and he practises on the North Wales and Chester be glad to receive suggestions from members thereon.
Circuit. Associated Provincial Law Societies. This society bas continued in associa. tion, and has been represented by the president at meetings of the associated for the county of Sarrey. Mr. Ribton is a graduate of Trinity College,
Mr. WILLIAM RIBTON bas been appointed one of the Rovising Barristers societies for the consideration of the Bankruptcy Bill, Legal Procedure, and Dablin. He was called to the bar at Lincoln's-inn in Easter Term, 1849, Solicitors' Remuneration,
and be practises on the South-Eastern Circnit, and at the Central Criminal
Court and Middlesex Sessions.
Mr. ERNEST AUGUSTUS NORTHCOTE, barrister, has been appointed a assent on Thursday,
is the son of Mr. Stafford Henry Northcote. He was educated at West