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CASES REPORTED THIS WEEK. character, but likely to satisfy a reasonable proportion of the debt ;
A cracorin has_been issued by the Council of the Incorporated Law Society stating that “The Bar Committee and the Council of the Incorporated Law Society have had under consideration the practice adopted by some barristers’ clerks of soliciting and pressing for payment of clerks’ fees in excess of those regulated and allowed by the R. S. C., 1883. The Bar Committee and the council concur in the opinion that the rules instituted for the guidance of the profession in this respect by the proper authorities, and for the public good, ought to be adhered to. The Bar Committee_have, by resolution, requested the members of the bar to call their clerks’ attention to the matter."
Mn. Jusrics STIRLING, sitting as Vacation Judge in the Queen’s Bench Chambers, has introduced what we may belieye may described as an innovation in the practice, by refusing to grant applications em parts for receivers in ordinary cases and requiring a summons to be issued. His reason for taking this course is, no doubt, the intimation recently given by the Court of Appeal on the subject. In delivering judgment in P61761110 v. Ha/rmsion on the 16th of December last, Lord Justice LINDLEY remarked that “A receiver ought not to be granted ea! parte, except in cases of extreme emergency, and he had never known a case that rendered an ea: parte order for the appointment of a receiver necessary." And we believe that a similar expression of opinion occurred in another case before the Court of Appeal. We hope that the innovation of the Vacation J udgc will be continued_by his successors in chambers. The practice on the common law side as to granting orders for the appointment of a receiver by Way of equitable execution has become very lax, and it may be doubted whether the discretion intended to be exercised by, and specially reserved to the judge, in granting such applications, by R. S. C., 1833, L-, 15a, has been always exercised. We believe that in some cases the costs of obtaining the receiver order and completing the l'806iver’s security by recognizance thereunder have exceeded the_ original judgment debt. In others, the plaintiff has been appointed receiver, without security, to receive property 1"BBly in excess of his judgment debt, subjecting the defendant serious prejudice and possible loss. It has also been the Pmctlce ton the common law side) to grant receiver orders W81‘ contingent and reversionary interests, when, undoubtedly, the B_°\l!1flei' practice—a.lso initiated, we believe, by the present "W%tl°l1 ]udge—is to grant orders over property of that class by WP? °f “ charge ” only, and so avoid costs being incurred in settlmg ieflllrlty, &c., for what is at the moment, if granted, a mere ‘ll’! receivership. We think that the rule of court above referred to sufiiciently shews that powers of equitable execution were not intended to be exercised except in cases where the judgment debt is sutficiently large to justify this expensive procedure, and the P*°P°1'l7Y Bought to be charged in execution is not only of a fitting
and we venture to suggest that stronger evidence than some vague allegation to the effect “ that there are insufiicient goods to satisfy a common execution " should be required.
Tun RATHER COMIC INCIDENT reported from New South Wales of a chief justice who resigned office after a three days’ tenure because his appointment was “distasteful to the two senior members of the bench,” and as to the other member of the bench, “ not only distasteful, but so wholly unjustifiable as to have led to the utterance by him " of very unpleasant expressions, has become still more diverting since the publication of letters from those members of the bench, intimating, as regards two of them, not only that they loved their three days’ chief justice, but had taken great pains to shew their friendship for him; and, as regards the third, that, although he thought the appointment “a gravc mistake,” he had “driven with him [the three days’ judge] to thc Criminal Court”; had “shaken him by the hand,” and had intimated that his opinion as to the appointment would not be allowed to make any difference in his bearing to the Chief Justice as a colleague. Either the Chief Justice must have been more sensitive than the ordinary run of his brethren in other countries or there must be something not yet made public to account for the incident. Everyone must rememberthc episodes in Ireland when a learned Lord Justice took frequent opportunities of attacking the Lord Chancellor—onoe, at least, while sitting with him on the bench—the “explanatory speeches” by the Lord Chancellor and the “ acceptance ” by the Lord J usticc of the “ explanation of the Lord Chancellor.” There seems to be a somewhat similar udiciul character acrossthe Atlantic, of whom we have seen it occasionally recorded in the American law journals that he has been “humping his back ” (we think that is the phrase employed) against his brother judges. In this country, as regards the Queen’s Bench Division, in which High Court judges have to sit together, the possibility of the occurrence of “humping” is, to a great extent, obviated by the reference to the Lord Chief Justice, which is understood to occur before the appointment of a new judge of that division. Probably the veto of the chief of the court would be sufiicient, in most cases, to prevent an appointment which would be decidedly distasteful to the majority of the bench. Whether this is so or not, the arrangement has its advantages,_ as it, at all events, enables the Lord Chancellor to obtain information as to the qualifications of the proposed judge, and we think It 18 matter of some regret that there is at present no member of the Chancery bench to whom, from his oilicial position, a _similar reference can be made. This is one of the evils attending the transference of the holder of the ofiice of Master of the Rolls from the Chancery Division to the Court of Appeal.
Woiin COMPETITIONS are so very much in vogue just now that it may be worth while to consider what is the legal position of the competitors, and of those to whom the winners look for prizes. It seems probable that the contract to give the prize is absolutely void, and that the prize, if won, could not be recovered at law. By 8 & 9 Vict. c. 109, s. 18, all contracts or agreements, whctlicr by parol or in writing, by way of gaming or wagering, are null and void, and no suit may be maintained for_ any sum of money alleged to be won upon any wager, “or_ which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.” It might, pcr_l1f1pB.’P¢ tl1°"Eht that there is too much skili in the “ word competitions for them to be subject to this enactment, but_such does_not appear to be the law upon the authorities. A wager is defined in Jolzmon v. Lanslry (12 C. B. 468), to be a contract to pay according as some uncertain contingency should happen; and an agreement to walk a match for £200 a side, Di'g_yIe v. Higgs (25 W. R- 777. 2 EX-1)-421). and a deposit of a sum of money by each of two persons in the hafldfl of a stakeholder to be paid to one or_ the other according as a horse does or does not trot eighteen miles in one hour, Barron v. l_\‘ewm/"1 (25 W. R. 85, 1 C. P. D. 573), have been held to be wagering contracts within the section. A proviso, indeed, exempts any agree; ment to contribute a sum of money to be awarded to_the winner 0 any lawful game, sport, pastime, or exercise, but this prolviso was
held in Diggle v. Iiiggs not to apply to cases where the competitors only subscribe , and it seems also to be limited to physical exercises. The contributors, therefore, to word competitions rely only on the honour of the persons who offer the prizes.
Tunas is A very valuable article by Judge Ciriinsus in the current number of the Law Quarlcrly Review, on the county court system. It represents the conclusions of a keen observer, familiar with constructive legislation, and especially with rules as to practice and procedure, derived from the experience of over two years’ tenure of the olfice of judge of one of, the most important county court circuits in the country. As might be expected, the article is singularly impartial, terse, and practical. It deals, in the course of about a dozen pages, with the whole subject of the defects and anomalies of the existing system, and whether we do or do not agree with the suggestions made for their remedy, we are bound to
‘days after service, files an affidavit disclosing some primd facie ground of defence, and that the registrar should then have power to deal with the matter as if it were an application under order 14, an appeal to the judge being given. \Vith regard to the oflicers of the courts, he suggests that the judges ought not to be compelled to pay deputies out of their own pockets; that they might usefully be enabled to exercise the powers of stipendiary magistrates within their districts; and that they might well be asked to attend the assizcs and take such cases as the High Court judge thought proper to relegate to them. \\'ith regard to the registrars, he adduces forcible reasons for suggesting that their salaries (at all events, in small courts) ought not to be dependent
; on the number of plaints. He says that one registrar told him that
l “ by making the tallymen who sued in his court prove their cases
strictly, he had diminished his income by nearly a fourth.”
This is a matter which demands the attention of the authorities.
Mr. Cii.iL1n:as also suggests that the registrars should have
power to dispose of all undcfendcd cases, and defended cases
admit that they are usually well considered and supported by cogent . where the amount claimed does not exceed £2, unless one of the
reasons. Dealing first with the subject of the arrangement of circuits, Mr. CILLLIIEBB points out, what everyone must admit, that reform is urgently needed in this respect. The circuits require revision with reference to Bradshaw and the shifting of populations into large towns. The amount of travelling required from many judges involves a serious loss of judicial time, which means loss both of public money and suitors’ money also. Passing next to the question of jurisdiction, he draws attention to the inconvenience arising from the rule that the defendant must reside, or some part of the cause of action must arise, within the district of the court where the plaint is filed, and suggests that there should be some power of transfer within the same circuit, to be exercised upon terms. He also points out the anomalies which exist as to the pecuni
ary limit and subject-matter of urisdiction, and advocates the adop- | tion of Lord BiLniwi:i.i.’s suggestion that the plaintiff might bring i any action for any amount in the county court, but that the defend- ‘ ant might, as of right, remove it into the High Court, if the sum I
parties requires the matter to be adjourned before the judge. On all these matters, and many others, we must refer our readers to the article for the reasons given in support of the writer’s views, but we cannot forbear giving one or two quaint incidental remarks illustrating the experience of a county court judge. [Thus we learn that “his misery reaches a climax when two women choose to go to law about some article of female attire. Each party insists on cross-examining the judge instead of her opponent, and diversifies the proceedings by making furious attacks on the moral character of the other lady”; that “a party in person has very little chance with a jury against a moderately skilful advocate, unless, indeed, that parly happens Io be a goodIoo/ciny woman ” ; and that uries “do substantial justice between the parties. They have a marvellous faculty for scenting out a fraud. Why a jury should be better than a judge in this respect II cannot say, but I am sure of the fact. I do not accept the cynical legal explanation that, however novel a fraud may appear
claimed or interest involved exceeded a specified amount, different amounts being specified in different classes of business if thought necessary. In combatting the apprehension that such a change I would remove the business of the High Court wholesale to thc| county courts, he is, we think, unfair to solicitors as a body. He i says, “It is the solicitor, and not the lay client, who chooses the , tribunal in ninety-nine cases out of a hundred. As long as solicitors’ costs are higher in the High Court than in the county court, an action will not he brought in the county court without some cogent reason for doing so.“ We do not believe that this motive operates to anything like the extent which Mr. CHALMEKS supposes. We do not pretend that solicitors differ from every other class of ‘ professional men in disliking to work for inadequate fees, but we think we are entitled, from some considerable knowledge of the ways of country solicitors, to say that, as a body, they take a broad and enlightened view of their own intercst. Their success in the long run depends on their securing for their clients a speedy and inexpensive settlement of their controversies, and if this could be insured by proceeding in the county court in_heavy matters, such proceedings would be taken. But there is a _consideration, which Mr. CHALMEBS altogether overlooks, which we think would be sufficient to prevent these matters from being voluntarily brought before county courts. What is the use of getting a speedy and inexpensivedecision in the first instance if an appeal is inevitable? And,_witliout intending any imputation on county court judges, we imagine that the defeated party, in cases involving large amounts, would usually appeal.
| to the lawyers, there is certain to be one man on thc jury who has
iconcludcs with a well-deserved compliment to Mr. Nicnon, the
superintendent of county courts, in which we can heartily concur. We could supply many instances within our own knowledge, showing that the administrative working of the system is watched over with a vigilance and tact which are often sadly wanting in other l-ranches of our legal system.
EASEMENTE are incorporeal rights, and are, from their very nature»
In Lord Dy/never v. Tennant (34 W’. lt. 737, 32 Ch. D. 375; 0!! flr>pea1,34 W. R. 117, 33 Ch. 1). 420) B. right of way granted bi’
Should be entitled to judgment unless the defendant, within twelve
a lessee to his lessors over the demised premises seems to have been
considered, at all events in the court of first instance, as appurtenant, not to adjoining lands of the lessors, but to the reversion expectant on the determination of the lease. This may appear, stated thus curtly, to be somewhat absurd ; but, unless the absurdity be swallowed, the decision, we are inclined to think, can with difileulty be supported. The following is an outline of the facts of the case.
The Neath Abbey Estate was in the year 1820 held in undivided thirds, one of which belonged to the then Lord Dynevor in fee, another to a Mr. Compton in fee, while the remaining third was subject to a settlement under which the tenants for life had leasing powers. The co-owners in that year granted a lease for 1,000 years to Henry Tennant of a strip of land, part of the estate, for the purpose of making a canal which was afterwards made. The lease contained a proviso that nothing therein contained should prevent or hinder thc said lessors (naming them), their heirs or assigns, from using all or any of the land or ground thereby demised, or intended so to be, or any stream or streams of water flowing over or through the same, or from granting any wayleaves or roads over or across the same for the carriage of coal, goods, wares, or merchandises, or for any other purpose or purposes whatsoever, in like mnnner as they could or might have used the samein case the lease had not been granted, but so, nevertheless, as not to prejudice or injure the said canal, or the navigation thereof, or any road or towing path, work or works, which should or might be made or constructed for the use or convenience of the same. In the year 1838 the co-owners of the three undivided shares of the Neath Abbey Estate made partition, which was eflected in the usual way by a conveyance to a grantee to uses to hold to the use of the three co-owners in severalty, the parcels being set out in three schedules. Their was this peculiarity in the arrangement of the parcels, that a portion of the canal was allotted to Mr. Compton at the apportioned rent, while the land along the entire length of both its hanks was allotted to the other co-owners. The whole of the land on one side, and part of that on the other side of the canal were included in Lord Dynevor's schedule, who thus became entitled to an estate in fee simple in a certain portion of the estate intersected by the canal, the canal being vested in Tcnnant for a term of 1,000 years, and subject thereto in Compton in fee simple. In March, 1839, Compton conveyed to the lessees of the canal the reversion in fee in that part of the canal which had been allotted to him by the partition deed, and thereupon the term of years in that part of the canal became merged by operation of law. Lord Dynevor, the tenant for life of the lands comprised in the first and third schedules to the partition deed, wishing to re-unite the severed portions of his estate by n bridge, took preliminary steps for that purpose. This proceeding was opposed by the owners of the canal, and then the present action was instituted claiming a declaration of right and an injunction.
It was assumed, both by Mr. Justice Pearson and by the Court of Appeal, that the proviso above set forth operated as a re-grant by the lessee of a right or easement of crossing the canal by means of a bridge, yet it was held in both courts, though on somewhat different grounds, that the easement had come to an end, and that Lord Dvnevor was not entitled to the relief which he claimed. The reasoning of Mr. Justice Pearson may be summarized as follows :—The easement depends entirely for its existence on the grant which creates it. If granted for a certain duration, when that time has elapsed the grant is gone. When the grant is contained in a lease it cannot endure longer than the lease “ unless there be some equity in a third person to keep it alive,” and, therefore, when the lease was merged by the conveyance of the fee to the lessee the easement became extinct. Then, examining the terms of the partition deed, he finds it impossible to spell out any contract on the part of the reversionary owner of the canal “that he would do no act which should interfere with the existence of the lease, so as to preserve alive all the rights which the lessee had granted to 7119 Original reversioners." This treatment of the question evidently assumes that the reversion on the lease was the dominant tenement, and that, subject to an equity arising by contract, the lessor and lessee could agree to extinguish the easement as well as the term. Forif a lessee were to grant a right of way to the Owner of adjoining land for the residue of his term, it seems B18111 that the easement so created could never, during the time originally limited for its duration, be extinguished by any act of the lessee. Whether the term was merged or surrendered, the
easement would continue as a legal right appurtenant to the domi-C
nant tenement affecting the land formerly comprised in the lease. The learned judge does not indeed, in terms, state that the reversion was to be regarded as the dominant tenement; but, if not, the easement must have been attached to the adjoining lands of the then co-owners, and then the partition deed, as it conveyed those lands, with their appurtenances, to Lord Dynevor in severalty, would have placed him in the position of an adjoining owner entitled to an easement over the canal for the residue of the 1,000 years, not merely during the actual continuance of the lease.
The view taken by the Court of Appeal, though leading to the same conclusion, differed wholly from that expressed by Mr. Justice Pearson. “In my opinion," said Lord Justice Cotton, “the purchase of the reversion from Compton would not have affected any right or casement vested in Lord Dynevor, if held by him in respect of his land. But the question is, What is the real effect of the demise, whether it is a re-grant of an easement to the lessors in their capacities of owners of the land adjoining the canal, or as landlords and owners of the reversion ? Now to me it is obvious that this reservation or re-grant was intended to be for the benefit of the owners of the adjoining land; but it is a very different thing to say that it was granted to them as such owners, and not as landlords.” And later on he says that “ the best way of giving effect to the proviso is to hold that it is a re-grant to the lessors, not as owners of the adjoining lands, but as owners of the reversion." We must admit that we find this language in the highest degree perplexing, for the Lord Justice, by asserting that the re-grant was for the benefit of the adjoining lands, constitutes them the dominant tenement, and yet, by importing the consideration of the twofold character of the persons to whom the re-grant was made, he seeins to consider that the transaction created only a personal right, and not an easement in the proper legal sense of the term. If the decision is to be supported, we think that it must be on the ground that, according to the construction of the proviso in the lease, no easement was created, but the parties contracted for a certain benefit to the adjoinmg lands. We do not, however, find it possible to force the language of the Lord. Justice into this meaning, for he not only_us_es the word “easement,” which is a term of art, as a description of the subjectmatter of the grant, but ho refers, towards the end of his judgment, to the possibility of_the lessors, after they had parted with the adjoining lands, granting hberty to the owners for the time being of those lands “ to make use of _the right re-granted by the demise.” This is, perhaps, the most incomprehensible of the learned judge's utterances, for if the right were granted in gross, it could not be assigned (Ackroyri v. Smith, _10 C. B. 164), and, if it were appurtenant to the adjoinmg lands, it could be exercised by the owners of such lands without hcence from anyone.
\Ve have referred at length to Lard _D_1/nevor v. Ienmznt because it is the only case in which the possibility of attaching an easement to a reversion as the dominant tenement has been so much as suggested. In our opinion such an attempted annexation is a violation of the fundamental conceptions of_ real property law, and also (a consideration of at least equal weight) of common senseThis is manifest if we consider that an easement is a present right while a reversion is a future estate. But we must not conclude that all kinds of incorporeal hereditaments, technically so called, arc equally debarred from the privilege 01 having easements appurtenant to them, _as the following passage from Mr. Gale's valuable work will s_ufl1ce to shew .—— “There appears to be,” he says, “I10 fll1th°I'1tY f°1' 5f1)'m8 H13 an easement may not _be claimed as accessory to 11I1_ 1!1°°Y'P°1'i hereditament, as, for instance, if the owner of a right to ta 1; certain minerals under close A. obtained a grant from the owllller 0 an adjacent close B. of a way over close_B., or a right to disc Water over it for him his heirs and assigns as appurtenfllt 5° d9 right of mining; it is believed that an easement would be creatpeé and would be appurtenant to _the incorporeal right alreadyhvisth in the grantee.” Whether this be so or not, it is clear tfa e owner of a mining licence _is in a very different positl.3>n_ roui 1; person having only a rcyersionary estate, and differs ob ytlfil élligd from a lessee of the mines. true test seems to c pm an down by Coke, that the possibility of _attachmg(pn easemen_ t of iueorporeal hereditament depends entppely 011 the P1'°P"@ Y relation between principal and adjunct.
THE encroachments of unqualified persons on the business of the qualified practitioner is found by solicitors in some districts to have become very serious, more particularly during the present general depression. In many places the greater part of the county court work is now done by debt collectors. The unfortunate creditors who place themselves in the hands of such persons instead of going to the trained and properly-qualified solicitor, over whom the court and the Law Society have some control, find out their mistake when it is too late. They begin to see their folly when they cannot get the amounts recovered out of the hands of their “ agents,” their only remedy being by means of an action, to bring which they have to employ a solicitor. The consequence is that the amount of the debt, and very often more, is swallowed up in costs. Had they gone in the first instance to a solicitor, they would, in most cases, have received their money immediately on its recovery; and in the very exceptional cases in whic they would not, a complaint to the Law Society would very likely end in the solicitor paying up rather than have his conduct brought to the notice of the court. In the latter event the client would, of course, lose his money; but he would at least have the satisfaction of having the person who defrauded him punished, while, in the case of the “ agent,” the unfortunate creditor often obtains neither his money nor any satisfaction for the loss of it.
The principal offender is the debt collector, who arms himself with an instrument vulgarly known as a “ penny frightener ”—a document usually printed on blue paper, bearing the royal arms, and headed with the words “ In the County Court " in large letters. The effect of this document is that, unless A. pays to B. an amount which is alleged to be due to C., B. (the debt collector) will take proceedings for its recovery. There is nothing on the face of the document to show that B. is not a solicitor, and, as the “penny frighteners ” are usually addressed to poor and ignorant people who do not know what a county court summons is like, they imagine that they are issued from the county court, and they become so terrified that they not only ay the amount of the debt, but the costs also. Documents of this dbscription, although they do not look like county court summonses or solicitors’ letters, render the unqualified person sending them liable to a penalty of £10 for each offence under the 12th section of the Solicitors Act, 1874 (37 & 38 Vict. c. 68). There are other letters written by these agents on plain paper to the same effect, but with no indication on the face of them w at the profession or business of the writer is, and these also bring the writer within the penal section above referred to.
After the debt collectors come the “agents " who prepare deeds and other documents for reward. The 60th section of the Stamp Act, 1870 (33 & 3-1 Vict. c. 97), renders an unqualified person liable
to a penalty of £50 if “for, or in expectation of, . . . gain or reward he draws or prepares any instrument relating to real or personal estate or any proceedings in law or equity." The term “in
strument ” in the section does not include wills or other testamentary instruments, agreements under hand only, letters or powers of attorney, or transfers of stock containing no trust or limitation. The practice of _unqiialified persons preparing agreements and wills is very extensive, and nothing can be done to stop it. It is, however, not the less pernicious because it is legal, as may be goon from the number of actions _which arise upon the construction of such documents. _'1‘he practicc_of_ preparing deeds could, to a certain extent, be stopped if the Commissioners of Inland Revenue would only exercise a little more activity, but we have for ii long time looked in vain for cases of prosecutions by them under the section referred to.
In connection with these matters we wish to refer to the practice by solicitors of allowing a commission to unqualified persons on work introduced by them. In the few remarks we propose to make ifezidaéybe convenient to deal with the matter under the following
1. Solicitors entering into agreements with unqualified persons to share profits.
2. Solicitors lending their names to unqualified persons on payment of a salary, the unqualified person taking the profits.
3. Commission by solicitors to their clerks on specific matters of business introduced by them.
4. Solicitors granting a share of their profits, should there be any over a certain amount, to their clerks. ..2;.E.’:2:i£;*;Ss*:s:.::;t"g "1 "16 "ms 0* sogzfifiiliglish solicitors granting agency to Scotch, 1,-531,, and Colonial
7. Solicitors to building societies and public co ' ' ' salary and paying_ over to the societies the costs r:£::f§ii.mwvmg E
1. The most serious offence of this kind is where a solicit r t into an agreement with an unqualified person for the fir Tee“; carrying on business together and sharing the profits whiclh igpl l) an infringement of the 32nd section of the Solicitors Act 1S'lc3e€d‘ ii
7 Vict. c. 73). This section provides that if any solicitor shall act as agent in any action in any court for any person not duly qualified to act as a so 'citor, or permit or sufier his name to be in any way made use of in any such action or matter upon the account or for the profit of any unqualified person, or send any process to such unqualified" person or do any act thereby to enable such unqualified person to appear, act, or practise in any respect as a solicitor, in such case the solicitor shall be struck off the roll and for ever after disabled from practising, and the court may commit the unqualified person to prison for any term not exceeding one year.
In these cases it is very diflicult to obtain evidence of the illegal agreement unless the parties quarrel as to the division of the profits or some person who has a knowledge of the agreement gives information to the Law Society, in which case that body would, we believe, as a matter of course, bring the conduct of the parties to the notice of the court. The Law Society has already proceeded in several cases of this kind, with the result of having the solicitor struck off the roll (to which, under the section, he can never be restored) and the unqualified person committed i/O&)I.'l50Il for contempt of court. These agreements are, we iinderstan , not infrequenty entered into, and we think it may be fairly said that any person who knows of such a case ought to make it his duty to communicate it to the Law Society. The mischief done by such “firms” is very great, both to the reputation and standing of the profession and the pockets of the unfortunate clients.
2. Not less reprehensible, and quite as dificult to prove, is the very frequent case of an unqualified person getting hold of an impecunious solicitor and paying him a small sum per week for the use of his name. All the work is done in the name of the solicitor, and the imqualified person takes all the profits, and if, as is often the case, the arrangement leaks out, the latter poses as the clerk of the former, and, as long as they hold together, it is almost impossible to bring them to justice. It is quite clear to us that this case also comes within the 32nd section of the Act of 1843 aheady referred to.
3. Next comes the question of a clerk introducing to his employer a specific matter of business on which he receives a commission of one-half or one-third, as the case may be. This seems to us to be also an infringement of the 32nd section. It might, however, be argued that this is not an infringement of the law, as the clerk exercises no control over the litigation ; but there seems to be ground for saying that in a case of this kind the solicitor allows his name to be used for the profit of an unqualified person.
4. Widely different is the practice of some firms of solicitors of dividing their profits, if there be any beyond a certain amount, proportionately between the partners and the clerks. This gives the clerks an inducement to perform their duties diligently and to attend assiduously to the interests of their employers without giving them any direct interest in the business, and it does not appear to us tbflt there is anything illegal in the practice.
5. The cases of unqualified persons carrying on actions in the names of solicitors without their knowledge or authority are not infrequent. The remedy in this case is contained in the 26th section of the Act of 1860 (23 & 24 Vict. c. 127), which provides that any unqualified person who acts in the manner described shall be guilty of a contempt of court and may be punished accordingly, find. in addition he renders himself liable to a penalty of £50 for caflll offence. Proceedings under this section are taken b the Law Society, with the sanction of the Attorney-General; and that body has been successful in the prosecution of some of the offenders undflf this section.
6. The question of English solicitors conducting business for _S°°t¢h, Irish, 8nd Colonial solicitors on agency terms is not 5° "11P°_!‘1¢B-1111 ; blltit has recently Occupied the attention of a good many solicitors, as nearly all Scotch, Irish, and Colonial solicitors n0W §‘XPe°t “gene? some of the more eminent firms refuse to 11110)" it, as there is no doubt that it is irregular, and in consequence of 151118 refusal the business has been taken away from them and given to other firms who allow agency. For all practical purposes such solicitors are unqualified persons as far as practising in England i9 concerned, exce t, perhaps, in the case of Colonial appeals, in Wl1l°l1 case the Colonial solicitor is entitled to follow his appeal. In 91° lllfifigexeplase it is presumed that agency could, without impropl'1@lFY, be
7. The case of building societies and public com“ anies emp10Yi"8 a solicitor at a fixed salary, all the costs received by him for work done for the society or company going into the funds of such s°°i9l~Y °T company is somewhat analogous. We assume, however, that these cases are governed by Galloway and the Corlrvfllllm ‘If /1<>"dv~(15 W- R- 1032, 4 Eq. 90% in which it was held that an agreement between the Corporation of ondon and a solicitor should be paid a fixed salary to be clear of all expenses of his oflice and to include Bu endolumentsg he Paying t0 the corporation any surplus which mill’ “Ilse °f_1'P°°1Pt5 W91‘ Pwinents is not o posed to the provisions Of the Solicitors Acts nor to the policy of the law where it is also_p'1\‘l of the agreement that the solicitor is not to transact pi-ofesswllll
business for any other client. If such appointments are governed by this case, it seems that there is nothing illegal in the arrangement. We know that the solicitors to railway companies are nearly all now appointed on the footing of a fixed salary, t ey not being allowed to do any other business and any costs received by them goin to the funds of the company. In the case of building societies tie only question which presents itself, and which raises a doubt in our minds, is that the costs recovered may be very much larger than the salary paid, and the building society might thus make a profit out of the appointment.
SOME RECENT PRACTICE DECISIONS.
IN illurtiii v. Spicer (34 W. R. 589, 32 Ch. D. 592) we have a case of some importance on the practice under R. S. C., 1883, ord. 31, r. 1, with regard to applications for leave to deliver interrogatories. The effect of the decision is to render the practice in the Chancery Division with regard to applications for leave to deliver interrogatories uniform with the practice in the Queen’s Bench Division. Hall v. Liardet (W. N., 1883, p. 194) — a case in the Queen's Bench Division— decided that, on applications for leave to deliver interrogatories, the judge would not consider the relevancy of particular interrogatories, and, on the authority of this case, the practice in the Queen's Bench Division has been regarded as settled. In the Chancery Division, however, the practice appears to have been doubtful. The decision of Vice-Chancellor Bacon in Illartin v. S ‘cor, following the decision in Swabey v. Davey (34 W. R. 510, 32 D. 352) seems to set the matter at rest. In Martin v. Spicer the learned 'udge expressed his opinion that the rule to be followed was that laid down by Mr. Justice Field in Hull v. Liardet; that it is no part of the duty of the judge or the chief clerk to decide upon the relevancy or irrelevancy of specific interrogatories, and allow or disallow them accordingly; and that all that is necessary is for the a plicant to state, not necessarily in writing, the general nature and scope of his proposed interrogatories.
The decision of Vice-Chancellor Bacon in Llmnheuz, Linon, it Co. v. The Hong Kong and Shanghai’ Banking Corporation (34 W. R. 753) seems more open to criticism. In this case the plaintiffs were a Belgian firm, and the defendants were a foreign corporation having an agency in London. The action was in respect of a contract made abroad and alleged t/0 have been broken abroad. The writ having been served upon the manager of the defendants’ a ency in London, the defendants moved to have the service set aside, The service, however, was held to be good under ord. 9, r. 8. This rule provides that in the absence of statutory provisions “ every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation.” Although there is plenty of authority for placing a liberal construction on this rule, it certainly seems to be a strained interpretation to hold that it applies to the English agent of a foreign firm. It is not easy, moreover, to reconcile this decision with the case of Nutter -fr Co. v. Messa_qe'ri'cs Jlfaritimes de Framr (54 L. J . Q. B. 527), where service on the London agent of a foreign firm was set aside.
lil The Dartmouth Harbour C'ommi'ssi'o1iers v. The Mayor of Dartmouth (34 W. R. 774) the judge in chambers had ordered that the plaintiffs, who were a corporation incorporated by B private Act of Parliament, should give security for costs on the ound that a receiver of their property had been apP°_1!ited by the court. The order, however, was set aside by the DlV1!l0Xl8l Court. This decision is in accordance with the old-established rule and with the recent authorities on the subject. It has recently been held that security for costs will not be required to be given by a plaintiff who sues in bankruptcy, even where he is in in
solvent circumstances (Cou-ell v. Taylor, 31 Ch. D. 34); and that the fact that a plaintiff‘ is insolvent and that there is a receiver of his assets is not necessarily a ground for requiring him to give security for costs (Rhodes v. Dawson, 34 W. R. 240, I6 Q. B. D. .348).
REVIEWS. MERCANTILE AGREEMENTS.
Tun INTERPRETATION or MERCANTILE Aonannnrrrs. By Joim DEY1\'ISTOUN W001), Barrister-at-Law. Stevens & Sons.
Questions of interpretation occupy a considerable place in practice. One would have thought, ii rfori, that the same blunder would not recur, but, so far from this being the case, we find that it recurs over and over again. There are two objects in collecting oases on interpretation—first, we may shew that a word or phrase which may bear more than one meaning, always bears a particular meaning in a document of a certain nature, unless such meaning is rebutted by the context; secondly, we may shew that a word or phrase A., which may mean B. and 0., occurring in an instrument of a certain nature, must mean B. if the phrase D. occurs in the same instrument. Rules of either nature are of use to the practitioner as shortening his work, as in the absence of such rules he would always have to revert to first principles.
This book contains rules of interpretation of either class, and rules of law expressed in a manner which will be useful to those who, either as lawyers or merchants, are concerned with mercantile documents. The fault of the book is an occasional looseness, hardly amounting to inaccuracy, of statement. The title isiuperhaps, to a slight degree misleading, as the author discusses es of law as well as rules of interpretation properly so called; this is, however. one of the difficulties inherent to the subject, for, as has often been stated, there is a strong tendency in rules of interpretation to become rules of law; add to which that many of the rules of interpretation discussed in this book would be unintelligible without the antecedent discussion of certain rules of law.
The author “ has endeavoured from adecision, or series of decisions, to deduce a general rule of law. . . . If the rule . . . can be readily understood without any illustration, and is clearly deducible from the authorities cited in the footnote referred to in the text, he has added nothing to the statement of the rule and the citation of the authorities. Frequently, however, the meaning of the rule would not readily be apprehended unless an example of it were given, and in such cases he has appended one or more examples of t e rule." We confess that on reading these words we were filled with a horrible misgiving; it appeared as if the author had confounded rules of law with rules of interpretation. A somewhat careful perusal of the book has convinced us that this is not the case. _ _ _
The general rules of law as to the application of intrinsic and extrinsic evidence to ascertain the meanings of the words employed are stated at pp. 2 and 5. The author has done meritonous work in his enunciation of these rules; the more so as he has avoided a pitfall into which many lawyers of eminence, even judges, have fallen, when they say that “ extrinsic evidence cannot be applied to determine the meanings unless there is a latent ambiguity." People who use this language have not grasped the great truth that almost every _word in t e language may bear more than one meaning, and that, if w_e wish to ascertain in which of these meanings the writer used his words, we must endeavour to put ourselyes into his place-—m other words, we must adduce evidence of his circumstances. The manner in which Mr. Wood discusses these rules shews that he understands the principles of his subject. _ _ _
A good example of the merits and the demerits of the book will be foimd in the description of the different meanings of.‘frepresentation " as used in questions arising on marine pohcies and fire policies, on questions arising on ordinary mercantile agreements, and on questions arising on agreements for the sale of land, family settlements, and some other non-mercantile agreements (pp. 36, 94. 199)The discussion of these meaningsis very good, but when the author embodies part of his conclusions in a rule he says 1?“ Whethenwords are to be interpreted as amounting to a representation, a condition, or a warranty, does not depend on any formal arrangement of the words. but upon the intention_of the parties to collected from the wgole agreement, and a consideration of the circumstances under whic it was made." The rule as thus stated lays down_ the _rule for tlfie application (1) of intrinsic evidence; (‘2)_of extrinsic evidpnce to rtfle interpretation of the document in_ queshom while ‘he °!'m°1‘ 9 is correctly stated, the latter rule is s_o stated that a p8l'SOl11iI£(;t copversant with the subject might be misled. We are _not at h rtyt _0 consider the circumstances for the purpose of seeing whet er l is more or less likely that the parties intended a representation, eggdition, or warranty, but for the purpose of seeing_what was d e meaning in which the words must have b_een_used—m other wqiil 8. what is the intentionthat is expressed? It is fair to say that the _au (lir understands the distmction here pointed o_iili; °“f °bJ°°t1°n ‘S °” Y to the manner in which he has expressed his meaning. th mo
A part of this work_ which _will be o_f great value fto‘ ti d1; and titioner is the appendices, which _c0nl/8-1_l1 8' 81°55"*_"Y ° ,‘Y° u n expressions used m, or in connection with,_%ue]i1sti0iJ; i1!'lg1:fi€mdPgy mercantile_ agreements, the meaning of whio as 911