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CASES REPORTED THIS WEEK.
character, but likely to satisfy a reasonable proportion of the debt; In the Weekly Reporter.
and we venture to suggest that stronger evidence than some vague Jenney v. Mackintosh
Jones, In re, Zincraft's Will Trusts 172 allegation to the effect “that there are insufficient goods to satisfy Allgood v. Merrybent and Darling Marine Insurance Co. v. China ton Railway Co.
180 Transpacific Steamship Co. 169 a common execution” should be required. Birmingham and District Land Co. M‘Myn, In re, Lightbown v. M‘Myn 179 v. London and North-Western Peters v. Tilly
183 Railway Co. ......
173 Roberts, In re, Kiff v. Roberts Edison Electric Light Co. v. Jab Thomas v. Turner ....
..... 177 lochkoff Electricity Co. ... 178 Williams, In re, Davies v. Williams 182 THE RATHER COMIC INCIDENT reported from New South Wales of Henley, in the Goods 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, The Solicitors' Journal and Reporter. - not only distasteful, but so wholly unjustifiable as to have led to
the utterance by him ” of very unpleasant expressions, has LONDON, JANUARY 8, 1887.
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 CURRENT TOPICS.
taken great pains to shew their friendship for him; and, as regards
the third, that, although he thought the appointment a grave THE CAUSE LISTS of the Court of Appeal shew 158 final and 31 mistake,” he had “driven with him [the three days' judge] to the interlocutory appeals, making a total of 189 appeals, as against Criminal Court”; had “shaken him by the hand,” and had 249 appeals at the same time last year, and 204 appeals at the last intimated that his opinion as to the appointment would not Michaelmas Sittings. The Chancery Division lists shew an un allowed to make any difference in his bearing to the Chief usually heavy total of 820 causes and matters for hearing, as Justice as a colleague. Either the Chief Justice must have against 675 at the same time last year, and 795 at the last been more sensitive than the ordinary run of his brethren in Michaelmas Sittings.
other countries or there must be something not yet made public to account for the incident. Everyone must rememberthe episodes in
Ireland when a learned Lord Justice took frequent opportunities of A CIRCULAR has been issued by the Council of the Incorporated attacking the Lord Chancellor—once, at least, while sitting with Law Society stating that “The Bar Committee and the Council him on the bench-the "explanatory speeches
by the Lord of the Incorporated Law Society have had under consideration the Chancellor and the “ acceptance” by the Lord Justice of the " practice adopted by some barristers' clerks of soliciting and pressing planation of the Lord Chancellor.” There seems to be a somewhat for payment of clerks' fees in excess of those regulated and similar judicial character across the Atlantic, of whom we have seen it allowed by the R. S. C., 1883. The Bar Committee and the occasionally recorded in the American law journals that he has been council concur in the opinion that the rules instituted for the "bumping his back” (we think that is the phrase employe guidance of the profession in this respect by the proper authorities, against his brother judges. In this country, as regards the Queen's and for the public good, ought to be adhered to. The Bar Bench Division, in which High Court judges have to sit together, Committee have, by resolution, requested the members of the bar the possibility of the occurrence of “humping” is, to a great to call their clerks' attention to the matter."
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 MR. JUSTICE STIRLING, sitting as Vacation Judge in the be sufficient, in most cases, to prevent an appointment which Queen's Bench Chambers, has introduced what we may be would be decidedly distasteful to the majority of the bench. lieve may described as an innovation in the practice, by re- Whether this is so or not, the arrangement has its advantages, as fusing to grant applications ex parte for receivers in ordinary it, at all events, enables the Lord Chancellor to obtain information cases and requiring a summons to be issued. His reason for taking as to the qualifications of the proposed judge, and we think it is this course is, no doubt, the intimation recently given by the matter of some regret that there is at present no member of the Court of Appeal on the subject. In delivering judgment in Chancery bench to whom, from his official position, a similar Peperno v. Harmston on the 16th of December last, Lord Justice reference can be made. This is one of the evils attending the LINDLEY remarked that “A receiver ought not to be granted transference of the holder of the office of Master of the Rolls from ex parte, except in cases of extreme emergency, and he had never the Chancery Division to the Court of Appeal. known a case that rendered an ex 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 Judge will be WORD COMPETITIONS are so very much in vogue just now that it continued by his successors in chambers. The practice on the com- may be worth while to consider what is the legal position of the mon law side as to granting orders for the appointment of a receiver by competitors, and of those to whom the winners look for prizes. It way of equitable execution has become very lax, and it may be doubted seems probable that the contract to give the prize is absolutely whether the discretion intended to be exercised by, and specially void, and that the prize, if won, could not be recovered at law. Teserved to the judge, in granting such applications, by R. S.C., By 8 & 9 Vict. c. 109, s. 18, all contracts or agreements, whether 1883, L., 15a, has been always exercised. We believe that in by parol or in writing, by way of gaming or wagering, are null some cases the costs of obtaining the receiver order and completing and void, and no suit may be maintained for any sum of money the receiver's security by recognizance thereunder have ex- alleged to be won upon any wager, “or which shall have been ceeded the original judgment debt. In others, the plaintiff has deposited in the hands of any person to abide the event on which been appointed receiver, without security, to receive property any wager shall have been made.” It might, perhaps, be thought largely in excess of his judgment debt, subjecting the defend that there is too much skili in the " word competitions” for them ant to serious prejudice and poseible loss. It has also been the to be subject to this enactment, but such does not appear to be the practice (on the common law side) to grant receiver orders law upon the authorities. A wager is defined in Johnson v. Lansley over contingent and reversionary interests, when, undoubtedly, (12 c. B. 468), to be a contract to pay according as some uncertain the sounder practice—also initiated, we believe, by the present contingency should happen ; and an agreement to walk a match for vacation judge—is to grant orders over property of that class by £200 a side, Diggle v. Higgs (25 W. R. 777, 2 Ex. D. 422), and way of “charge only, and so avoid costs being incurred in set- | a deposit of a sum of money by each of two persons in the hands tling security, &c., for what is at the moment, if granted, a mere of a stakeholder to be paid to one or the other according as a horse dry receivership. We think that the rule of court above referred to does or does not trot eighteen miles in one hour, Batson v. Newman infficiently shews that powers of equitable execution were not (25 W. R. 85, 1 C. P. D. 593), have been held to be wagering conintended to be exercised except in cases where the judgment debt tracts within the section. A proviso, indeed, exempts any agreeis sufficiently large to justify this expensive procedure, and the ment to contribute a sum of money to be awarded to the winner of property sought to be charged in execution is not only of a fitting any lawful game, sport, pastime, or exercise, but this proviso was
held in Diggle v. Higgs not to apply to cases where the com- days after service, files an affidavit disclosing some prima facie petitors only subscribed, and it seems also to be limited to physical ground of defence, and that the registrar should then have power exercises. The contributors, therefore, to word competitions rely to deal with the matter as if it were an application under order only on the honour of the persons who offer the prizes.
14, an appeal to the judge being given. With regard to the officers of the courts, he suggests that the judges ought not to be compelled to pay deputies out of their own pockete; that they
might usefully be enabled to exercise the powers of stipendiary THERE IS A very valuable article by Judge CHALMERS in the magistrates within their districts ; and that they might well be current number of the Law Quarterly Review, on the county court asked to attend the assizes and také such cases as the Hi Court system. It represents the conclusions of a keen observer, familiar judge thought proper to relegate to them. With regard to the with constructive legislation, and especially with rules as to prac, registrars, he adduces forcible reasons for suggesting that their tice and procedure, derived from the experience of over two years' salaries (at all events, in small courts) ought not to be dependent tenure of the office of judge of one of the most important county on the number of plaints. He says that one registrar told him that court circuits in the country. As might be expected, the article is
by making the tallymen who sued in his court prove their cases singularly impartial, terse, and practical. It deals, in the course strictly, he had diminished his income by nearly a fourth.” of about a dozen pages, with the whole subject of the defects and This is a matter which demands the attention of the authorities. anomalies of the existing system, and whether we do or do not Mr. CHALMERS also suggests that the registrars should have agree with the suggestions made for their remedy, we are bound to power to dispose of all undefended 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 cir: parties requires the matter to be adjourned before the judge. On cuits, Mr. CHALMERS points out, what everyone must admit, that all these matters, and many others, we must refer our readers to reform is urgently needed in this respect. The circuits require re- the article for the reasons given in support of the writer's views, vision with reference to Bradshaw and the shifting of populations but we cannot forbear giving one or two quaint incidental into large towns. The amount of travelling required from many remarks illustrating the experience of a county court judge. judges involves a serious loss of judicial time, which means loss Thus we learn that "his misery reaches a climax when two both of public money and suitors' money also. Passing next to the
women choose to go to law about some article of female attire. question of jurisdiction, he draws attention to the inconvenience Each party insists on cross-examining the judge instead of her arising from the rule that the defendant must reside, or some part opponent, and diversifies the proceedings by making furious attacks of the cause of action must arise, within the district of the court
on the moral character of the other lady"; that “a party in where the plaint is filed, and suggests that there should be some person has very little chance with a jury against a moderately power of transfer within the same circuit, to be exercised upon skilful advocate, unless, indeed, that party happens to be a goodterms. He also points out the anomalies which exist as to the pecuni- looking woman”; and that juries “ do substantial justice between ary limit and subject matter of jurisdiction, and advocates the adop- the parties. They have a 'marvellous faculty for scenting out a tion of Lord BRA MWELL’s suggestion that the plaintiff might bring fraud. Why a jury should be better than a judge in this respect any action for any amount in the county court, but that the defend. I cannot say, but i am sure of the fact. I do not accept the ant might, as of right, remove it into the High Court, if the sum cynical legal explanation that, however novel a fraud may appear claimed or interest involved exceeded a specified amount, different to the lawyers, there is certain to be one man on the jury who has amounts being specified in different classes of business if thought attempted or committed a similar fraud himself.” Mr. CHALMERS necessary. In combatting the apprehension that such a change concludes with a well-deserved compliment to Mr. Nichol, the would remove the business of the High Court wholesale to the superintendent of county courts, in which we can heartily concur. county courts, he is, we think, unfair to solicitors as a body. He we could supply many instances within our own knowledge; says, " It is the solicitor, and not the lay client, who chooses the shewing that the administrative working of the system is watched 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, other branches of our legal system.
over with a vigilance and tact which are often sadly wanting in an action will not be 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. CHALMERS supposes. We do not pretend that solicitors differ from every other class of DURING THE ARGUMENT of a recent case in the Court of Appeal professional men in disliking to work for inadequate fees, but we counsel proposed to cite a decision of the Railway Commis, think we are entitled, from some considerable knowledge of the sioners, reported in Neville and Macnamara's reports, and ways of country solicitors, to say that, as a body, they take a approved of by the Court of Session in Scotland. The Court, broad and enlightened view of their own interest. Their however, said that, with the greatest respect for the Railway success in the long run depends on their securing for their Commissioners, they must refuse to allow their decisions to be clients a speedy and inexpensive settlement of their con- cited, though, of course, counsel might cite any decision of the troversies, and if this could be insured by proceeding in Court of Session. Is not this somewhat pedantic ? the county court in heavy matters, such proceedings would be taken. But there is a consideration, which Mr. CHALMERS 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 inex
EASEMENTS ATTACHED TO THE REVERSION. pensive decision in the first instance if an appeal is inevitable? EASEMENTs are incorporeal rights, and are, from their very nature, And, without intending any imputation on county court judges, necessarily imposed upon corporeal property. The exercise of the we imagine that the defeated party, in cases involving large right is an interference in some way with the complete and absoamounts, would usually appeal.
lute ownership of a corporeal hereditament. But is it equally clear that the dominant tenement, or the property in respect of which the right is enjoyed, must be of a corporeal nature ? In the
vast majority of cases it undoubtedly is land or houses the owners WITH REGARD to county court procedure, Mr. Chalmers advocates of which possess these privileges which are called easements ; the personal service of the initial summons on the defendant in all but, as a matter of law, is it absolutely necessary that this should cases where leave for substituted service has not been given ; that be the case ? Is it possible, in other words, to attach an easement a jury should only be demanded as of right where the sum claimed to an incorporeal hereditament ? exeeeds £20, but that the court ghould have power to order any been expressly decided, but in the recent case to which we are
This has never, we believe, case to be tried with a jury; that where the claim exceeds £20 about to refer a very curious doctrine was laid down, which seems there should be pleadings as in the High Court, or, at any rate, a to practically involve a decision in the affirmative. statement of defence; and, lastly, that the imperfect procedure corresponding to order 14 should be remedied by a provision that the plaintiff appeal, 34 W. R. 777, 33 Ch. D. 420) a right of way granted by
In Lord Dynevor v. Tennant (34 W. R. 737, 32 Ch. D. 375; on should be entitled to judgment unless the defendant, within twelve la lessee to his lessors over the demised premises seems to have been
considered, at all events in the court of first instance, as ap- easement would continue as a legal right appurtenant to the domipurtenant, not to adjoining lands of the lessors, but to the rever nant tenement affecting the land formerly comprised in the lease. sion expectant on the determination of the lease. This may The learned judge does not indeed, in terms, state that the reappear, stated thus curtly, to be somewhat absurd ; but, unless the version was to be regarded as the dominant tenement; but, if not, absurdity be swallowed, the decision, we are inclined to think, the easement must have been attached to the adjoining lands of the can with difficulty be supported. The following is an outline of then co-owners, and then the partition deed, as it conveyed those the facts of the case.
lands, with their appurtenances, to Lord Dynevor in severalty, The Neath Abbey Estate was in the year 1820 held in undivided would have placed him in the position of an adjoining owner thirds, one of which belonged to the then Lord Dynevor in fee, entitled to an easement over the canal for the residue of the another to a Mr. Compton in fee, while the remaining third was 1,000 years, not merely during the actual continuance of the subject to a settlement under which the tenants for life had leasing lease. powers. The co-owners in that year granted a lease for 1,000 The view taken by the Court of Appeal, though leading to the years to Henry Tennant of a strip of land, part of the estate, for same conclusion, differed wholly from that expressed by Mr. the purpose of making a capal which was afterwards made. The Justice Pearsun. “In my opinion,” said Lord Justice Cotton, lease contained a proviso that nothing therein contained should the purchase of the reversion from Compton would not have prevent or hinder the said lessors (naming them), their heirs or affected any right or easement vested in Lord Dynevor, if held by assigns, from using all or any of the land or ground thereby him in respect of his land. But the question is, What is the real demised, or intended so to be, or any stream or streams of water effect of the demise, whether it is a re-grant of an easement to flowing over or through the same, or from granting any wayleaves the lessors in their capacities of owners of the land adjoining the or roads over or across the same for the carriage of coal, goods, canal, or as landlords and owners of the reversion ? Now to me it wares, or merchandises, or for any other purpose or purposes is obvious that this reservation or re-grant was intended to be for whatsoever, in like manner as they could or might have used the the benefit of the owners of the adjoining land; but it is a very same in case the lease had not been granted, but so, nevertheless, different thing to say that it was granted to them as such owners, as not to prejudice or injure the said canal, or the navigation and not as landlords.” And later on he says that “the best way thereof, or any road or towing path, work or works, which should of giving effect to the proviso is to hold that it is a re-grant to the or might be made or constructed for the use or convenience of the lessors, not as owners of the adjoining lands, but as owners of the same. In the year 1838 the co-owners of the three undivided shares reversion." We must admit that we find this language in the of the Neath Abbey Estate made partition, which was effected in the highest degree perplexing, for the Lord Justice, by asserting that usual way by a conveyance to a grantee to uses to hold to the use the re-grant was for the benefit of the adjoining lands, constitutes of the three co-owners in severalty, the parcels being set out in them the dominant tenement, and yet, by importing the considerathree schedules. Their was this peculiarity in the arrangement tion of the twofold character of the persons to whom the re-grant of the parcels, that a portion of the canal was allotted to Mr. was made, he seems to consider that the transaction created only Compton at the apportioned rent, while the land along the entire a personal right, and not an easement in the proper legal sense of length of both its banks was allotted to the other co-owners. The the term. If the decision is to be supported, we think that it whole of the land on one side, and part of that on the other side of must be on the ground that, according to the construction of the the canal were included in Lord Dynevor's schedule, who thus be proviso in the lease, no easement was created, but the parties came entitled to an estate in fee simple in a certain portion of the contracted for a certain benefit to the adjoining lands. We do estate intersected by the canal, the canal being vested in Tennant not, however, find it possible to force the language of the Lord for a term of 1,000 years, and subject thereto in Compton in fee Justice into this meaning, for he not only uses the word simple. In March, 1839, Compton conveyed to the lessees of the ment,” which is a term of art, as a description of the subjectcanal the reversion in fee in that part of the canal which had been matter of the grant, but he refers, towards the end of his allotted to him by the partition deed, and thereupon the term of judgment, to the possibility of the lessors, after they had parted years in that part of the canal became merged by operation of law. with the adjoining lands, granting liberty to the owners for the Lord Dynevor, the tenant for life of the lands comprised in the time being of those lands " to make use of the right re-granted by first and third schedules to the partition deed, wishing to re-unite the demise.” This is, perhaps, the most incomprehensible of the the severed portions of his estate by a bridge, took preliminary learned judge's utterances, for if the right were gracted in gross, steps for that purpose. This proceeding was opposed by the owners it could not be assigned (Ackroyd r. Smith, 10 C. B. 164), and, if of the canal, and then the present action was instituted claiming it were appurtenant to the adjoining lands, it could be exercised a declaration of right and an injunction.
by the owners of such lands without licence from anyone. It was assumed, both by Mr. Justice Pearson and by the Court We have referred at length to Lord Dynevor v. Tennant because of Appeal, that the proviso above set forth operated as a re-grant it is the only case in which the possibility of attaching an easement by the lessee of a right or easement of crossing the canal by to a reversion as the dominant tenement has been so much as means of a bridge, yet it was held in both courts, though on suggested. In our opinion such an attempted annexation is a somewhat different grounds, that the easement had come to an end, violation of the fundamental conceptions of real property law, and and that Lord Dynevor was not entitled to the relief which he also (a consideration of at least equal weight) of common sense. claimed. The reasoning of Mr. Justice Pearson may be summarized This is manifest if we consider that an easement is a present as follows:- The easement depends entirely for its existence on right while a reversion is a future estate. But we must not the grant which creates it. If granted for a certain duration, when conclude that all kinds incorporeal hereditaments, techni. that time has elapsed the grant is gone. When the grant is contained cally so called, are equally debarred from the privilege of in a lease it cannot endure longer than the lease unless there be having easements appurtenant to them, as the following passome equity in a third person to keep it alive," and, therefore, when sage from Mr. Gale's valuable work will suffice to shew: the lease was merged by the conveyance of the fee to the lessee “There appears to be,” he says, “no authority for saying that the easement became extinct. Then, examining the terms of the an easement may not be claimed as accessory to an incorporeal partition deed, he finds it impossible to spell out any contract on hereditament, as, for instance, if the owner of a right to take the part of the reversionary owner of the canal « that he would certain minerals under close A.' obtained a grant from the owner of do no act which should interfere with the existence of the lease, so an adjacent close B. of a way over close B., or a right to discharge as to preserve alive all the rights which the lessee had granted to water over it for him his heirs and assigns as appurtenant to the the original reversioners.”
This treatment of the question right of mining; it is believed that an easement would be created, evidently assumes that the reversion on the lease was the dominant and would be appurtenant to the incorporeal right already vested tenement, and that, subject to an equity arising by contract, the in the grantee.". Whether this be so or not, it is clear that the lessor and lessee could agree to extinguish the easement as well as owner of a mining licence is in a very different position from a the term. For if a lessee were to grant a right of way to the person having only a reversionary estate, and differs only in name Owner of adjoining land for the residue of his term, it seems from a lessee of the mines. The true test seems to be that laid plain that the easement so created could never, during the down by Coke, that the possibility of attaching an easement to an time originally limited for its duration, be extinguished by any act incorporeal hereditament depends entirely on the propriety of of the lessee. Whether the term was merged or surrendered, the relation between principal and adjunct."
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 UNQUALIFIED PERSONS.
act as a solicitor, or permit or suffer his name to be in any way The encroachments of unqualified persons on the business of the made use of in any such action or matter upon the account or for qualified practitioner is found by solicitors in some districts to have the profit of any unqualified person, or send any process to such unbecome very serious, more particularly during the present general qualified person or do any act thereby to enable such unqualified depression. In many places the greater part of the county court work person to appear, act, or practise in any respect as a solicitor, in such is now done by debt collectors. The unfortunate creditors who place case the solicitor shall be struck off the roll and for ever after themselves in the hands of such persons instead of going to the disabled from practising, and the court may commit the unqualified
ne year. trained and properly-qualified solicitor, over whom the court and the person to prison for any term not exceeding Law Society have some control, find out their mistake when it is too In these cases it is very difficult to obtain evidence of the illegal late. They begin to see their folly when they cannot get the agreement unless the parties quarrel as to the division of the profits amounts recovered out of the hands of their "agents,” their only or some person who has a knowledge of the agreement gives inremedy being by means of an action, to bring which they have to formation to the Law Society, in which case that body would, we employ a solicitor. The consequence is that the amount of the debt, believe, as a matter of course, bring the conduct of the parties to and very often more, is swallowed up in costs. Had they gone in the the notice of the court. The Law Society has already proceeded in first instance to a solicitor, they would, in most cases, have received several cases of this kind, with the result of having the solicitor their money immediately on its recovery; and in the very ex struck off the roll (to which, under the section, he can never be ceptional cases in which they would not, a complaint to the restored) and the unqualified person committed to prison for contempt Law Society would very likely end in the solicitor paying up of court. These agreements are, we understand, not infrequently rather than have his conduct brought to the notice of the court. In entered into, and we think it may be fairly said that any person who the latter event the client would, of course, lose his money; but he knows of such a case ought to make it his duty to communicate it would at least have the satisfaction of having the person who de- | to the Law Society. The mischief done by such “firms ” is very frauded him punished, while, in the case of the 'agent,” the great, both to the reputation and standing of the profession and the unfortunate creditor often obtains neither his money nor any satis- pockets of the unfortunate clients. faction for the loss of it.
2. Not less reprehensible, and quite as difficult to prove, is the very The principal offender is the debt collector, who arins himself with frequent case of an unqualified person getting hold of an impecunious an instrument vulgarly known as a "penny frightener”-a document solicitor and paying him a small sum per week for the use of his usually printed on blue paper, bearing the royal arms, and headed name. All the work is done in the name of the solicitor, and the with the words In the County Court” in large letters. The effect unqualified person takes all the profits, and if, as is often the case, of this document is that, unless A. pays to B. an amount which is the arrangement leaks out, the latter poses as the clerk of the alleged to be due to C., B. (the debt collector) will take proceedings former, and, as long as they hold together, it is almost impossible to for its recovery. There is nothing on the face of the document to bring them to justice. It is quite clear to us that this case also show that B. is not a solicitor, and, as the “ penny frighteners” are comes within the 32nd section of the Act of 1843 already reusually addressed to poor and ignorant people who do not know what ferred to. a county court summons is like, they imagine that they are issued 3. Next comes the question of a clerk introducing to his employer from the county court, and they become so terrified that they not a specific matter of business on which he receives a commission of only pay the amount of the debt, but the costs also. Documents of one-half or one-third, as the case may be. This seems to us to be this description, although they do not look like county court sum also an infringement of the 32nd section. It might, however, be monses or solicitors' letters, render the unqualified person sending them argued that this is not an infringement of the law, as the clerk exerliable to a penalty of £10 for each offence under the 12th section of cises no control over the litigation ; but there seems to be ground for the Solicitors Act, 1874 (37 & 38 Vict. c. 68). There are other letters saying that in a case of this kind the solicitor allows his name to be written by these agents on plain paper to the same effect, but with used for the profit of an unqualified person. no indication on the face of them what the profession or business of 4. Widely different is the practice of some firms of solicitors of the writer is, and these also bring the writer within the penal dividing their profits, if there be any beyond a certain amount, prosection above referred to.
portionately between the partners and the clerks. This gives the After the debt collectors come the “agents” who prepare deeds clerks an inducement to perform their duties diligently and to attend and other documents for reward. The 60th section of the Stamp assiduously to the interests of their employers without giving them Act, 1870 (33 & 34 Vict. c. 97), renders an unqualified person liable any direct interest in the business, and it does not appear to us that to a penalty of £50 if “for, or in expectation of,
gain or there is anything illegal in the practice. reward he draws or prepares any instrument relating to real or per 5. The cases of unqualified persons carrying on acticns in the names sonal estate or any proceedings in law or equity. The term in- of solicitors without their knowledge or authority are not infrestrument” in the section does not include wills or other testamentary quent. The remedy in this case is contained in the 26th instruments, agreements under hand only, letters or powers of section of the Act of 1860 (23 & 24 Vict. c. 127), which provides that attorney, or transfers of stock containing no trust or limitation. The any unqualified person who acts in the manuer described shall be practice of unqualified persons preparing agreements and wills is guilty of a contempt of court and may be punished accordingly, and, very extensive, and nothing can be done to stop it. It is, however, in addition he renders himself liable to a penalty of £50 for each not the less pernicious because it is legal, as may be seen from the offence. Proceedings under this section are taken by the Law number of actions which arise upon the construction of such docu- Society, with the sanction of the Attorney-General ; and that body ments. The practice of preparing deeds could, to a certain extent, be has been successful in the prosecution of some of the offenders under stopped if the Commissioners of Inland Revenue would only exercise this section. a little more activity, but we have for a long time looked in vain for 6. The question of English solicitors conducting business for cases of prosecutions by them under the section referred to.
Scotch, Irish, and Colonial solicitors on agency terms is not so In connection with these matters we wish to refer to the practice important; but it has recently occupied the attention of a good many by solicitors of allowing a commission to unqualified persons on solicitors, as nearly all Scotch, Irish, and Colonial solicitors now work introduced by them. In the few remarks we propose to make expect agency. Some of the more eminent firms refuse to allow it may be convenient to deal with the matter under the following it, as there is no doubt that it is irregular, and in consequence of this heads : 1. Solicitors entering into agreements with unqualified persons to other firms who allow agency. For all practical purposes such
refusal the business has been taken away from them and given to share profits.
solicitors are unqualified persons as far as practising in England is 2. Solicitors lending their names to unqualified persons on pay- concerned, except, perhaps, in the case of colonial appeals, in which ment of a salary, the unqualified person taking the profits.
case the colonial solicitor is entitled to follow his appeal. In the 3. Commission by solicitors to their clerks on specific matters of latter case it is presumed that agency could, without impropriety, business introduced by them.
allowed. 4. Solicitors granting a share of their profits, should there be any 7. The case of building societies and public companies employing over a certain amount, to their clerks. 5. Unqualified persons acting in the names of solicitors without done for the society or company going into the funds of such
a solicitor at a fixed salary, all the costs received by him for work 6. Englieh solicitors granting agency to Scotch, Irish, and Colonial that these cases are governed by Galloway and the Corporation of solicitors. 7. Solicitors to building societies and public companies receiving a
London (15 W.R. 1032, 4 Eq. 90), in which it was held that an agreement
between the Corporation of London and a solicitor should be paid a salary and paying over to the societies the costs recovered. 1. The most serious offence of this kind is where a solicitor enters emoluments, he paying to the corporation any surplus which may
fixed salary to be clear of all expenses of his office and to include all carrying on business together and sharing the profits, which is clearly the Solicitors Acts nor to the policy of the law where it is also part an infringement of the 32nd section of the Solicitors Act, 1843 (6 & of the agreement that the solicitor is not to transact professional
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
REVIEWS. appointed on the footing of a fixed salary, they not being allowed to
MERCANTILE AGREEMENTS. do any other business and any costs received by them going to the THE INTERPRETATION OF MERCANTILE AGREEMENTS. By JOHN funds of the company. In the case of building societies the only DENNISTOUN Wood, Barrister-at-Law. Stevens & Sons. 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
Questions of interpretation occupy a considerable place in practice. paid, and the building society might thus make a profit out of the One would have thought, à priori, that the same blunder would not appointment.
recur, but, so far from this being the case, we find that it recurs over and over again. There are two objects in collecting cases 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 SOME RECENT PRACTICE DECISIONS.
context; secondly, we may shew that a word or phrase A., which
may mean B. and C., occurring in an instrument of a certain nature, In Martin v. Spicer (34 W. R. 589, 32 Ch. D. 592) we have must mean B. if the phrase D. occurs in the same instrument. Rules of a case of some importance on the practice under R. S. C., either nature are of use to the practitioner as shortening his work, as 1883, ord. 31, r. 1, with regard to applications for leave to deliver in the absence of such rules he would always have to revert to first interrogatories. The effect of the decision is to render the principles. practice in the Chancery Division with regard to applications This book contains rules of interpretation of either class, and rules for leave to deliver interrogatories uniform with the practice in of law expressed in a manner which will be useful to those who, the Queen's Bench Division. Hall v. Liardet (W. N., 1883, p. 194) – either as lawyers or merchants, are concerned with mercantile docua case in the Queen's Bench Division- decided that, on applications ments. The fault of the book is an oecasional looseness, hardly for leave to deliver interrogatories, the judge would not consider the amounting to inaccuracy, of statement. The title is, perhaps, to a relevancy of particular interrogatories, and, on the authority of this slight degree misleading, as the author discusses rules of law as case, the practice in the Queen's Bench Division has been regarded as well as rules of interpretation properly so called; this is, however, settled. In the Chancery Division, however, the practice appears to one of the difficulties inherent to the subject, for, as has often been have been doubtful. The decision of Vice-Chancellor Bacon in Martin stated, there is a strong tendency in rules of interpretation to v. Spicer, following the decision in Swabey v. Dovey (34 W. R. 510, become rules of law; add to which that many of the rules of in32 Ch. D. 352) seems to set the matter at rest. In Martin v. Spicer terpretation discussed in this book would be unintelligible without the learned judge expressed his opinion that the rule to be followed the antecedent discussion of certain rules of law. was that laid down by Mr. Justice Field in Hall v. Liardet; that it The author “has endeavoured from a decision, or series of decisions, is no part of the duty of the judge or the chief clerk to decide to deduce a general rule of law. . . . If the rule . can be readily upon the relevancy or irrelevancy of specific interrogatories, and understood without any illustration, and is clearly deducible from the allow, or disallow them accordingly; and that all that is neces- authorities cited in the footnote referred to in the text, he has added sary is for the applicant to state, not necessarily in writing, the nothing to the statement of the rule and the citation of the authorigeneral nature and scope of his proposed interrogatories.
ties. Frequently, however, the meaning of the rule would not readily The decision of Vice-Chancellor Bacon in Lhonheux, Linon, & Co. v. be apprehended unless an example of it were given, and in such cases The Hong Kong and Shanghai Banking Corporation (34 W. R. 753) he has appended one or more examples of the rule.”. We confess seems more open to criticism. In this case the plaintiffs were a that on reading these words we were filled with a horrible misBelgian firm, and the defendants were a foreign corporation having giving; it appeared as if the author had confounded rules of law an agency in London. The action was in respect of a contract made with rules of interpretation. A somewhat careful perusal of the book abroad and alleged to have been broken abroad. The writ having has convinced us that this is not the case. been served upon the manager of the defendants' agency in London, The general rules of law as to the application of intrinsic and exthe defendants moved to have the service set aside, The service, trinsic evidence to ascertain the meanings of the words employed are however, was held to be good under ord. 9, r. 8. This rule provides stated at pp. 2 and 5. The author has done meritorious work in his that in the absence of statutory provisions "overy writ of summons
enunciation of these rules; the more so as he has avoided a pitfall issued against a corporation aggregate may be served on the mayor into which many lawyers of eminence, even judges, have fallen, when or other head officer, or on the town clerk, clerk, treasurer, or secre- they say that extrinsic evidence cannot be applied to determine the tary of such corporation." Although there is plenty of authority meanings unless there is a latent ambiguity.' People who use this for placing a liberal construction on this rule, it certainly seems to be language have not grasped the great truth that almost every word a strained interpretation to hold that it applies to the English agent in the language may bear more than one meaning, and that, if we of a foreign firm. It is not easy, moreover, to reconcile this decision wish to ascertain in which of these meanings the writer used his with the case of Nutter « Co. v. 'Messageries Maritimes de France (54 words, we must endeavour to put ourselves into his place—in other L. J. Q. B. 527), where service on the London agent of a foreign firm words, we must adduce evidence of his circumstances. The manner was set aside.
in which Mr. Wood discusses these rules shews that he understands In The Dartmouth Harbour Commissioners v. The Mayor of the principles of his subject. Dartmouth (34 W. R. 774) the judge in chambers had ordered A good example of the merits and the demerits of the book will be that the plaintiffs, who
a corporation incorporated found in the description of the different meanings of “ representaby & private Act of Parliament, should give security for tion” as used in questions arising on marine policies and fire costs on the ground that a receiver of their property had been ap- policies, on questions arising on ordinary mercantile agreements, and pointed by the court. The order, however, was set aside by the on questions arising on agreements for the sale of land, family settleDivisional Court. This decision is in accordance with the old. estab. ments, and some other non-mercantile agreements (pp. 36, 94, 199). lished rule aud with the recent authorities on the subject. It has the discussion these meanings is very good, but when the author recently been held that security for costs will not be required to be embodies part of his conclusions in a rule he says :-"Whether words
are to be interpreted as amounting to a representation, a condition, or solvent circumstances (Cowell v. Taylor, 31 Ch. D. 34); and that the a warranty, does not depend on any formal arrangement of the words, fact that a plaintiff is insolvent and that there is a 'receiver of his but upon the intention of the parties to be collected from the whole assets is not necessarily a ground for requiring him to give security agreement, and a consideration of the circumstances under which it for costs (Rhodes v. Dawson, 34 W. R. 240, 16 Q. B. D. 518).
was made.” The rule as thus stated lays down the rule for the application (1) of intrinsic evidence ; (2) of extrinsic evidence to the interpretation of the document in question. While the former rule is correctly stated, the latter rule is so stated that a person not con
versant with the subject might be misled. We are not at liberty to On the 30th ult., at the Worship-street l'olice Court, in the course of consider the circulastances for the purpose of seeing whether it is a summons under the Married Women (Maintenance in Case of Desertion) more or less likely that the parties intended a representation, conAct, 1886, Mr. Bushby decided that the Act was retrospective, the dition, or warranty, but for the purpose of seeing what was the words applying to “any married woman who shall have been deserted.” A tablet is to be placed on the old Gate-house at Lincoln's-inn. A what is the intention that is expressed ? It is fair to say that the author
meaning in which the words must have been used-in other words, petition was presented by some cf the members of Lincoln’s-ion to the understands the distinction here pointed out; our objection is only itbuilding operations then going on the old Gate-Lounge breatincolnoihn to the manner in which he has expressed his meaning.
A part of this work which will be of great value to the prachaving been complied with, the Society of Acts have wow.obtained fuese titioner is the appendices, which contain a glossary of words and to place on the house a tablet directing the public to the residence in the expressions used in, or in connection with, questions arising upon time of the Commonwealth of Mr. Secretary Thurloe.
mercantile agreements, the meaning of which has been defined by