Page images
PDF
EPUB

Searches must be made for bankruptcies, lis pendens, annuities, and in the local registers.

It should be observed that, although no annuity can at law be made to issue out of an incorporeal hereditament such as an annuity or rent charge, it is possible to charge it with an annuity in equity, and therefore that searches for annuities must be made on the purchase of an annuity or rent charge.

REVIEWS.

TRUSTEES' INVESTMENTS.

THE INVESTMENT OF TRUST FUNDS. By EDWARD ARUNDEL GEARE,

46

Barrister-at-Law. Stevens & Sons.

[ocr errors]

that the commissioners, by obtaining leave to oppose the plaintiff and to adduce evidence against him at the trial, had really placed themselves in rule 1 of order 31.-COUNSEL, Elton, Q.C., and Blakesley; Sir A. Watson, the position of defendants, and had become opposite parties' " within Q.C., and Dunham. SOLICITORS, White, Borrett, & Co.; Crossman, Crossman, & Prichard.

RIDDELL v. THE EARL OF STRATHMORE-C. A. No. 2, 12th January.

R. S. C., 1883, XIX., 27-STRIKING OUT EMBARRASSING PLEADING. The question in this case was as to striking out the whole of a statement of claim, on the ground that it was embarrassing to the defendant. Rule 27 of order 19 empowers the court, at any stage of the proceedings, to "order to be struck out any matter in any pleading which may be delay the fair trial of the action." unnecessary or scandalous, or which may tend to prejudice, embarrass, or The action was brought to recover possession of land. By his statement of claim the plaintiff alleged that E, who died in 1759, was seised in fee in possession of the land, and that during her life she executed a deed of settlement, by virtue of which the property vested on her death in her niece, T., the wife of D, and her heirs, from whom and her successors in title, as the plaintiff alleged, the concealed the existence of the settlement, and entered into possession of defendant's predecessor in title, G., well knowing the facts, fraudulently the estates. The plaintiff claimed as purchaser of the property from J. D., the eldest son of G. L. D., who died in 1859, whose title was derived from the heir-at-law of T. D. The plaintiff alleged that the settlement still remained in the possession of the defendant, and that retained it and received the rents of the property, with full notice that under it the property rightfully belonged to the plaintiff and his predecessors in title, and had fraudulently concealed from them the existence of the deed, and made it impossible for them to discover their right and title to the property until the year 1876, when the existence of the deed first came to the knowledge of J. D. and the plaintiff. The plaintiff claimed to recover the possession of the estates and the rents or mesne profits. On the application of the defendant, North, J., ordered the statement of claim to be struck out as embarrassing.

The object of this little book, as stated in the preface, is to answer the questions-"Is it a proper investment?" ""Would it be a breach of trust?" On the whole the answers given are satisfactory. In the first chapter the author discusses the duty of the trustee as to the investment of trust funds. He states most of the recent decisions bearing on the point at some length, and the conclusion he arrives at is, in the words of Jessel, M.R., that "the trustee ought to conduct the business of the trust in the same manner that an ordinary man of business would conduct his own.' But he adds an important qualification not, we believe, hitherto stated in the text-books-ever since the death of E. the defendant and his predecessors in title had that the trustee may not do all that a prudent man of business might do in managing his own concerns, but that which the prudent man of business would do while strictly following the ordinary course of business." The chapters on "Permissible Investments" and "Investments not Permitted" will be found useful. The general conclusion that the author comes to is that—(1) In the investment of trust funds the trustees should never employ the solicitor who acts for the borrower; (2) Trustees, when entertaining the question of investment, should not favour the tenant for life at the expense of the remaindermen; (3) Any conditions annexed to the power to invest or vary investments should be observed strictly; and (4) Trustees should avoid making any investment which subjects the trust funds to the control of any one of the trustees singly. Perhaps the best part of the book is the discussion of lending money on personal security, on real securities, and on second mortgages. The author also discusses the questions of profits made by the trustee out of the trust property, of neglect by the trustee to invest, of bringing money into court, and of investments by the court. We rather wonder that the author has not discussed the cruel decision of Millett v. Haworth (29 SOLICITOR'S JOURNAL, 555)—a decision which appears to render it desirable, in all cases where a wide range of investments is authorized, to give power to the trustees, notwithstanding the opposition of the beneficiaries, to change any investments which may, in the event, throw liability on the trustees.

CASES OF THE WEEK.
EDEN . THE WEARDALE IRON AND COAL CO.-C. A. No. 2,
11th January.
THIRD PARTY-INTERROGATORIES" OPPOSITE PARTY "-R. S. C., 1883,
XXXI., 1.

The question in this case was whether a plaintiff was entitled to deliver interrogatories for the examination of a third party. The plaintiff, who was the owner of land, brought the action for specific performance of an agreement by the defendants to take a lease of the coal under the land. The defendants commenced to work the coal, but they were served by the Ecclesiastical Commissioners with a notice that the coal belonged to them as lords of the manor. The defendants served a third party notice on the commissioners, claiming indemnity from them in case the plaintiff should establish his claim. An order was afterwards made giving the commissioners leave to defend and to deliver a counter-claim. The Court of Appeal decided (28 Ch. D. 333) that there was no power to give leave to a third party to deliver a counter-claim against the original plaintiff. The counter-claim was accordingly struck out, and the commissioners afterwards obtained an order to strike out their defence. By a subsequent order it was directed that the question of indemnity as between the commissioners as third parties and the defendants should be tried after the trial of the action, and that, pursuant to rule 53 of order 16, the commissioners, as third parties, should be at liberty to appear at the trial and oppose the plaintiff's claim so far as they might be affected thereby, and, for that purpose, to adduce evidence, oral and documentary, and to cross-examine the plaintiff's witnesses. Chitty, J., gave the plaintiffs leave to deliver interrogatories for the examination of the commissioners. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed this order. It was contended on behalf of the commissioners that they were not "opposite parties " within the meaning of rule 1 of order 31, there being no issue between them and the plaintiff. THE COURT held

THE COURT OF APPEAL (COTTON and LINDLEY, L.JJ.) affirmed the decision. COTTON, L.J., said that in such a case, where the plaintiff sought to escape from the Statute of Limitations on the ground of a concealed fraud, he ought to state his case with extreme particularity, so as to enable the defendant to meet the case without disclosing all his title. The alleged settlement should have been stated so as to enable the defendant to raise the defence that such a settlement never existed. The rule was well stated by Bramwell, L.J., in Phillips v. Phillips (4 Q. B. D. 127). It was not enough to state an inference of law, but the fact should be stated from which the court could see the plaintiff's title. The plaintiff must not say simply, "Under and by virtue of a certain deed I am entitled"; he must state what the limitations of the deed were and the other facts, so as to enable the court to infer what his title was. In the present case the plaintiff had not stated his case in such a way as to enable the defendant to meet it without embarrassment and without disclosing all his title. There was no statement at all that T. D. was named as a remainderman in the settlement, but only of an inference of law that she became entitled. That was not a reasonable statement; it was embarrassing. Under rule 27 of order 19 his lordship thought that the court had jurisdiction to strike out the whole of a statement of claim if the whole of it was embarrassing. You could not fairly judge whether there had been fraud in concealing a settlement without knowing what its limitations were. The whole thing depended on the statement of the settlement. LINDLEY, L J., thought the case was near the line, but that it was covered by the principle of Phillips v. Phillips. The action was clearly a fishing one, and one could not help feeling that the plaintiff had not a case which he knew, but that he thought he had a case, and hoped he would be able to fish one out. His statement of claim was not in accordance with the requirements of rules 4, 6, and 7 of order 19. The only fraud suggested was fraudulent concealment of the settlement, and it was quite consistent with the allegations that there had been no fraud at all. It might be the plaintiff's misfortune if he could not state any more than he had done about the settlement, but this vague statement was not sufficient-CoUNSEL, Cookson, Q.C., McClymont, and C. E. Allan; Napier Higgins, Q.C., and Herbert Stephen. SOLICITORS, J. E. & H. Scott; Western & Sons.

Re THE FLINT COAL AND CANNEL CO. (LIM.)—Chitty, J., 11th
January.
COMPANY-WINDING UP-PROCEEDINGS AFTER PRESENTATION OF WINDING-
UP PETITION SUMMONS ΤΟ ENFORCE PAYMENT OF POOR RATES-
COMPANIES ACT, 1862, s. 85.

In this case, a petition having been presented for the winding up of the company, and an order made appointing a provisional liquidator, an ex parte application was made by the provisional liquidator for an injunction restraining the overseer of the poor from proceeding before the magistrates upon a summons for the enforcement of poor rates. Re Briton Medical and General Life Assurance Association (34 W. R. 390, 32 Ch. D. 503), was referred to.

CHITTY, J., said, as the poor rate was not a Crown debt, its enforcement had no priority by virtue of the Crown's prerogative. Nor was he aware of any legislation especially giving priority to claims for poor rates. Therefore, he held that the jurisdiction to restrain further proceedings upon the summons after the presentation of a winding-up petition fell within the

[merged small][merged small][ocr errors]

This was a petition for the revocation of a patent (this being the mode of procedure substituted by section 26 of the Patents Act, 1883, for the old scire facias to repeal a patent) on the ground of want of novelty in the alleged invention. Particulars of objection had been delivered by the petitioner. This was a motion by the respondents to the petition (the patentee and the assignees of the patent) that the petition might be heard with witnesses vira voce, and transferred into the list of witness causes. NORTH, J., held that, the petition being equivalent to an action to try the validity of the patent, the applicants were entitled to the order for which they asked.-COUNSEL, Aston, Q.C., and J. C. Graham; Moulton, Q.C., and L. E. Pyke. SOLICITORS, Campbell, Reeves, & Hooper; A. Curtis Hayward.

formalities ordinarily required in practice for his protection. And the bishop had stated in his evidence that in exceptional cases he did in practice dispense with attendance before a notary, and that it would be very inconvenient if he could not. The bishop could not make a practice for himself contrary to law, but there was nothing to show that his practice was of that character. In the present case the bishop had expressly waived the appearance of the plaintiff before a notary. As to the second point, his lordship said it was clear that a resignation of a benefice must, except in the case of an exchange, be unconditional, or, as the old writers said, it must be made pure, sponte, absolute, et simpliciter. There was no evidence of any pressure being applied to induce the plaintiff to resign. He was, no doubt, in a difficult position by reason of his own misconduct, but he had free choice between_resignation by his own act and deprivation by hostile proceedings in the Ecclesiastical Court, and he deliberately chose the former. There was no pecuniary consideration for the resignation; the plaintiff was merely left in receipt of the legal emoluments of his office during the time he filled it. Nor was the resignation really upon any condition. It was necessary to fix some time from which the actual resignation should operate. If proceedings in the Ecclesiastical Court had become unavoidable, some time must have elapsed before any sentence of deprivation could have been passed, and the bishop acted within his powers in fixing a time at which the

REICHEL v. THE BISHOP OF OXFORD-North, J., 12th January. formal acceptance should be dated and declared. The plaintiffs' argument

ECCLESIASTICAL BENEFICE-RESIGNATION-VALIDITY-CONDITION—

WITHDRAWAL.

The question in this case was as to the validity of a resignation by a clerk in holy orders of his benefice. The plaintiff in the action claimed a declaration that an instrument of resignation of his benefice executed by him was void, and an injunction to restrain the defendant, the bishop of the diocese, from accepting the plaintiff's resignation, or treating it as valid, or declaring the benefice vacant, or instituting any other person thereto. In September, 1885, a charge of immoral conduct was publicly made against the plaintiff in his parish, and the bishop called upon him to clear his character or to resign his benefice. The plaintiff then took proceedings for this purpose, but without success. The bishop then wrote to the plaintiff to the effect that he expected to receive from him at once an intimation that he was ready to resign his living without delay, and, after some further correspondence, the bishop's secretary, by his authority, wrote to the plaintiff that "the bishop desires me to send you a deed of resignation, and to inform you that his lordship proposes to date his formal acceptance of it on the 1st of October next, and not to declare your benefice vacant until that date if the deed is at once executed and returned to me, and if his lordship also receives in the meantime an assurance of satisfactory arrangements for the care and duties of the parish during your absence. The deed requires to be executed by you before witnesses, and, if you are unable to obtain the attestation of a notary public in London, it may be remitted to me attested by two persons.' The date October 1 was mentioned in this letter in consequence of a communication which had been made to the bishop by a friend of the plaintiff, and the bishop, in his evidence at the trial, stated that one reason for fixing that date was that the plaintiff might be able to receive a half-year's tithe. With this letter the bishop's secretary sent to the plaintiff a printed form of resignation. The plaintiff, on the 2nd of June, executed this instrument, and it was attested by two witnesses, neither of whom was a notary public. On the same day the plaintiff returned the instrument so executed to the bishop's secretary, who received it the next day, and signed a memorandum of surrender which was attached to it. He then sent the document to the bishop, with a memorandum of acceptance attached to it for his signature, and the bishop signed it and returned the document to his secretary. On the 16th of July the plaintiff handed to the bishop's secretary a document dated the 10th of June, executed by him, by which he purported to withdraw his resignation. This document was not communicated to the bishop or his secretary before the 16th of July. The action was commenced on the 14th of September, and the plaintiff, on the 22nd of September, applied to Grantham, J., as vacation judge for an interlocutory injunction. This application was refused (30 SOLICITORS' JOURNAL, 762). The plaintiff appealed, and the Court of Appeal, without deciding any question, requested North, J., to advance the trial of the action, and it was accordingly now tried. On behalf of the plaintiff it was contended that the resignation was invalid on three grounds-(1) that the deed of resignation was invalid because it was not made before the bishop in person or before a notary public; (2) that the deed was void because it was made under pressure, on condition, and for a pecuniary consideration; (3) that no resignation was binding until it had been accepted by the ordinary, and that it might be withdrawn before such acceptance, and that the plaintiff had withdrawn his resignation before acceptance.

NORTH, J., overruled all these objections and dis missed the action. As to the first objection, he said that the authorities cited did not bear out the proposition. Resignation might be to the bishop in person, and if he accepted it, was complete and final. But it was not suggested that this was the only mode by which a resignation could be effected. His lordship could not find anything in canon, statute, or common law making it essential that a resignation, to be valid, should be either personal or before a notary public by an instrument attested by him and directed to the ordinary. He could not see why it would not be legal if done by letter or by the ratification by the ordinary of a resignation made to a wrong person. The bishop was entitled to prescribe what formalities he might require for the purpose of preventing any dispute, at a future time, whether an incumbent had actually resigned or not, and his lordship was not aware of any law which imposed any obligation on him as to the procedure he should insist upon in such cases, or which preyented him from dispensing, in any particular instance, with the

So.

must go to this extent, that any resignation which has not to come into full operation at the very moment at which it was sent in and accepted, but only at a future time agreed on, would be invalid. His lordship did not assent to this proposition. It was a confusion of language to call fixing the date when a resignation was to operate the insertion of a condition. He thought that an honest arrangement that a resignation should take effect from a named future day was not illegal. It could not prejudice the patron of the living, for the time for lapse ran only from the date when the patron had notice of the actual avoidance. As to the third point, his lordship was of opinion that the sending in by the plaintiff of his resignation of the 2nd of June was not an offer which required some acceptance by the bishop, and was revocable by the plaintiff until such acceptance, but that an offer was made by the bishop to the effect that, if the plaintiff would place in the bishop's hands his formal resignation (the formal acceptance of which declaring the benefice vacant the bishop would date on the 1st of October) the bishop would abstain from taking the threatened proceedings against the plaintiff in the Ecclesiastical Court. This offer was accepted by the plaintiff and acted on by the bishop, and after that it was impossible for the plaintiff to withdraw his resignation. Even if it was open to the plaintiff to withdraw his resignation before acceptance, in his lordship's opinion the plaintiff had not done He thought that it was not necessary that the bishop's acceptance should be in writing, and that he did accept the resignation when he received back the deed without objection, and abstained from further action. At any rate, the onus was on the plaintiff to prove the withdrawal before acceptance, and he had failed to prove it. Moreover, according to the ecclesiastical law, if a man had once given up his benefice, and afterwards, changing his mind, wished to return to it again, this later wish would be in vain, unless some cause existed which made the ordinary think that the former cession should be undone and treated as nothing. It was not stated in terms that this applied to a case in which the resignation had not been accepted, but his lordship thought that it did, because, if the avoidance had been completed by acceptance, a new presentation, institution, and induction would have been necessary, and such ceremonies could not be dispensed with by a mere change of mind on the part of the bishop and the priest. According to ecclesiastical law, as his lordship understood it from the authorities, a person who had tendered a resignation which had not been accepted, and who might withdraw it if matters remained as they were, was prevented from withdrawing it, even before acceptance, if, in consequence of the tender, any party was in a different position from that in which he would have been if no tender had been made. The plaintiff, by sending in his resignation, procured a postponement of legal proceedings against himself, and thereby, by ecclesiastical law, incapacitated himself from withdrawing it during the interval before the 1st of October, and this would be so even if the true view was that the bishop did not accept the resignation until that date. Consequently the plaintiff's attempt to withdraw his resignation failed entirely. COUNSEL, Cozens-Hardy, Q.C., and A. Young; Jelf, Q.C., Muir Mackenzie, and Mackarness. SOLICITORS, Hyde, Tandy, & Mahon; Cunliffes & Davenport.

[blocks in formation]

This was an application for a grant of letters of administration on presumption of death. In an administration action in the Chancery Division inquiries had been directed as to the persons entitled to share in certain settled property, and it became necessary to prove the death of the children of a Mr. and Mrs. Thompson. These parties were proved to have had a daughter, who had married a Mr. Taylor. The deaths of Mr. and Mrs. Tayior were proved, but then it was alleged that there had also been a sor born of the marriage who had died before the birth of the daughter, and whose death the court was now asked to presume, there being no evidence as to either his Christian name or the date of his birth. It was proved, by production of her baptismal certificate, that the daughter was born in May, 1811. From affidavits made by two former servants of the family, it appeared that Mrs. Thompson had stated to each of them that she had had a son who had died before her daughter's birth, but, to the best of the recollection of both deponents, she had never

mentioned the Christian name of such son, and they both stated that when they were respectively servants of the family the said daughter was the only living child of Mr. and Mrs. Thompson. HANNEN, P., said that the mother's statement was plainly admissible as a declaration by a deceased person as to a question of pedigree. He saw no reason to doubt its genuineness, and, therefore, the grant might be made. The grant must state the surname of the deceased, and that his Christian name was unknown. There would be a limitation as to date, and it would be recited in the grant that the death occurred after the date of the marriage, and before the date of the daughter's birth.-COUNSEL, Bayford, Q.C. SOLICITORS, Lindo & Co.

CASES AFFECTING SOLICITORS.

Re ALLEN-C. A. No. 2, 12th January. SOLICITOR-COSTS-PREPARATION OF LEASE-ELECTION TO BE PAID UNDER OLD SYSTEM - "BEFORE UNDERTAKING ANY BUSINESS" - SOLICITORS' REMUNERATION ORDER OF AUGUST, 1882, RR. 2, 6.

[ocr errors]

.

This was an appeal from the decision of Kay, J. (35 W. R. 100, ante, P. 78), the question being at what time a solicitor was entitled to exercise the right of election given to him by rule 6 of the Remuneration Order of August, 1882, to be remunerated according to the old system as altered by schedule II. to the order, instead of by the scale fee. Rule 2 of the order provides that the remuneration of a solicitor" in respect of business connected with leases is to be regulated as follows, namely:(b) In respect of leases, and agreements for leases, of the kinds mentioned in part II. of schedule I. to this order, when the transactions shall have been completed, the remuneration of the solicitor having the conduct of the business is to be that prescribed in part II. of such schedule I." And by rule 6, "In all cases to which the scales prescribed in schedule I. hereto shall apply, a solicitor may, before undertaking any business, by writing under his hand communicated to the client, elect that his remuneration shall be according to the present system as altered by schedule II. hereto; but if no such election shall be made, his remuneration shall be according to the scale prescribed by this order." In the present case a summons was taken out by lessees to review a taxation of the costs of the lessor's solicitors, which the lessees were liable to pay. The question arose thus:-On the 29th of January, 1823, a lease was granted which contained a covenant by the lessor that he or his representatives would grant to the lessee or his representatives, at his or their costs, new leases of the demised premises until ninety-nine years in the whole had been granted, every such renewed lease and the counterpart thereof to be prepared by the lessor's solicitor for the time being, and the costs thereof paid by the lessee or his representatives. The property was copyhold, and a lease of it could not be granted without the licence of the lord of the manor. In July, 1885, a renewed lease which had been granted under the covenant was about to expire, and on the 24th of July the solicitors of the persons who claimed to be entitled to a further renewal wrote to P., who was the representative of the original lessor, claiming on behalf of their clients a renewal of the lease in accordance with the covenant, and asking to be put in communication with P.'s solicitors, and that he would instruct them to prepare a lease accordingly. They offered at the same time to produce to P.'s solicitors certain documents shewing the title of the claimants to the benefit of the covenant for renewal. P. took this letter to his solicitors, and on July 25 they wrote to the claimants' solicitors :-"Our client has seen us with your letter of yesterday addressed to him, and the matter therein referred to shall have our attention." P.'s solicitors were afterwards satisfied that the claimants were entitled to the renewal, but some delay took place in getting P. admitted on the rolls of the manor, and in obtaining the licence of the lord for the lease. This having been done, P.'s solicitors, before commencing the preparation of the draft of the lease, on the 19th of October, 1885, gave notice in writing to P., that on the grant of the lease it was their intention to charge their costs thereof and incidental thereto in accordance with schedule II. The lease was afterwards prepared. On the taxation of the costs, at the instance of the lessees, it was objected that P.'s solicitors bad not made their election in time "before undertaking the business," and that they were only entitled to remuneration according to the scale fee under part II. of schedule I. The taxing master held that the election had been made in sufficient time, and that the solicitors were entitled to be remunerated according to the old system as altered by schedule II. Kay, J., reversed this decision, holding that the business was "undertaken" on the 25th of July, when P.'s solicitors wrote to the solicitors of the claimants, that being a part of the business for which they could charge P., and being business "connected with" the lease, and that after that it was too late for P.'s solicitors to elect under rule 6.

This decision was affirmed by the Court of Appeal (COTTON, LINDLEY, and LOPES, L.JJ.). COTTON, L.J., thought that it would be wrong to hold that, after a solicitor had done any part of the business which would be covered by the scale fee, he was at liberty to say that that fee would not pay him for the work, and that he would elect to be remunerated under schedule II. That would be giving the solicitor the option of accepting the scale fee when it would pay him and rejecting it when it would not. Rule 6 applied, and the question was whether the notice of election of the 19th of October was given early enough. That depended upon what was meant by the words undertaking" and "business" in the rule. In his lordship's opinion the word "business" meant all that business the payment for which would be covered by the scale fee, for, though part II. of schedule I. only spoke of the remuneration for "preparing, settling, and completing lease and counterpart," yet rule 2 said that that remuneration

[ocr errors]

was to be "in respect of business connected with a lease. What, then, was the meaning of "undertaking" the business? In his lordship's opinion the business was "undertaken" by the solicitor as soon as the client retained him and he accepted the retainer. He thought that, in the present case, the solicitors had, before the 19th of October, "undertaken" the business to which the scale fee applied, and that the proper conclusion was that, when P. put into their hands the letter of the 24th of July from the claimants' solicitors, he instructed them to attend to the matter, and to undertake the preparation of the lease, if they should be satisfied that the applicants were entitled to it. They then undertook the business for which the scale fee provided the remuneration, in case the lease should be granted. If the lease had not been completed their remuneration would have been under schedule II. The proper conclusion was that they accepted the letter handed to them by their client as instructions to attend to the matter referred to in it, and their own letter to the claimants' solicitors shewed that they understood it as instructions to carry out the lease, if the persons who had applied for it should prove to be entitled to it. Consequently the election on the 19th of October was made too late. His lordship would give no opinion now whether the business of getting P. put on the rolls LINDLEY, L.J., said that the expression "before undertaking any business," and obtaining the licence of the lord was covered by the scale fee. in rule 6, was obscure, and to understand it the earlier part of the order must be looked at. Subject to the question of election, it was obvious schedule I., and it was for the solicitors to shew that they had done what that the business would have to be paid for according to part II. of was necessary to exclude that. Rule 6 provided that, in order to exclude, the solicitor must elect, in writing, "before undertaking the business." Looking at the facts of this case, and the correspondence, his lordship could not see any ground for saying that the business was undertaken in October; he thought it was undertaken in July. The only other pos sible view was that that part of the business which was done before the notice of the 19th of October had nothing to do with the granting of the lease; but it was very difficult to say that it was not business "connected with " the lease. If the court were to accede to the view of the appellants, a solicitor might always sub-divide any business, and elect, as to a part of it, not to be paid according to the scale. This would be totally inconsistent with the rules. LOPES, L.J., concurred.-COUNSEL, Millar, Q.C., and A. J. Allen; Haldane. SOLICITORS, Allen & Son; Parker, Garrett, & Parker.

Re SYKES (DECEASED)-Chitty, J., 11th January. SOLICITOR-COSTS-SCALE FEES FOR CONDUCTING SALE BY AUCTION-COMMISSION PAID TO AUCTIONEER-SOLICITORS' REMUNERATION ACT, 1881 (44 & 45 VICT. c. 44)-GENERAL ORDER, SCHED. I., PART I., R. 11.

This was a summons to review taxation. It appeared that an order had been obtained in an administration action for the sale of the testator's real estate. The property was situate in Yorkshire, and the plaintiff, who had the conduct of the sale, obtained in chambers an allowance by the chief clerk of £23 12s. 6d. for the auctioneer's fees and £52 10s. for surveyor's fees, the latter sum being directed to expressly include valua tion fees. These two sums were included in the bill sent in by the plaintiff's solicitor for taxation together with items amounting to £31 10s., being scale charges for conducting the sale of property by public auction as fixed by schedule I., part I., of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. These scale fees were disallowed by the taxing master on the ground that rule 11 of schedule I, part I provided that "the scale for conducting a sale by auction shall apply only in cases where no commission is paid by the client to an auctioneer," and that the case fell within Re Wilson (29 SOLICITORS' JOURNAL, 438, 29 Ch. D. 790). The plaintiff took out a summons to review taxation. He stated that, in accordance with the prevailing practice in the North of England, the auctioneer had merely offered the lots in the auction-room and had been paid for that only, and the surveyor for valuing, measuring, surveying, and lotting the property, but that all the work in connection with making arrangements for the sale, preparing, printing, and distributing the parti culars and conditions of sale and lithographing the sale plan, advertising in newspapers and by bill-posting, and getting a full attendance at the auction-rooms was done by the solicitor, and all the bills for printing, advertising, &c., &c., were sent in to the solicitor and paid by him. On the appointment to tax, and also on seeing the taxing master on the objections carried in to the taxation, the plaintiff's solicitor asked the taxing master to strike out the auctioneer's charges and permit the solicitor himself to pay them, but this the taxing master declined to do, stating that when a sale took place through the court the solicitor was not allowed to pay the auctioneer. It was contended by the plaintiff that it was the solicitor and not the auctioneer who had done the work, and that In re Wilson was merely a decision that when the auctioneer had done the work and been paid for it the solicitor could not charge scale fees, and that this was the proper construction to put on rule 11. It should be stated that the taxing master had added an additional 10 guineas to the bill of costs as extra remuneration to the solicitor in respect of labour incidental to the sale which the scale fee was not intended to include.

The

CHITTY, J., said that the case fell within the principle of In re Wilson. The auctioneer and surveyor had not been paid by the solicitor but by the client, and the case therefore was exactly within rule 11. taxing master was right in not permitting the solicitor to pay the auctioneer, for, had the solicitor had the power to make such payment, the application in chambers to the chief clerk for his sanction to the payment would not have been required. It was said that the solicitor himself had done the business which, in London, usually falls within the duties

of the auctioneer, but that the custom in the North of England was different to that in the South. That might be so, but, inasmuch as rule 11 of the General Order did not constitute any distinction between the custom obtaining in different parts of the kingdom, he had no option except to dismiss the summons.-SOLICITORS, H. B. Clarke & Sons, for W. H. Clough, Checkheaton, Yorks; Flower & Nussey, for Carr & Cadman, Gomersall, Yorks.

Ex parte THE MAYOR, &c., OF LONDON, Re THE METROPOLITAN AND DISTRICT RAILWAYS ACT, 1879-Kay, J., 13th January. SOLICITOR" INVESTIGATING TITLE "-SOLICITORS' REMUNERATION ACT, 1881-GENERAL ORDER, AUGUST, 1882, R. 2, SCHED. I., PART I. This case raised the question as to a solicitor's right to be paid the scale charge, under the General Order, "for investigating title." &c., on a purchase of property, where the nature of the title and the circumstances of the purchase were such as rendered the labour of investigation slight, whilst owing to the large amount of the purchase-money (over £90,000), the sum payable under the scale was considerable. The question arose out of a re-investment in land by the Corporation of London of moneys which had been paid into court by the above-mentioned railways in respect of property required for the purposes of their undertaking under the special Act, and of which re-investment the railways were liable to pay the costs. The moneys had been re-invested in the purchase of the old Bankruptcy Court, Basinghall-street, which, under section 68 of the Bankruptcy Act, 1861, was vested in the Commissioners of her Majesty's Works and Public Buildings, and by that section was to be " appropriated to such purposes as the Lord Chancellor shall direct." On the purchase an intimation had been given by the Solicitor to the Treasury that the Government did not intend to furnish any evidence of title to the property, but that the sale would be effected under the authority, and by the direction, of the Lord Chancellor, under the above section. The purchaser's solicitor had previously prepared a summons for procuring the sanction of the court to the purchase, by which the usual inquiry into title was asked. On receiving the above intimation he referred to section 68 of the Bankruptcy Act, and subsequently wrote to the Solicitor to the Treasury on the subject of whether the Lord Chancellor had authorized the sale. The reply was that the authority had been given in a letter signed by the secretary, but that an authority signed by the Lord Chancellor himself should be procured, and it was procured accordingly, and a copy sent to the purchaser's solicitor. Upon this he amended the summons by omitting the inquiry as to title, as he thought he should be able to satisfy the chief clerk that the inquiry would be unnecessary. In the result the chief clerk, after adjourning the matter for the purpose of the original of the authority from the Lord Chancellor being produced before him, sanctioned the purchase without referring the title to the conveyancing counsel, and the purchase was accordingly completed. On the taxation of the purchasers' costs their solicitor claimed the scale fee for investigating the title, &c., calculated on the amount of the purchase-money, under schedule I., part I., of the General Order, which thus amounted to £278 15s. 7d. This the taxing master disallowed, on the ground that no title had been produced or investigated, and the purchasers now applied by summons to review his taxation. In support of the application it was contended that there had been an investigation of the title, for the chief clerk would not have sanctioned the purchase except upon being satisfied that the title was a good one, and that Re The Merchant Taylors' Co. (33 W. R. 693, 30 Ch. D. 28) established that a solicitor was equally entitled to the scale fee whether the title was inquired into by the court or not. On behalf of the railway companies, it was contended that there had been no investigation into the title, as the vendors had stipulated that they were not to shew any; the reference to the general Act of Parliament under which their title arose amounted to no more than a proviso by a vendor that a purchaser should assume that he was seised in fee; and that Re Lacey & Sons (32 W. R. 233, 25 Ch. D. 301) shewed that, where the work included in the schedule was not in fact performed, the scale fee was not payable.

KAY, J., decided in favour of the claim. His lordship said that he was sorry not to be able to agree with the taxing master, but there had clearly been an investigation of the title by the purchaser's solicitor. The reason the Solicitor to the Treasury refused to furnish evidence of title obviously was merely because the Act of Parliament, on which the vendor's title rested, was perfectly accessible to the purchasers. But there was, nevertheless, a title to investigate, and the purchaser's solicitor would have been wanting in his duty to his clients if he had not investigated it.

And that he, in fact, did so, was shewn by the fact that, not being satisfied with the sufficiency of the authority to sell, he required, and obtained, the further authority from the Lord Chancellor. The question as to the commissioners' power of sale was one that required careful consideration. And had the solicitor allowed the matter to be referred to the conveyancing counsel to the court, in that case there would clearly have been an investigation of title within the General Order. His lordship added that it was no part of his duty to consider whether the result of the Act of Parliament and of the General Order was to produce hardship or not. It was true that this was by no means the first case in his court where the scale had resulted in gross overpayment, but presumably the Legislature intended the possibility of this being so. In this case an investigation of title had clearly taken place, and he was compelled, though with reluctance, to differ from the taxing master, and to allow the summons, with costs.-COUNSEL, Sir A. Watson, Q.C., Tweedy; Farwell. SOLICITORS, H. H. Crawford; Baxters & Co.

The retirement of the Irish Lord Chief Justice is announced. It is stated that the Irish Attorney-General, Mr. Holmes, will succeed to the post.

LAW SOCIETIES. INCORPORATED LAW SOCIETY.

The following notices of motion have been given for the special general meeting to be held on Friday, the 28th inst., at 2 o'clock:

Mr. H. E. Gribble will call attention to the resolution of the society passed at the annual provincial meeting held at York on the 12th and 13th of October, 1886, and subsequently approved by the council, and will move : "That a committee be appointed to consider and report to the council on the measures necessary to be taken with the object of assimilating the practice in England generally to that which prevails in the North of England with respect to the employment and remuneration of auctioneers. That the committee (of whom ten shall be a quorum) shall consist of members of the society, to be named at the meeting, with power to add to their number. That it be an instruction to such committee to especially invite the co-operation of members familiar with the practice in the North of England."

Mr. F. K. Munton will ask: "What steps have been taken by the council in relation to the resolution passed at the last annual meeting as to the questions with the Middlesex registry?" and will move: "That the special committees' county court report be remitted back to such committee for reconsideration, with the aid of the council's observations thereon, and especially in conjunction with the official rules and regulations promulgated since the report was drawn up-the committee to have power (with the concurrence of the council) to add to their number." Mr. Samuel Day will move: "That the following be added to the existing rules of the Law Society Club: The committee, notwithstanding anything to the contrary in these rules, shall have power, subject to the approbation of a majority of the members voting at a general meeting specially called for the purpose, to elect, as honorary member, any person not being a member of the Incorporated Law Society.'" Mr. J. J. Coulton will move: (1) That, at the annual provincial meetings of this society, a printed copy of all the papers be handed to every member on application at the place of meeting or during the meeting. (2) That the papers be taken as read and the whole time of the meeting devoted to their discussion. (3) That the papers be grouped into sections, and the time apportioned to each section in proportion to quantity and imThat the author of a paper should have the right of reply. (6) That no portance. (4) That no speaker be allowed more than ten minutes. (5) thanks be given to any member or official of the society."

་་

[ocr errors]

Mr. Charles Ford will ask: "(1) Is the president of the society, and are the members of the council, unanimously of opinion that the Law Club (as constituted after the commencement of my Chancery action in regard to the old club) is beneficial to the general body of members of the society what is the estimated value of the premises occupied by the club; and what is the present number of members of the club who are members of the society? (2) Referring to the statements made by Mr. Roscoe, when president of the society, at general meetings held in July, 1885, and January, 1886, as to the Students' Fee Fund created by section 8 of the Solicitors Act, 1877, what is the sum now available for legal education in connection with that section?" And will move: "(1) This meeting, whilst recogniz. ing the good intentions of the council in smail grants recently made to Liverpool and Newcastle-on-Tyne for educational purposes, is of opinion that these and similar grants should be larger in amount, and should be made without the conditions hitherto imposed by the council. (2) That the interests of solicitors and the public require that many public legal appointments, from which solicitors are at present excluded, should be thrown open to them."

LAW STUDENTS' JOURNAL.

THE INCORPORATED LAW SOCIETY.
FINAL EXAMINATION.

Under the Solicitors Act, 1877.

Subjects of examination in the year 1888:

1. The Principles of the Law of Real and Personal Property, and the Practice of Conveyancing. 2. The Principles of Law and Procedure in matters usually determined or administered in the Chancery Division of the High Court of Justice. 3. The Principles of Law and Procedure in matters usually determined or administered in the Queen's Bench Division of the High Court of Justice, and the Law and Practice of Bankruptcy.

4. The Principles of Law and Procedure in matters usually determined or administered in the Probate, Divorce, and Admiralty Division of the High Court of Justice; Ecclesiastical and Criminal Law and Practice; and Proceedings before Justices of the Peace. before the date of the examination to the Secretary of the Incorporated Candidates are required to give notice in writing forty-two days at least Law Society, Chancery-lane, London.

tary of the society their articles of clerkship and supplemental articles (if any), and certificate of having passed the intermediate examination, together with answers to the questions as to due service and conduct, to be answered by the candidate and his principal and agent if any. these questions can be obtained on application at the office of the Incorporated Law Society.

Candidates are also required, at the same time, to leave with the secre.

Prints of

Where articles of clerkship expire between 10th January and 15th April candidates may be examined in January, 1888; between 14th

[ocr errors]

April and 22nd May in April, 1888; between 21st May and 2nd November in June, 1888; between 1st November, 1888, and 11th January, 1889, in November, 1888; or at any subsequent examination.

The examinations in 1888 will be held at the hall of the society, Chancery-lane, London [the dates of the examinations will be published in July next]. Candidates who fail to pass, or attend at the examination for which they have given notice, may attend at any subsequent examination. A renewed notice must, in that case, be given fourteen days, at least, before the date of such subsequent examination.

The fee payable on giving notice of examination is £5, for a renewed notice £2 10s, and for the honours examination £1. Cheques or postoffice orders should be crossed "Messrs. Goslings & Sharpe.'

LAW STUDENTS' DEBATING SOCIETY.

The society held its usual quarterly meeting at the Law Institution, Chancery-lane, on Tuesday, January 11th; Mr. E. P. Bilbrough in the chair; when, owing to the prolonged discussion of special business, the subject on the agenda paper was not reached.

PRESTON LAW DEBATING SOCIETY.

The first general meeting of this society for session 1886-87 was held on the 7th inst. The chair was occupied by Mr. W. E. M. Tomlinson, M.P., barrister-at-law. Six legal queries were discussed and satisfactorily settled. The following case was then argued :-"Should the case of Blackburn, Low, & Co. v. Vigors be reversed on appeal to the House of Lords?" In this case, which was one on marine insurance, a principal appointed an agent to effect a policy of insurance on his ship. Before the agent could effect it he discovered that the ship was lost. He told his principal that he could not effect an insurance, but concealed the fact that the ship was lost. The principal then appointed another agent to try to effect an insurance, and this agent succeeded. Was the policy effected by the second agent good? Mr. A. Bush opened the case on behalf of the affirmative, and he was supported by Messrs. A. W. Ladyman and R. A. McNab. Mr. Rawsthorne upheld the negative contention, and he was followed by Messrs. T. H. Clarke and H. Whiteside. After Mr. Rawsthorne bad summed up and Mr. Bush replied, the chairman very impartially summed up and put the question to the jury, when it was unanimously decided for the negative-i.e., that the policy entered into by the second agent was void, and, therefore, that the case ought not to be reversed on appeal to the House of Lords. A vote of thanks to the chairman brought the proceedings to a termination.

LEGAL NEWS.

OBITUARY.

Serjeant WILLIAM BALLANTINE died at Margate on the 9th inst., at the age of seventy-five. The deceased was the eldest son of Mr. William Ballantine, magistrate at the Thames Police-court, and was born in 1812. He was educated at St. Paul's School. He entered at the Inner Temple at an early age, and, after having been a pupil in the chambers of the late Baron Watson, was called to the bar in Trinity Term, 1834. He selected the Home Circuit, and for over twenty years he practised at the Central Criminal Court and at the Middlesex Sessions. He was for several years a revising barrister, and he soon acquired a large criminal practice, besides being extensively employed in licensing business. In 1856 he was created a serjeant-at-law (at the same time with the late Serjeant Parry), and he gradually acquired a leading civil business both on circuit and in London, while still holding special briefs in criminal cases. In 1863 he received a patent of precedence, and for the next fifteen years he occupied a leading position at the Common Law bar. He was a powerful cross-examiner, and his tact and powers of sarcasm rendered him very successful with juries. He often appeared as leading counsel for the large railway companies, and he was frequently successful in defeating fraudulent claims to compensation. He was also largely employed in election petitions. It would be impossible here to enumerate all the important cases in which Mr. Serjeant Ballantine was engaged, but we may mention among criminal cases Reg. v. Manning, Reg. v. Muller, Reg. v. Baker, the Rachel case, the Overend and Gurney case, the Boulton and Park case, and among civil cases the Chetwynd divorce case, the Mordaunt divorce case, and the Risk Allah Bey case. He was also leading counsel for the plaintiff in the Tichborne ejectment suit. In 1875 he went to India, being specially retained for the defence of the Guik war of Baroda, when he was understood to have received the unprecedented fee of 10,000 guineas. His health gave way about six years ago, and since that time he had gradually ceased to practice. About five years ago he published two volumes of "Experiences of a Barrister's Life," which contained some amusing experiences of professional and social life. He afterwards went to the United States on a lecturing tour, which was not believed to have been successful, and on his return he published another work, entitled "From the Old World to the New." Mr. Serjeant Ballantine was a bencher of the Inner Temple. He had filled the office of treasurer of Serjeaut's-inn, in which capacity he carried out the sale and division of the property of that society. He was married in 1845 to the daughter of Mr. George Gyles, but he had been a widower for many years. His only son, Mr. William Henry Walter Ballantine, was called to the bar at the Inner Temple in Hilary Term, 1871, and is a member of the South-Eastern Circuit.

[ocr errors]

Mr. THOMAS KENNEDY RAMSAY, a Puisne Judge of the Court of Queen's Bench at Quebec, died at St. Hogues, Canada, on the 22nd ult. Mr. Justice Ramsay was the youngest son of Mr. David Ramsay, of Grimmet, Ayrshire, and was born in 1826. He was educated at the Ayr Academy, and at the University of St. Andrews, and he was called to the bar in Lower Canada. He was secretary to the Commissioners for the Codification of the Laws of Lower Canada. He was assistant judge of the Superior Court of Canada from 1870 to 1873, when he was appointed a Puisne Judge of the Court of Queen's Bench at Quebec.

Mr. THOMAS PLATT, barrister, died at Brockley Lodge, Finchley, on the 14th ult, in his eighty-seventh year. Mr. Platt was the fourth son of Mr. Samuel Platt, and was born in 1800. He was educated at St. Paul's School. He was called to the bar at Lincoln's- inn in Trinity Term, 1826, and he had for many years a considerable practice as a conveyancer. He was the author of a work on the Law of Covenants, and of a wellknown work on the Law of Leases. Mr. Platt was married first, in 1839, to the eldest daughter of Mr. John Hugh Smyth Pigott, of Brockley Hall, Somersetshire. He became a widower in 1853, and he was married secondly, in 1859, to the eldest daughter of Mr. Charles Phillips, Com.

missioner of the Insolvent Debtors Court.

APPOINTMENTS.

Mr. EDWARD MACNAGHTEN, Q.C., M.P., who has been appointed a Lord of Appeal in Ordinary on the resignation of Lord Blackburn, is the second son of the late Sir Edmund Workman Macnaghten, Bart., and was born in 1830. He was formerly Fellow of Trinity College, Cambridge, where he graduated in the first class of the Classical Tripos, and as Chancellor's Medallist, and a Senior Optime in 1852. He was called to the bar at Lincoln's-inn in Hilary Term, 1857. He was Secretary to the Chancery Funds Commission. He became a Queen's Counsel in 1880, and he has since practised in the Rolls Court and before Mr. Justice Chitty. He was M.P. for the county of Antrim in the Conservative interest from 1880 till 1885, when he was returned for North Antrim. He is a bencher of Lincoln's-inn. He is married to the daughter of the late Mr. Baron Martin.

The Right Hon. Sir HENRY THURSTAN HOLLAND, Bart., G.C.M.G., M.P., who succeeds Mr. Stanhope as Secretary of State for the Colonies, is the eldest son of Sir Henry Holland, Bart., M.D., and was born in 1825. He was educated at Harrow and at Trinity College, Cambridge. He was called to the bar at the Inner Temple in Michaelmas Term, 1849, and he formerly practised on the Northern Circuit. He was Secretary to the Common Law Commission, and he was Assistant Under-Secretary of State for the Colonies from 1870 till 1874. He was M.P. for Midhurst in the Conservative interest from 1874 till 1885, when he was elected M.P. for Hampstead. In June, 1885, he was appointed Financial Secretary to the Treasury, and two months afterwards he was appointed Vice-President of the Committee of the Council on Education, and was sworn in as a member of the Privy Council. He went out of office in February, 1886, but he was re-appointed in the July following. Sir H. Holland was created a Knight Grand Cross of the Order of St. Michael and St. George in 1885. He is a bencher of the Inner Temple, a magistrate for Surrey, and a deputy-lieutenant for Middlesex.

The Right Hon. EDWARD STANHOPE, barrister, M.P., Secretary of State for the Colonies, has been appointed Secretary of State for War. Mr. Stanhope is the second son of the fifth Earl Stanhope, and was born in 1840. He was educated at Harrow, and at Christ Church, Oxford, where he graduated B.A. in 1862, and he was subsequently elected a Fellow of of All Souls' College. He was called to the bar at the Inner Temple in Easter Term, 1865, and he formerly practised on the Home Circuit. He acted as an assistant commissioner on the Employment of Women and Children in Agriculture, and he was M.P. for Mid Lincolnshire from 1874 till 1885, when he was returned for the Horncastle Division of that county. Mr. Stanhope was Secretary to the Board of Trade from 1875 till 1878, Under-Secretary of State for India from 1878 till 1880, Vice-President of the Committee of Council on Education from June till August, 1885, and President of the Board of Trade from August, 1885, till February, 1886. He was appointed Secretary of State for the Colonies in July, 1886.

Mr. ALFRED MILNER, barrister, who has been appointed Private Secretary to the Chancellor of the Exchequer, is the only son of Dr. Charles Milner, and was born in 1854. He was formerly scholar of Balliol He College, Oxford, where he graduated first class in Classics in 1876. obtained the Hertford Scholarship in 1874, the Craven Scholarship in 1877, and the Derby Scholarship and the Eldon Law Scholarship in 1878, and he was subsequently elected a fellow of New College. Mr. Milner was called to the bar at the Inner Temple in January, 1881, and he is a member of the Midland Circuit.

Mr. EDWARD BRADFORD MEDLYCOTT, barrister, has succeeded to a Baronetcy on the death of his elder brother, Sir William Coles Medlycott. Sir E. Medlycott is the second son of the late Sir William Coles Medly cott, and was born in 1832. He was educated at Merton College, Oxford. He was called to the bar at Lincoln's-inn in Michaelmas Term, 1855, and he practises on the Western Circuit.

Mr. WILLIAM BOWEN ROWLANDS, Q.C., M.P., has been appointed a Magistrate for Cardiganshire.

Mr. JAMES FOTHERGILL EVANS, solicitor, of Chepstow, has been ap pointed Clerk to the Magistrates for the Chepstow Divison of Monmouthshire and for the Lydney Division of Gloucestershire. Mr. Evans was admitted a solicitor in 1874.

« PreviousContinue »