« PreviousContinue »
only known to the librarian, but attention had been called to the fact by specifications describing in identical terms the same invention? The the publication in the Patents Journal of English translations of their public were then possessed of the information contained in the plaintiff's titles. Moreover, the specifications themselves were in their proper places parent, it was on the shelves of their public library-a library in the in the library, and anybody wanting to use them could have done so. Patent Office, the place of all others devoted to information relating to Whether anyone other than the librarian did in fact ever see them inventions; the place to which anyone wanting information on such was not known. His lordship thought that on this evidence the burden subjects would resort. Why should the public be precluded from the of shewing that the English patentee was the first inventor in this right of using the information of which they were then in possession ? country was cast upon the plaintiff; and that unless he could shew His lordship thought that, directly the German specifications were dethat the German specifications were not, in fact, seen by anyone who posited in the library of the Patent Office, and became unreservedly could understand them, the defendant must succeed. If the case were accessible to the public, there was a complete publication of the invention being tried by a jury, his lordship was not sure that the judge might not in this country, and it became the property of the public. In his opinion direct the jury to find that the patentee was not the true and first the depositing the specifications in the library of the Patent Office was inventor. But without going so far as to say that the judge ought to give itself a publication of the invention contained in them, and the insuch a direction, the judge ought at least to tell the jury to find for the vention was then dedicated to, and became the property of, the public. defendant if they thought that the German specifications had been so Plimpton v. Spiller (6 Ch. D. 429) was therefore very different from the published in this country as to have become known to anyone here; and present case. There the book was not accessible to the public, and could to guide the jury, the judge ought to tell them that the invention, having not be said to have become part of the public stock of information.
His been so laid before the public in this country, ought to be presumed to lordship could find nothing in United Telephone Co. v. Harrison (21 Ch. D. have become known in this country, in the absence of all proof to the 731), or Otto v. Steel (31 Ch. D. 241) opposed to the view that these contrary. Even if the case had turned solely on the publication of the specifications were deposited in the library of the Patent Office in such second of the two German specifications, his lordship was not prepared to a way as to become unreservedly accessible to the public, and to become say it would be wrong to direct a verdict for the defendant. part of their property. They were deposited in a place devoted to the At any rate, the only question which could be properly left to subjects with which they dealt; they were placed within the reach of them would be whether in their opinion the German specification had every member of the public who desired to consult them. His lordship been published in this country long enough before the plaintiff's patent was at a loss to understand how a patentee could be said to add anything to have become known here. This question really admitted of but one to the common stock of public knowledge when the public, at the date answer, and it could not be supposed that any jury would find that six of his letters patent, had in their public library, accessible to everyone, a weeks were not long enough for such a purpose. If the two German detailed description of that for which he was seeking a monopoly. If a specifications had been in the English language his lordship had no doubt previous complete specification for the same invention was proved to have that the defendant would be entitled to succeed. It was familiar law been enrolled in the Patent Office, that in itself, without any proof that that proof of the description in English of an invention in a book pub- anyone had ever seen or heard of it, was conclusive evidence of prior lished in this country was fatal to the validity of a subsequent patent for publication, probably on the ground that a document describing the the same invention. In such a case no evidence was necessary to shew invention had been filed in the Patent Office, a document accessible to that the book was in fact read or referred to. Proof that it had not been all, and therefore the public could not be precluded from using information sold or circulated might, no doubt, be given, and, if such proof were which they already possessed. In Hindmarch on Patents (1st ed., p. 33) given, the publication would not be fatal to the patent. The same rule it was laid down that " if the public once becomes possessed of an invenwas applicable to the proof of a publication (by inrolment in the Patent tion by any means whatever, no subsequent patent for it can be granted, Office) of an earlier specification of the same invention. Although in either to the true or first inventor himself or any other person, for the that case there was not many copies published, but only one, still proof public cannot be deprived of the right to use the invention, and a patented was never required that the specification had been actually seen by the for the invention could not give any consideration to the public for the public. In order to shew that a patentee was not the true and first grant, the public possessing everything he could give." This, in his inventor of his patented invention it was not necessary to shew that he lordship's opinion, was a correct statement of the law. He did not leamt it from a prior publication existing in this country. It was attach any importance to the fact that the specifications were in the sufficient to shew that the invention was so described in some book or German language, and he agreed with what had been said by Lindley, document published in this country as that some English people might L.J., on that point. - Counsel, Aston, Q.C., and W. R. Bousfield ; Romer, be fairly supposed to have known of it. Plimpton v. Malcolmson (3 Ch. D.
Q.O., and T. M. Goodere. SOLICITORS, Crowders f Vizard, for Oroston, 531) and Plimpton v. Spiller (6 Ch. D. 412) were not opposed to this view Dickinson, & Simpson, Leicester ; Johnston, Harrison, f Powell, for R. g of the law, for in those cases there was evidence which satisfied the court R. C. Winder, Bolton. that the one copy in this country relied on as a prior publication had not, in fact, been laid before the public, and was not known to exist. The LADYWELL MINING CO. v. BROOKES-LADYWELL MINING CO next question was the effect, if any,' of the specifications being in German and not in English. The fact that German was understood by many
v. HUGGONS-C. A. No. 2, 2nd April. people in this country, and that persons who could read and translate
COMPANY-PROMOTER-SECRET PROFIT-LIABILITY TO Account. German could easily be found by those who wanted their assistance, must This was an appeal from the dismissal by Stirling, J. (34 Ch. D. 398). be treated as common knowledge and be judicially noticed. In the of two actions brought by the plaintiff company to make the defendants present case the German specifications were in the very place where every liable for alleged misfeasances as promoters of the company. The comone in search of information on the subject to which they related would pany was formed by registration on the 8th of April, 1873, for the purpose expect to find them, and to which he would go for information. It might of purchasing the lease of the Ladywell Mine from the South Salop will be that some person in this country might have seen these specifica-Mining Co. Parly in 1873 negotiations were opened between the chair tions and have obtained information from them which he was entitled to use; and it would not be right to assume that there was no such person.
man of the South Salop Co. and Mr. Palin, with a view to the purchase of No doubt the difference in the times during which the specifications were
the mine by himself and other persons associated with him; and on the 1st of February, 1873, an agreement was entered into between the
South Salop Co., as vendors, and Palin, Brookes, Mundey, and Waters, as being actually gained from them, but six weeks was quite long enough to purchasers, for the sale to them of the Ladywell Mine, and all the plant, enable people on the look-out for information to acquire it, especially machinery, and effects, for £5,000, £500 of which was to be paid down as specifications were in the Patent office and could be seen there. Prima purchasers made the purchase with the intention of re-selling the mine has proved that before the date of his patent an intelligible description of ately, and the balance of the purchase-money was paid on the 17th of his invention, either in English or in any other language commonly known March by the purchasers out of their own moneys, in the proportions in which persons in search de information the the Bubject to which the patent Mundey, Waters, and manir aldrey, as vendors, and F. R. Wilson, as ofice or in any other library to which the public Were admitted, and to April, 1883, an agreement was entered into between Palin, Brookes, related would naturally go for information. that the foreign publication, although in
But if it was proved agent for the plaintiff company, for the sale of the mine to the company pobicati fact known to be there, the unknownu existence are the The objects of "the plaintif company, as stated in the memorandum of German specifications in the library of the Patent omice, where they purporting to ratify, confirm, and adopt, and make binding on the Gernon, L.J., concurred. LOPES, 19.J., thought that the existence at the celle de the Ladell'aline.fia The articles of association contained a clause were unreservedly accessible
to everyone, was in itself conclusive company, the agreement of the 4th of April, 1873, and they also provided where and any one of the public might hante se me the specifications thatres, and oder eftermed that the first meeting of the company, on the po tether they were proved to have done to har noe was timme erfaca ti omne och try pril, 1873, the seal of the company was afixed to the preliminary en e probly to the date of the plaintifies ypatent, Beeth coinmunicated and Beverence to hangase chequest for theird full"pater-up shares, and received and ficue inventor to his discovery had already been communicated to the seampreso notice was agiven to the plaintiff company of the agreement of before nothing to the public ; What he purported to give they possessed thentioned lebthe company, in January, 1882, passed resolutions for a Her er det riously possess, if at the time only cling This specificatiohe there pany, which they did uut defend. how ledge, to have given the publiekani nimearmeation storiche Ehey main role in they recordered the property ihatan metion Pagainst the plaintiff com
In October, 1884, the plaintiff existed, in the library of the Patent Office unreservedly open to the public,
company commenced the first of the present actions against Brookes
and Waters, and shortly afterwards they commenced the second action and payment to the plaintiffs respectively accordingly; with other conseagainst the executors of Mundey, Oldrey, and Palin, who were all then quential relief. The defendants delivered a defence and counter-claim, dead, claiming that the defendants (in the first action), and, as against the and by the latter they claimed an account of all the partnership dealings executors, that the estates of their testators, were liable in damages, on the between the plaintiffs and the defendant B., and of the partnership ground that the defendants to the first action and the testators of the execu- property ; inquiries and accounts; and that a receiver should be appointed tors respectively were promoters of the company, and had procured the and an injunction granted. In the counter-claim the defendants stated adoption of the agreement of the 4th of April, 1873, by a breach of trust that the
the Chief Justice, who originally heard and duty and by fraud; that the agreement might be set aside; and that the the suit in Honduras, was, prior to his appointment, engaged purchase-money might be returned; or, in the alternative, that the estates counsel and solicitor in the suit, and was the only Judge of the several testators might be ordered to account for the profits made in the colony; that the clerk of courts, by whom the accounts directed by them on their sale to the company, on the ground that Palin and his by the Privy Council would have to be taken, was also formerly engaged associates must be treated as having purchased the property on behalf of as solicitor in the suit; and that it was impracticable to appoint in the the company for £5,000, and, therefore, were chargeable with tbe difference colony a suitable person as receiver of the partnership assets, and to get between that sum and the £18,000 for which they sold to the company; in the partnership, outstandings. The plaintiffs applied to have this and, further, that they stood in a fiduciary position to the company, not counter-claim struck out, and North, J., ordered it to be struck out. He was only when they became directors after the incorporation of the company, of opinion that, primâ facie, the two actions were vexatious, and ought not but at the time of the original purchase, and were, therefore, liable to the to be allowed to go, and that the defendants were bound to shew that some company for all profits made by them in the transaction. Stirling, J., substantial benefit would result to them from the counter-claim. This, he dismissed both actions, on the ground that the evidence failed to shew that thought, they had not done. On the appeal it was argued for the defend. the vendors to the company, when they bought the mine on the 1st of ants that the onus was on the party who sought to put a stop to an action February, 1873, were promoters of, or stood in a fiduciary position to, the to shew why it should not be allowed to go on, and that, at any rate, the company, and that, even if they were promoters, the case was governed counter-claim should not be struck out altogether. The defendant N., by Re Cape Breton Co. (29 Ch. D. 795, 33 W.R. 788, 28 SOLICITORS' JOURNAL, who was not a party to the Honduras suit, offered to undertake to bé 344), because, by reason of the recovery of the property by the landlord, bound by the proceedings in it to the same extent as the defendant B. which the company had taken no steps to prevent, the rescission of the THE COURT OF APPEAL (Cotton and LINDLEY, L JJ.) reversed the agreement had become impossible.
decision. Cotton, L.J., said that the agreement between the Honduras The Court of Appeal (Cotton, LINDLEY, and Lopes, L.JJ.) affirmed the firm and the English firm was a peculiar one, and he did not see how it decision. Cotton, L.J., said that in his opinion the case was entirely covered
was possible that the accounts should be finally taken between the two by Re Cape Breton Co. The company in that case, as in the present, had
firms until the accounts of the Honduras partnership had been taken. adopted the purchase, and, although there might have been grounds for North, J., had not merely stayed the proceedings on the counter-claim, setting it aside while the company was carrying on business as a going but he had struck it out altogether, and he had not done so in the exerconcern, yet, as rescission had become impossible, no relief could be given. cise of any discretion with regard to convenience. If this action had not It was said that the purchase was made in contemplation of the formation doubtedly have thought it vexatious for the defendant B. to ask for the
been commenced by the Honduras partners his lordship should unof the company, and made on their behalf by Palin and the others as agents of the company. But the contract between Palin and his associates taking of accounts, for the taking of which he had already obtained an and the owners of the mine was made some time before the formation of order in Honduras. But under the circumstances it would be wrong to the company, and what took place between the company and Palin and his B. from asking for the proper judgment at the trial of this action. Of
strike out the counter-claim altogether, and thus prevent the defendant associates was no part of the original tran saction. No doubt they contemplated the formation of a company, and the sale of the mine to the
course he would not be allowed to re-open any matter which had been company when formed. But no part of the original purchase-money was already decided by a competent court. Upon the defendant giving the Palin and his associates out of their own moneys. Palin and his associates, charged, without prejudice to any application when the proceedings in in entering into the contract of February, 1873, acted on behalf of the Court of Honduras were finally determined. Lindley, L.J., said themselves alone, and did not, at that time, act in or occupy any fiduciary that it did not follow that because the defendants had asked for an free to do with the mine whatever they liked. It was urged, however, unqualified form. If North, J., had merely exercised a discretion this position whatever: They were, after their purchase was made, perfectly account of partnership dealings they would get it, or would get it in an that Palin and his associates were undoubtedly promoters of the company, the principle that the counter-claim was altogether wrong, that it was and muust be assumed to have been so at the time of entering into the contract of February, 1873. It was true that they were promoters of the vexatious and oppressive. The claim of the plaintiffs in this action was company at some time cr other; but it was not clear that they were pro
not merely to get in an asset of the Honduras firm in this country; it moters before the formation of the company. The onus was on the com
went much further. They fought to get in that asset, and to have it pany to establish that, when the original contract was entered into, Palin distributed among the partners in that firm. How could an asset of a and his associates were so acting on behalf of the intended company that, firm be distributed without taking the accounts of that firm? It did not, if the company should be afterwards formed, they could not either retain however, follow that the accounts would have to be taken over again. the mine for themselves as against the company, or sell it to the company
The accounts taken in Honduras might be adopted. But, in some shape for more than they had given for it. The evidence did not establish that
or other, the accounts of the Honduras firm must be taken. -COUNsBL, Sir Palin and his associates were so acting in the matter of the original con
H. Davey, Q.O., and Herbert Cowell; Cozens- Hardy, Q.C., and John Culler. tract as to entitle the company afterwards to say that they were acting Solicitors, Parker, Garrett, f Parker ; Rooke g Sons. on behalf of the company and as their agents, so as not to be able to retain the large profit made by them on a resale to the company. The contract
Re AINSLIE'S TRADE-MARK—Chitty, J., 30th March. was not in any way dependent upon the company being formed. Palin
Trade-Mark-RECTIFICATION OF REGISTER-PERSONS ENTITLED TO APPLY and his associates bought for themselves, and there was nothing to
RECTIFICATION PATENTS, &c., Act, 1883, S.
90 -“PERSONS entitle the company to say that they bought on their behalf. LINDLEY,
respondents, a firm of Scotch whisky sellers and the registered owners of
the mark, alleged that they had entered into an agreement with the MUTRIE v. BINNEY-C. A. No. 2., 30th March.
applicants to employ them as sole agents in England for Scotch whisky, Concurrent Actions in ENGLISH AND COLONIAL COURTS—“Double Vexa- except that which they obtained from the respondents ; and the icon
and that the applicants should sell no other Scotch whisky in England TION"-STRIKING OUT COUNTER-CLAIM—R. S. C., 1883, XIX., 27; XXV., spondents, whilst admitting that the mark was not capable of registraci.com 4.
within section 64 of the Patents, &c., Act, 1883 (Ré Van Duzer's TradeThis was an appeal from a decision of North, J., the question being, Mark, 35 W. R. 294), submitted that the applicants could not move as ground that the plaintiffs would be "doubly vexed" by reason of there bound by their contract. It appeared that the respondents had instituted having been soine previous proceedings between the parties in relation to injunction proceedings against the applicants. the same matters in the colony of British Honduras. The plaintiffs were M. and C.; the defendants were B. und N. The plaintiffs and the defen- placed the right of the applicants to disencumber the register of that
CHITTY, J., said that he failed to perceive how the alleged contract dis. dant B. carried on business in partnership as merchants in Honduras, which was no mark at all. In the injunction proceedings the respondents under the firm of G. & Co., from the 1st of February, 1879, to the 31st of would have two grounds on which to base their case-namely, the registra, January, 1884, when the partnership came to an end. During the same
tion of their trade mark and the existence of the contract. By removing period, the defendants, who carried on bueiness in London, also under the the trade-mark from the register he should not be affecting the responda firm of G. & Co., acted as general agents in England for the Honduras ents” rights under the contract. He was bound to say that the respondents firm of G. & Co. After the expiration of the Honduras partnership the had no trade-mark, seeing that the question on that point was not come ust for an account of the partnership transactions of that firm, and on the pay the costs of the motion for rectification.-Counsel, Romer, Q.C; and 28th of April, 1885, a decree was made for that purpose. the accounts in that suit was not yet completed. The writ in the present son ; Neish $ Howell.
The taking of Waggett; Whitehorne, Q.C., and McClymont. SOLICITORS, J. F. 4. C. Isaacaction was issued on the 15th of September last, and by their statement of claim, delivered on the 25th of November, the plaintiffs claimed an
Re YORK (deceased), ATKINSON v. POWELL-Stirling, J., 2nd April.
Courr-BANKRUPTCY Act, 1883, s. 125, SUB-SECTION 4.
aged 1 the o get
administration of an insolvent estate will be transferred to the Bank.
In this case the plaintiff, the holder of a season ticket between BroadNewmarket. The present application was made by certain bankers, who street and Kew, saw his portmanteau labelled at Broad-street for Kew, claimed to be creditors for a large amount on the balance of their account, and entered the train, by which he travelled to Camden Town. There he got but whose claim had not yet been proved, for a transfer of the adminis
out and proceeded by a later train to Kew. On his arrival there the porttration to the proper bankruptcy court-in this case the county court of manteau was not to be found. At the time of taking his season ticket he Cambridge. The application was opposed by the defendant, who was
had signed a statement by which he bound himself to abide by and administratrix, and who claimed a right of retainer for £1,109. It was
submit to all the regulations of the defendant company. One of these contended on behalf of the defendant that there was no jurisdiction to regulations was to this effect :-" In order to prevent delay and inconmake such an order after an administration judgment, and that if there venience on the re-delivery of luggage at the end of a journey, passengers were, the jurisdiction was discretionary, and should not be exercised in are requested to place on each article their name and address, and notice this case. The application was made too late, and furthermore, if this properly addressed with the name and destination of the owner.'
is hereby given that the company will not be responsible unless fully and transfer were made, the defendant might lose her right of retainer.
action was brought by the plaintiff to recover damages in respect of bis STIRLING, J., held that he had jurisdiction to make the order. That loss, and the learned Recorder of London nonsuited him. jurisdiction was discretionary, and in exercising its discretion the court
THE COURT (Hawkins and A. L. SMITH, JJ.) held that the nonsuit was would chiefly consider the questions of convenience, delay, and expense. As regarded convenience and delay, there was a preponderance in favour of wrong: HAWKINS, J., said that, whether the railway company were liable
as common carriers or not during the transit between Camden Town and the county court. As regarded expense, he had ascertained that it was the
Kew after the plaintiff had left the train, there was evidence of negligence practice of the Bankruptcy Court to take up the proceedings at the point to go to the jury which they were bound to rebut. With regard to at which they were left by the High Court. No expense would therefore the special contract, his lordship was of opinion that, inasmuch as theeffect be thrown away. The question of the defendant's right of retainer would of the regulation in question would be to protect the company from all have to be considere i by the judge in bankruptcy, and could not be liability whatever as regards passengers’ luggage when not labelled, the allowed to stand in the way of a transfer. The defendant would get her stipulation was not enforceable by the company in view of the provisions costs, charges, and expenses under section 125, sub-section 7, of the Act.
of the Railway and Canal Traffic Act, 1854, s. 7. A. L. SMITH, J., was of The order was one which ought to be made. Having regard, however, to the fact that the claim of the applicants had not yet been proved, his Paine, Son, Pollock.
the same opinion.—COUNSEL, Guiry ; Candy, Q.O. SOLICITORS, Battams;
HATCHARD v. MEGE-Q. B. Div., 1st April.
SLANDER OF TITLE-TRADE-MARK-RIGHT OF EXECUTOR TO SUE.
This was an action against the defendants for having published a libel on Re COOKE'S ESTATE-Stirling, J., 5th and 6th April.
the plaintiff in his businesss as a wine merchant. The plaintiff had been DOMICILE-ENGLISH INFANT Married to A FRENCHMAN-Notarial Core in the habit of selling champagne under his registered trade-mark of
TRACT_VALIDITY DETERMINED BY “ Lex DOMICILI," NOT “Lex LOCI "Delmonico Champagne," and the defendants published a statement to
the effect that they alone were entitled to the use of that pame; that they In this case the question arose as to whether the validity of a marriage and that the plaintiff's wine was not genuine. After action brought the
would take proceedings against anyone selling Delmonico champagne, contract made prior to the marriage of a domiciled Englishwoman with a plaintiff died, and the plaintiff's executrix obtained an order to continue domiciled Frenchman was to be determined by the law of England or the the proceedings. At the trial Lord Coleridge, C.J., directed a nonsuit, law of France. In 1839 Charlotte Sarah Nicholson, then an infant and a domiciled Englishwoman, married the Viscount D'Argeaud, a domiciled motion to set the nonsuit aside,
on the ground that no right of action survived to the executrix.
On & Frenchman, at Boulogne. Prior to the marriage a notarial contract was executed in French form, by which it was agreed that there should be shewed a cause of action in the nature of a slander of title, which did
The Court (Day and Wills, JJ.) held that the statement of claim separation of estates between the intended husband and wife. The Viscountess D'Argeaud had three children by her husband, two of whom trix could have no claim against the defendants for their allegations
survive to the executrix. Day, J., said that, though no doubt the execuare now living. In 1845 she separated from her husband and went to live against the personal chəracter of the testator in his business as a wine in Jersey. In 1853, believing the Viscount to be dead, she married merchant, the statement that the testator had no right to use the tradeWilliam Briggs, and lived with him in New South Wales until her death
mark stood on a different footing. The action was in the nature of an in 1879. The Viscount D'Argeaud did not, in fact, die till 1877. By her action for slander of title, and was therefore different from an action for will, made in 1878, the Viscountess D'Argeaud devised and bequeathed libel. In the former action it was necessary to prove malice and special all her real and personal estate to William Briggs. Her property.con. sisted of a moiety of the residuary estate of William Cooke, who died in intended to injure, and had injured, the sale of the champagne sold under
damage ; and the plaintiff could do that by shewing that the statement was 1846. The fund representing this moiety had been paid into court by the trustees, and the income had been accumulated, no part of it having ever could be no doubt that trade-marks were as much property as anything
the registered trade-mark. Wills, J., concurred, and said that there been paid to the Viscountess D'Argeaud. centerdo a petition for the payment of the whole of the fund te himos por eso else, and that the imputation on the plaintif's right to use their regisquestions were raised-(1) whether Viscountess D'Argeaud ever lost the
tered trade-mark was a direct injury to that property.-COUNSEL, Morton French domicile which she acquired upon her marriage ; and (2) whether Anderson Rose.
Daniel and Cole ; Kemp, Q.O., and Bullen. SOLICITORS, Slark g Metcalfe ; J. the notarial contract was binding upon her.
If either of those questions
Ex parte GODFREY, Re LAZARUS, O. A. No. 1, 25th March. regard to the second point, that the validity of the notarial con
BANKRUPTCY-COMPOSITION-POWER OF COURT TO ENFORCE PROVISIONS tract was to be determined according to the law of the domicile
BANKRUPTCY Act, 1883, ss. 18, 23—BANKRUPTCY Rules, 1886, R. 211. and not according to the law of the country in which the contract The question in this case was whether the Court of Bankruptcy has the was made, and for this Sottomayor v. De Barros (26 W. R. 455, 3 P. D. 1) Wascited Miss Nicholson, therefore, having been a domiciled English section 23 of the Bankruptcy Act, 1883, as it has to enforce the proviwoman when she entered into the contract, and not having acquired a sions of a composition entered into under section 18. Section 18 enables confirmed the contract or received any benefit under it, it was not bind. Which is not to be binding on the creditors unless the resolution accepting Congeland governed, and, as she was an infant at the time and had never before any adjudication of Sankruptcy) to resolve to accept a composition,
didelines, J., held that the Viscountess D'Argeaud, by continuing to tion s provides that ** a composition accepted and approved in pursuauce of cademicile of choice there, but that even if she had not, she had an uang debts due to them from the debtor and provable in bankruptcy." By subkate shown an intention to abandon her French domicile, and according section 10," the provisions of a composition under this section may be et inte restored. With regard to the second point, his lordship held disobedience to an order of the court made on the application shall be that the proposition laid down by the Court of Appeal in Sottomayor v. deemed a contempt of court.” Sub-section 11 provides that “if default is of personal capacity to enter into any contract is to be decided by the law tion the court may, if it thinks fit, on application by any credi
was binding upon him, however it might have been tor, adjudge the debtor bankrupt and annul the composition." Section quentil he determined according to English lawthat it was conse rupe, the creditors may, if they think fit, at any time after the adjudica
of the domicile,"
Buckley Q C., and Monckton; Bailey.' SOLICITORS, T. R. Apps ; Donni-
a scheme of arrangement of the bankrupt's affairs; and thereupon the same proceedings shall be taken and the same consequences shall ensue as in
396 the case of a composition or scheme accepted before adjudication.” By sub- | made at the sitting of the court on the 16th ult. by Mr. J. Appleby who section 2, “if the court approves the composition or scheme, it may make | said that that morning he had four or five cases put into his hands on an order annulling the bankruptcy." And by sub-section 3, “ if default is behalf of poor persons who were unable to pay a solicitor's fees, but on made in payment of any instalment due in pursuance of the composition appearing before the registrar he had refused to hear him, and had or scheme
the court may, if it thinks fit, on application by any stated that agents could not be permitted to conduct cases. The regis. person interested, adjudge the debtor bankrupt and annul the composi- trar said his opinion was, and he had been confirmed by the Treasury, tion or scheme."' Rule žll of the Bankruptcy Rules, 1886, provides that, that it was illegal and improper for persons not duly qualified to appear “where a composition or scheme is sanctioned, and default is made in any in the county courts“ for fee or reward.” He had communicated with payment thereunder, either by the debtor or the trustee (if any), no action Mr. Nicol, and he had the authority of the Treasury for refusing to hear to enforce such payment shall lie, but the remedy of any person aggrieved unqualified persons.
Section 10 of the County Courts Act, 1856, provided shall be by application to the court.” In the present case the debtor had that those who might be heard were persons duly qualified to appear, been adjudicated a bankrupt, and the creditors afterwards, under section 23, and that persons defending should be duly authorized, and the view Mr. resolved to accept a composition. The resolution was duly confirmed, and Nicol took was that a person was not duly authorized who was acting was approved by the court, and an order was made annulling the adjudi- in contravention of an Act of Parliament. His Honour said he would give cation. The debtor made default in paying the composition to one of the his decision on the next court day. creditors, and the creditor applied to the court for an order that the debtor should pay him the amount due within fourteen days. Mr. Registrar exercise of my judicial discretion, I ought to allow paid agents, not being
THE JUDGE now said: The question for decision is whether, in the Hazlitt refused the application. He was of opinion that the power given solicitors, to appear in any case for absent parties, address the court, or by sub-section 10 of section 18 to enforce the provisions of a composition give any evidence for them. In ordinary contentious business paid by the latter part of sub-section 1 of section 23 into that section, and that agents have not been allowed to appear, but in undefended cases and the only power when default is made in the payment of a composition absent plaintiff or an absent defendant, and give evidence of means or
judgment summonses they have been tacitly permitted to appear for an under section 23 is that which is expressly given by sub-section 3-viz., to adjudicate the debtor a bankrupt. "On the appeal it was argued on behalf discuss terms of payment, or both. I think one or two cases of miscon
duct on the part of agents have recently come to light. of the creditor that the making of an order under sub-section 10 of section recently in an undefended case which was being heard before the regis18 to enforce a composition under that section was one of the quences ” which ensued from the composition, and that therefore the trar, Mr. Fox refused to hear Mr. Appleby, a paid agent, who came to power given by sub-section 10 was, by sub-section 1 of section 23, appear for the absent defendant. He founded his refusal not at all upon imported into that section so as to enable the court in the same way to grounds. On Mr. Appleby protesting against his exclusion, the registrar
any objection to Mr. Appleby's conduct or character, but on purely legal for expressly repeating in sub-section 3 the power to adjudicate the debtor referred the matter to me for my decision in court. The question cona bankrupt in case of default was this, that the debtor, in the case of a justice. It concerns the solicitors who practise here, and some of the
cerns the order of the court, and its due and effective administration of composition under section 23, having been already adjudicated a bankrupt, thought that the power of adjudication in case of default which is given tradition of English law to allow miscellaneous persons to take part in and the bankruptcy having been annulled, it might otherwise have been poorer suitors, as well as the class- I suppose I must call them of paid
agents who thus seek their livelihood. It is quite contrary to the general by sub-section 11 of section 18 was not imported into section 23 by the general words of sub-section 1. On behalf of the debtor it was urged the proceedings of courts of justice. Parties may appear and be heard in consequences” referred to in sub-section 1 of section 23 meant person ; but otherwise only professional persons are allowed to appear,
These are either barristers
and as it is called practise, in the courts. only the necessary consequence of a composition under section 18, such as the binding of all the creditors by a composition duly accepted and
who are subject to a special authority, or solicitors, who are officers o! approved, and did not include the powers given to the court and the liabil- and responsible to it.
the court in which they act, and certainly officers of the Supreme Court, ities imposed on the debtor by section 18 in case of default. And it was
The public policy of such exclusive arrangements said that the express repetition in section 23 of the power to adjudicate conduct in those who take part in its proceedings, and to protect ignorant
is to uphold the order of every court, to secure a due learning and good the debtor a bankrupt, while the power to enforce the provisions of the composition was not repeated, shewed that the former power only was
suitors from fraud or imposition for worthless services. Ibis, of course, intended to be conferred in case of default in the payment of a composi
does not mean thatall unqualified agents are, as individuals, untrustworthy, tion under section 23.
or that their services are worthless. But as to the general policy and reversed the decision of the registrar, holding that the power to enforcé in effect, that any person not a solicitor, who shall commence or defend
The Court of APPEAL (Lord Esher, M.R., and Bowen and Fey, L.JJ.) purpose of the Legislature, the Solicitors Acts and the Stamp Act leave the payment of the composition existed under section 23 just as under section 18. They were of opinion that the making of an order to enforce incapable to recover any fee or reward by action, but shall be punish;
any action or sue out any process in the county court, shall not only be the payment of a composition is one of the “ consequences
" ensuing from a composition under section 18, which is, by sub-section 1 of section
able as for a contempt of court, and shall also be liable to a penalty of 23, imported into a composition under that section, and that the power to
$50. So the Stamp Act of 1870 enacts that every person who, not holding adjudicate the debtor a bankrupt in case of default is expressly repeated in
a sulicitor's certificate, directly and indirectly acts as a solicitor in any sub-section 3 for the reason suggested by the appellant's counsel – viz., to
court, shall forfeit the sum of £50. Paid agents, then, not being solicitors, exclude the notion that an adjudication could not be made after the original law.
but acting as such in any of the ways named, are under the ban of the
So the County Court Acts speak generally of the party or his section 23, as under section 18, an alternative, not an exclusive, power. registrar, the expression used is some person duly authorized by the adjudication bad been annulled. The power to adjudicate was, under attorney. In the case of undefended or admitted cases taken before the The case was remitted to the registrar to be heard on its merits.--Coun. SEL, Winslow, Q.C., and Herbert Reed; Cooper Willis, Q.O. SOLICITORS,
defendant to appear for him” (Act of 1867, ss. 16, 17). The latest H. B. Robertsom ; Nordom ở Lazarus.
general enactment bearing on the subject is the County Courts Act, 1882,
8. 2:. “No person other than a solicitor of the Supreme Court shall be Ex parte GREPE, Re GREPE-C.A. No. 2, 6th April.
entitled to have or recover any fee or reward for appearing or acting on BANKRUPTCY APPBAL-SECURITY FOR Costs-POWER OF COURT TO DISPENSE behalf of any other party in any proceeding in a county court.”. I now
WITH SECURITY-APPEAL BY BANKRUPT-BANKRUPTCY RULES, 1886, R. come to the special provision contained in the 10th section of the Act of 131.
1852. It is in these words: “It shall be lawful for the party to the suit This was an application by a bankrupt asking the court, under rule 131 of or other proceeding, or for an attorney in one of her Majesty's superior the Bankruptcy Rules, 1886, to dispense with security upon an appeal courts of record, being an attorney acting generally in the action for such which he had presented against the refusal of Mr. Registrar Brougham to party, but not an attorney retained as an advocate by such first-mentioned annul the adjudication of bankruptcy until the bankrupt had paid the attorney, or for a barrister retained by or on behalf of the party, on either lant shall, at or before entering his appeal, deposit £20 as security for judge, for any other person allowed by the judge to appear instead of the costs of the trustee in the bankruptcy. Rula 131 provides that an appel- side, but without any right of exclusive or pre-audience, or, by leave of the costs, " provided that the Court of Appeal may in any special case in- party, to address the court, but subject to such regulations as the judge may crease or diminish the amount of such security or dispense therewith.” from time to time prescribe for the orderly transaction of the business of The only ground alleged for dispensing with security was that the bank
It appears to me that this provision for regulations looks to rupt had not the means of making the deposit, and that he had no regulations that may apply not to one class but to all classes of persons,
privileged or unprivileged, having audience in the court; rules, in fact, to The Court of Appeal (Corton, Lindley, and Lopes, L.JJ.) refused regulate the general right of audience-for instance, as to the right of the application. COTTON, L.J., said that to grant the application would reply. However this may be it is only by leave of the judge that other practically be to repeal the rule, for every bankrupt Ppho wished to persons, unprivileged persons, may be allowed to appear instead of the There were no special circumstances. LINDLEY, L.J., concurred. The regarded as a special indulgence in the circumstances of the case, and the court, if it granted the application, would be varying the rule by adding judge is to exercise his legal, his judicial discretion. Now it is, I believe required.” Lopes, L.J., was of opinion that mere inability to find the defendant, or any member of his family, or a friendly neighbour to appear money for the deposit was not a sufficient reason for dispensing with it. -COUNSEL, F. Stroud. SOLICITORS, H. Kimber, Elliott f Co.
for him, also to allow shopmen, clerks, and servants to appear for their employers. Such persons are not supposed, nor do they pretend, to
render any legal assistance, but they serve the convenience of the suitors, CASES AFFECTING SOLICITORS.
and they are removed from temptation to corrupt or improper dealings Re APPLEBY—Croydon County Court, Judge Lushington, 5th April. It will be remembered that in this case lande, EPS 349) a statement was an epippelafie foamei vipe them internationon toga nis for myself only - that
are the other persons intended, and that the purpose of the enactment is amply satisfied by giving them permission to appear for absent parties. It
though I have the power, I ought not to extend such permission to persons right of reply; time of distributing prints of the papers ; previous publica-
1882, dealing with the unsatisfactory manner in which the work of sheriffs' Counsel for the Incorporated Law Society, Mr. F. W. HOLLAMS. officers is performed, and to the resolutions passed thereon at such meeting,
and will move :SOLICITOR STRUCK OFF THE ROLLS.
* (1) That in the opinion of this society the supervision exercised by under6th April – WILLIAM STEPHEN FRANCE (Wigan).
sheriffs over the officers appointed by them is inadequate for the protection of the interests of either creditor or debtor, and admits of grave abuses.'
(2) That the duties of sheriffs' officers should be intrusted to men only of proved integrity, and that no person should hold the appointment who has not been previously approved by the High Court.'
* (3) That, to secure efficiency in the carrying out of the duties imposed on LAW SOCIETIES.
sheriffs' officers, such officers should be subject to the superintendence of
a resident inspector in each town or district.' INCORPORATED LAW SOCIETY.
* (4) That the remuneration of inspectors and sheriffs' officers should The following circulars have been issued to all the members of the be by salary only.' society :
*(5) That all auctioneers engaged in sheriffs' sales should be appoiuted “SPECIAL MEETING IN JUNE, 1887.
by the inspector of the district.'
(6) That all writs of execution should be available throughout England, "I beg to inform you that in pursuance of a resolution passed at the and be acted on without supplementary warrant.' meeting held in York in October last, it has been decided to hold, in * (7) That writs of execution should be marked with the day and hour London, on the 7th and 8th of June next, the meeting usually held in of issuing, and take priority accordingly.' the provinces annually in October. The proceedings will be as follows : - *(8) That the fees and charges on executions should be altogether
Tuesday, the 7th June. - The president of the Incorporated Law revised, and should be fixed by a scale to be approved by the Lord Society will take the chair at 11 o'clock, and the vice-president will Chancellor; and a note thereof should be handed to the execution debtor deliver the address which, if the meeting had not been anticipated, he on the occasion of every levy.' would have delivered in October. This will be followed by the reading (9) That the sheriffs' fees and charges in each case should be taxed by of papers contributed by members of the society. The meeting will the inspector, subject to appeal.'. adjourn from 1.30 to 2.30 for luncheon, and close at 4.30.
* (10) That the levying of executions, now entrusted to the high bailiffs of Wednesday, the 8th June.-The meeting will be resumed at 11 a m., county courts, should be transferred to the office of the inspector of the when the reading of papers and discussions thereon will be continued. town or district in each case.' The meeting will adjourn from 1.30 to 2.30 for luncheon, and close at *(11) That gentlemen now filling the office of under-sheriff should have 4.30.
the right of electing to serve the office of inspector in any one town or “If you propose to read a paper, I shall be obliged if you will inform me district forming part of the county for which they now act as underthe title and purport of it by the end of May. The paper itself should sheriff, and that due compensation should be made to them for being be placed in my hands on or before the 16th of May, in order that it may compulsorily deprived of the emoluments now arising from their office be printed for circulation at the earliest possible moment after the close for the rest of county.' of the proceedings.
‘(12) That a copy of these resolutions should be forwarded to the Lord
“ CHANCERY DIVISION.
That, in the opinion of this meeting, the appointment of a sixth judge "The preparation for the reception of tha country members of the in the Chancery Division is not only imperatively needed, but that the Incorporated Law Society will necessitate the occupation of the Law hearing of all chancery causes (with special exceptions) should cease Society's Hall for this purpose. The meeting will, therefore, be held at be associated with any particular judge, and be taken in their order (as the Freemasons' Tavern, Great Queen-street, W.C.”
set down) by two or more courts constantly sitting for trials only.'.' “SPECIAL GENERAL MEETING IN APRIL. "In pursuance of the resolution passed at the adjourned annual general
SOLICITORS' BENEVOLENT ASSOCIATION. meeting held on the 15th of July, 1881, to the effect that meetings of the The usual monthly meeting of the board of directors of this associdsociety should be held in January and April, I am directed to inform you tion was held at the Law Institution, Chancery-lane, London, on that a special general meeting of the members of the society will be held Wednesday, the 13th inst., Mr. Henry Roscoe in the chair. The other in the hall of the society on Friday, the 29th inst., at two o'clock pre- directors present were Messrs. W. Beriah Brook, G. Burrow Gregory, cisely, to consider the subjects hereinafter mentioned, and of which notice Samuel Harris (Leicester), Edwin Hedger, J. Anderson Rose, sidney has been duly given :
Smith, H. S. Styan, F. T. Veley (Chelmsford), F. T. Woolbert, and
At a meeting of the directors, held at the hall of the Incorporated Law honorary member any person not being a member of the Incorporated Society, Chancery-lane, on Thursday, the 7th inst.–the following being Law Society, but that the number of such honorary members shall not at present: Mr. Boodle, 'chairman, and Messrs. Bolton, Clabon, Collisson, any time exceed twenty, and that such election shall be for a period not Desborough, jun., Dod, Finch, 'Hedger, Hine- Haycock, Lucas, Nisbet exceeding two years, with power of re-election.'
Sidney Smith, Styan, and Walmisley—the chairman announced the “Mr. Charles Ford will move :19. This meeting, whilst recognizing the good intentions of the council the appointment was offered to Mr. Arthur Carpenter, who accepted the to the small grants' recently made to Liverpool anden Newcastle-on-Lyme same, and he was appointed secretary accordingly, and the ordinary throueducational purposes, is of opinion that these and similar"grants general business was transacted. should be larger in amount, and should be made without the conditions hitherto imposed by the council.!
HALIFAX INCORPORATED LAW SOCIETY. (2) That the interests of solicitors and the public require that many public Legal appointments, from which solicitors are at present excluded, evening, the 30ch ult., when the following officers for the ensuing year
The annual general meeting of this society was held on Wednesday the rolls involves the society in much unnecessary expense, and it is * (3) That the present practice of striking the names of solicitors off
were elected :-President, E. M. Wavell, Esq., J.P; Governors, Messrs.
M. H. Rankin, J. R. Ingram, and F. Walker; Vice-Presidents, Messrs. iletinental to the reputation of the profession and the council are Freas arer, Mr. , Hilly Hon. Secretary, Mr. J. F. Hirst; Committee, instructed to seek legislative sanction for leaving it optional to the Pressione M. Wavell, jun., G. Rhodes, I. R. Roberts, E. 'Booth, L. H. society to make such applications by summons in judges chambers, with Longbottom, w. H. Land, and H. A. Highley. * (4) That the interests of the society require that at least one of the
It was decided to form a law library in connection with the society, and appointed annual general meetings should be held in the evening.'
an appeal for subscriptions for this object met with a favourable response
from the members present.
The following are extracts from the report of the committee.
De or dates not ont be patis
penalty not hals iciter
right of appeal.'
“Mr. Melville Green will move :