Page images
PDF
EPUB

own means.

judgment as to the principles which should regulate the adjustment of the rights of parties interested in the mining plant of the Dudley Estates. It appeared that the late Lord Dudley was tenant for life of the family estates and mining plant, with power of working the mines and collieries. In 1845, when he entered upon the estates, the mining plant was valued at some £167,000, and at his death the value exceeded £700,000, the increase being due to mining plant, &c., supplied by the late earl out of his CHITTY, J., after holding that the interest of the late earl under the will which constituted the settlement was a right of enjoyment in the chattels, and not a right to carry on a business, and, therefore, that his position with respect to the trustees of the will was that of a donee of consumable chattels, said that, as regarded the rights of the late earl, the tenant for life of the settled estates, and those of his successor in respect of the mining plant, the view he took was that the machinery which had been annexed to the soil for the purpose of rendering the minerals merchantable, if such machinery was capable of being removed therefrom by disturbing the soil without destroying the land, was machinery which could not be said to be so attached to the land as to become part of it and belong to the owner of the land, but was to be deemed to be trade fixtures which passed to the executor as personalty (Wake v. Hall, 31 W. R. 585, 8 App. Cas. 195). Upon that principle he held that the executors were entitled to remove new blast furnaces erected by the late earl for the purposes of smelting the iron ore gained from the estates. To hold otherwise would be to produce the evil pointed out by Lord Hardwicke in Lawton v. Lawton (3 Atk. 14)—namely, to discourage tenants for life from erecting mining machinery. It had been said that the nature of blast furnaces, their mode of construction and annexation to the soil, was opposed to the view taken. He, however, was of opinion that they were so many large machines for smelting iron, and, as they were capable of being removed without any material destruction of the land, he held that as trade fixtures they passed to the executors. He took the same view with regard to calcining kilns, to fixed power engines, and the sheds which protected them. As to a railway connecting the collieries, and erected by the late earl, he was of opinion that the rails and sleepers were removable fixtures. As to the measure of value, it had been said by the executors that the present earl should be debited with the price of the fixtures as part of a going concern, and it had been said on behalf of the present earl that, as the executors had merely a right to remove and could be compelled to remove, they were only entitled to a breaking up price. However, he thought that the fair measure of value would be a mean between the two extremes.-COUNSEL, Romer, Q.C., and Farwell; Renshaw, Q.C., and Willis Bund; Sir Arthur Watson, Q.C., and Herbert Robertson. SOLICITORS, Benbow, Salthill, & Tryon.

Re E. C. POWDER CO. (LIM.)-Chitty, J., 30th April. COMPANY REDUCTION OF CAPITAL-NOTICE TO CREDITORS - COMPANIES ACTS, 1867 AND 1877-GENERAL ORDERS, MARCH, 1868, R. 5. In this case a petition was presented for the reduction of the capital of the company by writing off paid-up capital which had been lost. Nearly all the shares of the company had been issued and were fully paid up, and it was proposed to reduce the capital by reducing the nominal

value of the shares from £5 to £3. It was stated that there were no creditors of the company, and the court was therefore asked for an order as in Seton on Decrees, 4th ed., p. 1462, stating that the advertisement of the petition had been dispensed with, and confirming the reduction.

CHITTY, J., said that the practice was not to uniformly dispense with advertisement of the petition. To do that would be to set aside the provisions of the Legislature. The court in each case must exercise its discretion. In the case before him he made the order as asked.-COUNSEL, Romer, Q C.; Micklem. SOLICITORS, Micklem, Hollingworth, & Monkland.

church where the liturgy and rites of the Church of England are used or
observed." The testator gave his residuary real and personal estate to
his executor and trustee, on trust for conversion, and out of the proceeds
to pay testamentary and general expenses, debts, and legacies, and to
pay the residue of such moneys unto the vicar and churchwardens
for the time being of the Priory and Christ Church of Bridlington, to be
applied by them towards the choir fund or a new clock for the tower,
according to the discretion of my said trustee." The chief clerk found
that there were two churches at Bridlington-St. Mary's Priory Church
and Christ Church-with separate vicars and churchwardens; that the
former required a new clock in its tower, but that the latter did not; and
that a reasonable sum to expend in providing such new clock was £200.
The testator's residuary estate comprised pure personalty, impure per-
sonalty, and real estate-the pure personalty being of very small amount
The questions were whether the providing a new clock in a church tower
was within the purposes of the Act of George III.; and whether, if so, the
whole £200 could be paid out of the impure personalty.
NORTH, J., held that the gift was void so far as related to the choir fund,
but that the providing of a new clock was within the Act of George III.
It was certainly as much within the purposes of that Act as the providing
of a belfry and bells, which had been held to be within the Act. His
lordship also held that the whole £200 could be paid out of impure per-
sonalty.-COUNSEL, C. T. Simpson; Warrington; Nalder. SOLICITORS,
Crossman, Crossman, & Prichard; Collyer-Bristow & Co.

Re THE TUNNEL MINING CO.-North, J., 29th April. COMPANY-WINDING UP-CONTRIBUTORY-SHARES ISSUED AS FULLY PAID UP-REGISTRATION OF CONTRACT-COMPANIES ACT, 1867, s. 25. The question in this case was whether certain shares in the company, which had been issued as fully paid up, were, in the winding up of the company, to be treated as shares on which nothing had been paid, on the registered as required by section 25 of the Companies Act, 1867, "at or ground that no contract for their issue as fully paid-up shares had been before the issue" of the shares. P. sold some mining property to the company in consideration of £500 cash and 1,000 £1 paid-up shares. He attended a meeting of the directors on April 18, 1886, at which an agree10,000, was signed and sealed. The agreement was handed over to him, ment for the issue to him of 1,000 fully paid-up shares, numbered 9,001 to that he might file it with the Registrar of Joint-stock Companies, and a certificate of the shares was also handed to him. P. went to his solicitor, who advised him that the contract ought to have been filed before the shares were issued. It was then too late in the afternoon to get it filed, and he got it filed the next morning. His name having been put on the list of contributories as the holder of 1,000 unpaid shares, he moved to have his name removed.

NORTH, J., held that the shares must be treated as paid up. The word "at" in section 25 must have some meaning; it could not mean that the issued, or that the parties were to go to the registrar's office and there registrar was to be present and file the contract when the shares were issue the shares simultaneously with the filing of the contract. P. had gone to file the contract as soon as he could. In his lordship's opinion there was practically one continuous transaction involving both the issue of the shares and the filing of the contract. The contract was, in substance, filed "at" the time of the issue of the shares.-COUNSEL, Grosvenor Woods; Bramwell Davis. SOLICITORS, Snell, Son, & Greenip; E. Smith & Co.

Re G. HARRIS (DECEASED), HARRIS v. HARRIS-Chitty, J., 3rd order for payment of money may be enforceable by attachment, that it

PRACTICE RECEIVER

and 4th May.

[ocr errors]

- ADMINISTRATION - EX PARTE APPLICATION BEFORE ADMINISTRATION JUDGMENT. In this case an ex parte application was made by the plaintiff in a creditor's administration action for a receiver, on the ground that the defendant, who had obtained letters of administration, was paying debts and preferring creditors when the estate was insolvent. The plaintiff claimed to be the principal creditor. The case of Philips v. Jones (28 SOLICITORS' JOURNAL, 360) was referred to as being an authority to the effect that the court would not accede to such an application, in that respect overruling the dicta of Jessel, M.R., in European Association v. Radcliffe (26 W. R. 417, 7 Ch. D. 733).

CHITTY, J., said that the court could not accede to such an ex parte application unless a case of waste of assets was shewn. The law allowed an administrator or executor to prefer one creditor to another, and prima facie the court had no equity to interfere except after administration judgment. He gave leave to serve short notice of motion.-COUNSEL, D. L. Alexander. SOLICITORS, Spyer & Son.

Re HENDRY, WATSON v. BLAKENEY-North, J., 28th April. CHARITABLE GIFT-MORTMAIN-BUILDING OR REPAIRING OF CHURCH-GIFT FOR NEW CLOCK FOR A CHURCH-43 GEO. 3, c. 108. The question in this case was whether a gift by will was excepted from the provisions of the Mortmain Act (9 Geo. 2, c. 36) by virtue of the Church Building Act (43 Geo. 3, c. 108), which enables testators to give goods and chattels not exceeding £500, and land not exceeding five acres, for or towards the erecting, rebuilding, repairing, purchasing, or providing any

[ocr errors]

66

BREWSTER v. PRIOR-Stirling, J., 3rd May. ATTACHMENT-DEFAULT POSSESSION OR CONTROL-NOT SO APPEARING ON THE FACE OF THE ORDER-DEBTORS ACT, 1869, s. 4, SUB-SECTION 3. In this case a question arose whether it is necessary, in order that an should state on the face of it that the person ordered to pay is a trustee or person in a fiduciary capacity, and that the money which he is ordered to pay is a sum in his possession or under his control," or whether those matters may be proved aliunde. By the judgment, dated the 28th of February, 1887, the defendant was ordered on or before the 13th of March, 1887, to pay £500 and interest to the plaintiffs Sidney Brewster and Richard Brewster, as trustees of a certain settlement. The order did not state that the defendant was a trustee or person acting in a fiduciary capacity, or that he had the money in his possession or under his control. The defendant made default in payment, and the plaintiffs now moved for leave to issue a writ of attachment against him.

May 3.-STIRLING, J., said that the cases of Middleton v. Chichester (19 W. R. 369, 6 Ch. 152) and Ferguson v. Ferguson (10 Ch. 661) shewed that in order to entitle the plaintiffs to a writ of attachment the defendant must be a trustee, and must have the money in question in his possession or under his control. It might be a good rule of practice that no judgment or order should be enforced by attachment unless that appeared upon the face of it. According to the present practice, however, the person who had obtained the order was at liberty to shew, otherwise than from the order, that it was grounded upon the fact that the trustee had the money in his possession or under his control. His had been informed by him that the judgment was based upon the conlordship had consulted the judge before whom the action was tried, and clusion of fact that the defendant had the £500 in his hands as a trustee appropriated for the particular purpose for which it was held. That concluded the matter, and the writ of attachment must issue, but in view of an arrangement suggested as possible between the plaintiffs and defendant, it would be kept back for a week.-COUNSEL, Hastings, Q.C., and Underhill W. D. Rawlins. SOLICITORS, Wainwright & Baillie; Maude.

[ocr errors]

CASES AFFECTING SOLICITORS.

means of evading the law." Those cases were both of high authority, and they had both been approved by the Court for Crown Cases Reserved in

Re POSTLETHWAITE, POSTLETHWAITE . RICKMAN-North, J., Reg. v. Cox (14 Q. B. D. 153, 33 W. R. 396). Secondly, both R. and T. 2nd May.

were acting together in relation to the trust estate. In his lordship's opinion it was not open to trustees to act together in such a way-the one

PRODUCTION OF DOCUMENTS-PRIVILEGE-PROFESSIONAL COMMUNICATIONS-acting as the professional adviser of the other-as to close the mouth of TRUSTEE-SOLICITOR AND CLIENT.

either as to matters relevant to the trust. If they did so they must take the consequence of their communications not being treated as privileged. Suppose one of the cestuis que trustent had assigned his interest, and notice of the assignment had been given only to R., and that T. had been, when he was acting as R.'s solicitor, informed by him of the assignment; could he decline to answer whether he had received notice of the assignment on the ground that he was acting as R.'s solicitor? In his lordship's opinion he could not. The notice would be to him as trustee, and he would be bound to disclose it. If trustees were acting together, not fraudulently, but unfairly, to their cestuis que trustent, it would be a novel occurred, because one of them had been acting as solicitor for the other. Thirdly, in the present case, accepting the statements of the executors in their defence, R. and T. in what they did before the sale to W. were acting as co-vendors to him, and, if so, what ground was there for saying that there was any relation of solicitor and client between them which entitled their communications to any professional privilege? The executors' own statements put them out of court. His lordship had, moreover, with the assent of the parties, looked at the documents in question, and from his inspection of them he was clearly of opinion that they ought to be produced. The executors would be at liberty to seal up any parts which were irrelevant to the matters in issue, and a week would be allowed them to consider whether they would appeal.-COUNSEL, Cookson, Q.C., and A. A. Terrell; Cozens-Hardy, Q.C., and Rowden. SOLICITORS, Thos. Edwards; Randall & Bucknill.

GUY v. CHURCHILL-C. A. No. 2, 4th May.
SOLICITOR-LIEN FOR COSTS-PROPERTY "RECOVERED OR PRESERVED
SOLICITORS ACT, 1860 (23 & 24 VICT. c. 127), s. 28.

A question arose in this case as to the production by trustees of certain documents for which they claimed privilege. A testator, who died in 1843, devised and bequeathed all his real and personal estate to three trustees, P., R., and T., upon trust for sale and conversion, and to hold the proceeds of sale upon the trusts therein declared; and he appointed the same three persons executors. P. was one of the beneficiaries under the will; T. was a solicitor. In January, 1854, the trustees entered into an agreement for the sale of a farm, which formed part of the testator's real estate, to W. for £1,620. W. was also to take the stock on the farm at a valuation. On the 24th of March, 1854, the three trustees executed a convey-rule to say that they were entitled to retain in their own bosoms what had ance of the farm to W., who at the same time paid them £1,814, which was made up of the purchase-money, interest thereon, and the amount of the valuation of the stock. In June, 1854, W. conveyed the farm to R. for £1,831. In 1874 R. sold the farm at a large profit. This action was brought by the representatives of P. (who had died in 1871) against the executors of R. (who had died in 1886) and T. The statement of claim alleged that in the matter of the agreement for sale to him W. was a trustee for R., and was put forward by R. as the purchaser, for the purpose of concealing from P. and the other persons interested in the testator's estate that R. was the real purchaser, and in consequence of his having been advised that he, being a trustee of the will, could not purchase the property. It was further alleged that T. acted as solicitor for himself and his co-trustees and executors in the conversion and winding up of the testator's estate (according to the direction of the testator contained in the will), and that the terms of the pretended sale to W. were settled by R. and T., and that P. assented thereto and signed the agreement, in the faith and belief that W. was a bona fide purchaser of the property, and that R. and T. were acting independently in the interests of the persons interested in the testator's estate, and in ignorance of the fact that R. was the real purchaser of the property. The plaintiffs claimed a declaration that, in the matter of the contract of January, 1954, and the conveyance of the 24th of March, 1854, W. acted as and was trustee for R.; that the contract and conveyance were not binding on the persons beneficially interested under the will; that the executors of R. and his estate and the defendant T. were jointly and severally liable to account for and make good to the beneficiaries the profits realized by R. by the enjoyment and resale of the property purchased by him, and that the defendants might be ordered to account for and pay the same accordingly; that the executors of R. might admit assets of R. sufficient to satisfy what should be found due from his estate, or that his estate might be administered by the court. The executors of R., by their defence, denied the allegations of the plaintiffs, and said that W. was a perfectly bond fide independent purchaser of the property at the full value and for his own benefit alone, without any trust, agency, or understanding in favour of R., and that the terms of the sale were not settled by R. and T., except in the proper and ordinary way, as co-vendors of the property with P., and that R. and T. acted throughout independently in the interest of the persons interested in the estate. The executors made an affidavit of documents in their possession, by which they objected to produce certain letters and copies of letters and correspondence between T. and R. in 1853 and 1854, also two bills of costs-the one from August, 1842, to September, 1854, the other from April to June, 1854; each of which was described as paid by R. to T. for business transacted as solicitor for R. (and not for the trustees) between the dates mentioned. The executors objected to produce the letters on the ground that they were professional communications of a confidential character between R. and T., in which T. acted professionally for R., and as his private solicitor, and not as the solicitor of the trustees, and that such communications were charged against and paid for by R. personally out of his own moneys, and were made with the object of enabling T. to give R. (as a private individual and not as a trustee of the testator's will) legal advice and assistance; and that in such communications T. acted as such private solicitor of R., and in no other capacity. And the executors objected to produce the bills of costs on the ground that they were prepared by T. in his private capacity, acting professionally for R. as a private individual for and at the expense of R., and of no other person, and contained profes

sional communications of a confidential character between R. and T. The plaintiffs took out a summons for the production of the letters and the bills of costs.

NORTH, J., held that the documents must be produced on three grounds. First, having regard to the case alleged by the statement of claim (which he assumed to be true, but only for the present purpose), he thought that no professional privilege could protect from production communications made in pursuance of a scheme such as was alleged. Follett v. Jefferyes (1 Sim. N. S. 3) was very much in point. In that case Lord Cranworth, V.C., held that certain letters between the defendant and her solicitor were privileged from production on the ground that the transaction which was impeached by the bill as a fraud was not a fraud. But Lord Cranworth said that the ordinary rule "does not apply to all which passes between a solicitor and his client, but only to what passes between them in professional confidence, and no court can permit it to be said that the contriving of a fraud can form part of the professional occupation of an attorney or solicitor." And in Russell v. Jackson (9 Hare, 387) Turner, V.C., said: "Where a solicitor is party to a fraud, no privilege attaches to the communications with him upon the subject, because the contriving of a fraud is no part of his duty as solicitor; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the

In this case a novel point was raised as to a solicitor's lien for costs. At the trial of the action Stirling, J., dismissed it, with costs to be paid by the plaintiff to the defendant. On appeal the decision was reversed, and the Court of Appeal ordered the defendant to pay to the plaintiff his had paid to the defendant in pursuance of the order of Stirling, J. The costs of the appeal, and also to repay to the plaintiff the costs which he costs to be thus repaid amounted to £298. The plaintiff had become bankrupt, and his solicitors applied to the Court of Appeal by original motion, asking that the defendant might be ordered to pay the taxed costs of the appeal to the applicants, instead of to the plaintiff, and that the applicants might be declared entitled to a lien on the £298 in respect of the difference between the plaintiffs' costs of the appeal as between party and party, and his costs as between solicitor and client. This difference was alleged to amount to £159. It was urged that the £298 had been "recovered" for the plaintiff through the exertions of his solicitors by means of the appeal, and that the solicitors were entitled to a lien upon it for the costs of the appeal, either at common law, or at any rate under section 28 of the Solicitors Act, 1860. The official receiver in the bankruptcy admitted that the solicitors were entitled to have the party and party costs of the appeal paid to them, but he disputed the right to the

lien asked for.

THE COURT (COTTON, LINDLEY, and BowEN, L.JJ.) held that the solicitors were entitled to the lien, and ordered that the extra costs (to be taxed as between solicitor and client) should be paid to the solicitors out of the £298; that out of the residue of that sum the costs of the present application should be paid; and that the ultimate balance should be paid to the official receiver. COTTON, L.J., said that the point was a nice one, and a new one. But he was of opinion that the principle on which a solicitor was allowed a lien for his costs on property recovered" by means of his exertions applied. As a result of the appeal the court had ordered the £298 to be repaid to the plaintiff. The principle was that the client should not get the fruits of his solicitor's exertions without paying him the proper remuneration for his services. The applicants were entitled to what they asked. LINDLEY, L.J., concurred. Those who got the money ought to pay the expense of getting it. BOWEN, L.J., was of the same opinion. He thought that this sum had resulted to the client as the fruit of the solicitors' labours.-COUNSEL, L. E. Pyke; Muir Mackenzie; Buckley, Q.C. SOLICITORS, Irvine & Hodges; Aldridge; Hollams, Son, & Coward.

Re ALFRED PARK, A SOLICITOR, Ex parte THE INCORPORATED
LAW SOCIETY-C. A. No. 1, 4th May.

This was an appeal by Alfred Park, a solicitor of East Retford, from an order of the Divisional Court (Day and Wills, JJ.), etriking him off the rolls. In the Divisional Court Park did not appear, and it appeared from the affidavits filed then that on April 5, 1886, a Mr. Walker instructed Park to recover a debt of £11 10s. on behalf of one Wilmot. About a fortnight afterwards Mr. Walker heard that Park had received £8 out of the £11 10s., and on May 6 he received a letter from Park enclosing a cheque (dated May 8) for £8 and asking Mr. Walker to hold it for a day or two. Mr. Walker did so, but when it was presented the cheque was dishonoured. Park, on being subsequently applied to for the money, and on being applied to for an explanation of his conduct by the Incorporated Law Society, took no notice of the letters, and on January 12, 1887, notice of the present motion was served on him. On February 22, 1887, Park paid the £8 under a warrant of commitment issued

by the county court, in which an action had been brought to recover the amount. Park now made an affidavit stating that he did not receive the £8 till April 30, that he was temporarily indebted to his bankers when he sent the cheque for £8 to Mr. Walker, and hence his request to have the cheque held over. He also said that Mr. Walker threatened that he would apply for a warrant for his apprehension, which greatly surprised and annoyed him as he had been Mr. Walker's friend for twelve years. He had never attempted to conceal that he had received the money, and he regretted that he had not answered the communications addressed to him. He also stated, as an excuse for not appearing in the Divisional Court, that on February 2, 1887, he called at the office of the Law Society, and was informed that the motion would not come on for about six weeks. He instructed a solicitor on March 14, but he was surprised to find that on that day the motion was heard. Lord ESHER, M.R., said that, if the court had thought that the judges of the Divisional Court had acted solely on the full and complete facts of the case, and after hearing comments on the evidence on behalf of the solicitor, it would be next to impossible to interfere with their decision. But the judges acted largely on the view that the solicitor, by not appearing was utterly careless of his own character and utterly untouched by the gravity of what he had done. The case, therefore, stood upon a very different footing now from what it did then, and matters had been pointed out here which could not have been pointed out to the court below as the case then stood. If those judges were now in London this court would consult them or send the case to them for consideration. This being a question of punishment, if there were two possible constructions to be placed on the facts, the court would take the most merciful view. Therefore, when the solicitor received the money the court might adopt the view that he had no intention of appropriating it, but, perhaps, under a sudden temptation, he subsequently spent the money. He never denied that he had received it. He gave a cheque upon a bank at which he must have had an account, and there was no evidence that he gave a cheque which he knew would never be honoured. It was not as if he had given a cheque upon a bank at which he had no account. The solicitor shewed a recklessness and carelessness and an impropriety of feeling in not answering the applications and in not appearing in the Divisional Court, and his conduct all through shewed that he did not appreciate the duty of honour which the court and the profession required of a solicitor. But the sentence passed upon him was the highest possible in the case of the grossest fraud. It being now shewn that there was no original fraud in the matter, and this young man having up to the present conducted his business with propriety, the court would not strike him out of the profession for ever, but would, under the circumstances now before the court, suspend his certificate for three years, to date from March 14 last, the solicitor to pay all the costs. FRY, L.J., said that no fault could be found with the sentence passed by the Divisional Court. But at the eleventh hour the solicitor came here with a lame explanation of his conduct. His lordship was not sure that he approached the matter from the same point of view as the Master of the Rolls, as he hardly thought that the doctrine of merciful consideration applicable in criminal cases ought to be applied in cases of this nature. But having regard to the fact that the circumstances were now different he would not disagree with the order proposed by the Master of the Rolls. LOPES, L.J., agreed with the reasons given by the Master of the Rolls.-COUNSEL, H. D. Greene, Q, C., and Hextall; F. W. Hollams.-Times.

BROWN v. THE GREAT WESTERN RAILWAY CO.-Q. B. Div., 28th April. Mr. Brown had made a claim upon the company for compensation for an injury to him, and the case had been tried on the Welsh Circuit and he had been nonsuited. He retained a learned counsel on the Oxford Circuit (Mr. David), who obtained a new trial. He then desired to have the same counsel retained for the second trial. His solicitor told him that as Mr. David belonged to a different circuit-the Oxford-he would require a special fee to go to the Welsh Circuit, and to this the client assented. Mr. David was accordingly retained for the trial and paid a special fee of fifty guineas, and he obtained a verdict for the plaintiff for £750. Then came the taxation of costs, and as between "party and party" the master, acting on the usual rule, disallowed Mr. David's fee, because he was a third counsel, and because, also, special fees are not allowed as between "party and party." Then came the taxation of costs as "between solicitor and client" and Brown now objected to pay the fee of fifty guineas, saying he was "surprised" at such a fee, while his solicitor said he had assented to the retainer, though-as Brown swore he had not been told of the amount. The master disallowed the fee, saying "it was only oath against oath," and at the same time he refused to allow Brown to be cross-examined, and said the solicitor might, if he pleased, indict him for perjury if his statement was untrue. Counsel on behalf of the solicitor moved for an order to the master to re

view his taxation, observing that the disallowance of the fee, under the circumstances, was most extraordinary, and the reason given for it more extraordinary still-for as it was "only oath against oath" it was more necessary that the client should be cross-examined.

Lord COLERIDGE, C. J., said the decision of the master could not be supported in not allowing Brown to be cross-examined. He must be crossexamined and witnesses heard on either side. Fifty guineas was a sum worth fighting about, and the evidence on both sides must be fully heard. A. L. SMITH, J., concurred.-COUNSEL, Stroud; H. T. Atkinson-Times. WHITEHEAD v. HALL-Manchester Assizes, Day, J., 29th April. BREACH OF PROMISE OF MARRIAGE-PLEA OF INFANCY-COXHEAD v. MULLIS (3 C. P. D. 439) DOUBTED.

of marriage. The defendant denied that he had ever promised, and in the alternative alleged that if he did so promise he was an infant at the time. The plaintiff proved courtship by the defendant, and in October, 1883, defendant being still underage, an offer of marriage from him, and an engage ment between them. The defendant came of age on November 27, 1885. The understanding come to in October, 1883, was continued; affectionate letters passed between them; and from time to time the defendant made the plaintiff small presents in money. The parties visited each other, spent holiday trips together, and generally conducted themselves as an engaged couple, although nothing definite was ever said about marriage. Finally, in December, 1886, the defendant broke off the engagement The plaintiff's married sister swore that the defendant, after coming of age, asked her children in her presence to call him Uncle Joe. Counsel for the defendant submitted that there was no case to go to the jury, and in support of his contention quoted section 2 of the Infants Relief Act, 1874, and Coxhead v. Mullis (3 C. P. D. 439). He also argued that there was no material evidence supporting the plaintiff's allegation sufficient to meet the requirements of 32 & 33 Vict. c. 68, s. 2, the evidence of the plaintiff's sister being at best only evidence of corroboration of ratification. DAY, J., said there was a case for the jury to determine. Although he was bound by the case of Coxhead v. Mullis, he was inclined to think that that case was wrongly decided. He was of opinion that the Infants Relief Act, 1874, did not apply to promises of marriage at all, and even if the Act did apply, he considered the conduct of the defendant subsequent to his attaining majority was sufficient evidence of a fresh promise. He entirely approved of the reasoning contained in the judgments of Lindley and Denman, JJ, in Ditcham v. Worrall (5 C. P. D. 410), and would not hesitate to tell the jury that they were entitled to infer a fresh promise from the defendant's conduct since he came of age, and that there was also sufficient material corroborative evidence to satisfy the statute. The jury returned a verdict for the plaintiff. An application by Mr. Mackenzie for a stay of execution pending an appeal was refused.-COUNSEL, Addison, Q.C., and C. P. McKeand; Ambrose, Q C., and W. Mackenzie. SOLICITORS, Flux & Leadbitter, for Watson, Oldham; Neish & Howell, for Nuttall & Sons, Manchester.

LAW SOCIETIES.
INCORPORATED LAW SOCIETY.

A general meeting of the society was held at the Society's Hall, Chancery-lane, on Friday, the 29th of April, the chair being taken by Mr. HENRY WATSON PARKER, the president.

MR. FORD AND THE COUNCIL.

The PRESIDENT said: Before we proceed to the business of the meeting it will be convenient to the meeting to know that Mr. Charles Ford has requested that his motions may stand over till July, the reason being that he has brought an action against the society and the president and vicepresident and other members, the statement of claim being as follows:"The plaintiff's claim is for a declaration that the permission granted, or proposed to be granted, by the defendant society to a certain club called the Law Society Club, or to the committee thereof, to elect as a the defendant society, and a resolution granting such permission passed member or otherwise of the said club any person not being a member of to be confirmed at a meeting of the defendant society convened for the at a meeting of the defendant society held on the 28th of January, 1887, 29th of April, 1887, are ultrà vires, and an improper disposition of a part of the defendant society's property, and for an injunction." Mr. Ford wishes it to be explained that he is moving for an injunction to restrain the resolution which we are now called upon to confirm, and that under these circumstances he, being in court to-day, wishes his notices to be withdrawn. Therefore these notices which are put in Mr. Ford's name are withdrawn.

The notices which were withdrawn were as follows:-"Mr. CHARLES FORD will move: (1) This meeting, whilst recognizing the good intentions castle-on-Tyne for educational purposes, is of opinion that these and of the council in the small grants recently made to Liverpool and Newsimilar grants should be larger in amount, and should be made without solicitors and the public require that many public legal appointments, the conditions hitherto imposed by the council; (2) that the interests of from which solicitors are at present excluded, should be thrown open to them; (3) that the present practice of striking the names of solicitors off the rolls involves the society in much unnecessary expense, and is detrimental to the reputation of the profession; and the council are instructed to seek legislative sanction for leaving it optional to the society to appeal; (4) that the interests of the society require that at least one of the make such applications by summons in judges' chambers, with right of appointed annual general meetings should be held in the evening."

THE LAW SOCIETY CLUB.

Mr. HERBERT LOWE called attention to an error in the printed report society. He said that Mr. Day's motion with respect to the club, and of the proceedings at the last meeting which had been issued by the which was to be confirmed at the meeting to-day, was not printed in the form in which it was passed. The election of an honorary member was to be subject to the approbation of a general meeting of the members voting at a general meeting "of the club." The words "of the club' had been omitted.

Mr. E. KIMBER asserted that the motion was not correctly entered on

E. W. brought an action against J. H. for alleged breach of promise the minutes.

After some discussion

Mr. Lowe moved that the minutes be amended by inserting the words "of the club."

The PRESIDENT: There are certain rules of the club which cannot be varied except by resolution passed at a general meeting of this society and afterwards confirmed. As I understand, the notice of motion is to confirm the resolution altering one of these club rules which was passed at the last meeting confirming the alteration which the club proposes to make in their rules.

Mr. Lowe contended that the minutes were not properly entered. The PRESIDENT said that he should have allowed the motion to proceed, but Mr. Day, in whose name it stood, was not present.

Mr. PHILLIMORE asserted that at the last meeting Mr. Gregory had moved the insertion of the words "of the club," which had been duly seconded, and it was carried.

Mr. PENNINGTON said there was nothing in the technical point. The circular said that the rule was to be added to the rules of the club, and, of course, a general meeting of the club would be understood.

Mr. PHILLIMORE said that in the SOLICITORS' JOURNAL of the 5th of February the words "of the club" appeared in the resolution, and he contended that it was correctly reported.

Mr. PENNINGTON asked that the motion might be allowed to stand over until Mr. C. O. Humphreys, who had promised to move it in the absence of Mr. Day, was present.

This was agreed to, and at a subsequent period of the meeting Mr. HUMPHREYS said he had been requested by Mr. Day, in accordance with the notice given by him, to move the confirmation (in pursuance of the Club Rules No. 41) of the following regulation passed at the special general meeting of the society held on the 28th of January, 1887 :-"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, but that the number of such honorary members shall not at any time exceed twenty, and that such election shall be for a period not exceeding two years, with power of re-election," and he would move accordingly. He did not think it necessary to make any remarks upon the subject beyond this, that a similar resolution had been carried at a general meeting last year, but that, in consequence of its not having been brought up for confirmation through some error, it not being understood that it was necessary to be brought on for confirmation, the resolution had lapsed.

Mr. F. K. MUNTON Seconded the motion.

Mr. KIMBER rose to order. He referred to the report which had appeared in the SOLICITORS' JOURNAL, and in that the words "of the club"" appeared in the resolution. The resolution, as it now stood on the agenda paper, was not in that form, as he asserted it should be. It was of importance that the minutes should be correctly entered. The members of the society numbered upwards of 4,000, and they only had notice of what was to take place from the circular. They might very reasonably imagine that the words "of the club" should come in after the words "general meeting," because it was a notice of motion sent out by the society. The PRESIDENT said that the minutes of the last meeting confirmed the resolution as it appeared upon the paper.

Mr. KIMBER: Then I do not hesitate to say that the minute is wrong. The PRESIDENT: I have already decided that I should put the motion. Mr. MACARTHUR said he had handed in a protest at the last meeting against the resolution, on the ground that it was contrary to the rules of the society. In July, 1884, the society had added to their rules certain rules under which they permitted the club to be held in the premises of the society. One of those rules was that the club should be confined to members of the society, and that any member of the club who should, from any cause, cease to be a member of the society, should ipso facto cease to be a member of the club. So much importance was placed upon the matter by the members of the society who had made that bye-law upon that particular rule, that in another rule it was ordered that no addition or modification of any rule or regulation should become binding unless and until approved by the council, and that no alteration should be made in the regulations except in pursuance of a resolution passed by a general meeting of the society and confirmed at a subsequent general meeting held at an interval of not more than six calendar months. This rule had been made by the society as one of its bye-laws, that the club should be confined to members of the society, and as sought to be altered by the present resolution, it proposed to permit those who were not members of the society to become members of the club. It therefore proposed a direct alteration of a bye-law. If they referred to the bye-laws they would find that no such direct alteration could be made except upon twenty-one days' notice. No such notice had been given. He had protested against it at the last meeting for that reason, and had handed a written protest to the president. This resolution ought not to have been proposed at the last meeting, because the proper notice of an alteration of a bye-law had not been given, and it was therefore equally improper to bring it forward at this meeting for confirmation.

The PRESIDENT, before putting the motion, directed the attention of Mr. Kimber to the bye-laws of the society, under which it was not required to confirm the minutes at the next general meeting. The practice was to read the minutes at the following general meeting, and to read and confirm them at the next annual meeting. He then put the motion, which was adopted by thirty-four votes to seventeen.

EXECUTION OF WRITS.

Mr. R. S. FRASER (London) said he had given notice to call attention to the paper read by Mr. F. K. Munton at the provincial meeting of the society held at Hull in October, 1882, dealing with the unsatisfactory manner in which the work of sheriffs' officers is performed, and to the resolutions passed thereon at such meeting, and that he would move :"(1) That in the opinion of this society the supervision exercised by under-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 entrusted 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 sheriffs' officers, such officers should be subject to the superintendence of a resident inspector in each town or district; (4) that the remuneration auctioneers engaged in sheriffs' sales should be appointed by the inspector of inspectors and sheriffs' officers should be by salary only; (5) that all of the district; (6) that all writs of execution should be available throughout England, and be acted on without supplementary warrant; (7) that writs of execution should be marked with the day and hour of issuing, and take priority accordingly; (8) that the fees and charges on executions should be altogether revised, and should be fixed by a scale to be approved by the Lord Chancellor, and a note thereof should be handed to the execution debtor on the occasion of every levy; (9) that the sheriffs' fees and charges in each case should be taxed by the inspector, subject to appeal; (10) that the levying of executions, now entrusted to the high bailiff of county courts, should be transferred to the office of the inspector of the town or district in each case; (11) that gentlemen now filling the office of under-sheriff should have the right of electing to serve the office of inspector in any one town or district forming part of the county for which they now act as under-sheriff, and that due compensation should be made to them for being compulsorily deprived of the emoluments now arising from their office for the rest of the county; (12) that a copy of these resolutions should be forwarded to the Lord Chancellor, the Attorney-General, and the Rule Committee of her Majesty's Judges." In moving the resolutions he referred at considerable length to Mr. Munton's paper, which had resulted in the Hull meeting adopting the following suggestions contained therein, that they might be taken into consideration by the council, with a view to their suggesting legislative action:-" (1) That the execution of final civil process should be removed from the office of sheriff; (2) that an execution department should be established in the Supreme Court, controlled by an official easily accessible; (3) that all writs of execution should be available throughout England, and be acted on without supplementary warrant; (4) that bailiffs should be appointed by the court, under proper regulations and supervision, and be answerable direct on application to the execution department by any person alleging himself to be aggrieved; (5) that writs of execution should be marked with the day and hour of issuing, and take priority accordingly, the writ being despatched by the execution department straight to the bailiff in rotation; (6) that, unless otherwise directed in writing by the creditor's solicitor, all proceeds of execution should be at once paid into court; (7) that the costs and fees on executions should be altogether revised; (8) that all business in relation to executions and interpleader should be transferred to the execution department, with provisions for the speedy intervention of the judge." Mr Munton's paper had disclosed the fact that a very objectionable state of affairs existed. The council, in accordance with the recommendations of the meeting, took the matter into consideration, but they came to the conclusion that the time had not yet arrived for dealing with the subject in the way in which alone it could be satisfactorily dealt with-that was to say, by the interference of the Legislature. The question had already attracted a good deal of attention outside of this body; and it was a question which had been taken up in Parliament and which was being pressed through. He was very glad to be able to say that the Government had introduced a Bill into the House of Lords dealing with this important subject. In bringing forward his resolutions he did not wish in any way to reflect on the present body of under-sheriffs-gentlemen for whom he felt sure everyone in that hall must feel the highest possible respect. Therefore the resolutions he proposed to move had not any reference to them in any hostile spirit. But the object he had in view in bringing the matter to the notice of the meeting, was to ask them to carefully consider the question on its merits, in order that those who had promised to take it up in the House of Commons might be fortified with the benefit of their views. He wished it to be most distinctly understood that the matter would not rest here. Mr. Munton had stated the facts very concisely in his paper. He had traced the history of the subject down to the present day, and had shewn that the altered circumstances-such as the growth of population, and so on-called for some alteration in the method of procedure. Referring to the class of men appointed as sheriffs' officers, Mr. Munton had said that bailiffs were a class of men varying from a decently respectable auctioneer down to an impecunious person who would stand at nothing to serve his own purpose. They were a class which had gradually adopted duties which could alone be satisfactorily carried out by the under-sheriffs themselves. Blackstone had defined bound bailiffs to be " mean persons appointed by sheriffs, on account only of their adroitness and dexterity in hunting and seizing their prey"-rather a harsh definition, but it was complimentary in a sense some of them would not indorse, for nowadays few sheriffs' officers were either adroit or dexterous; in fact, as a body, they were mere machines. It was understood that one of the usual conditions in a bailiff's security bond was that he should notify "day by day," what he had done under each warrant, whether successful or not, and that he would never make excessive or improper charges. It would be interesting to know whether any

were

sheriff's officer in the kingdom returned " day by day" what his movements were. He would be glad to know of any instance of an undersheriff voluntarily enforcing a bailiff's bond as regards excessive charges (unless proceedings had arisen), the under-sheriff invariably leaving the unfortunate debtor to the mercy of chance. Mr. Munton had given a case in which he had recovered damages for a client from a sheriff for having been kept out of money, and put to experses by being compelled to compromise with his creditors by reason of his not being able to extract from the sheriff money which he had collected on behalf of the execution creditor. He (Mr. Fraser) would urge that the country practitioners had much greater experience in these matters than London solicitors, and the fact that the resolutions had been adopted unanimously at the Hull meeting was a strong argument in their favour. The Bill before Parliament very properly relieved the sheriffs of a good many of their privileges, which were to a large extent of a purely ornamental character, and further regulated the sheriffs' charges, but he would feel greater satisfaction if he knew that an abstract scale of charges had been fixed, which scale should be submitted to the society for approval. The class from which the present fees were levied was the most unsuitable from whom they could be required. When a man had an execution in his house he was not in a position to support the system. Owing to the large increase of population, it had become simply impossible for the under-sheriff situated in the chief town of a county to exercise proper supervision over the work. He would not complain if he thought under-sheriffs got the benefit, but he asserted that the under- sheriffs' officers derived very large incomes from the performance of what mere mechanical duties, and that if a poll were taken of the solicitors throughout the country nine out of ten would condemn the present system. The remedy he proposed was to confine the under-sheriffs to their work. Let them really do under-sheriffs' work. Owing to the great mass of work which had been thrown upon the under-sheriffs they had been unable to give the matter proper attention, and they had, therefore, allowed the class of sheriffs' officers to come into existence. A solicitor should be appointed in every important town or district as undersheriff or inspector, and he should employ a man at a salary which should correspond with the work he was called upon to do, as in the case of chief clerks of county courts. The present system was most improvident and unsatisfactory, and he believed it to be very detrimental to the profession to have to pay blackmail to a class of men employed by the profession, and who, but for the apathy of the profession, would not be able to stand another day. Solicitors suffered severely every year by reason of the non-execution of processes which they lodged with the sheriffs. If the inspector were directly accessible the debtor could go directly to him. Whenever an execution was levied there should be a statement handed to the execution debtor, and, attached to it, there should be a list of the authorized fees which the sheriffs were entitled to charge, and a memorandum should be attached to the levy, stating that these charges would be taxed by the inspector at a certain date, and that if the debtor gave notice to the inspector he would have an opportunity of attending the taxation. He also urged the desirability of paying by salary instead of by fees, and that every execution should pay its own expenses. He referred in strong terms of condemnation to some of the sales which took place in London, than which nothing could be more objectionable. He thought the under-sheriffs were the best persons to appoint bailiffs, but they should live in the town where they had to act. He concluded by moving the resolutions standing in his name.

council thereon. He said that most of those present would agree that the method of levying executions at present in vogue was not satisfactory. But this was not the most suitable time for dealing with the question. They could not be expected to deal with a number of recommendations such as those proposed, however important they might be.

Mr. E. K. BLYTH (London) seconded the amendment, observing that it was not possible for the meeting to go through a mass of detail with an advantageous result. The mover of the resolutions had made out a case for reference to a committee for inquiry. The main points he had made were, first, that writs of execution ought not be required to be issued in separate counties all over the kingdom, for it was perfectly absurd that if a writ came to one county and the goods were removed just over the border, one should have to go back to London and get another writ for the next county. The indirect methods by which a writ was issued to the high sheriff, who acted by the under-sheriff, who acted by the acting under-sheriff, who acted by the bailiff, was an absurdity which ought to be removed, and the person who had the final execution of the decrees of the court was the person who ought to be directly responsible to the court. A fair case had been made out for a committee to get rid of such absurdities as these which led to such curious actions as those they occasionally heard of in which the bailiff, at one end of a county, had played some tricks with a debtor, and an action was, in consequence, brought against a respectable baronet living at the other end of the county, who knew nothing of what had taken place. This matter ought to be put on a fair basis, and such things, like their respected friends John Doe and Richard Roe, should be confined to the limbo of the past. With regard to the constitution of the committee, he thought it desirable that one or two members of the council, such as Mr. Roscoe and Mr. Addison, should be placed upon it. The question should be thoroughly discussed, the law investigated, and such amendments as were necessary would probably be recommended. There was a special reason why this should be done now, because of the pending Bill in the House of Lords, which would give a favourable opportunity when it reached the other House for introducing reforms without delaying the matter to another session. Mr. W. P. W. PHILLIMORE (Loudon) spoke in favour of the amendment. He thought that a little deliberation should be given to the matter which might result in some beneficial alterations. This was especially the case with reference to the suggestion that the sheriff's officer should be permanent and paid by a fixed salary; an alteration which, in his (Mr. Phillimore's) opinion, would open the door to abuse-he meant the possibility of bribery on the part of the debtor. He would just throw out the suggestion that it might be better that it should be left to the solicitors and persons issuing out writs to nominate a person who should levy, and who should be responsible to the High Court and be liable to have his costs taxed as in the case of a permanent officer. Mr. FRASER said he would accept the amendment.

Mr. LONGMORE (Hertford), on behalf of a considerable number of under-sheriffs who were present, said they had no desire to baulk inquiry, but they thought that they should be represented on the committee. H would suggest that three members of the committee should be nominated on the part of the under-sheriffs. He thought it would be most unwise to take such a leap in the dark as the resolutions proposed.

Mr. MUNTON Cordially agreed with Mr. Hanhart's proposition, and there as no reason why the under-sheriffs should not be represented as suggested by Mr. Longmore. But he thought the three members nominated by the under-sheriffs should be added to the twelve already suggested. This would give fifteen as forming the committee, so that there would always be a majority on one side or the other.

Mr. C. GEPP (under-sheriff of Essex) said the under-sheriffs were very anxious to be represented on the committee. Their interests ought to be consulted equally with those of the other members of the society. From his own practical knowledge, which extended over many years, he could say, without fear of contradiction, that if there were grievances on the part of execution creditors, there were equally grievances on the part of undersheriffs, and the under-sheriffs were anxious that the matter should be gone into in the interests of all parties. Mr. HANHART said he was prepared to accept Mr. Longmore's suggestion.

Mr. B. J. L. FRERE (London) suggested the number of members of the council should be five so as to make the committee consist of an odd number. Mr. FRASER expressed himself in favour of a large committee rather than a small one." He did not think the under-sheriffs had any locus standi in the matter.

Mr. E. KIMBER (London) seconded the resolutions, remarking, with regard to No. 3, that he did not know whether the society were aware of the circumstances under which the surveyors of taxes and collectors of taxes were appointed, and of the Act of Parliament under which their duties were regulated; but it had struck him very forcibly, when he heard Mr. Fraser's speech, that the fines, penalties, and obligations imposed by Act of Parliament upon the collectors of taxes might very well be imposed upon gentlemen in the position of under-sheriffs and sheriffs' officers. They had a very economical and just mode of collection, and as much power and force as possible put upon them for the purpose of compelling them to do their duty honestly. In consequence of the office of under-sheriff having grown old, the duties of the sheriffs' officers had been allowed to slip out of view; and in consequence of the different regulations of the police courts, county courts, &c., they had slipped out of the purview of the public and the profession, and he thought their duties should be brought back to the view of the public, in order that they might be kept perfectly straight. The Act of Parliament for collectors of taxes was modern, the law regulating the conduct of under-sheriffs and sheriffs' officers was old. The under-sheriffs and their officers were under very grievous obligations if they transgressed their duties, but he challenged any man to find a single case within the last twenty years where the judge had imposed upon these officers the penalties imposed by law. They had, in the great majority of cases, refused to do so. What was the remedy for an excessive distress? An action for damages. Who could bring an action for damages when he was in the position of a person whose goods had been taken under an execution? In ninety-nine cases out of a hundred he was without a remedy. Referring to resolution No. 6, he said it was perfectly outrageous that it should be necessary to issue fresh writs for each county. He quite agreed with resolution No. 10, as he did not think there ought to be three or four different systems of levying executions. At present there were four or five-for instance, that for Queen's taxes, that for poor's rates, from police courts, &c. It ought to be reduced to a uniform system. Mr. N. HANHART (London) moved an amendment, to the effect that the The amendment was carried, forty-two votes being given in its favour suggestions made by the mover of the resolutions and the whole question and nineteen against it, and on being put as a substantive motion, as to levying executions should be referred to a committee of twelve, con- Mr. LONGMORE moved a further amendment as follows:-"That the comsisting of an equal number of members of the council and an equal number|mittee consist of five members of the council, three members of the society, to of members of the society, with instructions to consider and report to the be nominated by the under-sheriffs, and three to be nominated by Mr.

Mr. B. G. LAKE (London) said that for Mr. Fraser to object to the under-sheriffs being on the committee was the most unreasonable proposition he had ever heard. A large committee was always a failure, and a small committee would work much better.

Mr. MAYNARD (London) objected to Mr. Fraser having the power to nominate three out of the twelve members of the committee. He (Mr. Maynard) would prefer an equal number of members of the council and an equal number of the members of the general body. To allow Mr. Fraser to nominate three members was placing an unjust power in his hands. The PRESIDENT put the amendment in the following form :-"That the questions raised by Mr. Fraser's motion and the whole question of the mode of levying executions be referred to a committee of twelve members, consisting of six members of the council and six members of the society, with instructions to report to the council."

« PreviousContinue »