Page images

!1'May28, I887. THE SOLICITORS’ JOURNAL. 493


income was charitable, and it was managed by a public body, and no private person had any interest in it, and no profit was in contemplation, and its object was the benefit of a large class of her Majesty’s subjects, all those circumstances pointed to it being a public school. The fact that colleges and halls were also exempted in the section showed that it did not refer merely to charity schools.—Coi'i~isiu., Sir E. Olm-ks, S.G., and A. V. Di":-ey ; Sir Charles Russell, Q.C., and Pollard. SOLICITORS, T/ia Solicitor for Inland Rnimuc; The City Solicitor.


[ocr errors]

This was an appeal from a divisional court (Day and Wills, JJ.), and raised an important question as to the right to appeal from the summary decision of a judge in an interpleader issue. Certain goods, having been seised in execution, were claimed under a bill of sale. The only question being as to the validity_of the bill of sale, Huddleston. B., in chambers, by consent of the parties under R. S. C., 1883, ord. 57, r. 8, decided the matter in a summary manner, holding the bill of sale valid, but he gave the execution creditor leave to appeal against his decision. The Divisional Court he_ld that section 17 of t e Common Law Procedure Act, 1860, being still in force, there was no right of appeal, and no power in the judge to give leave to appeal, but after hearing the case on its merits, they expressed a strong opinion against the validity of the bill of sale. The execution creditor appealed from this decision, and it was now argued that section 17 applied on y to the procedure given by section 14 o the Common haw lfrocedure Act, and had no reference to the consensual summary Jurisdiction of a judge in interpleader cases. On the other hand it was contended that the consensual jurisdiction was given by 1 8: 2 Will. 4, c. 58, which, by section 2, expressly forbade any appeal in such Cases. The appellant, however, contended that the force of section 2 was liillililted by section 4, which gave a right of appeal from all decisions of a

s ]l.l ge.

fun Conar _(Fiii- and Lorss, L.JJ.) dismissed the appeal. FRY, L.J., said the question was by no means free from difilculty, and ord. 57, r. 11, was not easy_to construe satisfactorily. It began, however, “Except where otherwise provided by statute,” and, therefore, although it conwmrlmq P139 Ifflsihility of a judgc giving leave to appeal from a summary decision, it did not intend to conflict with any existing statutes. The statute which gave a judge power to decide interpleader matters summarily by the consent of both parties was the 1 Sr 2 Will. 4, c. 58, and lbAct» by section 2, expressly enacted that such decision should be final and conclusive. It could not be said that that section took away the "Elli of appeal, because no such right then existed at common law. Section 4 of the Act did not give any right of appeal in inteiépleader cases, 3°12; 88" the same right of appeal against orders under e statute as *1" Y existed at common law. It was true that 1 & 2 Will. 4, c. 58 had been repealed by the Statute Law Revision Act, 1883, but it was clear, fi'0m the preamble to that Act, that it was only repealed because its subject-matter had been already dealt with by the Rules of the Supreme Court. Order 57, therefore, which replaced the statute, was not intended mu! Wily to alter its subject-matter. But at the time the rules were

_WI1up _the Common Law Procedure Act of 1860 was in existence, of which section 17 alone still remained in force. To say that that section W1! Yeforred to the jurisdiction given by section 14 of that Act was to gut P°° Farrow a construction upon it. It referred to all summary AE0lBl0l1B in interpleader issues, whether the jurisdiction was given by the ,°t'i°f 1360 _01' by consent under the Act of 1331. The Legislature, by t:,°th“8 section 17 alone intact, had shewn that they considered it applied B cl e whole summary jurisdiction. The section, therefore, was expressly 1‘ ‘lied by rule 11 of order 57, and the judge had no power to give glue t° ,'PP°“1- Loriis, L.J., concurred.—Coi::~:sizi., A. T. Lowrance,

mi 5'4"!!! Woolf. SOLICITORS, R. Frederick Hill Q Co. ; W. Beard.

[ocr errors]

& I61 this case it appeared that the defendant had employed P. W. Thomas C 0. as stockbrokers to purchase a number of shares of the New York Tintral and Hudson River Railroad Co., and paid them for the same. °m" & deposited with the plaintiifs the share certificates, and, ,hh:“lam"“.7d§ M1118 pressed by the defendant, obtained the certificates from boo]: tiffs, and caused the defendant's name to be registered on the back of the company as owners of the shares, and the plaintiffs received hold new certificates with the defendant's name thereon as registered the er. The certificates in use by the company bore on the face of them tuega-me °f the Persons in whose name the particular shares were regisa blmlil F116 books of the company. On the back of each certificate was Rude Oim of transfer, and a blank power of attorney to execute a enrto tn; ?I1d cancellation of the certificate, and to do all things requisite The 1£iBr_tlie shares represented thereby in the books of the company. negolliabljlilga contended, amongst other things, that the certificates were were “ES, Y Q51/JPpe1,_ and that the plaintiffs, as actual holders thereof, relied on‘ Ged ll0_bo registered in place of the defendant, and the plaintiffs (;,,,.,_,, _§°“""_" Y-1Mam(24 w. R. 987, 1 App. Cas. 416).

In that » -1 said that the case did not fall within Goodwin v. Roberts. ing on tfiiflifo the instrument in question was simply scrip purportdefliuithei ace of it, that the bearer would be entitled tn receive the The mi vfiltlgélrcm the foreign Government in exchange for the scrip‘;

had bypd H. 7 represents that the paper would pass from hand ° "17 only. Each prior holder was deemed to have concurred

[ocr errors]

in that representation. In the present case there was no such representation. Estoppels could not be manufactured arbitrarily. No estcppel could be raised inconsistent with the terms of the document itself, and the only estoppel which could be rightly inferred in the case before him was that, where the transfers were duly signed by the registered holder of the shares, each prior holder conferred upon the bond fide holder for value of the certificates for the time being an authority to fill in the name of the transferee, and was estopped from denying such authority, and to that extent, and that extent only, was estopped from dcnyinagl the title of such holder for the time being. By delivery an inchoate leg title passed, but a title by unregistered transfer was not equivalent to what was termed the legal estate i.n the shares. Such inchoate title of the plaintifia had been defeated by the defendant’s registration.—Coimssi., Rigbih Q..O., Sir Artlim" Watson, Q C., and Butcher; Romer, Q,.C., Finlay, Q,.O., and Grosvmor Woods. SOLICITORS, Dnwes Q Alllee ; Dad Q Longstafi.

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

In this case a motion was made by the New Oriental Bank Corporation to discharge or vary an order in chambers sanctioning a contract to sell the outstanding assets cf the liquidating corporation to the Assets Realization Co. By the sale objected to an offer had been accepted by the liquidator on the part of the Assets Co. to pay to the creditors (who had not compromised) a sum suflicient to make up the final dividend to 19s. 9d. in the pound. The applicants offered at the bar to give 20s. in the pound, and to take as their remuneration a moiety of any remaining surplus and pay the other moiety to the shareholders.

Ciiirrr, J ., after stating that the sale as sanctioned was the best thing in the then existing circumstances, said that he had inquired in chambers and had also asked counsel, but had foimd no precedent for setting aide a sale by private contract which had been sanctioned in chambers, when the ground of recalling the order was simply that a better offer was proposed. He agreed with Malina, V.C., who said, in Ra Bartlett, Newman v. Hook (29 W. R. 279, 16 Ch. D. 561)), that to open biddings for such a reason (as was the practice in sales by public auction before 30 & 31 Vict. c. 48) was a most pernicious practice, unfair to purchasers and most prejudicial to vendors. The motion was dismissed, with costs.— COUNSEL, Romer, Q,.O., and F. B. Palmer ; Latliam, Q.O., and T. H. Wriglil ; lllacleau, Q,.C., and Vrrnim R. Smith. SOLICITORS, Hollams, Son, 43- Coward; Frrslifieldo 4' Williams; Linklatars.

[ocr errors][ocr errors]

This was an adjourned summons for determining a question which arose in a creditor's administration action with regard to the right to follow trust moneys. The testator, who was a solicitor, had been intrusted by a Mr. Young with £11,500 to invest. He pretended to have invested the money upon four mortgage securities, and had delivered to Mr. Young what purported to be the mortgage deeds and the title deeds of the several properties. After the death of the testiitor it was discovered that three of the alleged mortgage securities were entirely fictitious. With regard to the fourth, there was a prior mortgage sii_bsisting on the property comprised in it, and there had also been a_ prior assignment of the equity of redemption, but the property was in hIiddlesex, and neither the mortgage nor the assignment had been registered. Mr. Young, having registered his mortgage, acquired priority, and had commenced foreclosure proceedings, which had been compromised. There was, at the testator’s death, money at his bank which could be earmarked as forming part of Mr. Young's £11,500. The question to be now determined was whether he was entitled to follow that money. S-riiii.ixo, J.,said that, according to the rule laid down in Clan;/Ii v. London and _Nortb- lVesle1'n Railway Co. (7 Ex. 26), a_person defrauded had, subject to the rights of innocent third parties, a right to avoid the contract so long as he had done nothing to show an election to abide by it. \Vith regard to the first three pretended mortgages, Mr. Young had done nothing to alter his position or afilrm the transactions. As to them, therefore, he was entitled to follow his money into the testator's bank. V The fourth mort age, however, stood on a different footing. If Mr. loung had intendeg to repudiate that, he should have done so promptly. He had not done so, but had, on the contrary, taken steps to enforce it. That seemed to his lordship an election to affirm the transaction, _and was inconsistent with an intention disaflirm it: With_ regard to this, therefore, he was not now m a position to exercise the right of repudiation.— Couirsu, Peariovi, Q.O., an J. Emdffl0fl,' Hastings. Q0‘! "id 1491014; Barlliwiak. Soucrroiis, Hmdmon Q Buckh; Jolnmm Q J[ut¢n,f01' J. B

[ocr errors]
[ocr errors]
[ocr errors]

In this action the plaintiff claimed an injunction torestrain the defendant from entering upon certain lands at Skipton, in Yorkshire, and if necessary specific performance by him of an alleged agreement for a tenancy thereof contained in correspondence, and he now _mov_ed for an interim injunction in the terms of the writ. The only question m dispute was whether the correspondence constituted a_complete_ contract or whether it was merely negotiation, and it was admitted that it there was a contract it was for a tenancy from year to year. No pleadings had yet been delivered. _

STIRLING, J., said that this was a case in which he was disposed to apply ord. 50, r. 1 (a.), and direct a speedy trial of the action. Counsel stated that such an order would be satisfactory to all parties, and his lordship accordingly directed that the trial should take place at the next York Assizes, and in the meanwhile granted the injunction.—Com~zsiii., Metlwld ; Warrington. SOLICITORS, Jackson, Morse, Q» Simpson, for Jackson Q Jackson, liliddlesborough; Bell, Brodrick, 4- Co., for Richardson, Thirsk.

[ocr errors]
[ocr errors]

In this case the appellant, who was the master of the ship C'ai‘digans/lire, had been convicted by justices of unlawfully piloting his ship within the London district without having a pilotage certificate. The ship was one of a line of steamers which sail regularly from London to Japan, China, and the Straits Settlements, and back to London, and thence to Amsterdam and Hamburg and back to London. In April, 1886, she arrived in London with a cargo from the East, and, having discharged part of the cargo, she left London for Amsterdam with the rest of the cargo. \Vheu she was off Gravesend the informant, who was a. duly licensed pilot, offered to take charge of the ship for the purpose of piloting her to the seaward limits of the London district. The appellant refused the offer, and continued to pilot the ship himself. The vessel proceeded to Amsterdam and Hamburg, and, after discharging her cargo, took in a fresh part cargo for the East, with which she returned to London, and then, after making her cargo complete, she proceeded on her next voyage to China and Japan. The question was whether, under the above circumstances, the ship was exempt from compulsory pilotage under section 379 of the Merchant Shipping Act, 1854. That section, in its 3rd sub-section, exempts all ships not carrying passengers and trading to Boulogne or to any place in Europe north of Boulogno. On behalf of the appellant it was argued that the ship was not less a ship trading to the north of Europe because she afterwards went to China and Japan. On behalf of the respondent it was argued that trading meant constantly trading, and here the vessel was a foreign_-going ship, London being only her calling port ; and reliance was laid on The Agricola, 2 W. Rob. Adm. 10, and The Sea Quacn B. & L. 359.

_ THE Oovnr (Lord Oomminos, G.J., and A. L. Sui-rii, J .) after taking
time to consider their judgment, allowed the appeal. Lord Couminoa,
C.J., said that it was obvious that the case was directly within the words
of the exemption given by sub-section 3. It had, however, been argued
that compulsory pilotage had been imposed by the Legislature solely for
the benefit of ships themselves and the protection of human life, and that
the section ought t_o be construed with reference to that principle. But
he thought it was impossible to say, looking at all the exemptions, that they
were designed solely with that purpose, and without any idea of favouring
particular trades. For instance, the effect of sub-section 4 was that ships
from Guernsey, Jersey, &c., laden with stone were exempt, but if laden
with fruit they were not exempt. It was clear that there must have been
an intention to favour the stone trade between those islands and England.
It was not necessary to decide whether the Legislature intended to favour
trading between London and the north of Europe. It may have been so ;
but it was enough to say that this vessel was a ship trading between
London and Amsterdam, _a place in Europe north of Boulogns, and doing
that habitually, though his lordship thought that it was not necessary that
she should bc habitually so trading. The case came within $flb_fleQtiQn
3| and the vessel was exempt: A. L. SMITH, J ., said that the question
W88 Whether the ship was trading to a port north of Boulogne within the
ineaning of_sub-section 3. Dr. Lushington had decided that “ coasting "
in sub-section_1_ meant continually coasting. But that decision did not
govern sub- section 3, which meant what it said—viz., that a vessel, when
it is trading to a port north of Boulogne, is exempt.—-Covssst, Gains-
f°"d13Tlw¢. Q-C., and James For ; Bucknill, Q.O., and Aspinall. SOLICITORS,
Parker, Garrett, g Parker; Sandilamia, Hamphry, Q Co.

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

(17 Q. B. D. 244). The creditors resolved to accept a second scheme, which the registrar again refused to approve, his decision being again affirmed by the Court of Appeal on the 25th of lliarch, 1887. The court refused to allow another meeting of the creditors to be summoned for the purpose of proposing a fresh scheme. On the '29th of April the official receiver applie to the registrar for an adjudication of bankruptcy against the debtors. At the request of the debtors and some of the creditors the registrar adjourned the hearing of the application to the lst of July. The official receiver appealed, and on the hearing of the appeal the respondents objected that the ofiicial receiver had no locus stamii, that he was not a “ person aggrieved” by the registrar’s crderwithin the meaning of section 104.

Tm: Coon-r or Ai>rsAi. (Lord Esiisii, M..R., and Far and LOPBS, L.JJ.) held (Far, L.J., dissenting) that in such a case the oflicial receiver was entitled to appeal. Lord Esnsn. M.R., said the order which the registrar was asked to make was one which, if the facts alleged were made out, he was bound judicially to make, unless he was entitled for “ snflicient reason" to adjourn the hearing. Section 20 provided that “the court shall" (not may) adjudge the debtor bankrupt if certain circumstances were proved. If no “ suficient reason " to the contrary were proved, the registrar would do a legal wrong in his judicial ofiice if, on those circumstances being proved, he did not adjudge the debtors forthwith bankrupt. The ofilcial receiver had alleged that the scheme had not been approved within fourteen days, and had asked the registrar forthwith to adjudge the debtors bankrupt. If he proved that that was so, and_ that there was no suflicient reason for adjourning the hearing, the registrar was bound forthwith to adjudicate the debtors bankrupt. Under rule 191 the ofificial receiver was a party who was bound to ask the court for a judicial decision on a matter of fact which might be in contest. _It was his duty to produce evidence and to argue on the effect of_ that evidence. That place him in exactly the same position as a litigant, and the question was whether he was entitled to appeal as a “ person aggrieved" by the refusal of his application. In Er pm-to Sidabotham (14 Oh. D. 408) James, L.J., said (p. 465): “ A ‘ person aggrieved’ must bs_a man who has suffered a legal grievance, a man. against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." That might not be an exhaustive definition, but, at any rate. It would include a person like the official receiver in this case, who had been wrongfully refused a decision for which he had a right to ask._ And in the same case Bramwell, L.J., said, “Certainly the general rule is that an appeal must be by the party who has endeavoured to maintain the coutrary of that which has taken place." That also included the present case. Far, L.J., regretted that he differed from the Master of the Rolls. The official receiver was not a litigant, but was acting as an offioet 0! film court whose duty it was to bring facts to the knowledge of the court, and, when he had done so, he had discharged the whole of the duty cast 011 him as a public servant ; he was functua oflicio, and had no_ further duty to perform, and, whether his application succeeded or failed, he had 11°

urther concern in the matter. He was not in any sense a ‘ Pew)“ aggrieved “ by the refusal of his appliction, for the decision was not op?’ more a decision against him than against any other member of the public. He sufiered no legal grievance if the registrar had given a wr0“B dam‘ sion. He was deprived of nothing and he was refused nothing by_t\}Bl decision, and, therefore, he could not appeal. In his lordship s OQIHW11 this view was consistent with the definition given by James, L 1. 111 5-‘ parts Sidebotham. And Bramwell, L.J., only mentioned a condition yogi quzi mm to an appeal ; he did not say that everyone who had_ “ maintain the ?ntrary " had a right to appeal. LOPES, L.J., agreed with the MWW of t e Rolls.

The appeal was then heard on its merits, and in the result Gocnr reversed the decision of the registrar, and made an immediaE adjudication against the debtors.—GouNssi., Sir R. Webster, A.G.» s"'b Clarke, S.G., and Muir Jfackenzio ; Finlay, Q.O., and Sidney Woolf; H92; Reed ; Wilkinson. SOLICITORS, Solicitor to rm Board of Trark; F04' ' ram; G. S. Q H. Brandon ; Cuddon 5' Co.

[ocr errors]
[ocr errors]

Section 47 of the Bankruptcy Act, 1883, provides, by Sub-5°°h°“fl:é that any voluntary settlement (not being a settlement made on or_for mt wife or children of the settlor of property which has accrued to 1111:]; t marriage in right of his wife) “Shall, if the settlor becomes t $9 within two years after the date of the settlement, be void as agflmf t at trustee in the bankruptcy, and shall, if the settlor becomes bfllllfl‘-ll: be any subsequent time within ten years after the date of the Bolflenie? ’in void against the trustee in the bankruptcy, unless i.l16p_Bi'tlBSCalal1!;in8 under the settlement can prove that the settlor was at the time of m mg the settlement able to nay all his debts without the aid of tho Pig’? ,0 _ comprised in the settleinent, and that the intncst of the sctllor in 815 12111; arty had parsed to the truslee of such settlement on the execution thereof. mu’ by sub-section 3, “ ‘ Settlement’ shall, for the purposes o_( this seg thé include any conveyance or transfer of property.” Section 91 at was B'111k1'“Pl'°Y Act. 1869, was identical with sub-section 1. ewe?ma bow confined to traders, and that it did not contain the words which are {B1869 placed in italics. Section 169 of the Act of 1883 repealsthe Act 0 “Buy in mm, but provides that the repeal shall not afiect (‘"1" ’fZ“')I the liability or disqualification incurred under the repealed Act. ghich ppsesent case a trader in April, 1877, executed a voluntary deed, i")°°,uw]y

Wife W88 E party, by which, after a recital that he was 9 '



entitled to eighty shares in a railway company, and that he was desirous of irrevocably settling them upon the trusts thereinafter declared for the benefit of his wife, himself, and his children, and that he was about to transfer the shares into the names of T. and M., who were parties to the deed, it was agreed that the trustees should stand possessed of the shares, so soon as the same should be transferred to them, on trust to pay the dividends to the wife during her life, for her separate use without power of anticipation, and after her death upon certain trusts for the benefit of the settlor and the issue of the marriage. At the time of the execution of the deed the shares stood in the name of the settlor. On its execution he handed over the certificates to the trustees, but he did not transfer the shares into their names until the 19th of February, 1886. Meanwhile he had continued to receive the dividends as before, and to apply them to his own use. In May, 1877, the trustees gave notice of the deed to the railway company. _In April, 1886, the settlor was adjudicated a bankrupt, and the trustee m the bankruptcy applied to the court for a declaration that the settlement was void, and that he was entitled to the shares. It was proved to the satisfaction of Cave, J., that at the date of the deed the sett1or_wa_s able to pay all his debts without the aid of the property comprised m it, but Cave, J ., held that the trustee in the bankruptcy was entitled to the shares, on the ground that the interest of the bankrupt in them had not passed to the trustees of the deed on the execution thereof. On the appeal it_ was argued that section 47 was not retrospective, at any rate, so far as it contained provisions which were not to be found in section 91 of the Bankruptcy Act, 1869. On behalf of the trustee in the bankruptcy it was urged that the transfer of the shares to the trustees of the deed was a “_settlemeut " within section 47, and that, as the deed imposed no obligation on the settlor to make the transfer, it was a voluntary settlement, and, having been made since the Act of 1883 came into operation, and within two yea_rs before the adjudication of bankruptcy, it was void against the trustee in the bankruptcy, whether section 47 was retrospective or not.

Tun Occur or Arrasi. (Lord Esiian, M.R., and Fur and Lorss, L.JJ.) sflirmed the decision. Lord ESHBR, M.R., said that, although it might not b_c absolutely necessary to determine whether section 47 was retrospective or not, the point was an important one, and had been fully argued, and it was right that the court should express its opinion. Section 47 was, a great extent, a repetition of section 91 of the Act of 1869, That section, however, applied onlytc traders, while section 47 applied to non-traders also, and section 47 contained a new roviso at the end as to the settlor’s interest in the property passing to the trustee on the execution of the settlement. In Re Player (54 L. J. Q. B. D. 553), Matthew, JI, expressed an opinion that so much of section 47 as was identical with section 91 app ‘ed to matters which took place before the Act of 1883 came into operation, but that so much of section 47 as was new was not retrospective. That at first sight appeared to be a modification of the ordinary rule, that an Act was not retrospective unless it W35 elprsssly declared to be so. But where an enactment was repealed, and the repealing Act substituted a new provision for that which it repealed, it appeared to be the true principle that so much of the new enactment as was identical with the former enactment was retrospective, but that the new matter was not retrospective, otherwise the result would bflthat persons who had broken the provisions of the former statute would be entitled to escape after it had been repealed. It was inconceivable that that could have been the intention of the Legislature when they replaced the former enactment by a new enactment to a similar effect. But, as to the pew matter introduced, there was no reason for saving that it ought to

ave a retrospective effect. If so, section 47 did not apply to any settlements executed by non-traders before the Act came into operation, and the Pmvisoasto the interest of the settlor passing to the trustee did not :PP1.Y to a settlement executed bya trader before the Act came into operatgm. Therefore, if the document executed in 1877 was a settlement of he shares it did not come within the section, since the only ground for

Peflchlng it arose under the new part of the section. But could it be said that a document which did not pass the property, which did not conttfiuzimy Qcvenant by the settlor to settle the shares, which left him free h_ cal with themas he pleased, and gave no power to anyone to force II1n;1,t° "emf! Qhfm, was a settlement within the meaning of section 47. B tls lordships opinion that was not a settlement within section 47. bu kthen came the transfer of the shares two months before the 1;: £'§Pt<=Y, and after the Act of 1883 had come into operation. His ,, :fllP Would not decide whether the transfer would have been a B: . amen131$ had been made to carry out a prior valid settlement. to 111 the present case there was no previous document which amounted aw; Bctglement, and the transfer clearly came within the words of subinmftlil of section 47, and it was void, without any regard to the two on of the settlorin executing it, because it was executed within the Ye"! before the bankruptcy. FRY, L.J., said that he had arrived at lecfigan; °°n°1'_1Bl°1J. though by a somewhat different road. By submy :3 Of section 47 of the Bankruptcy Act, 1883, a settlement included after than" Pf PP°PeIty. Here there had been a transfer of property I, it has Pull“! Of the Act and within two years before the bankruptcy. the ha lmlliot been executed the shares would have been the property of mbutsfl Pt at tho time of the bankruptcy, and‘ would have been diswithin M‘: :m°°8 his creditors. It was, therefore, a transaction plainly lords“ ht the words of the section and the mischief of the Act, and his 5ecmmP47&d no hesitation in coming to the conclusion that it was void under question -h Section 47 was clearly not retrospective in taro, but the as to flmzlhcther it was retrospective at all did not really arise, and Act was mtm° Would reserve his opinion. To say that a section of an was a no‘ 1 9P6ct1ve_ in one part, and not retrospective in another part, 0, we me {node of interpretation, and he was not sure that any saving

P "5 °l1l of section 91 of the Act of 1869 was not to be locked for

[ocr errors]

in the general saving clause (section 169) of the Act of 1883. Lorns, L.J., agreed with the Master of the RO.uS.—OOUNSBL, Winsloio, Q.C., and Sidney Woolf; Yale Lea. Soucrrons, llunm Q Loiiydm; Bedford, HoninWilliams, g Robinson.


[ocr errors]

This was an appeal from the decision of Stirling, J. (35 W. R. 365, ants, p. 271). The question was whether, in taxing the costs of a taxation, the taxing master was right in allowing part of the costs of shorthand notes of evidence taken vied cove before himself. He had suggested to the parties that a shorthand note ought to be taken of that evidence, and they had each hada note taken. The taxing master allowed the costs of one note. Stirling. J., afiirmed the decision.

THE Couiir or Arrasn (COTTON, LINDLBY, and Bowax, L.JJ.) affirmed the decision of Stirling, J. COTION, L.J., said that the Court of Appeal had done all in its power to prevent unnecessary expense in shorthand notes. As a rule the only shorthand notes allowed were those of the judgment in the court below, and notes of the evidence were not allowed except in very special circumstances. Ha did not consider that the taxing master, or even a judge, had a right to order shorthand notes to be taken. It was the business of the taxing master, as it was of the judge and of counsel, to take notes himself. But in this particular case the taxin master had expressed an opinion that it would be best to have a shorthand note taken of the evidence given before him, and both parties had acceded to that suggestion and had acted on it. They might have objected, but they did not. Both parties had a shorthand note taken, and the taxing master had allowed the costs of one. The parties ought to have agreed upon one shorthand writer, and, in the absence of evidence to shew whose fault it was that no such arrangement was made, the taxing master was right in deciding that the same costs should be allowed as if only one note had been taken. LINDLBY, L.J., concurred. Bowsx, L.J., desired that it should not be thought that, in allowing the costs in this particular case, the court had expressed any opinion that it was a reasonable practice to employ a shorthand writer before the taxing master, or that the taxing master had any right to order one to be employed. As a general rule such a practice would be of the worst €XBl11pl8.—COUNSEL, Jllacleaii, Q.C., and Normimd_i/; Graham Hastings, Q.C., and illuidlow. Souciroas, B. J'. Goock ; R. Metmlfs.

[ocr errors]
[ocr errors]

I this case an important question arose as to the jurisdiction of the court to allow an attachment to issue against a solicitor for his default in not paying a sum of money which he had been ordered to pay in his character of an oflicer of the court, after a receiving order in bankruptcy has been made against him. Section 4 of the Debtors Act, 1869, provides that, with certain exceptions, “No person shall be arrested or imprisoned for making default in payment of a sum of money," one of the exceptions being (4) “Default by an attorney or solicitor . . . in payment of a sum of money when ordered to pay the same in his character of an oflicer of the court making the order.” Section 9 of the Bankruptcy Act, 1883, provides that, after the making of a receiving order against a debtor, " except as directed by this Act, no creditor to whom the debtoi-is indebted respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings unless with the leave of the court, and on such terms as the court may impose." And, by sub-section 2 of section 10, “ the court may, at any time after the presentation of a bankruptcy petition, stay any action, execution, or other legal process against the property or person of the debtor, and any court in which proceedings are pending against a debtor may, on proof that a bankruptcy petition has been presented by or against the debtor, _either stay the proceedings or allow them to continue on such terms as it may think just.’ ’ In the resent case the solicitor had acted as solicitor to the trustees of a will, andphad received from them some sums of money for the purpose of investment. He did not invest them, and on the _7th of March, on the application of the surviving trustee and the 1’8BldLi8? legatees under the will, North, J ., made an order that the sohcitor slioul , n or before the 7th of April, or subsequently within seven days after service of the order upon him, pay the moneys in question, “ being moneys in his hands and received by him as solicitor ” for the trustees, to the surviving trustee. The order was served personally on the solicitor on the 22nd of March, but he failed to obey it. On the 27th of _April a notice of motion, dated the 22nd of April, was served on the sohcitor by the persons who had obtained the order of the 7th of March, asking that they might be at liberty to issue a writ of attachment against the solicitor _for his contempt in not paying the money pursuant to the order. Meanwhile, on the 25th of April, a receiving order m bankruptcy had been made against the solicitor upon the petition of another creditor, but the applicants were ignorant of this until they served their notice of motion. It was objected on behalf of the solicitor that section 9 of the Bagkruptcy Act was an answer to the application, an attachment being a remedy against the person of the debtor in respect of the debt." _ NORTH J held that he had jurisdiction to allow the attachment to issue,

[blocks in formation]

ct, he declined to do so. Having regard to the facts proved when _he made the former order, he saw no reason for exercising the discretion given to him by section 1 of the Debtors Act, 1878 (41 & 42 Vict. c. 54), to refuse to allow the attachment. As to the jurisdiction, he thought it clear, on the authority of Re Frraton (11 Q. B. D. 545, 27 Souciroas‘ Jouiiiun, 518) and IE: Dudley (12 Q. B. D. 44, 28 Soucirons’ Joumun, 71), that an attachment against a solicitor for the non-payment of money received by him as a solicitor for investment was not merely a civil process, but was, in its nature, “ punitive or disciplinary,” and therefore the existence of a receiving order was not suflicient reason for not issuing an attachment in such a case. The proceeding by way of attachment against a defaulting solicitor under section 4 of the Debtors Act was not merely a proceeding against his property or person in respect of a debt, but was a proceeding by way cf punishment. Moreover, section 9 of the Bankruptcy Act did not apply to a case where proceedings were actually pending against the solicitor at the date of the receiving order, as they were inthe present case. But section 10 did apply to pending proceedings, and under that section two courses were open to t e debtor against whom an application was made. He might apply to the court in which the proceedings were pending to stay them, or he might apply to the Court of Bankruptcy to stay em. His lordship would treat the opposition to the resent motion as an application to this court to stay the proceedings. If an application had been made to the Court of Bankruptcy it would probably have followed the course which was adopted by the Court of Appeal in Ra Deere (10 Ch. 658)—i.e., refuse to interfere, and leave it to this court to decide whether the attachment should be allowed to issue. It was clear that the existence of the receiving order was not in itself ananswer to the present application. But, having regard to the fact that the solicitor was a bankrupt, that no benefit would result to the appgicants from an attachment. and that it would probably cause great em arrassment to the bankruptcy proceedings, his lordship, in the exercise of the discretion given to him by section 10, thought that he ought not to make the order y way of punishment to the solicitor. But hc thought that the application had been properly made, and he should order the solicitor to pay the costs of it. He thought he had jurisdictionto do so, notwithstanding the bankruptcy proceedings.-—CouNsaL, Wnrririgtan, Buntiny. SOLICITORS, Collyer, Briitowa, Q 0'0. ,' Héckin Q Fox.

[ocr errors][ocr errors]

This was an action brought by the plaintifi against Mr. H. K. Moseley, solicitor, of Ipswich, to recover from him the balance of a sum of money which the plaintiff alleged had been stopped by the defendant out of money taken by him out of court in the action Smles v. Page, tried at Stowmarket, in which Mr. Moseley acted as solicitor for the plaintiff. The sum really in dispute was £9 4s. 6d., and the bill of costs and items of this sum, as claimed by Mr. Moseley, were referred to the registrar of this court to tax. The registrar (Mr. Grimsey) now produced his certificate, in which he stated :—“ I certify that Mr. Gudgeon, the registrar of the court at Stowmarket, in which the action of Scales v. Page was instituted, has allowed what he thought the solicitor was entitled to under the scale of costs provided under the statuto 19 & 20 Vict. c. 108, s. 35 (44 & 45 Vict. c. 68), in respect to many of the items inserted or reinserted in this bill, and with respect thereto as between solicitor and client. With regard tothe rest of the items I have to disallow, being directed by the judge to tax (not being the registrar of the court in which the costs and charges were incurred), I respectfully submit a solicitor cannot recover for the same. as the client has not agreed in writing to pay them.” Counsel for the defendant urged that the section mentioned by the registrar referred to costs in “ proceedings," whereas he argued that the £9 4s. 6d. in question related to matters not in the proceedings. There was, he said, no definition so far as he knew, but he took it that a proceeding " was a “ step " taken in the action. If they were not, as he contended, proceedings in the action, they could not be taxed therein, and were not within the words of any of the sections, because they all started “ with respect the proceedings," and, consequently, he contended Mr. Moseley was entitled to the charges in question.

Judge ROXBURGH said it was a nice point, and he should give the

parties an opportunity, if either thought flt, of taking the opinion of the Divisional Court as early as possible. The application was for the allowance of costs which had not been allowed by the registrar of the Stowmarket Court on the ground that the charges made by the solicitor were not, within the Act of Parliament and the rules and scale of costs made under that Act, such as would be allowed. The Registrar of the Stowmarket Court had, proceeding under section 35 and the scale in the Appendix to the Rules, lB86 (which refers to costs to be paid as well between party and party as between solicitor and client), taxed the costs of Mr. Moseley, and Mr. Moseley now sought to be allowed costs which were not included in the bill so taxed, as being costs incurred outside the action. It was cmtendcd that M11 Moseley was, therefore, entitled to his costs under the ordinary principle of a client being bound to pay his solicitor for work B114 _!'!-b°1"' d°l1P, and that the registrar’s taxation at Stowmarket was not binding ‘1P°“ 111111 The question he (the judge) had to decide was what was the meaning of the sections? It certainly seemed open to coutenthn 55what the? did mean, but it was clear to his mind that We P1'°°edi"8B referred to in section 35 as “such proceedings" refeffed W @116 P1‘°°99d1118! mentioned in section 33—the roceedin s in an 5°ti°n when the debt Claimed exceeded £20 Then did it emgrace an the °°Bt5 whim the 5°1i¢il>0r might incur after action brou ht which we“ “°tin°1“d°d ithe W516, Or could the solicitor claim gore than the scale allowed for the costs incurred in an t‘ uni 11

[ocr errors]

that a solicitor could not claim against his client any costs in an action, after action brought, which were not allowed by the scale, unless he oomplied with the wording of the section and satisfied the registrar that the client had agreed in writing to pay him? He could allow no costs to Mr. Moseley after the commencement of the action which were not included in the scale, and those included in the scale had all been allowed. With reference to other costs, he could conceive cases in which a solicitor would be entitled to charge against his client costs incurred by him before action brought-—-that was, where it was necessary for the solicitor to do something for his client which could not be included in ordinary instructions for the action. His Honour then ordered judgment to be entered for the plaintiff for £9 -ls. Gd. He remarked that this was a very important point, and he l should very much like it to go to the Divisional Court.


On Tuesday evening the Lord Lieutenant was entertained by the president and council of the Irish Incorporated Law Society at dinner in the hall of the society, Four-courts, in celebration of the Q,ueeu’s J ubiles. About three hundred guests were present. The president of the society, Mr. Patrick Maxwell, occupied the chair, and among the guests were Lord Ashbcurne (Lord Chancellor), Prince Edward of Saxe Weimar, and Lord Justice Barry. In replying to the toast of his health,

The Lord Lieutenant said : I believe I am correct in saying that I am the first representative of her Majesty in Ireland who has had the pleasure of accepting the hospitality of your president and your society. Under these circumstances, and remembering the importance of the year in which we live, I say again that Iaccept your hospitality with gratitude. I need hardly remind you that I am an Irishman, and that as an Irishman the interests and the prosperity of Ireland are very dear indeed to me. And on these grounds I venture to congratulate the Incorporated Law Society of Ireland on the great success that has attended their efforts to obtain from their profession the very best men, and the men possessed of the greatest amount of legal learning, that they possibly could. He proposed the health of the president.

The President said : The profession which we represent fills a large space in the social sphere, and the honour, libertiy, and fortune of the community are daily intrusted to its members. o render them more fitted to perform the duties thus devolving on them is the aim and object of our society. In reply to the toast of the Bench and the Bar of Ireland,

Lord Asi-iiiotima said it must ever be a source of the highest gratificalion and of the keenest pleasure to every member of the Irish_ bench $0 do anything and participigte in any entertaiment that drew lighlsr and closer the numerous lin that bound together the great profession oi’ thfl law. To him individually it was a source of great pleasure to be their guest and to return thanks for the Irish bench. He might say for alllils honoured and distinguished colleagues that everyone of them was sensible of the great responsibilities that were entailed on them by the oflioes which they had the honour to hold. No higher responsibility could placed upon any body of men than to fulfil, according to the best of their ability, the great behests and requirements of public justice; and he _believed that every member of the bench was sincerely and loyally anllfllli to fulfil the great requirements of his position. There were many aid! W the discharge of the judicial ofllce. They had the priceless and invl_liI1lb1° assistance of an independent, a learned, a courageous, and 1l;\i5l'9Pld bl"The value of that to the public, and to liberty as well, could never be overstated. But the Irish bench had another aid which in_ight well he acknoweledged at that board—it was the aid which they derived from the; learning, the high sense of duty, and the loyal devotion to the interest! 0 their clients exhibitedby that great profession which had extended so B1219: ' did a hospitality to them that night His Excellency had aptly rifefled-bl " ° phrase “ twin sisters,” to the union between the two branches 0f¢hfl1°8l] profession, the bar and the solicitors. The great profession of the law W85 not above the range, in private conversation, he would not say 0! 5719?; but of kindly sarcasm; but they might remember for their comfort Yb t Once in old times there was a Parliament without lawyerl. Bud t I? Parliament had been handed down to the derision of future ages astt 6 unlearned Parliament. The bench also was sustained by some c_ouif<_J1‘ reflections. VVhen any of them fell out of the ranks or by the VlCls5ltllb“ of party were sent back to other spheres the great profession of theme! had always sufficient patriotism and public spirit to send forward t° be men able and not unanxious to succeed. It was a great Pl°?°“'° 7 0,. present at a genial, kindly banquet like that, unconnected W_li|1 Put-lgbly politics, and containing the representatives of opinions differing W“ um from those of even so moderate a man as himself. Few of thgintogm hope to see another Jubilee; but he hoped that some of them 1111811 ,6, .5 the good fortune to be asked once more to partake of that sofl 7 kindly hospitality.

Sergeant O‘Bnisx responded for the bar.

[graphic][ocr errors][ocr errors]

, to cite the one as the other.”


[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

Pogson, Frank Lycett
Poole, Frederick William
Price, Ernest Edward Joshua,
Prosser, William Henry
Pryor, Cyril Herbert
Piianaia, Abram St. Chard
Rees, Daniel Esmond
Rickinson, Matthew
Roberts, Nathaniel
Rogers, Robert Dennys
Rotten, John Richard Chflfleg
Saunders, John Gower
Scott, George

Shaw, Thomas Davidson
Sinden, Arthur Frederick
Skeet, Francis John Angus
Slater, Charles William
Smith, George Garner
Smith, Harry P,

Smith, John

Smith, William McKenzie
Spokes, Frederick \‘Vi1liain
Steavenson, Henry Gordon
Steele, Albert George
Taylor, Allan Reed
Thomas. George

Tillet, Henry Ellis Turner
Tonilinson, William
Tnemer, Henry Theodore
Turner, Frederick
Twemlow, Edward George
Wade, David Treharne Newton
Walker, Stephen Henry
Wardle, Arthur James
Weld, J ossph Edward
Whitford, Charles Edward
Wilkins, William Harry
\‘Villian1s, Ernest Reed

Young, Arthur Dickson Waring

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


[ocr errors]
[ocr errors]
[ocr errors]

oratio s and

To Mr. Irons—prize of the Incorporated Law Society—value 5 guineas.

To Mr. Daviea—prize of the Incorporated Law S0ciety—value 5 guineas. To Mr. Hutchings—prize of the Incorporated Law Society—value 5 guineas.

To Mr. Wilson—prize of the Incorporated Law Society—value 5 giiineas.

The council have given class certificates to the candidates in the second and third classes.

The number of candidates who attended the examination was 37.

[graphic][merged small]

Mr. Gaoaoiz ALDEN Sravsys, solicitor (of the firm of Miller, Stevens, 8: Son), of Norwich, died on the 14th inst. Mr. Stevens was borii in 1831. He was admitted a solicitor i.n 1870, and he had ever since practised at Norwich. He had an extensive practice in the city and neighbourhood, and he was at the time of his death associated in partnership with Mr. Henry Blake Miller, the town clerk of Norwich, and with his son, Mr. \Villiam George Stevens. He was buried on the 19th inst. Mr. Stevens was for many years a member of the Norwich Town Council, and he was an alderman at the time of his death. The town council have passed a vote of condolence with his family, and the mayor and many members of the corporation were present at the funeral.

Mr. THEODORE Bnrsrr, solicitor (of the firm of Bryett & Hare), of Totnes, died on the 19th inst., at the age of seventy-seven. Mr. Bryett was born in 1810. He was admitted H solicitor in 1840, and he had since conducted a large practice at Norwich. He had been for thirty-five years registrar of the Totnes County Court (Circuit No. 58), and he was district registrar under the Judicature Acts. Mr. Bryett was in partnership with Mr. Frederick Trelawney Hare, who is clerk to the Totnes Burial Board and clerk to the county magistrates.

[graphic][merged small]

Mr. JOHN Roosns JENNINGS, solicitor, of 7, Great Winchester-street, received the honour of knighthood on the 14th inst. at the opening by the Queen of the People's Palace, Mile End. Sir J . Jennings was admitted a solicitor in 1845. He is a member of the Court of Assistants of the Drapers' Co., and is master of the company for the current year.

Mr. WILLIAM RAND!-‘ORD Gairriri-i, barrister, C.M.G., has been created a Knight CDHli1d€l' of the Order of St. Michael and St. George. Sir \V. Griflith w called to the bar at the Middle Temple in June, 1881. He has been for several years Governor of the Gold Coast Colony, and he was created a Companion of the Order of St. Michael and St. George in 1879.

Mr. ROBERT WILKINSON, barrister, has been appointed J unior_ Prosecuting Counsel to the Mint at the Central Criminal Court. Mr. Wilkinson was called to the bar at Lincoln's-inn in Easter Term, 1864. He isn member of the South-Eastern Circuit.

Mr. ARTHUR SNICB Siiirii, barrister, has_been appointed a Puisne Judge for the Island of Cyprus. Mr. Justice Smith was called to the har_at the Middle Temple in January, 1881. He has been for some time acting as Solicitor-General of British Guiana.

[ocr errors]
[ocr errors]
« PreviousContinue »