menced or pending in the High Court of Justice in which any relief is sought which can be given in a county court. It is obvious that section 10 of the County Court Act, 1867, applies per se to actions of slander and other actions of tort not within the original jurisdiction of the county court. The question is, has the operation of this section been in any way modified or affected by section 67 of the Judicature Act, 1873? First, then, how would the law stand if section 67 had never been passed? Would or would not the provisions of the County Court Act, 1867, have been applicable to the High Court of Justice? In reply to this query it might be contended with some force that at least section 10 of that Act would, ex vi termini, have applied to the High Court, for that section speaks generally of an action of tort brought in a superior court, and the High Court is, by the Judicature Act, constituted a superior court of record. It is not, however, necessary to speculate upon this point, for section 16 of the Judicature Act, 1873, expressly transfers to the High Court the jurisdiction which, at the commencement of the Act, was vested in, or capable of being exercised by, all or any of the judges of the superior courts in pursuance of any statute; and section 24 (6) declares that, subject to the provisions of the Act as to equitable rights, the High Court shall give effect to all legal claims and demands in the same manner as the same would have been given effect to by the old superior courts if the Act had not passed. Under the terms of sections 16, 24 (6) it is abundantly clear that the provisions of the County Court Act, 1867, would, in the absence of section 67 of the Judicature Act, have been applicable to the High Court; hence section 67 is superfluous if its object be merely to incorporate provisions which were already incorporated. There is only one other function which section 67 can subserve, and that is, either to amplify or to limit the operation of the incorporated provisions of the County Court Act. The words "shall apply to all actions in which any relief is sought which can be given in a county court" may be taken, in an amplifying sense, to mean that the provisions of the County Court Act shall in future apply to certain cases to which they did not formerly extend, or, in a limiting sense, to mean that the provisions of the County Court Act shall only in future apply to cases in which the redress sought, or some part thereof, could have been obtained in the county court had the action been originally instituted there. In which of these senses is section 67 to be understood in reference to actions of tort? In the amplifying sense, is the answer of the Court of Appeal in Stokes v. Stokes. In the limiting sense, is our answer upon the true construction of the statute. Let us weigh the arguments on both sides.

In Stokes v. Stokes an action for slander was brought in the High Court, and an order was made at chambers for its remission under section 10 of the County Court Act, 1867; from this order an appeal was brought to the Divisional Court, on the ground that section 67 of the Judicature Act had confined the power of remitting to actions which could have been originally brought in the county court. The Divisional Court (Field and Manisty, JJ.) held that there was no implied repeal of the County Court Act by section 67, and that there was consequently still jurisdiction to remit an action of slander. Neither of the learned judges who composed the Divisional Court seems to have attempted to give any positive interpretation of section 67. Field, J., contented himself with a declaration that the jurisdiction to remit continued unimpaired. Manisty, J., however, observed that under section 10 of the County Court Act a county court had power to give relief in actions of slander, and, therefore, by section 67 there was power to remit-surely and truly a very egregious petitio principii. The Court of Appeal (Lord Esher, M.R., Lindley and Lopes, L.JJ.) affirmed the Divisional Court, holding that section 67 was intended to extend the provisions of the County Court Act to cases not formerly within their scope. It is exceedingly difficult to suggest any new case which is thus intended to be included, for, under the words "other actions of tort," section 10 of the County Court Act seems to comprehend every action of tort not therein definitely enumerated. These words cannot be restricted to any particular class of torts, inasmuch as the torts individually mentioned are of an entirely heterogeneous character, and thus the word "other" cannot be read in any restrictive sense as simply applicable to torts ejusdem generis with those previously specified. This position is in accord

ance with the ratio decidendi in Clapham v. Oliver (30 L. T. 365), where it was held that section 10 extended to an action of trover. There is, perhaps, one somewhat far-fetched instance in which it is possible to attribute to section 67 the effect of extending the application of section 10 of the County Court Act, and that is an action of tort in which the defendant has set up a counter-claim. It might possibly be urged that such a case would not be covered by the terms of section 10 of the County Court Act as simply incor. porated by section 16 of the Judicature Act, and that it was to such a case that section 67 of the latter Act referred. The Court of Appeal, however, made no allusion to cases of counter-claim, but declared in a vague sort of way that section 67 enlarged the jurisdiction to remit equity, admiralty, and other matters of which a county court has cognizance. On examination it would seem that this general statement affords no satisfactory solution of section 67, for, whilst limited to actions of tort, section 10 of the County Court Act is nevertheless, as we have already pointed out, wide enough to embrace all such actions whether the remedy be sought on the admiralty or on the common law side.

In Stokes v. Stokes the only authority upon which the defendant seems to have relied was the well-known case of Garnett v. Bradley (26 W. R. 698, 3 App. Cas. 944), in which the House of Lords held that a plaintiff who got the verdict of a jury for a farthing damages in an action of slander was, in the absence of any order to the contrary, entitled to his costs of suit. This decision proceeded on the ground that the rule of court (R. S. C., 1875, ord. 55, r. 7; R. S. C., 1883, ord. 65, r. 1) making costs follow the event overrode the particular statutes dealing with costs in actions of slander (21 Jac. 1, c. 16, s. 6; 3 & 4 Vict. c. 24, s. 2), and, according to the judgment of Lord Blackburn (26 W. R. 701, 3 App. Cas. 971) involved the inference that section 67 of the Judicature Act, 1873, has restricted the provisions of the County Court Act, 1867, to actions in which the relief sought could be given in the county court, had the action been originally instituted there. "That enactment," says his lordship, speaking of section 67, "does not touch the case in which the county court cannot give relief." The Court of Appeal refused, in Stokes v. Stokes, to recognize this ruling as an authority on section 10 of the County Court Act, considering that Garnett v. Bradley turned upon section 5 of that Act, which deprives a plaintiff who recovers no more than £10 in an action of tort of his costs of suit. Looking, however, to the terms of section 67 of the Judicature Act, 1873, it is surely beyond dispute that a uniform result must be given to the incorporation of the several county court provisions it effects; section 67 either must amplify or must limit all and each of those provisions; it cannot amplify some and limit others. On Lord Blackburn's interpretation section 67 limits the operation of section 5 of the County Court Act; that view is, we submit, also, an interpretation that section 67 limits the operation of section 10.

CORRESPONDENCE.

THE MIDDLESEX REGISTRY. [To the Editor of the Solicitors' Journal.] subject that I shall be glad if you will publish a short summary of Sir,-So many friends and acquaintances have a ldressed me on this the position to date.

My original action against Lord Truro had the effect of reducing the old minimum charge of 7s. to 4s. 6d. for a memorial of 200 words thus: Entry, 1s.; indorsement thereof, 18.; oath and exhibit, 2s. 6d. ; total, 4s. 6d.

oath and exhibit taken in the registry (the Bankruptcy Court for There being no authority in the Act of Anne to charge 2s. 6d. for many years charged nothing for oaths administered by the officials) the judge in my action only allowed it as "reasonable," bearing in mind that 2s. 6d. was the recognized commissioner's fee outside. The registry, however, refused to recognize the option and convenience of the profession, and, therefore, rejected London oaths taken outside; hence the mandamus just granted to compel them to As the registry intend to appeal, the grounds set up should be known.

do so.

First, they said that the Act of 1853, creating London Chancery Commissioners, did not give them power to administer oaths to Middlesex memorials, and, secondly, that, if a commissioner outside

could administer the oath, it must be done by independent affidavit, and not by indorsement, which, in my case, was as follows: "I hereby certify that the within-named William Derham made oath of the signing and sealing of this memorial and of the execution of the deed to which it refers at 51, Bread-street, in the City of London, before me, Thomas H. Weeks, a commissioner to administer oaths in the Supreme Court of Judicature in England and a London commissioner to administer oaths in Chancery, appointed under section 2 of 16 & 17 Victoria, chapter 78, residing at 51, Bread street, in the City of London, this 2nd day of May, 1887."

The court held that the 1853 Act gave the power, and that the indorsed oath was in due form, Mr. Justice Wills remarking that, as the registrar himself adopted that form, "what was good for the goose was good for the gander," and Mr. Justice Stephen said that, if there was any real convenience in having a separate affidavit, the registrar ought to give notice to the profession to adopt that process. My counsel, however, pointed out, and it was not denied, that the registry accepted country oaths taken by indorsement, and that point was not further seriously pressed.

An incidental question then arose as to whether commissioners, under the Judicature Acts, could administer these oaths. I was aware that the registry accepted such oaths administered in the country, but, inasmuch as section 82 of the Judicature Act, 1873, seemed to limit their duties to matters "in court," I foresaw the difficulty, and took the precaution to have my memorial sworn before a commissioner under both Acts. The judges refused to discuss the distinction, though the counsel on both sides pressed for a decision, and something may have to be done hereafter.

But, strange to say, a new, and, what the defendant's counsel called a "fatal," point, was sprung upon us at the last moment. Every solicitor knows that a memorial may be signed by a grantee only, but the registry contended that the witness to the memorial must not only have attested his execution of the deed, but that of the grantor. The authority quoted for this was a remark by Lord St. Leonards in 1846 and a decision in Ireland under the Irish Registry Act. Both Mr. Justice Stephen and Mr. Justice Wills, however, demolished this point, quoting certain text-books questioning the accuracy of Lord St. Leonards' remark; moreover, the court observed that in a later edition of his book his lordship had left the passage out. It is understood that the new point is the sheet anchor of the intended appeal, and it need scarcely be said that, if the appeal were upheld on such ground, thousands of registrations would be rendered invalid. FRANCIS K. MUNTON.

95a, Queen Victoria-street, July 28.

THE MARRIED WOMAN'S PROPERTY ACT, 1882. [To the Editor of the Solicitors' Journal.] Sir,-The decisions on the construction of sub-section 2 of section 1 of this Act appear to be somewhat embarrassing.

In Jacob v. Isarc (33 W. R. 845) the Court of Appeal refused to order a married woman plaintiff (suing alone), without separate estate, to give security for ccsts, on the ground that the sub-section allowed any married woman to sue as a feme sole, in which case she would not be required to give such security, the question of her having the qualification of separate estate being quite ignored by the court. Lindley, L.J., is reported to have said: "I do not see how to get out of the language of the Act; the result may be that a married woman with no separate estate may bring what actions she likes and laugh at her opponent.

In the recent case of Palliser v. Gurney (reported in the Times of the 20th, and SOLICITORS' JOURNAL of the 23rd inst.), heard before the Master of the Rolls and Lindley, L.J., the decision is based entirely upon the question of separate estate, without which it was held that no woman was within the section; and, in his judgment (according to the Times report), Lord Justice Lindley is made to say: "The plain object of the Act is to confer on married women having separate estate a capacity to contract, &c., and if anyone sued a married woman under clause 2 of section 1 he could not succeed unless he shewed she had separate estate."

Can you assist me in reconciling these two decisions, which to my mind are very conflicting as regards the particular class of married women for or against whom the Act is applicable ? G. F. C. July 25.

CASES OF THE WEEK. CASEBOURNE & CO. v. HOUSTON & CO. AND AVERY & CO.C. A. No. 1, 25th July.

SHIP-CHARTER-PARTY-FREIGHT TO BE PAID ON SHIPMENT. This was an appeal from the decision of Cave, J. On November 5, 1885, the plaintiffs agreed with Houston & Co. to ship 1,500 tons of iron girders to Buenos Ayres at 25s. 6d. per ton, and to pay freight on shipment. Houston & Co. thereupon chartered the steamship Chadwick from Avery & Co. for the conveyance of the girders. By the charter-party the cargo was to be loaded in accordance with the terms of the bills of lading, and Houston & Co. were to pay Avery & Co. 25s. per ton freight. The cargo was accordingly loaded on board The Chadwick, and bills of lading Buenos Ayres were insolvent, and desired to stop the sailing of the ship had been signed, when the plaintiffs discovered that their buyers in and unload the cargo. On the 28th of December they obtained an injunction from Wills, J., restraining the ship from sailing on the terms of paying all the freight into court. The question then arose as to the amount payable to Houston & Co. and Avery & Co. in respect of the freight, the defendants claiming the whole agreed amount, and the plaintiffs contending that they were only entitled to damages for the breach of contract. Cave, J., at the trial, held that they could only recover damages for the loss sustained by reason of the non-fulfilment of the contract, which he accordingly assessed. The defendants appealed. THE COURT (Lord ESHER, M.R, LINDLEY and LOPES, L.J.J.) allowed the appeal. Lord ESHER, M.R., said that on general principles there was no doubt that the damages recoverable for a breach of contract were in such cases was so great that merchants and shippers had come to an the damages really suffered. The difficulty, however, of assessing these agreement, which had been laid done by Lord Tenterden in his manual on Shipping, and had been followed by all the authorities, to the effect that if before the freight was earned the goods were taken out of the ship by any fault of the charterer he must pay to the shipowner the full freight that would have been earned. The rule was, no doubt, a rough and ready one, but it would be most dangerous to unsettle such an established doctrine of mercantile law. LINDLEY, L.J., said that every authority that he had been able to find, both English and foreign, were in favour of the shipowner, with the exception of one American case with which he was unable to agree. LOPES, L.J., said that where the freight was to be paid on shipment it would become due even although the ship were lost or it became impossible to carry it to its destination. It therefore became due when, from the fault of the charterer alone, the shipowner could not carry out his share of the contract.-COUNSEL, French, Q.C., and Joseph Walton; Forbes, Q.C., and Wilberforce. SOLICITORS, Wynne, Holmes, & Wynne; Ingledew, Ince, & Co.

BOYD v. FARRAR-Kay, J., 25th July.

PRACTICE-PATENT ACTION-PARTICULARS OF OBJECTION. In an action brought to restrain an alleged infringement of a patent for complicated machinery, the specification of which contained seventeen separate claims, the defendant delivered particulars of objection to its validity, stating (1) that prior to the date of the patent the supposed invention was used and published within the realm by articles, made according to the supposed invention, being publicly exhibited in use by a certain firm at their works (which were named) in May, 1877; and (2) that prior to the date of the patent the supposed invention was published in certain specifications, which were enumerated and identified, with references to pages and lines, where the alleged anticipations were to be found. The defendant applied for further and better particulars, (1) by giving such particulars of each of the articles relied on as would suffice to identify specifically each of such alleged prior users, by stating, with reference to each of such prior users relied upon, what parts of the plaintiff's invention, by reference to claiming clauses of the plaintiff's specification, were alleged to be anticipated thereby; and (2), by stating, with reference to each specification relied upon, what parts of the plaintiff's invention, by reference to claiming clauses, were alleged to be anticipated thereby. In support of the application the case of London and Leicester Hosiery Co. v. Higham (Lawson's Patent Practice, pp. 75, 330) was relied on. KAY, J., held that the particular machines or articles alleged to be anticipations of the patent ought to be specified, but not the parts of the plaintiff's invention which were anticipated thereby; for the plaintiff must be taken to know his own invention, and could tell, by examining the machines, what parts of his invention were so anticipated. On the second objection, his lordship said that, but for the case relied upon, he should not have considered such extreme particularity to be required; but that, having regard to that case, the particulars asked for must be given.- COUNSEL, Bousfield; Macrory. SOLICITORS, Jacques & Co., for E.

ASSURANCE COMPANIES' DEPOSIT.

[To the Editor of the Solicitors' Journal.] Sir,-Can any of your readers tell me whether 33 & 34 Vict. c. 61 applies to an accident assurance company, so as to make it necessary for the company to deposit £20,000 before commencing business? July 26. R.

Halifax.

SMEED, DEANE, & CO. (LIM.) v. A. CUMBERLAND-Chitty, J., 22nd July.

R. S. C., 1883, LV., 5A--ORIGINATING SUMMONS-FORECLOSURE-MOTION FOR RECEIVER.

In this case the plaintiffs, having commenced an action for foreclosure by originating summons, made an ex parte application in court for leave to serve notice of motion for a receiver with the originating summons. The case of Gee v. Bell (35 Ch. D. 160) was referred to, and it was also

Re TRUFORT, TRAFFORD v. BLANC-Stirling, J., 26th July. CLAIMS IN RESPECT OF A DECEASED PERSON'S ESTATE FORMALLY ADJUDICATED UPON BY FOREIGN COURTS, DESIGNATED BY LAW OF DECEASED'S DOMICILEDECISION BINDING ON ENGLISH COURTS.

It was

This was an administration action. The question now arising_referred to property in this country of the deceased, F. C. T. Trufort. F. C. T. Trufort was by origin an Englishman, who died having, as his lordship held, acquired the Swiss nationality, but, as was admitted, domiciled in France, whereupon, according to the law of France, the right of succession came to be determined by the proper Swiss tribunals; and in the present case the tribunals of Zurich became seised of the matter. The Zurich tribunals determined in favour of the legitimacy of the present plaintiff, which was at issue, and that he was entitled to nine-tenths of the inheritance in derogation of any will of the deceased. The defendant was a person taking under the will of the deceased person. objected (inter alia) that the Swiss tribunals had, in deciding the question of the plaintiff's legitimacy, acted upon an erroneous view of English law. STIRLING, J., held that the testator was, at the time of his death, a Swiss, and as it was admitted that his domicile was French, and that, according to the law of France, the right to his succession depended on his nationality, the tribunals of Zurich had decided that the plaintiff was entitled to nine-tenths of the testator's personal estate, and his lordship considered that he was bound by their decision. It was true that contentions had been raised to the effect that those decisions were founded on an erroneous view of English law. But it was established that a foreign judgment could not be impeached in this country on the ground that it proceeded on a mistake as to the English law. It did not appear that the defendant had brought any evidence before the Zurich tribunals as to the English law. The courts of this country did not sit to rehear causes which had been tried abroad. His lordship gave judgment for the plaintiff, declaring that he was entitled to nine-tenths of the testator's estate. -COUNSEL, Everitt, Q.C., and Curtis Price; Graham Hastings, Q.C., and Nasmith; Lambert. SOLICITORS, Heales & Son; F. Rolt; Lambert, Petch, & Shakespear.

SEDGWICK v. HELLIER-Q. B. Div., 22nd July.
BILL OF SALE-COVENANT FOR FURTHER ASSURANCE.

This was an appeal from a refusal by A. L. Smith, J., at chambers, to restrain the defendant from selling certain goods which were included in a bill of sale given by the plaintiff to the defendant. The bill of sale contained a covenant by the grantor that he and every other person claiming any interest in the goods should execute and do all such assurances, &c. A. L. Smith, J., indorsed the summons with a statement that the case of Liverpool Commercial Investment Co. v. Richardson (30 SOLICITORS' JOURNAL, 433) (in which a bill of sale containing a similar covenant was held bad, on the ground that the ordinary form of covenant for further assurance was limited to the grantor and all other persons claiming under him), had been overruled by the Court of Appeal in Re Cleaver, Ex parte Rawlings (35 W. R. 281, 18 Q. B. D. 489). It was argued in support of the appeal that the Liverpool case was distinguishable from Re Cleaver, Ex parte Rawlings, and should still be followed.

THE COURT (STEPHEN and WILLS, JJ.) dismissed the appeal. The Liverpool case was weakened, if not overruled. If this covenant went beyond the regular covenant for further assurance, it did not go beyond the form given in the Bills of Sale Act, 1882, which allowed the insertion of terms for the maintenance of the security. At any rate, it was not a case for interfering by injunction. - COUNSEL, Crispe; Pollard. SOLICITORS,

Davison; Harman.

MOORE ». MOORE, CHADWICK, AND GRIFFITHS-P. D. & A. Div., 26th July.

JUDICIAL SEPARATION-DESERTION-SEPARATION DEED.

This was a husband's petition for a dissolution of marriage, and the wife counter-claimed for a judicial separation on the ground of her husband's desertion. The suit was tried before Butt, J., and a common jury. The petitioner offered no evidence in support of the allegations in the petition, but the counter-claim was gone into, and the jury found all the issues in favour of the respondent; but, it appearing that a deed of separation had been executed by the husband and wife, Butt, J., reserved for further consideration the question of the effect of such deed upon the respondent's right to relief on the ground of the petitioner's desertion. After the parties had lived apart from one another for two years and a half, the husband asked his wife to meet him at the office of his solicitors, where he produced, and persuaded her to sign, a deed which had already been prepared. The deed was described as an agreement for separate maintenance." The husband thereby agreed to pay his wife 50s. per week for maintenance, and to maintain and educate the two children of the marriage; and the wife agreed, in consideration of the payment of such maintenance by the husband so long as the parties should live separate, to give up to him the custody of their children. The deed contained no other covenant of any kind on the part of either party. The respondent's counsel contended that the deed did not deprive her of a right to a judicial separation, (1) because the petitioner had not pleaded it; (2) because the respondent's execution of it had been, in fact, obtained by means of fraud; (3) because it contained no covenant not to sue, and did not purport to grant any condonation of the petitioner's desertion. The petitioner's counsel contended that the respondent could derive no benefit from a decree for a judicial separation since she could obtain no greater allowance for maintenance than was secured to her by the deed, and that the execution of the deed was equivalent to a waiver of her right to take advantage of her husband's previous desertion. The following cases were

cited:-Buckmaster v. Buckmaster (17 W. R. 1114, 1 P. & D. 713); Parkinson v. Parkinson (2 P. & D. 253); Brown v. Brown and Shelton (3 P. & D. 202); Besant v. Wood (12 Ch. D. 605); Gandy v. Gandy (30 W. R 673, 7 P. D. 77); Tress v. Tress (35 W. R. 672, 12 P. D. 128); Rae v. Rae (30 W. R. 736, 31 W. R. 573, 7 P. D. 225, 8 P. D. 98).

BUTT, J., said that the petitioner's desertion for more than two years had been clearly proved, and the only question was whether the deed of separation operated as a bar to the respondent's right to a decree of judicial separation. He could not go into the question whether the execution of the deed had been obtained by fraud, but the deed had not been set up by the petitioner in his pleadings, and thus the respondent was precluded from availing herself of any defence which might have arisen upon it. In addition to this, the deed contained no covenant by the wife not to seek any remedy against her husband, and there was nothing in it to shew that she had condoned any marital offence. In all been either an agreement not to sue, or an agreement to live apart, or a condonation of some previous offence. There was nothing of this kind in the deed before the court, which was, therefore, no bar to the wife's right to sue for desertion. The petition must be dismissed, with costs, and there would be a decree of judicial separation against the petitioner.-COUNSEL, C. A. Middleton; H. B. Deane. SOLICITORS, Chester, Broome, & Griffithes; Field, Roscoe, Francis, & Osbaldeston, for Sharman, Ayrton, & Ratcliffe, Liverpool.

the cases in which a deed had been held to be a bar to a suit there had

CASES AFFECTING SOLICITORS.

BOSWELL . COAKS-C. A. No. 2, 27th July. COSTS-TAXATION-SEVERANCE OF DEFENDANTS-DISCRETION OF TAXING MASTER-R. S. C., 1883, LXV., 29.

This was an appeal from a decision of North, J. (ante, p. 509). The question was whether a number of defendants to an action to set aside a sale, as to which charges of fraud were made, were entitled to appear separately and to have separate sets of costs from the plaintiffs. Fry, J., dismissed the action with costs (23 Ch. D. 302). The Court of Appeal reversed the decision (27 Ch. D. 424), but the House of Lords restored the decision of Fry, J. (11 App. Cas. 232). The House of Lords directed that that, in taxing the costs in the High Court and in the Court of Appeal (in the plaintiffs should pay the defendants' costs in all three courts, and appeared together in the House of Lords) the taxing master should conwhich courts the defendants had appeared separately, though they all sider "whether any of the defendants who appeared separately had any should appear that they had not, the taxing master was to allow only one sufficient reason for severing in their defences, and if, and in so far as, it set of costs, or only as many sets of costs as he should think right." The taxing master allowed one of the defendants separate costs, and his case The plaintiffs objected to the allowance of more than one set of costs among all the defendants, and they took out a summons to review the taxation. North, J., was of opinion that under the order of the House of Lords, as well as under the rules of court, the taxing master had a discretion in the matter, which he had exercised, and

was treated as a test case.

that his decision was final.

decision, on the ground that the order of the House of Lords had deleTHE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) affirmed the gated it to the taxing master to consider and decide whether the defendconsidered the matter and exercised his discretion, his decision could not ants were entitled to separate costs. Unless it was shewn that he had not be appealed from.-COUNSEL, Cookson, Q.C., and 4. G. Langley; CozensHardy, Q.C., and Beaumont; Phipson Beale; Chadwyck-Healey ; Methold; Co.; Smythe & Brettell; S. W. Johnson & Son; Blake & Heseltine; Aldridge, Haldane; Butcher. SOLICITORS, Whites, Renard, & Co.; Hudson, Mathews, & Thorn, & Morris.

Re FAULKNER-North, J., 25th July. SOLICITOR-COSTS-SALE BY AUCTION-" CONDUCTING FEE"-COMMISSION TO

AUCTIONEER PAID BY CLIENT-RIGHT OF SOLICITOR TO CHARGE FOR WORK DONE BEFORE SALE-SOLICITORS' REMUNERATION ACT, 1881 (44 & 45 VICT. c. 44)-REMUNERATION ORDER, AUGUST, 1882, CLAUSE 2; SCHED. 1, PART 1; RULE 11.

The question in this case (which was brought before the court at the instance of the Council of the Incorporated Law Society) was, whether, when property is sold by auction by an auctioneer, and commission is paid by the vendor to the auctioneer, the vendor's solicitor is entitled, in addition to the scale fee "for deducing title, &c.," to charge, according to part 2 of schedule 1 to the Remuneration Order, for work done by him before the sale in preparing for and attending the auction. In such a case the solicitor is not entitled to the scale fee for "conducting" the sale, because rule 11 in schedule 1 provides that that fee "shall apply only in cases where no commission is paid by the client to the auctioneer." In the present case the property was sold in two lots for £420 and £380 respectively, and the solicitor charged the scale fees of £6 15s. and £6 respectively for "deducing title, &c.," and he charged £13 6s., the commission and other charges paid to the auctioneer. He also made separate charges for attendances on the auctioneer, drawing particulars of sale, preparing advertisements for sale, attending to insert advertisements in newspapers, examining proofs of particulars of sale, distributing particulars and conditions of sale, attending auction, &c. The taxing master allowed the two scale fees, and the payment to the auctioneer, but he disallowed all the other items in the lump, without going into the propriety of each item. The solicitor carried in objection to the taxation (1) that the items disallowed were

"not costs which in part 1 of schedule 1 are included under the head of deducing title,' or 'perusing or completing conveyance,' or 'preparation of contract or conditions of sale,' nor are they costs included in the work for which the auctioneer was paid"; (2) "when no fee for conducting a sale is charged, the costs of instructing the auctioneer and preparing the particulars and advertisements of sale, and issuing the same, and costs preliminary and incidental thereto, and attending the sale, are properly chargeable by the vendor's solicitor having done the business.' 99 The taxing master replied, "the solicitor objects to the disallowance of these items because they are not included in the words for which the ad valorem scale charge is expressed to be given in part 1 of schedule 1. It is a fact that they, or nearly all of them, are not included in those words taken alone, but it is admitted that all the charges the disallowance of which is objected to are connected with the sale. I have disallowed these items, and overruled the objections on the authority of Re Emanuel & Simmonds (33 Ch. D. 40, 30 SOLICITORS' JOURNAL, 502). The question for the decision of the court is whether the principle decided in that case, with respect to a lease, applies to a sale. It was decided in that case that, having regard to clause 2 of the order, the scale charge, though expressed to be for preparing, settling, and completing lease,' covers all business connected with the lease. I consider it necessarily follows that the scale charges expressed to be for conducting a sale,' and for 'deducing title, &c.,' or the latter only, if the former is not applicable, cover all business connected with the sale." The solicitor took out a summons to review the taxation.

NORTH, J., held that the taxing master was wrong, and that the solicitor was entitled to his proper charges, under schedule 2, in respect of the matters in question though he could not, of course, be paid for any work for which the auctioneer had been already paid. The solicitor had done work for which he would have been entitled to be paid if he had paid the auctioneer's commission himself; why should he not be paid for that same work because the auctioneer was paid by the client? The scale fee for "conducting" the sale did not apply in such a case, but his lordship thought that the solicitor was entitled to be paid for the work which the auctioneer had not done. If anything which the solicitor had done was properly the auctioneer's work, of course the solicitor would not be entitled to be paid for it. The argument on behalf of the client really came to this, that, if the solicitor was not paid for the whole work of conducting" the sale, he could not be paid for any part of it. That argument was inconsistent with the view which the court had taken of the scale fee for "deducing title, &c.," for it had been decided that the solicitor was not entitled to that fee unless he had done the whole of the work for which it was prescribed. But it had been held that, if the solicitor had done part of that work, he was entitled to be paid for that part, though he could not have the scale fee. The principle of those decisions applied to the fee for "conducting a sale" when the whole of the work which it covered had not been done by the solicitor, but an auctioneer had been employed at the client's expense. Re Emanuel & Simmonds related to leases, and did not apply to such a case as the present, where two scale fees were provided, one for "conducting" the sale, the other for "deducing title, &c." In Re Wilson (29 Ch. D. 790) the taxing master had allowed charges similar to those which had been disallowed in the present case, and the question whether he was right in so doing was not raised before the Court of Appeal, but the court did not express any opinion adverse to the allowance. That case shewed that the practice in the taxing master's office had been, when the whole work of conducting" a sale had not been done by the vendor's solicitor, to allow the solicitor such charges outside the scale fee as were proper for the work which he had done. The taxing master was not precluded from allowing the items which he had disallowed, and the matter must go back to him to consider the propriety of the individual items.-COUNSEL, Cozens-Hardy, Q.C., and Shebbeare; McSwinney. SOLICITORS, Hensman & Marshall; Soames, Edwards, & Jones.

66

BLAIR & GIRLING v. CORDNER-C. A. No. 1 (Sitting as a Divisional Court), 25th July.

SOLICITOR BILL OF COSTS INTEREST ON DISBURSEMENTS AND COSTSDEMAND FOR PAYMENT-SOLICITORS' REMUNERATION ACT, 1881 (44 & 45 VICT. c. 44, s. 5)-GENERAL ORDER, CLAUSE 7.

In this case a question arose as to the construction of clause 7 of the General Order made under the Solicitors' Remuneration Act, 1881, which says that "a solicitor may charge interest at four per. cent per annum on his disbursements and costs from the expiration of one month from demand from the client." The plaintiffs, a firm of solicitors, sent, on December 4, a cash account to the defendant, their client, inclosed in a letter requesting payment of the same. The defendant asked for details, which the plaintiffs furnished on December 10, making, however, no further express request for payment of their bill. The defendant having taken out an order to tax, the bill was reduced by the master from £117 13s. 10d. to £89 13s. 10d., which amount was paid by the defendant. The plaintiffs obtained judgment in the City of London Court for interest on the latter sum from one month from December 10 (ante, p. 560), and it was now contended on behalf of the defendant that the order under section 7 of the Solicitors' Remuneration Act requires a demand for payment of interest; that there was no evidence here of such a demand, and that the payment of the principal sum was accepted by the plaintiffs in satisfaction of their claim.

THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.) dismissed the appeal. Lord ESHER, M.R., said that the question entirely rested on the meaning of clause 7 of the order. The contention that the mere sending in of the bill of costs did not constitute a demand was fanciful and unbusiness-like. The defence that the payment of the

£89 13s. 10d. was accepted in satisfaction was not raised in the county court, and if it had been raised it was a question of fact. LINDLEY, L.J., said that the word "demand" in the order referred to the bill of costs itself, and not to interest, and he thought that the interest might be charged at any time before the bill was satisfied.-COUNSEL, Gould; De Sausmarez. SOLICITORS, Burne & Berridge; Blair & Girling. Re ELEY-North, J., 22nd July. "INVESTIGATING TITLE" AND FOR SOLICITOR-COSTS-SCALE FEES FOR "NEGOTIATING LOAN "-SOLICITORS' REMUNERATION ORDER OF AUGUST, 1882, SCHED. 1, PART 1.

This was a summons for the taxation of a solicitor's bill after payment, on the ground of special circumstances. The client, who was a lessee, had exercised an option to purchase the demised property, and the solicitor acted for the lessor in deducing the title to it, &c. The purchaser desired to borrow part of the purchase-money on mortgage of the property, and he informed the solicitor of this. The solicitor told him that he believed that M., one of the vendors, would be willing to advance part of the money required, and he introduced M. to the purchaser, and M. and the purchaser then made arrangements for the required loan. The solicitor acted for both parties in relation to the mortgage, and he claimed to charge the purchaser with the scale fee for "deducing title" to the property, and with the scale fee for "negotiating loan." NORTH, J., held that, under the circumstances, the solicitor had not "deduced" any title to the property, and that, as he had only brought the parties together, he had not "negotiated" the loan, and that he was not entitled to either fee. By reason of these improper charges the purchaser would have been entitled to taxation of the bill, notwithstanding the payment. But his lordship refused the application, on the ground that an agreement for good consideration had been entered into between the solicitor and the client, that the bill should not be taxed.—Counsel, Byrne; H. Terrell. SOLICITORS, W. Eley; Neale.

LAW SOCIETIES.

GLOUCESTERSHIRE AND WILTSHIRE INCORPORATED LAW SOCIETY.

inst. Mr. Ellett (Cirencester) presided, and there was a large attendance, The annual meeting of this society was held at Marlborough on the 20th including Messrs. Whitcombe, T. C. R. Taynton, J. H. Jones, C. Scott, and E. W. Coren, hon. sec. (Gloucester), Mr. C. F. Gale (Cheltenham), Messrs. W. Warman, Vice-president, F. Winterbotham, F. H. Croome, A. J. Morton Ball, and R. H. Smith (Stroud), Mr. Mullings (Cirencester), Messrs. H. Kinneir, H. C. Tombs, A. E. Withy, W. H. Kinneir, and E. Tudor Jones (Swindon), Messrs. W. S. Jones and W. Forrester (Malmes bury), Mr. A. J. Keary (Chippenham), Mr. H. Bevir (Wotton Bassett), and Messrs. G. B. Smith and A. E. Smith (Nailsworth). Mr. Ellett was re-elected president, and Mr. Henry Kinneir (Swindon) was elected vice-president.

The report of the committee was received and adopted, and the seal of ments in the Land Transfer Bill in conformity with the views expressed the society was ordered to be affixed to a petition in support of amendin the report.

deceased solicitors in the district, and a subscription of thirty guineas was Gratuities amounting to £80 were made to widows and families of voted to the Gloucester Law Library.

A novel feature in connection with this meeting was an excursion to Savernake Forest, under the genial escort of Mr. R. W. Merriman (Marlborough), after which the members dined together.

The following are extracts from the report of the committee :-
Members.-The present number of members is 106.

Land Transfer.-This subject at the present time outweighs all others in interest for our profession, and especially for those who, like the members of this society, are largely engaged in conveyancing business. The attitude of the profession towards the Land Transfer Bill, which has been introduced in the House of Lords by the Lord Chancellor, has been well illustrated by the discussion at the recent meeting of the Incorporated Law Society in London. There is certainly no disposition on the part of solicitors to oppose the passing, or obstruct the working, of a wellconsidered scheme of land transfer; but the profession would be false to its traditions and its duties if it failed to point out objections suggested by the experience of its members. The most important question raised by the present Bill is that of compulsion in regard to registration of title. All previous legislation on the subject has been voluntary, and the failure, more or less complete, of such legislation is only to be explained by assuming that landowners have not considered the advantages of registration worth the expense of it. Solicitors would gladly advise their clients to avail themselves of any system which would make the transfer of land more easy and less costly. If those results were assured compulsion would be unnecessary, and if they cannot be assured it becomes unjust. The present Bill, however, introduces compulsion only in a partial and tentative manner. In the first place the Bill does not establish registration at all, but merely enables the Government of the day, by Order in Council, to create land registry districts within which registration becomes to a certain extent compulsory, and probably in the first instance only one or a few districts will be created by way of