« PreviousContinue »
menced or pending in the High Court of Justice in which any ance with the ratio decidendi in Clapham v. Oliver (30 L. T. 365), relief is sought which can be given in a county court. It is where it was held that section 10 extended to an action of trover. obvious that section 10 of the County Court Act, 1867, applies There is, perhaps, one somewhat far-fetched instance in which it per se to actions of slander and other actions of tort not within is possible to attribute to section 67 the effect of extending the the original jurisdiction of the county court. The question is, application of section 10 of the County Court Act, and that is an has the operation of this section been in any way modified or action of tort in which the defendant has set up a counter-claim. It affected by section 67 of the Judicature Act, 1873? First, then, might possibly be urged that such a case would not be covered by how would the law stand if section 67 had never been passed the terms of section 10 of the County Court Act as simply incor. Would or would not the provisions of the County Court Act, porated by section 16 of the Judicature Act, and that it was to 1867, have beeu applicable to the High Court of Justice ? In such a case that section 67 of the latter Act referred. The Court reply to this query it might be contended with some force that at of Appeal, however, made no allusion to cases of counter-claim, but leost section 10 of that Act would, ex ri termini, have applied to declared in a vague sort of way that section 67 enlarged the juristhe High Court, for that section speaks generally of an action of diction to remit equity, admiralty, and other matters of which a tort brought in a superior court, and the High Court is, by the county court has cognizance. On examination it would seem that Judicature Act, constituted a superior court of record. It is not, this general statement affords no satisfactory solution of section 67, however, necessary to speculate upon this point, for section 16 of for, whilst limited to actions of tort, section 10 of the County the Judicature Act, 1873, expressly transfers to the High Court Court Act is nevertheless, as we have already pointed out, wide the jurisdiction which, at the commencement of the Act, was enough to embrace all such actions whether the remedy be sought vested in, or capable of being exercised by, all or any of the on the admiralty or on the common law side. judges of the superior courts in pursuance of any statute; and In Stokes v. Stokes the only authority upon which the defendant
tion 24 (6) declares that, subject to the provisions of the Act seems to have relied was the well-known case of Garnet! v. as to equitable rights, the High Court shall give effect to all legal Bradley (26 W. R. 698, 3 App. Cas. 944), in which the House of claims and demands in the same manner as the same would have Lords held that a plaintiff who got the verdict of a jury for a been given effect to by the old superior courts if the Act farthing damages in an action of slander was, in the absence of had not passed. Under the terms of sections 16, 24 (6) any order to the contrary, entitled to his costs of suit. This deciit is abundantly clear that the provisions of the County sion proceeded on the ground that the rule of court (R. S.C., 1875, Court Act, 1867, would, in the absence of section 67 of the ord. 55, r. 7 ; R. S. C., 1883, ord. 65, r. 1) making costs follow the Judicature Act, have been applicable to the High Court; hence event overrode the particular statutes dealing with costs in actions section 67 is superfluous if its object be merely to incorporate of slander (21 Jac. 1, c. 16, s. 6; 3 & 4 Vict. c. 24, s. 2), and, provisions which were already incorporated. There is only one according to the judgment of Lord Blackburn (26 W. R. 701, 3 other function which section 67 can subserve, and that is, either to App. Cas. 971) involved the inference that section 67 of the amplify or to limit the operation of the incorporated provisions of Judicature Act, 1873, has restricted the provisions of the County the County Court Act. The words “shall apply to all actions in Court Act, 1867, to actions in which the relief sought could be which any relief is sought which can be given in a county court” given in the county court, had the action been originally instimay be taken, in an amplifying sense, to mean that the provisions tuted there. “That enactment,” says his lordship, speaking of of the County Court Act shall in future apply to certain cases to section 67, “ does not touch the case in which the county court which they did not formerly extend, or, in a limiting sense, to cannot give relief.” The Court of Appeal refused, in Stokes vi mean that the provisions of the County Court Act shall only in Stokes, to recognize this ruling as an authority on section 10 of future apply to cases in which the redress sought, or some part the County Court Act, considering that Garnett v. Bradley turned thereof, could have been obtained in the county court had the upon section 5 of that Act, which deprives a plaintiff who recovers action been originally instituted there. In which of these senses no more than £10 in an action of tort of his costs of suit. Lookis section 67 to be understood in reference to actions of tort? In ing, however, to the terms of section 67 of the Judicature Act, the amplifying sense, is the answer of the Court of Appeal in 1873, it is surely beyond dispute that a uniform result must be Stokes y. Stokes. In the limiting sense, is our answer upon the given to the incorporation of the several county court provisions it true construction of the statute. Let us weigh the arguments on effects ; section 67 either must amplify or must limit all and each both sides.
of those provisions; it cannot amplify some and limit others. In Stokes v. Stokes an action for slander was brought in the On Lord Blackburn's interpretation section 67 limits the operation High Court, and an order was made at chambers for its remission cf section 5 of the County Court Act; that view is, we submit, under section 10 of the County Court Act, 1867; from this order also, an interpretation tħat section 67 limits the operation of an appeal was brought to the Divisional Court, on the ground that section 10. 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
CORRESPONDENCE. remit an action of slander. Neither of the learned judges
MIDDLESEX REGISTRY. who composed the Divisional Court seems to have attempted
[To the Editor of the Solicitors' Journal.] to give any positive interpretation of section 67. Field, J., contented himself with a declaration that the jurisdiction subject that I shall be glad if you will publish a short summary
Sir, -So many friends and acquaintances bave a ldressed me on this to remit continued unimpaired. Manisty, J., however, observed the position to date. that under section 10 of the County Court Act a county court My original action against Lord Truro had the effect of reducing had power to give relief in actions of slander, and, therefore, by the old minimum charge of 7s. to 4s. 6d. for a memorial of 200 section 67 there was power to remit-surely and truly a very words thus: Entry, 18. ; indorsement thereof, 18.; oath and exhibit, W.R., Lindley and Lopes, L.JJ.) affirmed the Divisional Court, oath and eexbibit taken in the registry (the Bankruptcy Court for egregious petitio principii. The Court of Appeal (Lord Esher, 28. 6d. ; total, 4s. 6d,
There being no authority in the Act of Anne to charge 28. 6d. for holding that section 67 was intended to extend the provisions of many years charged nothing for oaths administered by the officials) the County Court Act to cases not formerly within their scope. It the judge in my action only allowed it as “ reasonable," bearing in is exceedingly difficult to suggest any new case which is thus in mind that 28. 6d. was the recognized commissioner's fee outside. tended to be included, for, under the words “ other actions of The registry, however, refused to recognize the option and con: tort,” section 10 of the County Court Act seems to comprehend venience of the profession, and, therefore, rejected London oaths every action of tort not therein definitely enumerated. These taken outside ; hence the mandamus just granted to compel them to words cannot be restricted to any particular class of torts, inas- do so. much as the torts individually mentioned are of an entirely
As the registry intend to appeal, the grounds set up should be heterogeneous character, and thus the word “other” cannot be
known. read in any restrictive sense as simply applicable to torts ejusdem Commissioners, did not give them power to administer oaths to
First, they said that the Act of 1853, creating London Chancery generis with those previously specified. This position is in accord- Middlesex memorials, and, secondly, that, if a commissioner outside
could administer the oath, it must be done by independent affidavit,
CASES OF THE WEEK.
C. A. No. 1, 25th July. the Supreme Court of Judicature in England and a London com
SHIP-CHARTER-PARTY-FREIGHT TO BE PAID ON SHIPMENT. missioner to administer oaths in Chancery, appointed under section 2 of 16 & 17 Victoria, chapter 78, residing at 51, Bread street, in the 1885, the plaintiffs agreed with Houston & Co. to ship 1,500 tons of iron
This was an appeal from the decision of Cave, J. On November 5, City of London, this 2nd day of May, 1887.”
girders to Buenos Ayres at 25s. 6d. per ton, and to pay freight on shipThe court held that the 1853 Act gave the power, and that the ment. Houston & Co. thereupon chartered the steamship Chadwick from indorsed oath was in due form, Mr. Justice Wills remarking that, as Avery & Co. for the conveyance of the girders. By the charter-party the the registrar himself adopted that form, “what was good for the cargo was to be loaded in accordance with the terms of the bills of lading, goose was good for the gander,” and Mr. Justice Stephen said and Houston & Co. were to pay Avery & Co. 258. per ton freight. The that, if there was any real convenience in having a separate cargo was accordingly loaded on board The Chadwick, and bills of lading affidavit, the registrar ought to give notice to the profession to adopt Buenos Ayres were insolvent, and desired to stop the sailing of the ship that process. My counsel, however, pointed out, and it was not denied, that the registry accepted country paths taken by indorse-junction from Wills, J., restraining the ship from sailing on the terms of
and unload the cargo. On the 28th of December they obtained an inment, and that point was not further seriously pressed. An incidental question then arose as to whether commissioners, amount payable to Houston & Co. and Avery & Co. in respect of the
paying all the freight into court. The question then arose as to the under the Judicature Acts, could administer these oaths. I was freight, the defendants claiming the whole agreed amount, and the plainaware that the registry accepted such oaths administered in the tiffs contending that they were only entitled to damages for the breach of country, but, inasmuch as section 82 of the Judicature Act, 1873, contract. Cave, J., at the trial, held that they could only recover damages seemed to limit their duties to matters “in court;” I foresaw the for the loss sustained by reason of the non-fulfilment of the contract, difficulty, and took the precaution to have my memorial sworn before which he accordingly assessed. The defendants appealed. a commissioner under both Acts. The judges refused to discuss the
The Court (Lord Esher, M.R., LINDLEY and LOPES, L.JJ.) allowed distinction, though the counsel on both sides pressed for a decision,
the appeal. Lord Esher, M.R., said that on general principles there and sometbing may have to be done hereafter.
was no doubt that the damages recoverable for a breach of contract were But, strange to say, a new, and, what the defendant's counsel called a
the damages really suffered. The difficulty, however, of assessing these
in such cases was so great that merchants and shippers had come to an “fatal,” point, was sprung upon us at the last moment. Every soli- agreement, which had been laid done by Lord Tenterden in his manual on citor knows that a memorial may be signed by a grantee only, but Shipping, and had been followed by all the authorities, to the effect that the registıy contended tbat the witness to the memorial must not if before the freight was earned the goods were taken out of the ship by only bave attested his execution of the deed, but that of the grantor. any fault of the charterer he must pay to the shipowner the full freight The authority quoted for this was a remark by Lord St. Leonards in that would have been earned. The rule was, no doubt, a rough and ready 1846 and a decision in Ireland under the Irish Registry Act. Both one, but it would be most dangerous to unsettle such an established Mr. Justice Stephen and Mr. Justice Wills, however, demolished doctrine of mercantile law. LINDLEY, L.J., said that every authority that this point, quoting certain text-books questioning the accuracy of he had been able to find, both English and foreign, were in favour of the later edition of his book his lordship had left the passage out. It is unable to agree. Lopes, L.J., said that where the freight was to be paid understood that the new point is the sheet anchor of ihe intended became impossible to carry it to its destination. It therefore became due appeal, and it need scarcely be said that, if the appeal were upheld when, from the fault of the charterer alone, the shipowner could not carry on such ground, thousa nds of registrations would be rendered in. out his share of the contract.-COUNSEL, French, Q.O., and Joseph valid.
FRANCIS K. MUNTON. Walton; Forbes, Q.C., and Wilberforce. SOLICITORS, Wynne, Holmes, & 95a, Queen Victoria-street, July 28.
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 Sir: -The decisions on the construction of sub-section 2 of section 1 complicated machinery, the specification of which contained seventeen of this Act appear to be somewhat embarrassing.
separate claims, the defendant delivered particulars of objection to its In Jacob v. Isarc (33 W. R. 845) the Court of Appeal refused to validity, stating (1) that prior to the date of the patent the supposed inestate, to give security for costs, on the ground that the sub-section ing to the supposed invention, being publicly exhibited in use by a allowed any married woman to sue as a teme sote, in which caset she certain firm at their works (which were named) in May, 1877; and (2) that hould not be required to give such® security, the question of her prior to the date of the patent the supposed invention was published in
ences to pages and lines, where the alleged anticipations were to be found. court. Lindley, L.J., is reported to have said: "I do not see how the defendant applied for further and better particulars, (1) by giving 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 specifically each of such alleged prior users, by stating, with reference to likes and laugh at her opponent.”
In the recent case of "Palliser v. Gurney (reported in the Times of by reference to claiming clauses of the plaintiff's specification, were the Master of the Rolls and Lindley, L.J., the decision is based entirely each specification relied upon, what parts of the plaintif's invention, by upon the question of separate estate, without which it was held reference to claiming clauses, were alleged to be anticipated thereby. In ing to woman was within the section; and, in his judgment (accord support of the application the case of London and Leicester Hosiery Co. v.
KAY, J., held that the particular machines or articles alleged to be plain object of the Act is to confer on married women having separate anticipations of the patent ought to be specified, but not the parts of the married woman under clause 2 of section 1 he could not succeed must be taken to know his own invention, and could tell, by examining unless he shewed she had separate estate.”
Can you assist me in reconciling these two decisions, which to my second objection, this lordship said that, but for the case relied upon, mind are very conflicting as regards the particular onlass bis hintarired he should not have considered such extreme particularity to be required; women for or against whom the Act is applicable ?
G. F. C. but that, having regard to that case, the particulars asked for must bs July 25. last-mentioned case have been fully reported.-ED. S.J.] stre propose to consider the matter when the judgments in the Robinson Walker, Manchester ; Teidsdale og Son, for W.M. 85. M. "Kere;
R. S. C., 1883, LV., 5A--ORIGINATING SUMMONS-FORECLOSURE-MOTION [To the Editor of the Solicitors' Journal."
FOR RECEIVER. Sir, -Can any of your readers tell me whether 33 & 34. Vict. c. sargapplies to an accident assurance company, so as to make it neces- by originating summons, made in ce parte application in court for leave sary for the company to deposit £20,000 before commencing business cerise notice of motion, for de receive arterith the originating summons.
R. The case of Gee v. Bell (35 Ch. D. 160) was referred to, and it was also
Re H. PRATER (DECEASED) -Chitty, J., 21st July. WILL—"PROPERTY AT MY BANKERS" -Cash BALANCE-SECURITIES. In this case the question arose as to what is included in a gift by a testator of "property at his bankers." The testator, a domiciled Englishmen, was in the habit of spending a portion of the year at Paris, and had for his convenience both London and Paris bankers. He, by his will, bequeathed to public institutions at Paris his "property at Rothschild's bank, Rue Lafitte, Paris." It appeared that at the date of his death he had standing to his credit at the bank referred to a balance of 8,000 francs, and that he also had deposited at that bank actions au porteur and nominatives (i.e., share certificates payable to bearer and shares inscribed in his name) of the Paris, Lyons, and Mediterranean Railway Co. to the value of £7,000. The rentes of both actions were collected by his Paris bankers and credited to his account.
CHITTY, J., said that the balance at the bank undoubtedly passed under the gift. It was true that in strictly legal language the balance was not cash the property of the testator, but was a debt due to him from his bankers; but, in popular parlance, a balance at a man's bankers was considered as cash both by men of business and many other persons,
and it was generally treated as such by testators. But neither class of actions passed. The word "property” was, no doubt, a large term, but the bequest here was of property subject to a limitation of place-namely, property at a particular bank. In the case of Stuart v. Lord Bute (11 Ves. 656) Lord Eldon (p. 661) in referring to Lady Aylesbury's case (1 Ves. 273), observed that Lord Hardwicke had there held that cash and banknotes, but not promissory notes and securities, passed under a bequest of " my house and all that shall be in it at the time of my death," and stated the reason of the distinction to be that the securities and promissory notes were the evidence of title to things out of the house, and were not things in it. Brocke v. Turner (7 Sim 671) and Hertford v. Lowther (7 Beav. 1) were authorities to a like effect. He held that the actions were not property at the testator's Paris bankers, but were evidence of the testator's property in the railway company. -COUNSEL, Sir Arthur Watson, Q.C., T. Wiglesworth, and R. F. Norton; Romer, Q.C., and Ingle Joyce. SOLICITORS, J. Parker Dixon; Wilkinson f Howlett.
Re NEWBEGIN (DECEASED)-Chitty, J., 27th July. l'OOR LAW - PAUPER LUNATIC EXPENSE OF MAINTENANCE LUXATIC
Asylums Act, 1853 (16 & 17 Vict. c. 97), s. 104-STATUTE OF LIMI-1 TATIONS (21 Jac. 1, c. 16).
This was an administration action by the executor and trustee of a deceased testator. It appeared that under the will a pauper lunatic was entitled to a third of the testator's residue, and the guardians of the parish to which the lunatic belonged claimed, under section 104 of the Lunatic Asylums Act, 1853, to be paid out of the moneys in the hands of the plaintiff belonging to the lunatic the whole cost of his maintenance
( for a period of some twenty years.
CHITTY, J., said that the question was whether, notwithstanding the enactment of 1853, the Statute of Limitations was applicable. The cases of Re Buckley's Trusts (Johns. 700) and Re Webster's Trusts (27 Ch. D. 710) 1 were decisions to the effect that the cost of a lunatic's necessaries for maintenance was a debt due from the lunatic. Therefore, in the absence of express enactment to the contrary, the Statute of Limitations t would apply as a bar to the recovery of more than six years' arrears. 3 The Act of 1853, in his opinion, whilst creating a new remedy, recognized an old obligation, and was also absolutely silent as to any period of time. It was therefore to be considered that the statutory period of six years' | ! limitation was applicable, and the guardians were, therefore, entitled to recover six years' arrears only.-Counsel, Whitehorne, Q.C., and R. F. C Norton; Upjohn. SOLICITORS, Clarke & Calkin, for Clarke of Howlett, t Brighton.
COHEN v. POLAND-North, J., 22nd July. PRACTICE-INJUNCTION-MANDATORY INJUNCTION AGAINST AGENT. The question in this case was whether a mandatory injunction could be granted against an agent. C. & Co. were the lessees of a house for a terma of sixty years. The ground floor was occupied by a tenant of theirs. They had sub-let the upper floors to P. & Co., under whom D. occupied the first floor as tenant. D. was resident out of the jurisdiction. R. was the sub-manager of his business. D. had stored on the first floor goods of such a weight as to endanger the stability of the house, and the walls had become cracked and werein a dangerous condition, so that the district surveyor had served a notice on C. & Co. to take down or otherwise secure the cracked walls and the girders of the first floor, and to remove the excessive weight of goods. This action was brought by C. & Co, against P. & Co., D., and R., and the plaintiffs applied for an interim mandatory injunction to compel R. to remove the goods. The plaintiffs had not been able to serve D., and his principal manager was away for a holiday. R. was in possession of D.'s premises. Under these circumstances
North, J., granted an interim mandatory injunction against R.COUNSEL, Cozens-Hardy, Q.C., and Hull. SOLICITORS, Brown, Son, f Vardy.
cited :Re TRUFORT, TRAFFORD v. BLANC-Stirling, J., 26th July.
- Buckmaster v. Buckmaster (17 W. R. 1114, 1 P. & D. 713); Parkin.
son v. Parkinson (2 P. & D. 253); Brown v. Brown and Shelton (3 P. & D. CLAIMS IN RESPECT OF A DECEASED Person's ESTATE FORMALLY ADJUDICATED 202); Besant v. Wood (12 Ch. D. 605); Gandy_v. Gandy (30 W.R 673, 7
UPON BY FOREIGN COURTS, DESIGNATED BY LAW OF DECEASED's DOMICILE— 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 to property in this country of the deceased, F. C. T. Trufort. °F. C. T. had been clearly proved, and the only question was whether the deed of Trufort was by origin an Englishman, who died having, as his lordship separation operated as a bar to the respondent's right to a decree of held, acquired the Swiss nationality, but, as was admitted, domiciled in judicial separation. He could not go into the question whether the France, whereupon, according to the law of France, the right of succession execution of the deed had been obtained by fraud, but the deed had not came to be determined by the proper Swiss tribunals ; and in the present been set up by the petitioner in his pleadings, and thus the respondent case the tribunals of Zurich became seised of the matter. The Zurich
was precluded from availing herself of any defence which might have tribunals determined in favour of the legitimacy of the present plaintiff, the wife not to seek any remedy against her husband, and there was
In addition to this, the deed contained no covenant by 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 nothing in it to shew that she had condoned any marital offence. In all was a person taking under the will of the deceased person. It was
the cases in which a deed had been held to be a bar to a suit there had objected (inter alia) that the Swiss tribunals had, in deciding the question been either an agreement not to sue, or an agreement to live apart, or a of the plaintiff's legitimacy, acted upon an erroneous view of English law. condonation of some previous offence. There was nothing of this kind in STIRLING, J., held that the testator was, at the time of his death, a
the deed before the court, which was, therefore, no bar to the wife's right Swiss, and as it was admitted that his domicile was French, and
to sue for desertion. The petition must be dismissed, with costs, and
CASES AFFECTING SOLICITORS.
BOSWELL v. COAKS-C. A. No. 2, 27th July.
Costs_TAXATION-SEVERANCE OF DEFENDANTS-DISCRETION OF TAXING which had been tried abroad. His lordship gave judgment for the plain
MASTER-R, S. O., 1883, LXV., 29. tiff, declaring that he was entitled to nine-tenths of the testator's estate. Counsel, Everitt, Q.C., and Curtis Price ; Graham Hastings, Q.C., ana question was whether a number of defendants to an action to set aside a
This was an appeal from a decision of North, J. (ante, p. 509). The Nasmith ; Lambert. Solicitors, Heales & Son ; F. Rolt; Lambert, Petch, & sale, as to which charges of fraud were made, were entitled to appear sepaShakespear,
rately and to have separate sets of costs from the plaintiffs. Fry, J., disSEDGWICK v. HELLIER-Q. B. Div., 22nd July.
missed 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 BILL OF SALE-COVENANT FOR FURTHER ASSURANCE.
decision of Fry, J. (11 App. Cas. 232). The House of Lords directed that This was an appeal from a refusal by A. L. Smith, J., at chambers, to 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 restrain the defendant from selling certain goods which were included in which courts the defendants had appeared separately, though they all Contained a covenant by the grantor that he and every other person appeared together in the House of Lords) the taxing master should conclaiming any interest in the goods should execute and do all such assur
sider “whether any of the defendants who appeared separately had any ances, &c. 4. L. Smith, J., indorsed the summons with a statement that 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 the case of Liverpool Commercial Investment Co. v. Richardson (30 SOLICITORS' set of costs, or only as many sets of costs as he should think right.” JOURNAL, 433) (in which a bill of sale containing a similar covenant was taxing master allowed one of the defendants separate costs, and his case
The plaintiffs objected to the allowance of himrance was limited to the grantor and all other persons claiming under was treated as a test case. him), had been overruled by the Court of Appeal in Re Clearer, Ex parte
more than one set of costs among all the defendants, and they took out a Rawlings (35 W. R. 281, 18 Q. B. D. 489). It was argued in support of the order of the House of Lords, as well as under the rules of court, the
summons to review the taxation. North, J., was of opinion that under the appeal that the Liverpool case was distinguishable from Re Clearer, Ex taxing master had a discretion in the matter, which he had exercised, and parte Rawlings, and should still be followed.
that his decision was final. The Court (STEPHEN and Wills, JJ.) dismissed the appeal. The Liver, pool case was weakened, if not overruled. If this covenant went beyond
The COURT OF APPEAL (COTTON, Bowen, and Fry, L.JJ.) affirmed the the regular covenant for further assurance, it did not go beyond the forme decision, on the ground that the order of 'the House of Lords had deleFören in the Bills of Sale Act, 1882, which allowed the inseriod the teprong gated it to the taxing master to consider and decide whether the defendfor the maintenance of the security. At any rate, it was not a case for considered the matter and exercised his discretiou, his decision could not
ants were entitled to separate costs. Unless it was shewn that he had not interfering by injunction. Davison ; Harman. COUNSEL, Crispe; Pollard. SOLICITORS,
be appealed from.-COUNSEL, Cookson, Q.C., and A. G. Langley ; Cozens
Hardy, Q.C., and Beaumont; Phipson Beale ; Chadwyck-Healey ; Methold; MOORE •. MOORE, CHADWICK, AND GRIFFITHS—P. D. & A. Div., Co., Smythe f Brettell; S. W. Johnson Şon ; Blake ţ Heseltine ; Aldridge,
Haldane ; Butcher. SOLICITORS, Whites, Renard, & Co.; Hudson, Mathews, & 26th July.
Thorn, g. Morris.
Re FAULKNER-North, J., 25th July.
AUCTIONBER PAID BY CLIENT- Right OF SOLICITOR TO CHARGE FOR WORK petition, but the counter-claim was gone into, and the jury found all the
DONE BEFORE SALE-SOLICITORS' REMUNERATION Act, 1881 (44 & 45 l'ict. issues in favour of the respondent; but, it appearing that a deed of separa
c. 44)- REMUNERATION ORDER, AUGUST, 1882, CLAUSE 2; Sched. 1, tion had been executed by the husband and wife, Butt, J., reserved for
PART 1 ; RULE 11. further consideration the question of the effect of such deed upon the metropondent's right to relied on the ground of the petitioners desertion. instance of the Council of the Incorporated Law Society) was, whether, where he produced, and persuaded here to sign, a deed which had already addition to the scale fee* for deducing title, &c.," to charge, according bale, the husband asked his wife to meet him at the office of this solicitors, paid by the vendor to the auctioneer, the vendors solicitor is entitled, in been prepared. The deed was described as an agreement for separate to part 2 of schedule 1 to the Remuneration Order, for work done by him for maintenance, and to maintain and educate the twithildren of the the solicitor is not entitled Co the scale fee for conducting" the sale, bemarriage ; and the wife agreed, in consideration of the payment of such cause rule 11 in schedule 1 provides that that fee shall apply only in cases Fonentenance by the husband so long as the parties should live separate, where no commission is paid by the client to the auctioneer." Semintel.contended that the deed did not deprive her of a right to a judicial tively for deducing title, &c.," and he charged £13 6s, the com. colher covenant of any kind on the part of either party. The respondent's tively, and the solicitor charged the scale fees of £6 158. and £6 respecfreespondents execution of it had been, in fact, obtained by means of separate charges for attendances on the auctioneer, drawing, par: fromers. counsel contended that the respondent "codia e derive noh benefit sale, distributing", particulares and conditions of sale, attending aucprone to grant any condonation of the petitioners desertion. The petit advertisements in a newspapers, examining proofs of particulars of the wance for maintenance than was secured to her by the dead, and that ment to the auctioneer, but he disallowed all the other items in the advantage of her husband's prevelous desertion. waihe following cases take carried in objection to the fasa i compte that the it-ms disallowed were
"not costs which in part 1 of schedule 1 are included under the head of £89 138. 10d. was accepted in satisfaction was not raised in the county
deducing title,' or 'perusing or completing conveyance,' or 'preparation court, and if it had been raised it was a question of fact. Lindley, L.J., of contract or conditions of sale,' nor are they costs included in the work said that the word "demand" in the order referred to the bill of costs for which the auctioneer was paid”; (2) “when no fee for conducting itself, and not to interest, and he thought that the interest might be a sale is charged, the costs of instructing the auctioneer and pre- charged at any time before the bill was satisfied.--Counsel, Gould ; De paring the particulars and advertisements of sale, and issuing the Sausmarez. SOLICITORS, Burne & Berridge ; Blair & Girling. same, and costs preliminary and incidental thereto, and attending the sale, are properly chargeable by the vendor's solicitor having done the
Re ELEY-North, J., 22nd July. business." The taxing master replied, “ the solicitor objects to the dis
" INVESTIGATING TITLE" allowance of these items because they are not included in the words for SOLICITOR-Costs—SCALE FEES FOR
“NEGOTIATING LOAN"-SOLICITORS' REMUNERATION ORDER OF AUGUST, 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
1882, SCHED. 1, PART 1. in those words taken alone, but it is admitted that all the charges the This was a summons for the taxation of a solicitor's bill after payment, disallowance of which is objected to are connected with the sale. I have on the ground of special circumstances. The client, who was a lessee, disallowed these items, and overruled the objections on the authority of had exercised an option to purchase the demised property, and the Re Emanuel & Simmonds (33 Ch. D. 40, 30 SOLICITORS' JOURNAL, 502). The solicitor acted for the lessor in deducing the title to it, &c. The purchaser question for the decision of the court is whether the principle decided desired to borrow part of the purchase-money on mortgage of the in that case, with respect to a lease, applies to a sale. It was decided in property, and he informed the solicitor of this. The solicitor told him that case that, having regard to clause 2 of the order, the scale charge, that he believed that M., one of the verdors, would be willing to advance though expressed to be for preparing, settling, and completing lease,' part of the money required, and he introduced M. to the purchaser, and covers all business connected with the lease. I consider it necessarily M. and the purchaser then made arrangements for the required loan. follows that the scale charges expressed to be for conducting a sale,' and The solicitor acted for both parties in relation to the mortgage, and he for 'deducing title, &c.,' or the latter only, if the former is not applicable, claimed to charge the purchaser with the scale fee for “deducing title" cover all business connected with the sale." The solicitor took out a to the property, and with the scale fee for “negotiating loan." summons to review the taxation.
NORTH, J., held hat, under the circumstances, the solicitor had not NORTH, J., held that the taxing, master was wrong, and that the “deduced" any title to the property, and that, as he had only brought solicitor was entitled to his proper charges, under schedule 2, in respect the parties together, he had not" negotiated" the loan, and that he was of the matters in question; though he could not, of course, be paid for not entitled to either fee. By reason of these improper charges the any work for which the auctioneer had been already paid. The solicitor purchaser would have been entitled to taxation of the bill, notwithstanding had done work for which he would have been entitled to be paid if he the payment. But his lordship refused the application, on the ground had paid the auctioneer's commission himeelf; why should he not be paid that an agreement for good consideration had been entered into between for that same work because the auctioneer was paid by the client? The the solicitor and the client, that the bill should not be taxed.-COUNSEL, scale fee for "conducting" the sale did not apply in such a case, but his Byrne ; H. Terrell. SOLICITORS, W. Eley; Neale. 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.
LAW SOCIETIES. 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 GLOUCESTERSHIRE AND WILTSHIRE INCORPORATED solicitor was not entitled to that fee unless he had done the whole of the
LAW SOCIETY. work for which it was prescribed. But it had been held that, if the soli. citor had done part of that work, he was entitled to be paid for that part, inst. Mr. Ellett (Cirencester) presided, and there was a large attendance:
The annual meeting of this society was held at Marlborough on the 20th though he could not have the scale fee. The principle of those decisions including Messrs. Whitcombe, T. C. R. Taynton, J. H. Jones, C. Scott, applied to the fee for "conducting a sale” when the whole of the work and E. W. Coren, hon. sec. (Gloucester), Mr. C. F. Gale (Cheltenham), which it covered had not been done by the solicitor, but an auctioneer Messrs. W. Warman, Vice-president, F.'Winterbotham, F. H. Croome, had been employed at the client's expense. related to leases, and did not apply to such a case as the present, where Messrs. H. Kinneir, 11. C. Tombs, A. E. Withy, W. H. Kinneir, and E.
Re Emanuel & Simmonds A. J. Morton Ball, and R. H. Smith (Stroud), Mr. Mullings (Cirencester), two scale fees were provided, one for "conducting" the sale, the other Tudor Jones (Swindon), Messrs. W. S. Jones and W. Forrester (Malmes, for “deducing title, &c.” In Re Wilson (29 Ch. D. 790) the taxing bury), Mr. A. J. Keary Chippenham), Mr. H. Bevir i Wotton Bassett), and 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
Messrs. G. B. Smith and A. E. Smith (Nailsworth). not raised before the Court of Appeal, but the court did not express any
Mr. Ellett was re-elected president, and Mr. Henry Kinneir (Swindon) opinion adverse to the allowance. That case shewed that the practice in
was elected vicepresident. the taxing master's office had been, when the whole work of conduct the society was ordered to be affixed to a petition in support of amenda
The report of the committee was received and adopted, and the seal of ing" a sale had not been done by the vendor's solicitor, to allow the ments in the Land Transfer Bill in conformity with the views expressed 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
in the report. the items which he had disallowed, and the matter must go back to him deceased solicitors in the district, and a subscription of thirty guineas was
Gratuities amounting to £80 were made to widows and families of to consider the propriety of the individual items.- Counsel, Cozens-Hardy, voted to the Gloucester Law Library, Q.C., and Shebbeare ; McSwinney. SOLICITORS, Hensman s Marshall; Soames, Edwards, ģ Jones.
A povel feature in connection with this meeting was an excursion to
Savernake Forest, under the genial escort of Mr. R. W. Merriman (MarlBLAIR & GIRLING v. CORDNER-O. A. No. 1 (Sitting as a Divisional
borough), after which the members dined together. Court), 25th July. SOLICITOR BILL OF Costs INTEREST ON DISBURSEMENTS AND Costs
The following are extracts from the report of the committee :DEMAND FOR PAYMENT-SOLICITORS' REMUNERATION ACT, 1881 (44 &
Members.—The present number of members is 106. 45 Vict. c. 44, s. 5)-GENERAL ORDER, CLAUSE 7.
Land Transfer. This subject at the present time outweighs all others In this case a question arose as to the construction of clause 7 of members of this society, are largely engaged in conveyancing business,
in interest for our profession, and especially for those who, like the the General Order made under the Solicitors' Remuneration Act, 1881, The attitude of the profession towards the Land Transfer Bill, which has which says that " a solicitor may charge interest at four per. cent per been introduced in the House of Lords by the Lord Chancellor, has been annum on his disbursements and costs tion of one month from demand from the client. The plaintiffs, a firm ated Law Society' in London. There is certainly no disposition on the of solicitors, sent, on December 4, a cash account to the defendant, their part of solicitors to oppose the passing, or obstruct the working, of a welha client, inclosed in a letter requesting payment of the same. asked for details, which the plaintiffs furnished on December 10, making, false to its traditions and its duties it'it failed to point out objections fendant having taken out an order to tax, the bill was reduced by the tion raised by the present Bill is that of compulsion in regard to registradefendant. The plaintiffs obtained judgment in the City of London Court and the failure, more or less complete, of such legislation is only to be 560), and it was now contended on behalf of the defendant that the order vantages of registration worth the expense of it. Solicitors would gladly under section 7 of the Solicitors’ Remuneration Act requires a demand for advise their clients to avail themselves of any system which would make and that the payment of the principal sum was accepted by the plaintiff's assured compulsion would be unnecessary, and if they cannot be assured in satisfaction of their claim. The Court (Lord Esher, M. R., LINDLEY and LOPES, L.JJ.) dismissed the only in a partial and tentative manner.
it becomes unjust. The present Bill, however, introduces compulsion appeal. Lord Esuer, M.R., said that the question entirely rested not establish registration at all, but merely enables the Government in
In the first place the Bill does mere sending in of the bill of costs did not constitute a demand was which Yegistration becomes to a certain extent compulsory, and probably fanciful and unbusiness-like. The defence that the payment of the in the first instance only one or a few districts will be created by way of