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426, 24 SOLICITORS' JOURNAL, 743) that the assignment was DOCUMENTS-FRAUD ON PUBLIC.-In a case of Post V. valid, and that the order bad been properly made. A state- | Marsh, before Fry, J., on the 3rd inst., a curious question ment of claim was afterwards delivered to the defendant, | arose as to the right to specific performance. The plaintiffs headed only with the title of the original action, “Between claimed the specific performance of an agreement of March, John Seear, the trustee, &c., plaintiff, and E. L. Lawson, as modified by two subsequent agreements of November and defendant.“ Underneath the title was the following: - January. The defendant by his statement of defence denied "Delivered by H. W. Chatterton, solicitor, in person, that he had ever agreed as set forth in the statement of who, by order dated, &c., has liberty to carry on claim with regard to the alleged agreements of November and and prosecute this action." There was nothing in January. At the trial the agreement of November was not the statement of claim to show how Chatterton derived produced, and no evidence of it was given. It was objected title. The defendant took out a summons to set that the plaintiffs could not have a judgment for specific aside the statement of claim as irregular, on the ground performance, because they had not proved the whole of the that it did not disclose the real plaintiff Bacon, v.0. (29 documents in which they alleged that the agreement was W. R. 45), held that the record was in proper form and that contained. To this it was replied that, as the defendant the effect of the order was to entitle Chatterton to carry on had denied the alleged agreement of November, it might the action in the name of the original plaintiff. The Court be treated as if it had never been mentioned at all in the of Appeal (JESSEL, M, R., and Cotton and LUSH, L.JJ.) re- | plaintiffs' pleading. But Fry, J., declined to accede to this versed this decision. JESSEL, M.R., said that Chatterton argument. He said that it was most important that original might have taken a power of attorney from Seear authoriz- documents should be produced, in order to ascertain what ing him to prosecute the action in his name. But he | the relative rights of the parties really were, and very often, did not, and, therefore, he could only prosecute it in his own when the written documents were looked at it was found name. The effect of the order at the Rolls, which was in that neither plaintiff nor defendant had told the truth about the form of the old supplemental order, was to make Chatter- | them. Another point in the case was this. The agreement ton a plaintif. In such a case the practice had been for was for the employment of the defendant to edit and pre. centuries to put on the record both titles, the title of the pare the letterpress of a projected guide to London. It was old cause, and the title of the supplemental cause which was to be published under the name of “Kenny's Illustrated a new cause, and that practice bad always been adopted since Guide to London," Kenny being a person who had acquired the Judicature Act. The rules under the Act made no provision a reputation as a publisher of guide books. Kenny, howaltering the old practice in this respeot. After that which ever, took no part whatever in the preparation of the book. was equivalent to the old supplemental order every proceed There was a dispute between the plaintiffs and the defendant ing should be entitled in both actions, and the statement of whether it had been agreed that his name was to appear claim should be so entitled. The proper order, therefore, on the title-page as the author of the book. The plaintiffs would be to direct the plaintiff Chatterton to amend the proposed to publish the book with a title-page, on which it statement of claim by inserting the title of the new action, was to be stated that the book was by “Kenny (assisted by and by introducing such averments as he might be advised | Marsh).” The defendant objected to this, and declined to to show his title. COTTON, L.J., said that the order had not deliver up the manuscript to the plaintiffs, and this led to the effect of a power of attorney in authorizing the plaintiff to the action. FRY, J., held that it would be a fraud on the use the name of Seear in prosecuting the action. The new public to state on the title-page that the book was “by action was one by Chatterton in his own name, and its title Kenny," and on this ground also, he held that the plaintiffs must be added to the record.-SOLICITORS, G. S. & H. were disentitled to specific performance.-SOLICITORS, J. Brandon ; A. W, Chatterton.
Henry Johnson ; Carey, Warburton, & De Paula.
COMPANY IN LIQUIDATION-CONTRIBUTORIES-ACTING AS DIRECTOR – MEDICAL OFFICER OF DAIRY COMPANY QUALIFICATION SHARES.- A peculiar case came before Hall, V.C., on the 4th ingt., upon a summons adjourned from chambers, In re The Hampshire Co-operative Milk Company (Limited), now in liquidation. The liquidator claimed to settle a Dr. Purcell opon the list of contributories, under circa mstances which, briefly stated, were as follows:The articles of association of the company provided that a director's qualification shonld be the holding in his own right of ten shares at least. Dr. Parcell, who was not a shareholder in tbe company, was invited to become the medioal eraminer of the company and to take a seat at the board. Re accepted the offer by letter, attended board meetings, signed minutes, and otherwise acted as a director, but he never applied for his qualification shares. Within two months from his acceptance of the appointment he sent in his resignation, which, however, the board refused to accept, and an action was commenced against him for payment of calls upon the ten shares. On November 9, 1878, an order was made for winding up the company, and on November 15 an order was made dismissing the action for want of prosecution. Dr. Purcell resisted the present summons, on the ground that he had never finally agreed to be a director, and had resigned his position as soon as the affairs of the company became known to him. HALL, V.C., however, held that he had made an agreement, which was, at least, equivalent to an application for shares, and, by acting as director, had confirmed it. That bis name was not on the register was owing to a derelic. tion of duty on his own part as director. As the action was dismissed after the winding up it could not, under any circan stances, be pleaded in answer as res judicata. The list must be settled as it ought to have stood at the date of the winding up, and that being so, Dr. Purcell's name must be placed upon the list for ten shares.--SOLICITORS, Cridge ; Deane, Chubb, & Co.
MORTGAGE_POWER OF SALE-SOLICITOR-NEGLIGENCE |_ MEASURE OF DAMAGES-Costs.-In a case of Cockburn v.
Edwards, before Fry, J., on the 1st inst., a question arose as to the proper measure of damages for the negligence of & solicitor. The plaintiff had executed a mortgage of real estate to the defendant, who was his solicitor. The mortgage deed, which was prepared by the defendant, contained an absolute unqualified power of sale, the usual proviso that the power should not be exercised except on default in payment of the principal debt after demand, or on default in payment of interest, being omitted. The defendant sold the property without previously applying to the plaintiff for payment of tho principal, and at a time when the interest was not in arrear. The plaintiff claimed a declaration that the omission by the defendant from the mortgage of the usual qualification of the power of sale and the sale of the property, were breaches of the defendant's duty as the plaintiff's solicitor. And the plaintiff claimed damages and costs. FRY, J., held that the defendant ought not to have allowed the plaintiff to execute the mortgage in such an unusual form without fully explaining the effect of it to bim, and that the onus was on the defendant to show that he had given that full explanation. Upon the evidence the defendant had not discharged this onus, and had failed to prove that he had given notice to the plaintiff of his intention to sell the property. Consequently, the plaintiff was entitled to judgment for damages, with the costs of the action as between party and party; and FRY, J., held that the damages must include the following heads-(1) the costs of the sale of the property; (2) the costs of a purchase of a similar property ; (3) the increased value of the property (there being evidence that the property in the neighbourhood had considerably improved in value); (4) the extra costs of the action beyond the -party and party costs. These extra costs, Fry, J., said, could only be given as damages.-SOLICITORS, Van Sandau & Cumming; F. Venn, & Son.
SPECIFIC PERFORMANCE – AGREEMENT CONTAINED IN SEVERAL DOCUMENTS-OMISSION TO PROVE ONE OF THE
SOLICITOR-RETAINER-EVIDENCE-APPEAL FOR Costs— JUDICATURE ACT, 1873, s. 49.-In a case of Bird v. Harris, before the Court of Appeal on the 8th inst., the question composition of six shillings in the pound, payable by four arose whether the retainer of a solicitor had been proved. | instalments of one shilling and sixpence each, the first at SESSEL, M.R., said that it was not essential that there should three months after registration; and the payments were to be a written retainer ; the retainer could be proved by other be secured by an assignment of the debtor's estate and effects evidence. The rule was that where there was no written to trustees. No time was appointed for the payment of the relainer, and the only evidence was the affidavit of the second, third, or fourth instalments of the composition. On solicitor on the one side, and the affidavit of the supposed the 30th of October the resolutions were confirmed at a client on the other, that was not sufficient to prove the meeting held for that purpose, and on the 1st of November retainer. The solicitor was bound, if the retainer was dis- they were duly registered. puted, to prove it clearly. In this particular case, the court The statement of affairs produced at the meetings included JESSEL, M.R., and JAMES and LUSH, L.JJ.) held that the Taylor as a creditor for £100, and be proved for that solicitor bad discharged this onus. The question was whether amount on a bill of exchange dated in June, 1878, and drawn Wbitton, the solicitor, had had authority to appear in the by W.F. Austin upon and accepted by the debtor, and indorsed suit for a person named Bird. It was proved by an affidavit by W.J. Wiltschke to Taylor. On the 3rd of February, of service made at the time that, in the year 1870, Whitton, 1879, the debtor paid Taylor the sum of £7 108., being the who was then acting for other parties to the sait, served amount of the first instalment of one shilling and sixpence Bird with notice of the deoree, and that in 1871 he served in the pound upon the debt, and there was some evidence Bird with notice of an order which had been made adding that during the first week of the following May he to the decree. Whitton deposed that, on the 25th of May, caused to be tendered to Taylor the sum of 1872, he received instructions from the olerk of a solicitor £22 10s., being the balance of the composition, and that he named Holmes, who had, in other matters, aoted for Bird declined to receive it. Taylor, on the other hand, and his family, to appear for Bird on the proceedings under denied the tender. A writ having been issued in the the decree, and there was an entry to this effect in
Queen's Bench Division for the recovery of the balance of Whitton's diary. He further deposed that, on the 28th of
the debt, after deductiog the £7 10s. received by Taylor, May, Bird called at his office, with Holmes, and person the present application was made. ally instructed him to appear for him, and this was con E. C. Willis, for the debtor.–A time was fixed by the firmed by Holmes. There was, however, no evidence in resolutions for payment of the first ingtalment of the Whitton's diary relating to this interview. In opposition composition, but not for the second, third, or foarth. Á Cto this evidence, Bird himself said that he had never cording to the debtor's evidence the latter were tendered heard of the sait until June, 1880. Bird applied to have in May, and that was sufficient. Under the circumstances an order, which Whitton had obtained on the 29th of May, the court might properly grant an injunction. 1872, giving liberty to Bird to attend the proceed Atherley Jones, for Taylor, was not heard. ings under the decree, discharged. Bacon, V.C., Mr. REGISTRAR PEPys said the court had a discretion in held (29 W. R. 45) that the solicitor had not these matters, and this was not a case for an injunction. proved his authority, and his lordship discharged the He could not interfere with an action of this nature. The order, but without costs. This decision was reversed by the debtor might pat in his defence at law, but the present Court of Appeal, who gave the solicitor his costs in both | application must be dismissed with costs. courts. JESSEL, M.R-, said that it was clear that Bird's Solicitors for the applicant, Walter, Jarvis, & Triscott. memory was not to be relied upon. Whitton could have Solicitors for H. R. Taylor, Hurfird f. Taylor. had no conceivable interest in swearing that he had served Bird with the decree, and the subsequent order adding to it, if he had not done so. His evidence was conclusive of (Before Mr. REGISTRAR HAZLITT, acting as Chief Judge.) the service, unless perjury was to be imputed to him, for
Dec. 3.-Re Planque. which there was not the slightest ground. The fact that no
Action against a bankrupt by a creditor whose proof has been sutry was to be found in Whitton's diary of the interview of tendered under the adjudication, and admitted provisionally, the 28th of May was immaterial, for solicitors did not keep sabject to investigation, restrained by the court, and the creditor a diary for their amusement, or to record events in which ordered to pay the costs. they had no interest, but to enable them to make out their
This was an application on behalf of Emile Planque, a bills of costs. There was no reason for making an entry bankrupt, and W.L. C. Browne, the trustee, for the conrelating to the 28th of May, inasmuch as there was already | tinuance of an injunction to restrain Richard Foulkes from an entry, on the 25th, of instructions to appear for Bird, I taking any further proceedings in the action brought by him and Whitton could not charge a second time for receiving against the bankrupt in the Common Pleas Division of the instructions. There was, therefore, the evidence of Whitton | High Court of Justice. and Holmes in favour of the retainer, and this was met only by 1 The bankrupt was served with a writ at the suit of Foulkes the denial of Bird, whose memory, it was clear, was not to in the year 1875, to recover the sum of £338 for money paid be relied upon. Consequently, the retainer was sufficiently
by Foulkes for the use of the bankrupt in 1872, commission, proved. In the course of the argument JESSEL, M.R., said
and interest. The action came on for trial at Guildford in that a solicitor was entitled to appeal from such an order,
| July last, when, in consequence of an objection by the though it only resulted in the payment of costs by bim, for
| defendant's counsel that the declaration did not agree with otherwise he would be liable to severe censure, without any
the plaintiff's particulars of demand, the judge adjourned possibility of redress.--SOLICITORS, R. Metcalfe ; Torr & Co.
the trial of the action to Middlesex, giving the parties leave to amend their respective pleadings as they should be ad
vised. The plaintiff's declaration was accordingly amended, CASES BEFORE THE BANKRUPTCY
d delivered to the defendant's solicitor on the 9th of
August, but it appeared that tbe defendant had not yet deREGISTRARS.
livered his amended pleas. (Before Mr. REGISTRAR PEPYs acting as Chief Judge.) On the 2nd of October last the defendant was adjudicated Nov. 30.-Re Davis.
a bankrupt, and, at the first meeting, held on the 20th, Mr.
Foulkes, by his proxy, tepdered a proof for £338, being the aere oy resolutions a time was appointed for payment of the first instalment of a composition, but not for the remaining | amount claimed in the action. The proof was opposed on second, third, or fourth instalments, and the debtor paid the behalf of the bankrupt, and admitted provisionally, subject first instalment and not the others, the court refused to to investigation. On the 25th of November the bankrupt restrain an action brought by a creditor for the recovery of took out a summons to refer all matters in dispute to an the balance of his debt, after deducting the amount of such arbitrator, but the bearing was adjourned, and the bankfirst instalment.
rupt now stated that it was impossible to continue the deThis was an application on behalf of J. C. Davis, a debtor fence. who had presented a petition for liquidation by arrangement, T. N. Hilbery, in support of the application. The debt for an injunction to restrain an action brought by Mr. H.R. was proveable, and the creditor had no remedy against the Taylor against him in the Queen's Bench Division for the person or property of the bankrupt except in the manner recovery of the balance of a debt.
directed by the Act: Bankruptcy Act, 1869, s. 12. If any On the 12th of September, 1878, J. C. Davis filed his doubt existed as to the amount of the debt, it was for the petition, and at the first meeting, held on the 16th of Oc- trustee to form an estimate : section 31. Cobham v. Dalton tober, resolutions were passed by the creditors accepting a (23 W. R. 865, L. R. 10 Ch. App. 655) was not nearly 80 strong a case in the bankrapt's favour as the present. done in the present case had been to lodge the writ with the There an action was brooght in respect of a debt which registrar. That was not sufficient to place him in the position would not have been barred by the order of discharge, of a secured creditor. In order to perfect his title it was because it arose out of a breach of trust. Here the debt necessary that the sequestration should be published. This was proveable, and it would be barred by the discharge. was not done until after the filiog of the petition for liquida. He also cited Ex parle Flower (1 De Gex, 503).
tion, and the trustee's title bad relation back to that date: Morton Daniel, for Foulkes. The bankrupt had no locus section 11. A creditor who merely placed a writ of fi. fa. in standi whatever to make this application, and it was un- the hands of the sheriff did not thereby become a secured necessary for him to seek protection for his person. If creditor of the defendant; the goods must be actually seized: the debtor happened to be the sole defendant in & Ex parle Williams, Re Davies (20 W. R. 430); Ex parte chancery suit, this court would not interfere onless it was
Nelson (L. R. 14 Ch. D. 41). In Chitty's Practice by necessary to protect the interest of the general body of the Prentice, vol. 2, p. 1272, it was said: “The sequestration creditors: Ex parte Hinde, Re Turner (L. T. N. S. 508).
must be patlisbed, which is done by affixing a copy of the Why should the action in this case be restrained ? If
sequestration eitber in writing or in print, or partly in writing the proof bad been admitted, the case wonld be different.
and partly in print, previously to the commencement of Cobham v. Dalton was distinguishable, becanse in that
Divine service on Sunday, on one of the doors of all churches case the remedy was sought against the debtor's person,
and chapels within the parish or place where the benefice is and not against bis estate.
situated. As the writ does not begin to operate, and has Mr. REGISTRAR HAZLITT.-I think I must grant the
priority only from the time of its publication, that should be iDjupotion. The cause of action seems to have arisen in
done without delay," 1872, and for some reason or other the action is not con
Raven, in reply. menced antil 1875. In July, 1880, the case went to trial,
Mr. REGISTRAR Hazlitt said it seemed to him that the bat was not then actually tried. The action is in suspense,
injunction should be continued. In the interval between and the creditor bas come in under the bankruptcy. I do
the issuing of the writ, and the completion of the necessary pot see why the injunction should not be continued, and
formalities, something had intervened to oust the rights of the creditor must pay the costs.
the creditor. It was clear that the sequestration was not comSolicitors for the applicants, Hilbery & Hilbery.
pleted until it was published by being affixed to the church Solicitor for Foulkes, C. W. Taylor.
door, and, until the publication, he was of opinion that the writ was only a piece of waste paper in the hands of the bishop. He therefore decided in favour of the trastee.
Application refused. (Before Mr. REGISTRAR HAZLITT, acting as Chief Judge.)
Solicitors for the applicant, J. Raven f. Co.
Solicitors for the trustee, Simpson d Palmer,
tion against the profits of the benefice, and lodged it with the bishop's registrar.
SOLICITORS' CASES. Before the publication of the writ the clergsman filed a petition
COMMON PLEAS DIVISION. for liquidation, and the trustee, shortly after his appointment, obtained and published a second writ.
(Sittings in Banc before LORD COLERIDGE, C.J., Lindler Held, that the title of the trustee must prevail over that of the
and LOPES, JJ.)* sequestration creditor.
Nov.9, 24.-Re Josiah John Merriman, a Solicitor. This was an application on behalf of Charles Locke that This was a rule obtained on the 26th of July last, calling an injunction granted by this court on the 8th of June, upon the solicitor to show cause why he should not answer 1880, restraining him from taking further proceedings under maiters contained in affidavits, or, in default of satisfactory the writ of sequestration issued against The profits of the answer, be struck off the rolls. benefice of the Rev. Walter Pennington, should be dis. Wills, Q.C., and Murray, for the Incorporated Law
Society, stated the facts to be as follows :-About the 25th of On the 19th of May, 1880, Mr. Locke, being a creditor of September, 1878, one Terraz, domiciled in Switzerland, abMr. Pennington, then the vicar of St. Philips, Earl's Court sconded, taking with him a large sum of money. He was road, Kensington, caused to be lodged with the registrar of at the time an insolvent debtor, and on the 3rd of October the Bishop of London a writ of sequestration against the he was adjudged bankrupt by the Swiss court, and a trustee profits of his benefice. The clerk to the solicitors was in to his estate was appointed. Terraz arrived in England at formed by the registrar at the time of the delivery of the the beginning of October, 1878, and deposited £800 in the writ that it would be necessary to consult the bishop as to the | London and Westminster Bank. This sum was soon after appointment of sequestrators, and as to the bɔnd to be given, withdrawn and, in the beginning of November, 1878, £135 but that nothing farther could be done in the matter then, was handed by Terraz to Mr. J. J. Merrimun, the solicitor. and that the writ must be left with the registrar to attend to Of that sum £120 was handed to Mr. Merriman on the 1st of in the ordinary course of business.
November, and a receipt was given for the same. The £15 On the 20th of May, and before any further step was was handed over on the 11th of November, for which a retaken under the writ, Mr. Pennington presented a petition ceipt was also given. Messrs. Fresbfields & Williams, who for liquidation. On the 30th of May, a notice of sequestra acted for the trustee of Terraz's estate, discovered from a tion was affixed to the doors of the church, and the deblor Mr. Ambery, on avocat at Geneva, that he had, at stated that this was the first intimation he received of the the end of October, 1878, been instructed by Mr. Merriexistence of the writ. At the first meeting, held on the 7th man to endeavour to arrange with some of Terraz's of Jane, the creditors passed a resolution for liquidation by creditors at Geneva; and for tbis purpose Mr. Merriarrangement, and appointed a trustee, and the resolution man promised to send him a som of money which, as & was duly registered. The court having granted an interim fact, was never sent, as, on the 18th of November, Terraz injunction restraining further proceedings under the seques was arrested in London on an extradition warrant charging tration, the present application was made. It appeared that bim with offences against the Swiss bankruptcy laws. Imthe trustee had, shortly after his appointment, obtained a mediately after Terraz's arrest, a son of Mr. Merriman wrote second writ of sequestration, and had caused the same to be to Mr. Ambery sayirg that, in consequence of the arrest, the published.
money would not be sent, Messrs. Freshfields & Williams J. Raven (solicitor), for the applicant. — The writ having were instructed by Mr. H. Vernet, the Swiss consul, to take been issued by the applicant before notice of an act of bank. steps to obtain the Secretary of State's order for Terraz's ruptcy, had priority over the sequestration by the trustee: extradition, and accordingly attended at Bow-street on Section 88. There could not be any notice of an act of bank. the 25th of November, 1878, when Terraz was brought up raptcy, because no such act had been committed. The ap- in custody, and, from statements made at the hearing, plicant did all that could properly be done to perfect his title ; Messrs. Freshfields & Williams came to the conclusion that and the trustee had po better title than he : Cripp's Liws of | Mr. Merriman had received a sum of money from Terraz, the Church and Clergy, p. ,931. The effect of issuing the writ | and wrote to him inquiring whether the balance was in his was to give the applicant a valid charge apon the benefice, hands, and pointing out that, in the event of the prisoner and his rights were not affected by the delay which had oc being ordered to be surrendered, they would ask for the usual curred in the publication of the writ.
Finlay Knight, for the trustee.-All that the applicant had * Reported by W. BLEW, Esq., Barrister-at-Law.
order directing that the money in Terraz's possession, includ. ability to pay back the money had been owing to misfortune, ing the sum of Mr. Merriman's hands, should be given up to suspension might have satisfied the justice of the case the Swiss Government. Mr. Merriman refused to give the but we are of opinion that there is no course open to as, information requested.
upon thoughtful consideration of the case, but to Messrs. Freshfields & Williams were not then aware of the strike this gentleman off the rolls. I pass by circumstances under which the £135 had been given to Mr. the sums of money received by him and which Merriman, but they subsequently obtained Mr. Merriman's he has improperly appropriated, because they would receipts. After Terraz had been committed to the House of only complicate the matter, and because no question Detention, to await the order of the Secretary of State, ancan arise with regard to them, but with regard to the £120 application for a writ of habeas corpus was made to the Court and £400 the matter is different, and no question of complicaof Queen's Bench and the writ was granted. On the 6th of tion arises. For the sake of clearness it would be well to February, 1879, Messrs. Freshfields & Williams, on behalf point out the two separate heads upon which the proof Mr. Renaud, the trustee of the estate of Terraz, applied by ceedings instituted by the Law Society were taken. letter to Mr. Merriman for the sum of £135, to which Mr. They are in respect of two sums of £120 and £400 respec. Merriman replied that he was entitled to be paid his costs tively, both of which, it is admitted, passed into the bands and expenses out of the money in his hands.
of Mr. Merriman, and both of wbich sums we are of In July, 1879, no money having been forthcoming, opinion he has appropriated under very disgraceful circumMr. Renaud, the trustee of Terraz's estate, com stances. The £120 I will deal with first. Mr. Merriman admits menced an action against Mr. Merriman to re that he received that sum to remit to Switzerland for a specific cover the sums handed to him by Terraz, and shortly purpose, to a person specified, and that som of £120 did unafter the commencement of the action Messrs. Freshfields doubtedly pass into Mr. Merriman's hands. One Terraz was & Williams became aware for the first time that Mr. Merri | the man from whom he received it, and, after he had handed man had received from one Saugé a sum of £400 on the money to Mr. Merriman, there was a charge made against Terraz's account, besides the £135, which former sun was him of having contravened the Swiss bankruptcy laws, and be all spent. Mr. Merriman allowed judgment to go against | was arrested. The charge, and the subsequent arrest of him by default.
Terraz, were communicated to Mr. Merriman, who did not As all applications to Mr. Merriinan for the repayment of then transmit the money, because, as he says, of the arrest. the money failed, the matter was eventually brought before I do not see what the arrest had to do with the money which the Incorporated Law Society, by whom these proceedings he received from a client to do something with ; but were instituted.
let that pags. It is just possible that Mr. Merriman Nov. 9.—Merriman showed canse in person.-Speaking of might have honestly thought that after Terraz's arrest he the sum of £130 he contended that he was entitled to deduct could not properly pay the money to the Swiss creditors for therefrom his costs, charges, and expenses, which amounted whose benefit it was, and to whom it was to be sent by him to a considerable sum, and that Messrs. Freshfields & 1 according to the directions of Terraz. Buc the £120 was not Williams had no right to claim the return of the whole of the his money; it was not really his client's; but belonged £130 without those deductions. With regard to the other rightfully to those for whom he bad intrusted it to Mr. Merrisum of £400, he admitted receiving it from Saugé for Terraz, man. This £120 remained in Mr. Merriman's pocket; and and asserted that he placed it on a charge upon lands and in his elaborate defence he took up some time with a buildings in Paternoster-square which were the subject of a long explanation as to wby Terraz's arrest induced him not written minute stating the terms thereof. He said that he to transmit the money ; but we are of opinion that he said had standing to bis credit with the Ecclesiastical Com- nothing beyond admitting the fact that he had got it. The missioners a sum of about £2,000, subject to question as to the £400 is more complicated. The $400 a building agreement, and that the property upon was placed in Mr. Merriman's hands by Saugé, an interwhich the money was secured, being worth £10,000, preter, a friend of Terraz, and Saagé is now dead. It is there was more than £1,000 security for every difficult, therefore, to ascertain the character of Saugé £100 he had invested
ed. for. Terraz.. (Mr.
Merriman whether he was a person who acted with Mr. Merriman in produced a document, which, after examination, the court
the misappropriation which I am about to describe, or said was merely an updated copy of an agreement, and whether he was merely a tool of Mr. Merriman in the which is referred to in the judgment of the court. A late transaction. Sangé being dead, it is but charitable to clerk of the defendant's was called to depose to the date on
assume the best, and there is nothing to sbow that he did which the document was signed, but he was unable to fix the not give the money, as Mr. Merriman says, to be invested date with any certainty.)
by him. This £400, however, Mr. Merriman received. Lord COLERIDGE, C.J.-As this case involves such grave
That he does not deny. He says that he invested it, but issues, we will take time to consider our judgment.
invested it in what? Why upon a security that Cur, adv, vult.
is absolutely nil — upon a security which is said Nov. 24.-On the assembling of the court,
to be a property of Mr. Merriman's wife and which is vested H. D. Greene, for the trustee of Terraz's estate.-Be. in trustees, and said also to be of considerable value. No fore the court proceeds to give judgment in this case, may I deed of mortgage was given, but a document purporting to apply to your lordships to inake an order for the payment of be an agreement for a loan was prepared, with a clause underthe money to the trustee? The trustee not being a party taking to give a regular mortgage if necessary, and there was to the rule, I cannot urge any argument against the solicitor, a proviso that peither of the mortgages should be registered. but the order I apply for would enable us to recover the and that the document should be concealed from the persons money.
having the present right to the property in the houses com. Lord COLERIDGE, C.J.--I do not see what power the | prising the property. This £400 was invested under the court has to make such an order ; you have judgment, highest degree of suspicion. It was not only without notice and we can add nothing to the force of the judgment.
being given to the persons who should have had notice, but H, D. Greene. - The application is made under the Act for there was a further provision that none should be given at the Abolition of Imprisonment for Debt (32 & 33 Vict. all. But the matter does not stop there. When Mr. Merric. 62), s. 4, which provides that default by an attorney or man addressed us, he left upon the court the impression that solicitor in payment of costs or money ordered by the court the money was advanced, and the security given, sabstanto be paid, shall be excepted from the operation of the tially contemporaneously; but it is said that the security had Act.
been given, not only after proceedings in bankruptcy had Lord COLERIDGE, C.J.-We cannot make the order. been taken, but after judgment had been recovered against
Lord COLERIDGE, C.J.- In this case of Mr. Merriman's, him by M. Renand, which judgment he allowed to go which we have taken time to consider about, we have gone against him by default. I am not, however, precarefully into all the facts, and bave come to the conclusion I pared to say that that is distinctly proved, because am about to pronounce. We took time to consider because, on being questioned by us, he varied considerably as to the before deciding to take the strong step of removing a exact date on which the security was given, but at any rate man from off the rolls of the court, we should be absolutely he said that it was a month or six weeks after the advance was satisfied that there was no reasonable ground upon which we made ; but, on the other hand, it was said that it might have could interpret the case as being one of misconduct, though been six weeks, or it might have been more, after proceedings not unaccompanied with some amount of bona fides. had been instituted against him. And it must be remembered If there had been misappropriation bonâ fide, and if the in. that all the time this money was in Mr. Merriman's pocket, there were persons who were claiming this £400, as baving should not be struck off the rolls. On the 1st of October been fraudolently abstracted by Terraz, and which was for last, the solicitor had pleaded guilty, at Bow-street Policetheir use. Now, what conclusion can be come to on these court, to a charge of having embezzled £5, and was senfacts which are deposed to at least some of them are-by tenced to six months' imprisonment. He asked that the Mr. Merriman's own witness, whom we examined in court rule should be made returnable not earlier than ten days, upon the last occasion ? He received the £400, and invested because, in Coldbath-fields Prison, the rule could not be it in a most suspicious manner, and the only security he gave served upon the solicitor without an order from the Secretary for it was a disgraceful and suspicious one. He gave some of State. thing professing to be a security, but it is not certain that he Rule granted. did not give it some time after this M. Renaud had recovered Solicitor, Williamson. judgment against him. There was another circumstance, not altogether unimportant, and that was that Mr. Merriman produced in court a document which he said was a mortgage, but when it come to be looked at it was merely a copy of an
OBITUARY. agreement promising to give security, it had no date, and was altogether produced under circumstances of the greatest suspicion. Under these circumstances we have come to the
SIR JAMES COLVILE. conclusion, with respect to the sums of £120 and £400 The Right Hon. Sir James William Colvile, knight, which passed into Mr. Merriman's hands under circumstances F.R.S., one of the permanent members of the Judicial quite incompatible with any lenient view being taken of the Committee of the Privy Council, died very suddenly at case, that we must inflict the full penalty. It is impossible his residence, 8, Rutland-gate, Hyde-park, on Sunday, for us to allow him any longer to continue to exercise his the 5th inst., at the age of seventy. Sir James Colvile character as an officer of the court. As I have had occasion was the son of Mr. Andrew Colvile, of Craigflower, Fifeto say before, when these painful cases have been brought shire, his mother having been a daughter of the first Lord before us, the court has clothed him with authority to | Auckland, and he was born in 1810. He was educated at exercise his calling, but in exercising it the court will not Eton and at Trinity College, Cambridge, where he graduated allow its trusts to be abused by its own officers. The judg. | as a senior optime in 1831, and te was called to the bar at ment we pronounce is that Mr. Merriman be struck off the the Inner Temple in Trinity Term, 1835. He practised for rolls.
aboat ten years as an equity draftsman and conveyancer, and LINDLEY, J.-I am entirely of the same opinion, and I do in 1845 he proceeded to Calcatto, on receiving the appoint-not wish to add anything.
ment of Advocate-General of Bengal. He discharged LOPES, J.-So am I.
that office for three years, practising also at the bar at Solicitor for the Incorporated Law Society, Williamson.
Calcutta, and in 1848 he was appointed a paispe judge Solicitors for the official assignee of Terraz's estate, Fresh of the Sapreme Court, and received the honour of knightfields & Williams; The Solicitor.
hood. Seven years later, on the resignation of Sir Law
rence Peel, he was appointed Chief Justice of Calcutta, (Sittings in Banc, before Lord COLERIDGE, C.J., LINDLEY, bat in 1859 he retired opon a pension and returned to and LOPES, JJ.).
England. He was soon afterwards sworn a member of the Nov. 23.-Webb v. Carew.
Privy Council, and appointed Indian Assessor to the Judicial
Committee. For twelve years he rendered valuable serThis was a role for a new trial on account of misdirec.
vices in the hearing of Indian appeals, and immediately tion.
after the passing of the Judicial Committee Act, 1871, The action had been tried before Lord Coleridge and
he was appointed one of the paid members of the Judicial jury, and was by one solicitor against another on an Committee of the Privy Council. Sir J. Colvile's long experiagreement, the enforcement of which the defeodant resisted, ence in the Supreme Court at Calcutta, both as counsel and on the ground that it was vojd, as being maintenance.
as judge, gave him great advantages in dealing with Indian Cave, Q.C., and Lane, appeared for the plaintiff.
cases, while he also showed very great ability in dealing Clare, for the defendant.-This agreement was one by
with thegeneral business of the Jadicial Committee. For which the plaintiff, on the application of the defendant,
some time past he had suffered from the effects of weakened who was bimself ignorant of French, undertook to prosecute action of the heart, bat he had shown no symptoms of a claim in this country for a Frenchman named Croset,
of failure of mental or physical powers. On Saturday, the and incur the necessary costs. This done and the costs 4th inst., he sat with Sir Barnes Peacock and Sir Robert incurred, the defendant resisted their repayment, on the Collier, and heard two Indian appeals, and seemed to be ground that it was maintenance.
in his usual health and spirits. Oa Sunday he took a LIXDLEY, J., eaid, having parrated the facts, that there walk of about two miles, but he died the same evening. was certainly cothing morally wrong, oppressive, or vexa Sir J. Colvile had filled the office of president of the tions in this agreement, which, indeed, was a business Asiatic Society of Bengal, and he was a fellow of the matter carried out every day. Was there anything illegal ? Royal Society, a magistrate and depaty.lieutenant for Upon this he examined the definition of "maintenance" by
Fifeshire, and a bencher of the Inner Temple. He was Lord Coke in “Hawkins' Pleas of the Crown," and observed married to the daughter of Sir Jobn Peter Grant, K.C.B., that some old statements as to this were really startling, I but be leaves no family. His remains have be citing a passage in a judgment by Mr. Justice Baller, in to Scotland, and his funeral takes place to da wbich that very distinguished judge remarked that onder some of the straiter descriptions of the offence the procur. ing of a witness in a cause would be maintenance, so that
MR. WILLIAM CHARTRES. a man must either subpæna his witness or soppress the truth.
Mr. William Chartres, solicitor (the head of the firm of His lordship then noticed and distinguisbed the cases urged
Chartres, Youll, & Wilkinson), of Newcastle-upon-Tyne, as binding-Findene v. Parker, in which Lord Abinger,
died at Ayton, on the 5th inst. Mr. Chartres was born in speaking of many of the old cases on the point as "ex
1809, and was admitted a solicitor in 1831, and for about ploded," said it would require a very strong case for him
forty-six years bad practised with great success at Newto say it was maintenance if a rich man found funds for
castle. For several years he had acted as local agent and a poor maa whom he saw unjustly treated in the streets to
solicitor to the Scottish Union Fire and Life Insurance Comget bis wrongs redressed, and Shackle v. Hosier, which was
papy, and he had a very extensive commercial practice. For an agreement to indemnify the plaintiff against the conse
several years past he bad been associated in practice with quence of publishing a libel, a case obviously and on all
Mr. John Gibson Youll and Mr. George Wilkinson. Mr. points different from this. Here the agreement was not Chartres was a perpetual commissioner for Newcastle-upon. maintenance, and the plea failed.— Times.
Tyne, and for the counties of Northumberland and Durham..
His death has caused very great regret among a large circle (Sittings in Banc before Denman and LINDLEY, JJ.)
of friends at Newcastle. Dec. 4.-Re a Solicitor. Murray, on behalf of the Incorporated Law Society, moved for a rule calling upon the solicitor to show cause why he