« PreviousContinue »
426, 24 Solicitors' Journal, 743) that the assignment was ▼slid, and that the order had been properly made. A statement of claim was afterwards delivered to the defendant, headed only with the title of the original aotion, "Between John Seear, the trustee, &c, plaintiff, and E. L. Lawson, defendant." Underneath the title was the following:— "Delivered by H. W. Chatterton, solicitor, in person, who, by order dated, &c, has liberty to carry on and prosecute this action." There was nothing in the statement of claim to show how Chatterton derived title. The defendant took out a summons to set aside the statement of claim as irregular, on the ground that it did not disclose the real plaintiff. Bacon, V.C. (29 W. R. 45), held that the record was in proper form and that the effect of the order was to entitle Chatterton to carry on the action in the name of the original plaintiff. The Court of Appeal (jessel, II.R., and Cotton and Lush, L.JJ.) reversed this decision. Jessel, M.R., said that Chatterton might have taken a power of attorney from Seear authorizing him to prosecute the action in his name. But he did not, and, therefore, he could only prosecute it in his own name. The effect of the order at the Bolls, which was in the form of the old supplemental order, was to make Chatterton a plaintiff. In such a case the practice had been for centuries to put on the record both titles, the title of the old cause, and the title of the supplemental cause which was a new cause, and that practice hai always been adopted since the Judicature Act. The rules under the Act made no provision altering the old practice in this respeot. After that whioh was equivalent to the old supplemental order every proceeding should ba entitled in both actions, and the statement of claim should be so entitled. The proper order, therefore, wonld be to direct the plaintiff Chatterton to amend the statement of claim by inserting the title of the new action, and by introducing suob averments as he might be advised to show his title. Cotton, L.J., said that the order had not the effect of a power of attorney in authorizing the plaintiff to use the name of Seear in prosecuting the action. The new action was one by Chatterton in his own name, and its title must be added to the record.—Solicitors, G. S. & H. Brandon; B. W. Chatterton.
Company is Liquidation—Coxtributories—Acting As Director — Medical Ofhceu Of Daisy Company— Qualification Shares.—A peculiar oase oame before Hall, T.C., on the 4th inst., upon a summons adjonrned from chambers, In re The Bampihire Co-operative Milk Company [Limited), now in liquidation. The liquidator claimed to settle a Dr. Purcell upon the list of contribntories, under circumatanoes which, briefly stated, were as follows:— The articles of association of the company provided that a director's qualification should be the holding in his own right of ten shares at least. Dr. Puroell, who was not a shareholder in the company, was invited to become the medical examiner of the company and to take a seat at the board. He accepted the offer by letter, attended board meetings, signed minutes, and otherwise acted as a direotor, bat he never applied for bis 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 aotion for want of prosecution. Br. Purcell resisted the present summons, on the ground that he had never finally agreed to be a direotor, and bad 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 dereliction of duty on his own part as director. As the action was dismissal after the winding up it could not, under any circumstances, be pleaded in answer as ret 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, fridge; Btarut, Chubb, «fc Co.
Documents—Fraud On Public.—In a case of Post v. Marsh, before Fry, J., on the 3rd inst., a curious question arose as to the right to specifis performance. The plaintiffs claimed the specific performance of an agreement of March, as modified by two subsequent agreements of November and January. The defendant by his statement of defence denied that he had ever agreed as set forth in the statement of claim with regard to the alleged agreements of November and January. At the trial the agreement of November was not produced, and no evidence of it was given. It was objected that the plaintiffs could not have a judgment for specific performance, because they had not proved the whole of the documents in which they alleged that the agreement was contained. To this it was replied that, as the defendant had denied the alleged agreement of November, it might be treated as if it had never been mentioned at all in the plaintiffs' pleading. But Fry, J., declined to accede to this argument. He said that it was most important that original documents should be produced, in order to ascertain what the relative rights of the parties really were, and very often, when the written documents were looked at it was found that neither plaintiff nor defendant had told the truth about them. Another point in the case was this. The agreement was for the employment of the defendant to edit and prepare the letterpress of a projected guide to London. It was to be published under the name of "Kenny's Illustrated Guide to London," Kenny being a person who had acquired a reputation as a publisher of guide books. Kenny, however, took no part whatever in the preparation of the book. There was a dispute between the plaintiffs and the defendant whether it had been agreed that his name was to appear on the title-page as the author of the book. The plaintiffs proposed to publish the book with a title-page, on which it was to be stated that the book was by " Kenny (assisted by Marsh)." The defendant objected to this, and declined to deliver up the manuscript to the plaintiffs, and this led to the action. Fry, J., h*Id that it would be a fraud on the public to state on the title-page that the book was "by Kenny," and on this ground also, he held that the plaintiffs were disentitled to specific performance.—Solicitors, J. Henry Johnson; Carey, Warburion, at De Paula.
Mortoaoe—Power Op Sale—Solicitor—Negligence —Measure Op 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 a 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 the principal, and at a time when the interest was not in arrear. The plaintiff olaimed 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 plaintiffs 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 him, 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 ontu, 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 ot the action as between party and party ; and Fry, J., held that the damages must inolude the following heads—(I) 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, Fan Sandav, <fc dimming; F. Venn, is Son.
Specific Performance — Agreement Contained In Several Documkxts—Omission To Prove One Op The
Solicitor—Retainer—Evidence—Appeal For CostsJudicature Act, 1873, s. 49.—In a case of Bird v. Harris, before the Court of Appeal on the 8th inst, the question arose whether the retainer of a solicitor had been proved. Jessel, M.R., said that it was not essential that there should be a written retainer ; the retainer could be proved by other evidence. The rule was that where there was no written retainer, and the only evidence was the affidavit of the solicitor on the one side, and the affidavit of the supposed client on the other, that was not sufficient to prove the retainer. The solicitor was bound, if the retainer was disputed, to prove it clearly. In this particular case, the court (jessel, M.R., and James and Lush, L.JJ.) held that the solicitor had discharged this onus. The question was whether Whitton, the solicitor, had had authority to appear in the suit for a person named Bird. It was proved by an affidavit of service made at the time that, in the year 1870, Whitton, who was then acting for other parties to the suit, served Bird with notioe of the deoree, and that in 1871 he served Bird with notioe of an order whioh had been made adding to the decree. Whitton deposed that, on the 25th of Hay, 1872, he received instructions from the olerk of a solicitor named Holmes, who had, in other matters, aoted for Bird and bis family, to appear for Bird on the proceedings under the deoree, and there was an entry to this effect in Whitton'a diary. He further deposed that, on the 28th of May, Bird called at his office, with Holmes, and personally instructed him to appear for him, and this was confirmed by Holmes. There was, however, no evidence in' Whitton's diary relating to this interview. In opposition to this evidenoe, Bird himself said that he had never heard of the suit until June, 1880. Bird applied to have an order, whioh Whitton had obtained on the 29th of Hay, 1872, giving liberty to Bird to attend the proceedings under the decree, discharged. Bacon, V.C., held (29 W. B. 45) that the solicitor had not proved his authority, and his lordship discharged the order, but without costs. This decision was reversed by the Court of Appeal, who gave the solicitor his costs in both courts. Jessel, M.E-, said that it was clear that Bird's memory was not to be relied upon. Whitton could have 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 the service, unless perjury was to be imputed to him, for which there was not the slightest ground. The fact that no sntry was to be found in Whitton's diary of the interview of the 28th of Hay was immaterial, for solicitors did not keep a diary for their amusement, or to record events in which they had no interest, but to enable them to make out their bills of costs. There was no reason for making an entry relating to the 28th of Hay, inasmuch as there was already an entry, on the 25th, of instructions to appear for Bird, and Whitton could not charge a second time for receiving instructions. There was, therefore, the evidence of Whitton and Holmes in favour of the retainer, and this was met only by the denial of Bird, whose memory, it was clear, was not to be relied upon. Consequently, the retainer was sufficiently proved. In the course of the argument Jessel, M.R., said that a solicitor was entitled to appeal from such an order, though it only resulted in the payment of costs by him, for otherwise he would be liable to severe censure, without any possibility of redress.—Solicitous, E. Metcalfe; Ton <fc Co.
CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrae Pefys acting as Chief Judge.) Nov. 30.—Be Davit. Where by resolutions a time was appointed for payment of the first instalment of a composition, but not for the remaining second, third, or fourth instalments, and the debtor paid the first instalment and not the others, the court retimed to restrain an action brought by a creditor for the recovery of the balance of his debt, after deducting the amount of such first instalment.
This was an application on behalf of J. C. Davis, a debtor who had presented a petition for liquidation by arrangement, for an injunction to restrain an action brought by Mr. H. R. Taylor against him in the Queen's Bench Division for the recovery of the balance of a debt.
On the 12th of September, 1878, J. C. Davis filed his petition, and at the first meeting, held on the 16th of October, resolutions were passed by the creditors accepting a
composition of six shillings in the pound, payable by four instalments of one shilling and sixpence each, the first at three months after registration; and the payments were to be secured by an assignment of the debtor's estate and effects to trustees. No time was appointed for the payment of the second, third, or fourth instalments of the composition. On the 30th of October the resolutions were confirmed at a meeting held for that purpose, and on the 1st of November they were duly registered.
The statement of affairs produced at the meetings included Taylor as a creditor for £100, and he proved for that amount on a^bill of exchange dated in June, 1878, and drawn by W. F. Austin upon and accepted by the debtor, and indorsed byW. J. Wiltschke to Taylor. On the 3rd of February, 1879, the debtor paid Taylor the sum of £7 10s., being the amount of the first instalment of one shilling and sixpence in the pound upon the debt, and there was some evidence that during the first week of the following May he caused to be tendered to Taylor the sum of £22 10s., being the balance of the composition, and that he declined to receive it. Taylor, on the other hand, denied the tender. A writ having been issued in the Queen's Bench Division for the recovery of the balance of the debt, after deducting the £7 10s. reoeived by Taylor, the present application was made.
E. C. Willie, for the debtor.—A time was fixed by the resolutions for payment of the first instalment of the composition, bnt not for the seosnd, third, or fourth. A 0oordicg to the debtor's evidence the latter were tendered in May, and that was sufficient. Uuder the oiroumstanoes the court might properly grant an injunction.
Atherley Jones, for Taylor, was not board.
Mr. Registrar Pepys said the oourt had a discretion in these matters, and this was not a oase for an injunction. He oould not interfere with an aotion of this nature. The debtor might put in his defenoe at law, bat the present application must be dismissed with oosts.
Solicitors for the applicant, Walter, Jarvis, & Triscolt.
Solicitors for H. R. Taylor, Hurfird «J Taylor.
(Before Mr. Registrar Hazlitt, acting as Chief Judge.)
Dec. 3.—Re Planque. Action against a bankrupt by a oreditor whose proof has been tendered under the adjudication, and admitted provisionally, Bubject to investigation, restrained by the court, and the creditor ordered to pay the costs.
This was an application on behalf of Emile Planque, a bankrupt, and W. L. C. Browne, the trustee, for the continuance of an injunction to restrain Richard Foulkes from taking any further proceedings in the action brought by him against the bankrupt in the Common Pleas Division of the High Court of Justice.
The bankrupt was served with a writ at the suit of Foulkes in the year 1875, to recover the sum of £338 for money paid by Foulkes for the use of the bankrupt in 1872, commission, and interest. The action came on for trial at Guildford in Jnly last, wheD, in consequence of an objection by the defendant's counsel that the declaratioi did not agree with the plaintiffs particulars of demand, the judge adjourned the trial of the aotion to Middlesex, giving the parties leave to amend their respective pleadings as they should be advised. The plaintiff's declaration was accordingly amended,
d delivered to the defendant's solicitor on the 9th of August, but it appeared that the defendant had not yet delivered his amended pleas.
On the 2nd of October last the defendant was adjudicated a bankrupt, and, at the first meeting, held on the 20th, Mr. Foulkes, by his proxy, tendered a proof for £338, being the amount claimed in the action. The proof was opposed on behalf of the bankrupt, and admitted provisionally, subject to investigation. On the 25th of November the bankrupt took out a summons to refer all mntters in dispute to an arbitrator, but the hearing was adjourned, and the bankrupt now stated that it was impossible to continue the defence.
T. N. Hilbery, in support of the application.—The debt was proveable, and the creditor had no remedy against the person or property of the bankrupt except in the manner directed by the Act : Bankruptcy Act, 1869, s. 12. If any doubt existed as to the amount of the debt, it was for the trustee to form an estimate: section 31. Cobham v. Dahon (23 W. R. 865, L. R. 10 Ch. App. 655) was not nearly so strong a case in the bankrupt's favour as the present. There ao action was brought in respect of a debt whioh would not ha»e been barred by the order of discharge, because it arose oat of a breach of trust. Here the debt was proveable, and it would be barred by the discharge. He also ciied Expa.rU Flower (1 De Gez, 503).
Morton Daniel, for Foulkes.—The bankrupt had no locus •standi whatever to make this application, and it was unnecessary for him to seek protection for his person. If the debtor happened to be the sole defendant in a chancery suit, (his court wonld not interfere unless it was necessary to protect the interest of the general body of the ■creditors: Ex parte Sinde, Re Turner (L. T. N. S. 508). Why shonld the action in this case be restrained? If the proof had been admitted, the case would be different. ■Cobham v. Dalton was distinguishable, beoause in that case the remedy was sought against the debtor's person, and not against bis estate.
Mr. Registrar Hazlitt.—I think I must grant the injunction. The cause of action seems to have arisen in 1872, and for some reason or other the action is not commenced nntil 1875. In July, 1880, the cause went to trial, bat was not then actually tried. The aotion is in suspense, and the creditor has come in under the bankruptcy. I do not see why the injunction should not be continued, and the creditor must pay the costs.
Solicitors for the applicants, Hilbery $• Milbery.
Solicitor for Foulkes, C. W. Taylor.
(Before Mr. Registrar Hazlitt, actiDg as Chief Judge.) Dec 3. — Ex parte Locke, Ec Pennington.
A creditor ef a beneficed clergyman issued a wiit of sequestration against the profits of the benefice, and lodged it with the bishop's registrar.
Before the publication of the writ the clergyman filed a petition for liquidation, and the trustee, shortly after his appointment, obtained and published a second writ.
Held, that the title of the trustee must prevail over that of the sequestration creditor.
This was an application on behalf of Charles Locke that an injunction granted by this court on the 8th of June, 1S80, restraining him from taking fnrther proceedings under the writ of sequestration issued against the profits of the benefice of the Rev. Walter Pennington, should be dissolved.
On the 19th of May, 1880, Mr. Locke, being a creditor of Mr. Pennington, then the vicar of St. Philips. Earl's Courtroad, Kensington, caused to be lodged with the registrar of the Bishop of London a writ of sequestration against the profits of his benefice. The clerk to the solicitors was informed by the registrar at the time of the delivery of the writ that it would be necessary to consult the bishop as to the appointment of sequestrators, and as to the bind to be given, bat that nothing further could be done in the matter then, and that the writ must be left with the registrar to attend to in the ordinary course of business.
On the 20th of May, and bafore any further step was taken under the writ, Mr. Pennington presented a petition for liquidation. On the 30th of May, a notice of sequestration was affixed to the doors of the church, and the deb'or stated that this was the first intimation he received of the existence of the writ. At the first meeting, held on tho 7th of Jane, the creditors passed a resolution for liquidation by arrangement, and appointed a trustee, and the resolution was duly registered. The court having granted an interim ir junction restraining further proceedings under the sequestration, the present application was made. It appeared that the trustee had, shortly after his appointment, obtained a - second writ of sequestration, and had caused the same to be published.
J. Raven (solicitor), for the applicant—The writ having been issued by the applicant before notice of an act of bankruptcy, had priority over the sequestration by the trustee: section 88. There could not be any notice of an act of bankruptcy, because no such act had been committed. The applicant did all that could properly be done to perfect his title; and the trustee had no better title than he: Cripp's Laws of the Church and Clergy, p. ,931. The effect of issuing the writ was to give the applicant a valid charge upon the benefice, and his rights were not affected by the delay which had occurred in the publication of the writ.
lialay Knight, for the trustee.—All that the applicant had
done in the present case had been to lodge the writ with the> registrar. That was not sufficient to place him in the position of a secured creditor. In order to perfect his title it was necessary that the sequestration should be published. This was not done until after the filing of the petition for liquidation, and the trustee's title had relation back to that date: section 11. A creditor who merely placed a writ of fi. fa. in the hands of the sheriff did not thereby become a secured creditor of the defendant; the goods must be actually seized: Ex parte Williams, Re Davies (20 \V. ft. 430); Ex parte Nelson (L. Ii. 14 Ch. D. 41). In Chitty's Practice by Prentice, vol. 2, p. 1272, it was said: "Tne sequestration must be published, which is done by affixing a copy of the sequestration either in writing or in print, or partly in writing and partly in print, previously to the commencement of Divine service on Sunday, on one of the doors of all churches and chapels within the parish or place where the benefice is situated. As the writ does not begin to operate, and has priority only from the time of its publication, that should be done without delay." Raven, in reply.
Mr. Registrar Hazlitt said it seemed to him that the injunction should be continued. In the interval between the issuing of the writ, and the completion of the necessary formalities, something had intervened to oust the rights of the creditor. It was clear that tbe sequestration was not completed until it was published by being affixed to the church door, and, nntil the publication, he was of opinion that the writ was only a piece of waste paper in tbe hands of the bishop. He therefore decided in favour of the trustee.
Solicitors for the applicant, J. Haven S; Co.
SOLICITORS' CASES. Common Pleas Division. (Sittings in Banc before Lord Coleridge, C.J., Lindley and Lopes, JJ.) * Nov. 9, 24.—Re Josiah John Merriman, a Solicitor.
This was a rule obtained on the 26th of July last, calling upon tho solicitor to show cause why he should not answer matters contained in affidavits, or, in default of satisfactory answer, be struck off the rolls.
Wills, Q.C., and Murray, for the Incorporated Law Society, stated the facts to be as follows :—About the 25th of September, 1878, one Terraz, domiciled in Switzerland, absconded, taking with him a large sum of money. He was at the time an insolvent debtor, and on the 3rd of October he was adjudged bankrupt by the Swiss court, and a trustee to his estate was appointed. Terraz arrived in England at the beginning of October, 1S78, and deposited £800 in tho London and Westminster Bank. This sum was soon alter withdrawn and, in the beginning of November, 1878, £135 was banded by Terraz to Mr. J. J. Merriman, the solicitor. Of that sum £120 was handed to Mr. Merriman on the 1st of November, and a receipt was given for the same. The £15 was handed over on the 11th of November, for which a receipt was also given. Messrs. Fresufields & Williams, who acted for the trustee of Terraz's estate, discovered from a Mr. Ambery, an avocat at Geneva, that he had, at the end of October, 1S7S, been instructed by Mr. Merriman to endeavour to arrange with some of Terraz's creditors at Geneva; and for this purpose Mr. Merriman promised to send him a snra of money which, as a fact, was never sent, a*, on tbe 18th of November, Terraz was arrested in London on an extradition warrant charging him with offences against the Swiss bankruptcy laws. Immediately after Terraz's arrest, a son of Mr. Merriman wrote to Mr. Ambery sayirg that, in consequence of the arrest, the money would not be sent. Messrs. Freshfields & W illiams were instructed by Mr. H. Vernet. the Swiss consul, to take steps to obtain the Secretary of State's order for Terraz's extradition, and accordingly attended at Bow-street on the 25th of November, 1878, when Terraz was brought up in custody, and, from statements made at tho hearing, Messrs. Freshfields & Williams came to the conclusion that Mr. Merriman had received a sum of money from Terraz, and wrote to him inquiring whether the balance was in his hands, and pointing out that, in the event of the prisoner being ordered to be surrendered, they would ask for tbe usual
« Reported by W. Blew, Esq., Rarriater-at-Law.
order directing that the money in Terraz'spossession, including the sum of Mr. Merriman's hands, should be given up to the Swiss Government. Mr. Merriman refused to give the information requested.
Messrs. Freshfields ft Williams were not then aware of the circumstance* under which the £135 had been given to Mr. Merriman, but they subsequently obtained Mr. Merriman's receipts. After TVrraz had been committed to the House of Detention, to await the order of the Secretary of State, an application for a writ of habeeu corpus was made to the Court of Queen's Bench and thn writ was granted. On the 6th of Febraary, 1S79, Messrs. Freshfields & William", on behalf of ilr. Renaud, the trustee of the estate of Terraz, applied by letter to Mr. Merriman for the sum of £135, to which Mr. Merriman replied that he was entitled to bo paid his costs and expenses out of the money in his hands.
In July, 1879, no money having been forthcoming, Mr. Renaud, the trustee of Terraz's estate, commenced an action against Mr. Merriman to recover the suras handed to him by Terraz, and shortly after the commencement of the action Messrs. Freshfields & Williams became aware for the first time that Mr. Merriman had received from ono Snuje a sum of £400 on Terraz's account, besides the £135, which former sum was all spent. Mr. Merriman allowed judgment to go against him by default.
As all applications to Mr. Merriman for the repayment of the money failed, the matter was eventually brought before the Incorporated Law S .ciety, by whom these proceedings were instituted.
Nov. 9.—Mcrrimin showed canse in person.—Speaking of the sum of £130 he contended that he was entitled to deduct therefrom his costs, charges, and expenses, which amounted to a considerable sum, and that Messrs. Freshfields ft Williams had no right to claim the return of the whole of the £130 without those deductions With regard to the other Bum of £ 400, ho admitted receiving it from Sangti for Terraz, and asserted that he placed it on a charge upon lands and buildings in Paternoster-square which were the subject of a written minute stating the terms thereof. He said that he had standing to his credit with the Ecclesiastical Commissioners a sum of about £2,000, subject to a building agreement, and that the property upon which the money was securel, being worth £10,000, there was more than £1,000 security for every £160 he had invested for Terrez. (Mr. Merriman produced a document, which, after examination, the court said was merely an undated copy of an agreement, and which is referred to in the judgment of the court. A late clerk of the defendant's was called to depose to the data on which the document was signed, but he was unable to fix the date with any certainty.)
Lord Colebidge, C.J.—As this case involves such grave issues, we will take time to consider our judgment.
Cur. adv. vult.
Nov. 24.—On the ass-mbling of the court,
3. D. Greene, for the trustee of Terraz's estate.—Before the court proceeds to give judgment in this case, may I apply to your lordships to make an order for the payment of the money to the tru»tee? The trustee not being a parly to the rule, I cannot urge any argument against the solicitor, but the order I apply for would enable us to recover the money.
Lord Coleridge, C.J.—I do not see what power the court has to make snch an order; you have jndgment, and we can add nothing to the force of the judgment.
M. D. Greene.—The application is made under the Act for the Abolition of Imprisonment for Debt (32 & 33 Vict, c. 62), s. 4, which provides that default by an attorney or solioitor in payment of costs or money ordered by the court to be paid, shall be excepted fiom the operation of the Act.
Lord Coleridge, C.J.—We cannot make the order.
Lord Colebidge, C.J.—In this case of Mr. Merriman's, which we have taken time to consider about, we have gone carefully into all the facts, and have come to the conclusion I am about to pronounc;. We took time to consider becaus e, before deciding to take the strong step of removing a man from otf the rolls of the court, we should be absolutely satisfied that there was no reasonable ground upon which we could interpret the case as being one of misconduct* though not unaccompanied with some amount of bona Jides. If there had been misappropriation bond fide, and if the in
ability to pay back the money had been owing to misfortune, suspension might have satisfied the justice of the case; but we are of opinion that there is no course open to us, upon thoughtful consideration of the case, but tostrike this gentleman off the rolls. I pass by the sums of money received by him and which he has improperly appropriated, because they would only complicate the matter, and because no question can arise with regard to them, but with regard to the £ 120> and £400 the matter is different, and no question of complication arises. For the sake of clearness it would be well to point out the two separate heads upon which the proceedings instituted by the Law Society were taken. They are in respect of two sums of £120 and £400 respectively, both of which, it is admitted, passed into the handsof Mr. Merriman, and both of which sums we are of opinion he has appropriated under very disgraceful circumstances. Tho £120 I will deal with first. Mr. Merriman admits that he received that sum to remit to Switzerland for a specific purpose, to a person specified, and that sum of £120 did undoubtedly pass into Mr. Merriman's hands. One Terraz was the man from whom he received it, and, after he had handed the money to Mr. Merriman, there was a charge made against him of having contravened theSniss bankruptcy laws, and he was arrested. The charge, and the subsequent arrest of Terraz, were communicated to Mr. Merriman, who did not then transmit the money, because, as he says, of the arrest I do not see what the arrest had to do with the money which he received from a client to do something with; but let that pass. It is just possible that Mr. Merriman might have honestly thought that after Terraz's arrest he could not properly pay the money to the Swiss creditors for whose bene lit it was, and to whom it was to be sent by him according to the directions of Terraz. Bur. the £120 was not his money; it was not really bis client's; but belonged rightfully to those for whom he bad intrusted it to Mr. .Merriman. This £120 remained in Mr. Merriman's pocket; and in his elaborate defence he took up some time with a long explanation as to why Terraz's arrest induced him nob to transmit the money ; but we are of opinion that he said nothing beyond admitting the fact that he had got it. The question as to the £400 is more oomplioated. The £40Cs was placed in Mr. Merriman's hands by Sauge, an interpreter, a friend of Terraz, and Sauge' is now dead. It is difficult, therefore, to ascertain the oharaoter of Sauge— whether be was a person who aoted with Mr. Merriman in the misappropriation whioh I am about to desoribe, or whether he was merely a tool of Mr. Merriman in the transaction. Sauge being dead, it is but charitable to assume the best, and there is nothing to show that he did not give the money, as Mr. Merriman says, to be invested by him. This £400, however, Mr. Merriman received. That be does not deny. He says that he invested it, but invested it in what? Why upon a security that is absolutely nil — upon a security which is said to be a property of Mr. Merriman's wifa and which is vested in trustees, and said also to be of considerable value. Nodeed of mortgage was given, but a document purporting to be an agreement for a ioan was prepared, with a clause undertaking to give a regular mortgage if necessary, and there was a proviso that neither of the mortgages should be registered, and that the document should be concealed from the persons having the present right to the property in the houses comprising the property. This £400 was invested under the highest degree of suspicion. It was not only without notice being given to the persons who should have had notice, but there was a further provision that none should be given at all. But the matter does not stop there. When Mr. Merriman addressed us, he left upon the court the impression that the money was advanced, and the security given, substantially contemporaneously; but it is said that the security had been given, not only alter proceedings in bankruptcy had been taken, but after judgment had been recovered against him by M. Renaud, which judgment he allowed to go against him by default. I am not, however, prepared to Bay that that is distinctly proved, because on being questioned by us, he varied considerably as to the exact date on which the security was given, but at any rate he said that it was a month or six weeks after the advance was made ; but, on the other hand, it was said that it might have been Bix weeks, or it might have been more, after proceedings bad been instituted against him. And it must be remembered that all the time this money was in Mr. Merriman's pocket, there were persona who were chiming this £400, as having been fraudulently abttracted by Terraz, and which was for their use. Now, what conclusion can be come to on these facts which are deposed to—at least some of them are—by Mr. Merriman's own witness, whom we examined in court upon the last occasion? He received the £400, and invested it in a most suspicious manner, and the only security he gave for it was a disgraceful and suspicious one. He gave something professing to be a security, but it is not certain that he did not give it some time after this II. Renaud had recovered judgment against him. There was another circumstance, not altogether unimportant, and that was that Mr. Meriiman produced in court a document which he said was a mortgage, but when it come to be looked at it wns merely a copy of an agreement promising to givesecntity, it had no date, and was altogether produced under circumstances of the greatest suspicion. Under these circumstances we have come to the conclusion, with respect to the sums of £120 and £400 which passed into Mr. Merriman's hands under circumstances ijuite incompatible with any lenient view being taken of the case, that we must inflict the full penalty. It is impossible for us to allow him any longer to continue to exercise his character as an officer of the court. As I have had occasion to say before, when these painful cases have been brought before u-, the court has clothed him with authority to exercise his calling, but in exercising it the conrt will not allow its trusts to be abused by its own officers. The judgment we pronounce is that Mr. Merriman be struck off the rolls.
Lctdley, J.—I am entirely of the same opinion, and I do not wish to sdd anything. Lopes, J.—So am I.
Solicitor for the Incorporated Law Society, Williamson. Solicitors for the official assignee of Terraz's estate, I'rtshJieiis f Williams; The Solicitor.
(Sittings in Banc, before Lord Colebidoe, C.J., Lindley, and Lopes, J J.). Nov. i'&.—Wcbb v. Cartw. This was a rale for a new trial on account of misdirection.
The action bad been tried before Lord Coleridge and a jury, and was by one solicitor against another on an agreement, the enforcement of which the defendant resisted, on the ground that it was void, as being maintenance. Cave, QC, and Lane, appeared for the plaintiff. Clare, for the defendant.—This agreement was one by which the plaintiff, on the application of the defendant, who was himself ignorant of French, undertook to prosecute a claim in this country for a Frenchman named Croset, and incur tbe necessary costs. This done nnd the costs incurred, the defendant resisted their repayment, on the ground that it was maintenance.
Lwdlky, J., said, having narrated the facts, that there was certainly nothing morally wrong, oppressive, or vexatious in this agreement, which, indeed, was a business matter carried out every day. Was there anything illegal? Upon this be examined the definition of "maintenance " by Lord Coke in " Hawkins' Pleas of the Crown," and observed tbat some old statements as to this were really startling, a passage in a judgment by Mr. JuBtioe Buller, in tbat very distinguished judge remarked tbat under acme of the straiter descriptions of the offence the procuring of a witness in a cause would be maintenance, so that a man must either subpuna his witness or suppress the truth. Bis lordship then noticed and distinguished tbe cases urged as binding—Undent v. Parker, iu which Lord Abinger, speaking of many of the old cases on the point as "exploded," said it would require a very strong case for him to say it was maintenance if a rich man found funds for a poor man whom be saw unjustly treated in tbe streets to get bis wrongs redressed, and Shackle v. lloiier, which was an agreement to indemnify the plaintiff against the consequence of publishing a libel, a case obviously and on all points different from this. Here the agreement was not maintenance, and the plea failed.—Timet.
(Sittings in Banc before Denm As and Li Sulky, JJ.) Dec. 4.—Be a Solicitor. Murray, on behalf of the Incorporated Law Society, moved for a rule calling upon the solicitor to show cause why he
should not bo struck off the rolls. On the 1st of October last, the solicitor had pleaded guilty, at Bow-street Policecourt, to a charge of having embezzled £5, and was sentenced to six months' imprisonment. He asked that the rule should be made returnable not earlier than ten days, because, in Coldbath-fields Prison, the rule could not be served upon the solicitor without an order from the Secretary of State.
SIR JAMES COLVILE.
The Bight Hon. Sir James William Colvile, knight, F.R.S., one of tbe permanent members of the Judicial Committee of the Privy Council, died very suddenly at his residence, 8, Rutland-gate, Hyde-park, on Sunday, the 5th inat., at the age of seventy. Sir James Colvile was the son of Mr. Andrew Colvile, of Craigflower, Fifeshire, his mother having been a daughter of the first Lord Auckland, and he was born in 1810. He was educated at Eton and at Trinity College, Cambridge, where he graduated as a senior optime in 1831, and Le was called to the bar at the Inner Temple in Trinity Term, 1835. Hepraotised for about ten years as an equity draftsman and conveyancer, and in 1845 he proceeded to Calcutta, on receiving the appointment of Advooate-General of Bengal. He discharged that offioe for three years, practising also at the bar at Calcntta, and in 1848 he was appointed a puisne judge of the Supreme Court, and received the honour of knighthood. Seven years later, on the resignation of Sir Lawrence Peel, he was appointed Chief Justice of Calcutta, but iu 1859 he retired upon a pension and returned to England. He was soon afterwards sworn a member of the Privy Counoil, and appointed Indian Assessor to the Judicial Committee. For twelve years he rendered valuable services in the hearing of Indian appeals, and immediately after the passing of the Judicial Committee Act, 1871, he was appointed one of the paid members of tbe Judioial Committee of the Privy Counoil. Sir J. Colvile's long experience in tbe Supreme Court at Caloutta, both as counsel and asjudge, gave him great advantages in dealing with Indian cases, while he also showed very great ability in dealing with tbegeneral business of the Judicial Committee. For some time past he had suffered from the effects of weakened action of the heart, but he had shown no symptomB of of failure of mental or physical powers. On Saturday, the 4th inst., he sat with Sir Barnes Peacock and Sir Robert Collier, and heard two Indian appeals, and seemed to be in his usual health and spirits. Oa Sunday he took a walk of about two miles, but he died the same evening. Sir J. Colvile had filled the office of president of theAsiatio Society of Bengal, and he was a fellow of theRoyal Society, a magistrate and deputy-lieutenant for Fifeshire, and a benoher of the Inner Temple. He was married to the daughter of Sir John Peter Grant, K.C.B., but he leaves no family. His remains have been removed to Scotland, and his funeral takes place to-day.
MR. WILLIAM CHARTRES.
Mr. William Chartres, solicitor (the head of the firm of Chartres, Youll, & Wilkinson), of Newcastle-upon-Tyne, died at Ayton, on the 5th inst. Mr. Chartres was born in 1809, and was admitted a solicitor in 1831, and for about forty-six years bad practised with great success at Newcastle. For several years he had acted as local agent and solicitor to the Scottish Union Fire and Life Insurance Company, and he had a very extensive commercial practice. For several years past he had been associated in practice with Mr. John Gibson Youll and Mr. George Wilkinson. Mr. Chartres was a perpetual commissioner tor Newcastle-uponTyne, and for the counties of Northumberland and Durham. His death has caused very great regret among a large cirole. of friends at Newcastle.