Page images
PDF
EPUB

date of the issue of the writ. The Court of Appeal (JESSEL, the decision of Fry, J., on the merits without coming to M.R., and JAMES and LUSH, L.JJ.) held that in such a case the Court of Appeal.-SOLICITORS, Patey & Warren; the proper date of the dissolution was the date of the judg. Gellatly, Son, & Warton ; R. Miller § Wiggins, ment.--SOLICITORS, Rogerson & Ford; Shum, Crossman, f Co.

UNDISCHARGED BANKRUPT-RIGHT OF TRUSTEE-PROPAPPEAL — DEATH OF APPELLANT - APPLICATION FOR

ERTY-PERSONAL EARNINGS - PRACTICE — ADDITION OF

ERTYORDER OF REVIVOR-JUDICATURE ACT, 1873, s. 52–ORD. | PLAINTIFF-ORDER 10: R. 13Tun the 25ta inst. tbe Court 50, RR. 2, 4.-In a case of Rawson v. Patton, before the

of Appeal (JESSEL, M.R., and JAMES and LUSH, L.JJ.) Court of Appeal on the 20th inst., a question arose as to the

affirmed the decision of Fry, J., in the case of Emden v. proper mode of obtaining an order for the continuance of an

Carte (29 W. R. 600). The action was brought by an unappeal after the death of the appellant. The defendant had

discharged bankrupt, who was an architect, to recover a sum delivered a counter-claim, and at the trial it was dismissed,

of £1,790, which he alleged to be due to him for services with costs. The defendant gave notice of appeal, and before

rendered by him as an architect to the defendant, since the the appeal came on for hearing he died." His execatrix

adjudication of bankruptcy, under an agreement entered into obtained an order of course at the Rolls that the appeal

before the bankruptcy, and a sum of £8,000, which the should be carried on and prosecuted by ber. On the opening

plaintiff claimed as damages for his wrongful dismissal by of the appeal the respondent's counsel took the objection that,

the defendant. The trustee in the bankruptcy took out a as the counter-claim bad been dismissed, there was no pro

summons in the action, asking that he might be substituted ceeding pending in the High Court, and that that court bad | as plaintiff for the bankrupt, and be at liberty to carry on no jurisdiction to make any order with regard to the prosecu.

the proceedings. Fry, J., held that the suns claimed in the tion of tbe appeal. And it was said that under section 52 of 1 action were not tbe mere results of the personal labour or the Judicature Act, 1873, which provides that “in any

service of the bankrupt, and that they would pass to the cause or matter pending before the Court of Appeal, any

trustee, and he made an order joining the trustee as co-plain. direction incidental thereto, not involving the decision of the

| tiff, and giving him the conduct of the action. The Court appeal, may be given by a single judge of the Court of 1 of Appeal agreed as to the title of the trustee, and held that Appeal,” an order for the continuance of the appeal might

cht he had been rightly joined as co-plaintiff.-SOLICITORS, F. C. have been obtained from one of the judges of the Court of

Tudor ; J. J. Winser ; Beyfus & Beyfus.
Appeal. The court (JESSEL, M.R., and JAMES and LUSH,
L.JJ.) held that the order had been properly made by the
High Court. They said that section 52 did not apply, and the

LAND DRAINAGE Act, 1861–“ DRAIN"-ARTIFICIAL OR Court of Appeal had no original jurisdiction.-SOLICITORS,

NATURAL WATERCOURSE_POWER OF LANDOWNER TO ALTER Paterson, Snow, f Bloxam ; McDiarmid.

DRAIN.-In a case of Healey v. Bates, before the Master of the Rolls on the 21st inst., a question arose as to the mean

ing of the term “ drain" in the Land Drainage Act, PRACTICE – APPEAL FOR COSTS — JUDICATURE Act,

1861. By section 72 of that Act, “any person interested 1873, 8. 49.-In a case of Dicks v. Yates, before the Court

| in land who is desirous to drain the same, and in order of Appeal on the 20th inst., the preliminary objection was

thereto deems it necessary that new drains should be opened taken that the appeal was for costs. The action was brought

through lands belonging to another owner, or that existing to restrain an alleged infringement by the defendant of the

drains in lands belonging to another owner should be plaintiff's copyright. Bacon, V.C., held (29 W. R. 135) that

cleansed, widened, straightened, or otherwise improved, may there had been an infringement; but, as the defendant bad

apply to such owner, who is hereinafter referred to as the discontinued the infringement, it was unnecessary to grant

adjoining owner, for leave to make such drains, or improrean injunction, and, therefore, without making any declara

ments in drains, through or on the lands of such owner." tion of the plaintiff's right, the judgment simply ordered the

Section 73 provides that the applioation is to be made defendant to pay the costs of the action. 'The Court of

by notice in writing stating the nature of the intended imAppeal (JESSEL MR. and JAMES and LOS LJJ) held I provements, and to be accompanied by a map. If the ad. that this was not an appeal for costs within section 49. I joining owner fail to express his assent within a month after JESSEL, M.R., said that the costs of an action were

service, he shall, by section 76, be deemed to bave not in the discretion of the court, to the extent of

| dissented, and then the questions shall be decided by ordering the defendant to pay them if the plaintiff

two or more justices, in petty sessions, whether the proposed had no title to relief. The Vice-Chancellor had ordered

drains or improvements will cause any injury to the persons the defendant to pay the costs as a result of his decision that

interested in the lands, and whether such injury will admit the plaintiff had a title to relief. It was for this purpose

of compensation in money. The defendant Bates had immaterial whether there was an actual declaration of the

given a former notice to the plaintiff in August, 1879, plaintiff's right, or a declaration by necessary inference.

of certain intended alterations to a stream runping through But his lordship did not intend to say that the court bad no

the plaintiff's land, but such notice was held to be invalid, discretion to deprive a successful defendant of bis costs of

and an injunction was granted to restrain the defendant the action.-SOLICITORS, Lewis & Lewis ; Montagu, Scott, &

from proceeding under it before the justices (see Healey v. Baker.

Bates, L. R. 13 Ch. D. 498). The defendant had recently served another notice under the Act, as to alterations to

the same stream, upon the plaintiff, and his notice showed PRACTICE - CHANGE OF JUDGE – REHEARING ORDER that considerable improvements were intended. The plainMADE IN CHAMBERS.-In a case of Stuckey V. Warton, be- tiff now moved for an injunction to restain the deferdant fore the Court of Appeal on the 25th inst., the question from proceeding under his notice, on the ground that the arose whether, when an order had been made by a judge of | stream was not a “ drain" within the meaning of the Act, the Chancery Division personally in chambers, and he but was & natural watercourse, and therefore outside secafterwards resigned his office, his successor ought to hear tion 72 altogether. JESSEL, M.R., although not desiring an application in court to discharge the order. Malins, V.O., to express a final opinion as to the meaning of the Act, before his resignation had personally settled in chambers á which was by no means clear, said that his present certificate of the chief clerk in the action. A summons | impression, after hearing the arguments, was that the was taken out to vary the certificate, and it came on to be term "drain," as used in the Act, referred to an heard in conrt before Fry, J., after the business attached to artificial, and not a natural, watercourse. In the 72nd sec. Malins, V.O., had been transferred to him. He thought tion, a new drain must clearly be artificial, and the words that he ought not to rehear a matter which the Vice for reference to existing drains-namely, that they might be Chancellor had personally decided, and he, therefore, pro “cleansed, widened, straightened, or otherwise improved " formd dismissed the summons, leaving the parties to go to -showed that an artificial drain was referred to. The the Court of Appeal. The Court of Appeal (JESSEL, M.R., other sections, some of them, pointed to the conclusion and James and LUSH, L.JJ.) were of opinion that Fry, J., that artificial drains were the only ones that would be interought to have heard the summons just as Malins, V.C., fered with without the consent of the owner, and that must have done if he had retained his office. The result of 1 if a natural stream was desired to be diverted, the his not hearing it was that the parties were compelled to owner's consent must be obtained. The plaintiffs had incur double costs. They might have been content with shown a primd facie case that the stream was a natural one, and therefore he should grant an injunction to restrain the proved on behalf of the father and the children by the defendant from proceeding with his notice, the plaintiff father's solieitor, wbo represented to the solicitors of the giving the usual undertaking in damages.--SOLICITORS, Nash mortgagees that he was acting for the father and the Field; Robins, Burges, & Co.

children. The defendants to the action were the morte gagees and the father. The father pot in 'no pleading,

and did not appear at the trial. The plaintiffs at the trial PARTNERSHIP-RECEIPT BY ONE PARTNER-ACCOUNT8—| deposed that they executed the deed at their father's LIABILITY-MOTION TO VARY REFEREE'S REPORT--NOTES request, in ignorance of its contents ; that they had given OF EVIDENCE BEFORE REFEREE-USE OF NOTES FOR JUDGE no instructions to the solioitor; and that they had no AND PARTIES--PRACTICE.-In a case of Fowler v. Murray, independent advice. The mortgageeg adduced no evid. before the Master of the Rolls on the 23rd inst., the defend. onoe, relying by their pleading simply on the fact that the ant had taken out a summons to vary the report of the deed had been approved by a solicitor who profesged to be official referee under the following circumstances :- It was acting for the father and the children ; that the defend. referred to the official referee to take the accounts of an old ants were ignorant of the exercise of any improper ipflapartnership commencing in 1863, and continued subsequently ence by the father; and that they were purchasers in good in 1878, by taking the cashier of the firm into partner faith and for value. Fry, J., said it was plain that the ship. It appeared that in the year 1865 the banking account plaintiffs had not, when they executed the deed, been fully was not properly posted up in the cash-book of the firm, the emancipated from their father's control, and, though there entries being all in the cashier's handwriting, so that a sum was no distinct evidence of pressure by him, yet the plain. of £442 more was received from the bank than had been tiffs bad proved the existence of a state of things from entered up in the cash-book. A sum Was entered in the cash- / which the court would inter pressure and undae influence. book at the end of the half-year to make it balance, and a | The burden was therefore cast on the father of showing sum was also shown as due at the end of the half-year to the

that the deed was executed by the children after indedefendant. The defendant submitted before the referee that

pendent advice, with full knowledge of its contents, and the £442 ought to be treated as a defalcation by the cashier,

with a free intention of giving him the benefits conferred but the referee in his report treated it as due from the defend

by it. He had not attempted to discharge this duty, and ant. The defendant was the active partner and signed the

therefore, as far as he was concerned, the deed must be cheques during 1865, but in the name of the firm. Before

set aside. But this inference of undue influence, though the referee the defendant was examined viva voce, but did not

it operated as against the person who could exercise the positively swear that he did not receive the money-in fact,

influence, and as against any volunteer who claimed he stated he could rot explain the matter. He said he had,

through bim, and any person who took the property with however, duly accounted for all sums received by him.

notice of the circumstances which raised the equity, did Sums received for the firm were received by the defendant

not operate as against a purchaser for valge without notice or the cashier. On the summons to vary the report as to

of those circumstances. In the present case there was do the £442, JESSEL, M.R., said that as the defendant bad not

evidence that the mortgagees knew that any undue influ. positively sworn he had not received the money, he could

ence or pressure had been exercised by the father, or that not treat the £442 payable by the casbier as a part

the plaintiffs were not emancipated from his control. Dership loss, and he saw no reason for differing from the

A

solicitor professed to be acting for them, and his letters finding of the referee. In reference to the mode in which the summons was heard, considerable difficulty was experi

showed that he realized the nature of the daty which was enced by all the parties in knowing what the evidence had

imposed upon him. It was impossible to conclude that he been before the official referee, as the referee had refused to fur.

did not discharge his duty properly. Unless it was to be pish a copy of his notes of the evidence, and none of the parties

held that in such a case it was absolutely necessary that had an effective note. The reseree bad, however, sent his

the cbild should be advised by a different solicitor from the book witthe evidence and arguments to the judge, who

father, it could not be said that the mortgagees had notice read out the evidence as gived. JESSEL, M.R., stated

of any of the circumstances necessary to raise an equity it was not the practice of the referee to furnish his!

to set aside the deed. Therefore, as against the mort. notes to the parties, and that it was the duty of the counsel / gagees, the action must be dismissed.-SOLICITORS, J. H. or solicitors before the referee to take notes of the evidence | Lydall; Roberts & Barlow. themselves for fatnre use.- SOLICITORS, Ullithorne, Currey, d Villiers; 0. B. Wooler.

CASES BEFORE THE BANKRUPTCY

REGISTRARS. FATHER AND CHILD-UNDUE INFLUENCE-ACTION TO SET ASIDE DEED-ONUS OF PROOF-PURCHASER FOR VALUE (Before Mr. Registrar MURRAY, acting as Chief Judge.) WITHOUT NOTICE.-In a case of Bainbrigge v. Browne,

May 4, 11.-Ex parte Vale, Re Bannister. before Fry, J., on the 18th inst., a question arose as to the

Seizure by the sheriff under an elegit before notice to the onus of proof in an action brought by a child to set aside

| elegit creditor of an act of bankruptcy committed by the de& deed executed by him under the influence of his father,

fendant is sufficient to confer upon the elegit creditor a good and for the father's benefit. The action was brought by title to the chattels seized, notwithstanding that the delivery by a danghter and two song to set aside a deed which they the sheriff takes place after such notice. bad exeented, at the request of their father, when they | This was an application on behalf of the trustee under the were respectively of the ages of twenty-five, twenty-four, bankruptcy of G. Bannister, sen., for an order that the Retand twenty-two, charging their reversionary shares ander ford and Bassetlaw Loan and Investment Company (Limited) the marriage settlement of their father and mother with and the sheriff of Middlesex, or one of them, should be the payment of the interest on some previously existing ordered forthwith to pay to the trustee the value of the mortgage debts of the father (the interest on which had furniture, goods, chatiels, and effects seized by the sheriff been allowed to fall into arrear), and covenanting person. | under & writ of elegit. ally for the payment of the interest. The deed also em

On the 15th of December, 1880, Bannister (a trader) oomnowered the mortgagees to sell the reversionary shares inmitted an act of bankruptcy by non-compliance with the the event of the interest not being punctually paid. The terms of a debtor's summons issued at the instance of Mr. consideration for the deed was an agreement by the mort. Boord, one of his creditors. gagees to reduce the rate of interest on the mortgage

On the 24th of January, 1881, the sheriff of Middlesex debts in the event of panctual payment. At the date of

seized the furniture and goods of Bannister under an elegit the execution of the deed the daughter was usually

issued by the Retford and Bassetlaw Loan and Investmen! resident in her father's house, though she was then acta

Company (Limited), in respect of a judgment for about £300. ally on a temporary visit to an aunt. One of the song was

At that time the company had no notice of the act of bank& medical student at Edinburgh ; the other was an under

ruptcy committed by the debtor on the 15th of December. graduate at Oxford. They were staying at home for a vacation, and executed the deed in the presence of their

On the 2nd of February, Bannister committed another act father and mother and of a clerk of their father's soli- of bankruptcy by filing a liquidation petition, of which the .citor, the clerk attesting their execation. The danghter's

company had notice on the 5th. execution was attested by the aunt. The deed was ap. On the 10th of February, the furniture and goods of which the value was now claimed by the applicant were delivered themselves from saying what their judgment would have been (after inquisition) by the sheriff to the company.

if the garnishor bad actually received the debt. The applicaOn the 15th of February, an adjudicaticn of bankruptcy |tion must, therefore, be refused. was made against Bapnister based upon the act of bankruptcy | Solicitor for the trustee, G. Bathurst Norman. committed by him on the 15th of December, and, at the first | Solicitors for the company, Allen & Son, for Newton, Jones, meeting, the creditors appointed the applicant trustee of the $ Co., East Retford. estate.

E. C. Willis, for the applicant. The title of the appli. (Before Mr. REGISTRAR MURRAY, acting as Chief Judge.) cant relates back to the date of the act of bankruptcy, and

May 18.--Re Warner. the goods are therefore bis, The seizure by the sheriff

Leave given to file resolutions after the expiration of the time underthe elegit occurred after the act of bankruptcy. Thenon.

allowed for that purpose by rule 284, the omission to file them in compliance with the debtor's summons is an act of bankruptcy proper time having arisen from inadvertence. available for adjudication : Ex parte Hankin, Re Buchan This was an application for leave to file resolutions passed (23 W. R. 401, L. R. 10 Cb. 267); Ex parte Duignan, Reby creditors under a petition for liquidation, notwithstanding Bissell (19 W. R. 1127, L. R. 6 Cb, 605); Ex parte Gourlay, that the three days limited for the purpose by rule 284 had Re Ormandby (L. R. 15 Ch. D. 447). An elegit is not pro. expired. tected by the 941h section, and has no operation of any On the 12th of April, 1881, the debtor filed a petition for kind before inquisition.

| liquidation, and the first meeting of creditors was held on Nicoll, for the company.--The goods are ours by virtue of the 2nd of May, when resolutions were passed accepting, a the writ of elegit, and the transaction is protected by sec. | composition of twelve shillings in the pound. tion 95, sub-section 3. At the date of tbe seizure the com. At the second meeting, held on the 13th of May, the pany bad do notice of any act of bankruptcy, and the goods resolutions passed at the former meeting were confirmed: belong to us. He cited Ex parte Wright, Re Arnold (L. R. | There was no dissentient creditor at either meeting. 3 Ch. D. 70).

On the 17th of May, the solicitor's clerk attended at the Cur, adv. vult. office in Lincoln's-inn-fields to file the resolutions, when, in

consequence of the three days allowed by rule 284 having May 11.-MR. REGISTRAR MURRAY said a question arose

expired, they were refused. The clerk stated in his affidavit in this case as to the right of an elegit creditor to hold, as

that he was under the impression that Sunday did not count against the trustee, certain goods and chattels seized by the

as one of the three days, and that until he attended at the sheriff under the writ, and delivered by him to the creditor

office he was unaware the time had expired. Sunday, it apbefore the order of adjudication. The question was fully

peared, was not the last of the three days. discussed in the recent case of Ex parte Abbott, Re Gourlay,

F. C. Willis, for the debtor. - and, as he understood that case, it placed an elegit creditor,

Mr. REGISTRAR MURRAY said that as the omission to file upon seizure by the sheriff, in precisely the same position as

tbe resolutions within the proper time bad arisen from inad. a creditor who had seized under the ordinary writ of fi. fa.

ary writ o fa. | vertence, the order would be made. But, at the same time, in the case of a trader for a debt under £50. The difficulty it was important the profession should be aware that Sunday, in this case was that by the doctrine of relation back of tbe leven in the middle of the three days allowed by rule 284, did trustee's title to the act of bankruptcy on which the adjudi

count. In this case, the fact that the resolutions bad been cation was made, the goods so seized were, in law and

as sented to unanimously was important. fact, the goods of the trustee and not of the debtor. The

Application granted. creditor was obliged to resort to the protective clauses of the

Solicitor, E, Parkes. Act, and the burden of proof was upon him to sbow that at the time of the delivery of the goods to him hy the sheriff (such delivery being, in bis opinion, tantamount to a sale within the meaning of section 95, sub-section 3), he had no

SOLICITORS' CASES. notice of “any act of bankruptcy available for adjudica. tion." The delivery in the present case was on the 10th of 1 (Sittings in Banc, before Lord COLERIDGE, C.J., and February. That the creditor had no notice of the act

BOWEN, J.)* of bankruptcy on which the adjadication was made

May 20, 21.-Re W. H. Pook, a Solicitor. viz., the non-compliance with the debtor's summons This was a rule calling upon the solicitor to answer was clearly proved by the affidavit which was uncontradicted, certain affidavits, or, in default, to show cause why he and upon which the deponent had not been cross-examined. should not be struck off the rolls. It appeared that the But it was said that the creditor had notice of the act of solicitor had received from a client a sum of nearly £400, bankruptcy committed by the debtor on the 2nd of February, for tbe purpose of paying a composition to creditors. Part by filing the liquidation petition, and the evidence certainly of this sum he had, with his client's permission, appropriated did not show that he bad not. In fact, upon the affidavits to the payment of his own costs, a second cortion he bad which had been read, and having regard to the fact that notice paid to creditors, and a third portion he had employed for of the petition was sent by post to the creditor in the ordinary

bis own purposes, thereby rendering it incumbent upon the way by the officer of the conrt on the 3rd of February, it client to borrow money from his relations in order to pay must be inserred that at the date of the delivery be had his creditors. notice of en act of bankruptcy, and according to the A second charge against the solicitor was that ha had decision in Ex parte Duignan, Re Bissell, an act of appropriated two sums of money paid to him by another bankroptcy"available for adjudication.” What was

client for the purpose of paying certain landlord's claims in the meaning of the words "act of bankruptcy" in

respect of a house of which the client was tenant. As the this section? The case was argued before him as if the money was not sent to the landlord the client's goods were date of delivery was the crucial test, and that notice of any seized. act of bankruptcy committed before that date would be Prior to the hearing of the case the solicitor had refunded sufficient to deprive the creditor of that protection, and, the money due to both his clients. curiously enough, his attention was not drawn to the case of Sir H. James, A.G., and A. L. Smith, for the solicitor, Ex parte Schulte, Re Mataule (22 W. R. 462, L. R. 9 Ch. were unable to deny the charges, but pointed cut that in the App. 409), whicb, he confessed, had escaped his memory at the liquidation proceedings some of the creditors did not prove, time, but which expressly decided that the act of bankruptcy and that so much of the money as necessarily remained in referred to in this section must be construed as meaning an the solicitor's bands was allowed to get mixed up with his act of bankruptcy committed before seizure. That being own. The money having been refunded the clients were so, it followed, in this case, that the creditor was not affected now in statu quo. Under these circumstances they appealed in any way by the liqnidation petition. So far from being to the court not to pronounce the severest penalty. prior to the seizure, it was not filed till the 2nd of

4. Wills, Q.O., and Hollams, for the Incorporated Law February, whereas the seizure was proved beyond all doubt Society. to bave been made on the 24th of January, some ten days Lord COLERIDGE, O.J.-This is such an important case previously. With reference to the recent case of Curtoys v. tbat we will take time to consider, Pillers, as he understood it, the Court of Appeal decided in Lord COLERIDGE, C.J.-In the case of Mr. Pook, * farour of the trustee because there was nothing in the solicitor, which was before us yesterday, my brother Bowen process of attachment which would take it out of the words of the statute, but their lordships expressly guarded ! • Reported by W. BLEW, Esn., Barrister-at-Law.

and myself have now had time to read through the affidavits, ment, wbich would enable the defeated party at once to go and to consider the facts, and, having done so, we bave come to the Court of Appeal. to the conclusion that there is nothing in the case to mitigate His LORDSHIP according gave judgment for the plaintiffs the extreme penalty that can be inflicted in cases of this for £50. sort. The circumstances are shortly that Mr. Pook, in his capacity of solicitor, received a sum of nearly £400 from a

May 20.-The Incorporated Lou client of bis, & respectable and a respectably connected man.

Society v. Shaw f Blake. The money was substantially for paying a composition to the

This was a case alınost precisely similar to the last, but client's creditors, but it was not so applied. The consequence

the learned counsel who appeared for the defendants being was that the client had to borrow money from his relations to

desirous to obtain the opinion of the jury, formal proof was pay the composition, for Mr. Pook retained the money with

entered on in the case. which the composition was to have been paid. Some sub

The same counsel appeared for the plaintiffs. stantial portion of the money was due to Mr. Pook for costs,

Edward Clarke, Q.C., and Bremner, were for the defen d. and as the costs were incurred before the money was obtained,

ants. and as the client never objected to the application of so mach

It appeared that the claim against the defendants was in of the money for costs, I do not take that into consideration,

respect of nineteen different infringements of the Act, and in but put it out of the question. Another portion of the money

in the result, after proof had been given of one of these, the Mr. Pook did apply in payment of the debt due from his

same arrangement was arrived at as in the preceding case, client, but another portion, nearly $150, he retained, until

with this difference in the facts, that here the solicitors who only two days ago, when he repaid it, and then under

employed the defendants carried on their profession in London, pressure of these proceedings, in the hope that it would be

and not in the country, and that it was elicited in evidence taken into account in mitigating his sentence. Such payment

that it was contrary to the practice at Somerset House to recannot, in my opinion, be taken to have any weight; it was

ceive documents connected with probate of wills unless th-y money paid under pressure, and not because it was due, or

were indorsed with the name of a solicitor.- Times. from any desire to discharge a debt. What then is to be done ? I bave no desire to be hard upon anyone, for we are all exposed to temptation ; but here is a person clothed with & character of extensive responsibility, and invested with trust, and the power of using that trust by this court. Mr.

SOCIETIES. Pook was an officer of this court, and by virtue of that position was enabled to hold himself out to the world as a

INCORPORATED LAW SOCIETY. person fit to be trusted in transacting business. Honour and

The meeting of the members of this society which bad been honesty are, above all things, necessary in a solicitor, and if

specially convened “for the purpose of considering the a person shows by his conduct that he is anfit to exercise the

present position of legal procedure, the impending changes in privileges conferred upon him, I can come to no other con.

the legal profession, and other incidental matters which to clasion than that this court must order him to be struck off

the meeting might appear orgent and important,” which was the rolls.

adjourned from the 6th, was continued on Friday, the 20th Solicitor for the Incorporated Law Society, Williamsın. inst., at the hall of the society, Chancery-lane. The meeting The Solicitor.

was attended by about 170 gentlemen. The president, Mr. J. Moxon CLABON, presided.

The PRESIDENT said that the following motion and amend. HIGH COURT OF JUSTICE.

ment, the former moved by Mr. EDWIN KIMBER and Queen's BENCH Division.

seconded by Mr. Joseph MOTE, and the latter moved by (Sittings at Nisi Prius before GROVE, J., and a Special

Mr. CHARLES Ford and seconded by Mr. JOHN INDERMAUR, were before the meeting:

“That no committee on legal procedure can have the conMay 20.— The Incorporated Law Society v. Waterlow, fidence of the public, or of this branch of the profession, Brothers, & Layton.

unless both be properly and adequately represented; and

This society recommends to her Majesty's Government the This was an action by which the plaintiffs, sought to

appointment of a Royal Commission to inquire into the whole recover penalties from the defendants for acting as proctors

question of economising, simplifying, and accelerating the and solicitors without being duly qualified.

process and practice of the law." Sir Hardinge Giffard, Q.C., G. A. R. Fitzgerald, and R. T. “That this society, whilst appreciating the purposes of Reid, appeared for the plaintiffs.

the Lord Chancellor in appointing the Legal Procedure Sir H. James, A.G., Willis, Q.C., and Finlay, were for

Committee, regrets that so few solicitors were appointed to the defendants.

serve thereon, and, especially, that neither the president The substance of the plaintiffs' case was that the defend. nor the vice-president of this society were so appointed." ants, whose regular business was that of law stationers, had,

Mr. FORD asked permission to withdraw the following motion in many instances, obtained probate of wills at Somerset

of which he had given notice:-" That, in the opinion of this House, going through all the necessary formalities, and answer

society, the practice which sanctions the payment of barristers' ing any inquiries that might be made by the officials with

clerks by snitors for services rendered by such clerks to bar. respect to the different documents. It appeared that the

risters is objectionable in its operation and should be disconpractice was for country solicitors in many cases, instead of

tinued." He also asked permission to withdraw his amend. communicating with their London agents, to transact businessment, to which course Mr. Indermaur had agreed, and an. connected with the probate of wills with the defendants,

pealed to Mr. Kimber to substitute some other form of motion who would do it at a cheaper rate, although, as between

for the one before the meeting, which probably everyboly solicitor and client, there would be no difference in the amount

present was not prepared to adopt. It varied from his motion charged.

only as far as the appointment of a Royal Commission was

concerned, which he thought ought not to be pressed. If Sir Hardinge Giffard having briefly opened the nature of

Mr. Kimber could agree to this the motion would be adopted the case to the jury, and explained that the defendants,

and the meeting might almost immediately adjourn. assuming they had acted illegally, were liable to a penalty of £50 for each offence.

The question was put to the meeting, who gave per

mission to Mr. Ford to withdraw his amendment, which GROVE, J., observed that substantially the matter seemed having been done, to be one of law, and there was no issue of fact for the Mr. EDWIN HUGHES, as the mover of the adjournment, jary to decide.

thonght it was too late to express any regret with regard to Sir H. James, A.G., said his contention would be that the constitution of the Legal Procedure Committee. It the defendants were merely messengers of the country solici. could not now be altered, therefore it was a waste of time to tors, giving no advice themselves, and using no skill or dis attempt to interfere with it. It was too soon to think of cretion of their own.

asking for a Royal Commission, because at present it was A discussion thereupon took place between counsel, and not known whether the report would not give them all for in the result it was agreed that the jury should be dig. ( which they were seeking. At any rate, they could not get Marged, and that his lordship should give a formal judge a Royal Commission appointed until after the report of the

Jury.)

committee bad appeared. Therefore he must object entirely theoretically the fountain-head of legal knowledge, and he to the motion, because to regret anytbing which was past was was practically tbe source from which alterations in the profutile, and to ask for a Royal Commission before the com- cedure which affected the profession would emanate. Ang. mittee had reported was premature. The observations that thing, therefore, which would appear to be hostile to him bad been made with reference to the inactivity of the council, would be productive of direct and positive harm. It was in his opinion, had much better be postponed until the satisfactory to hear from one member of the council at the council was re-elected at the annual meeting. It was not fair last meeting that their relations with the Legal Procedure to place these gentlemen in office and then find fault with Committee were of a most amiable kind. He urged the them, wbich really amounted to finding fault with them. | meeting, in the name of common sense, to allow them to selves as members for baving elected them. He wished that remain so, and not do anything which would involve the a greater number of members would attend the annual solicitor branch in conflict with the Lord Chancellor, but let meeting, which was the proper time and place for this new | tbem give the council their confidence and avoid tying their generation of solicitors which was springing up to bring hands in any manner. They had invested the council with forward their particular views and get them represented if the guardianship of the interests of the profession, and they they tbought it wise to do so. They ought not to be brought could safely continue to have confidence in them in the present forward at a special meeting like the present. He there crisis, for crisis it was, and they ought, in discussing the fore fell rather precluded from making any observations on motion, to take into consideration the circumstances under gereral questions, and thought that the suggestions wbich which it was proposed to pass it. The suaviter in modo bad been thrown out should be referred to the council for would often carry a point where the fortiter in the consideration and to report thereon to the members at the would fail. As regarded the amendment, the first annual meerirg. Nothing could be done in the present part was a truism, for no one would deny that session, or until a report bad been issued by the Legal Pro it was both the duty and the interest of solicicedure Committee. He moved, as an amendment, “That tors as a body to promote expedition and economy in the whole subject discussed at the previous meeting, and litigation. The public would doubtless have their own also at the present, be referred to the council for consideration opinion on this point, but there could be no question that the and report at the next annual meeting."

Judicature Act, with all its defects, had facilitated expedi. The amendment was not seconded.

tion in obtaining legal redress. The public could not object Mr. G. A. CROWDER moved as an amendment to Mr. Kim to the promotion of their interests by the solicitors, wbether ber's motion, “That this meeting, whilst recognizing that it was to the interest of the solicitors to do so or not. The it is both the duty and interest of solicitors as a body to amendment also set out that it was to the interest of the public promote expedition and economy in litigation, affirms that it that solicitors should be fairly paid for bonest work, and in this is to the interest of the public that solicitors should be fairly lay the difficulty of the whole subject. What was honest work, paid for honest work, and requests the council to support and what was fair pay? What the public thought of it was with energy all well-considered measures tending to further anotber question. The last part of the amendment was the these objects, which are now alike frustrated by defects in practical part. It requested the council to support with procedure and practice." There were three defects in the energy all well-considered measures tending to further these motion. The first, which was apparent on the face of it, objects. This was an expression of the confidence of the was the suggestion that there should be a Royal Commission members in the council, and the request was made with a view to inquire into legal procedure. He was one of those who of strengthening their hands in carrying out any measures held ihat the solicitor branch of the profession were far they might think necessary. better fitted to consider the question of legal procedure Mr. F. K. Munton, in seconding the amendment, obthan any other body of men. The bench and the bar, withont served that Mr. Ford's amendment was an improvement doubt, could bring to bear upon the subject a very consider- upon the original motion, but the present amendment was able amcunt of competency, but solicitors were the better an improvement upon both. The motion reflected upon fitted to discuss it, because they bad to carry out the details the council, because it brought forward something which of the procedure established by Act of Parliament in every they had not thought proper to initiate, and which it sug. day practice. They experienced daily the difficulties and gested they ought to have done, and the statement of the delects of legal procedure, and he maintained that all but president that it was undesirable to pass any resolution at all those who were members of the legal profession were wbolly was an evidence of it. Any reflections the members might and utterly incompetent to consider the question. Gentle wish to cast upon the council should be left for the annual men outside the profession migbt be able to offer valuable meetings. There had been the greatest apathy on the part of suggestions, but it was a farce for anyone to attempt to in the members up till within the last four or five years as to prove legal procedure who was unacquainted with its what was being done at those annual meetings. Very few fundamental elements. It would be worse than useless members were present, and little or no interest was taken in that a Royal Commission sbould be established, unless they the proceedings, yet tho members were always complaining bad an assurance that the majority of its members would of the council. be of the legal profession, and it would only increase the Mr. J. W. PROUDFOOT expressed his entire satisfaction delay in improvements. Another objection to the motion with the council, lut was of opinion that the speakers should was not so apparent, which was that it was premature. The confine themselves to a discussion of the subject for which Legal Procedure Committee was appointed, as he understood the meeting was convened. He had hoped that the object it, without any reference whatever to the council of the of the speakers would have been to bring forward questions, society, and, therefore, neither the motion nor the the consideration of which would have for its object the amendment could reflect upon the council, wbo bad enabling the members of the solicitor branch to conduct nothing whatever to do with its formation. It was their business with more comfort and satisfaction to them. much to be regretted that the solicitor branch was selves and the public than was possible at present. He had not more fully represented upon it, but that it heard that the mere attendance at judges' chambers for the was not so was no fanlt of the council. "But in view purpose of taking out a summons occupied the greater part of the fact that the committee bad been sitting for some time, of a day's work, and in order to sign judgment or issue a and were about to issue their report, it would be worse than writ it was necessary to stand in a long train, waiting for useless for the society to take any action. The report might | ope's turn, and it was almost a matter of impossibility for very possibly contain suggestions or information of the ut- j the clerks to get through their business at all. It was most utility; at any rate it would, in all probability, form / next to impossible for a solicitor to ascertain when his the basis of their future deliberations. The general meeting | client's case would go before a jury. On one day but one would take place in the course of a few weeks, and there | case would be set down ; on the next there would be two; would then be an opportunity of considering the report and / on the next none at all; and on the next, half a dozen.. + considering how far they could adopt it, or, at any rate, it would be set down for hearing in the Common Pleas to-day, would afford materials for their discussion. At present it in the Queen's Bench to-morrow, and up in a garrat the day would be extremely unwise to take any action which would after, and it was a matter of perfect impossibility to know pledge the society to a course which might be altogether in- | where to assemble the witoesses. It was said that counser dependent of the suggestions contained in the report. A did not attend to their cases, but how was it possible for further objection was, that if the motion were adopted, it | them to do so ? Under the present mode of procedure sur would amount to forcing the council's hand as it were, and could not attach themselves to one particular court as was putiing them in an attitude of hostility towards the Legal | done formerly, when the case would be in tbe list for this Procedure Committee and the Lord Chancellor, who was court to-day, and, if not tried, in the list for that com

« PreviousContinue »