Page images
PDF
EPUB

Searches must be made for bankruptcies, lis pendens, annuities, that the commissioners, by obtaining. leave to oppose the plaintiff and to and in the local registers.

adduce evidence against him at the trial, had really placed themselves in It should be observed that, although no annuity can at law be the position of defendants, and had become " opposite parties” within made to issue out of an incorporeal hereditament such as an annuity Q.C., and Dunham. Solicitors, White, Borrett, f. Co.; Crossman, Crossman,

rule 1 of order 31.-Counsel, Elton, Q.C., and Blakesley; Sir ;4. Watson, or rent charge, it is possible to charge it with an annuity in equity, & Prichard. and therefore that searches for annuities must be made on the purchase of an annuity or rent charge.

RIDDELL v. THE EARL OF STRATHMORE-C. A. No. 2,

12th January R. S. C., 1883, XIX., 27-STRIKING OUT EMBARRASSING PLEADING.

The question in this case was as to striking out the whole of a stateREVIEWS.

ment of claim, on the ground that it was embarrassing to the defendant.

Rule 27 of order 19 empowers the court, at any stage of the proceedings, TRUSTEES' INVESTMENTS.

to “order to be struck out any matter in any pleading which may be THE INVESTMENT OF TRUST FUNDS. By EDWARD ARUNDEL GEARE, delay the fair trial of the action.”

unnecessary or scandalous, or which may tend to prejudice, embarrass, or Barrister-at-Law. Stevens & Sons.

The action was brought to recover

possession of land. By his statement of claim the plaintiff alleged that The object of this little book, as stated in the preface, is to answer E , who died in 1759, was seised in fee in possession of the land, and that the questions—"Is it a proper investment ?” “Would it be a breach during her life she executed a deed of settlement, by virtue of which the of trust ?”. On the whole the answers given are satisfactory. In property vested on her death in her niece, T., the wife of D, and her the first chapter the author discusses the duty of the trustee as to heirs, from whom and her successors in title, as the plaintiff alleged, the the investment of trust funds. He states most of the recent decisions defendant's predecessor in title, G., well knowing the facts, fraudulently bearing on the point at some length, and the conclusion he arrives at the estates.

concealed the existence of the settlement, and entered into possession of is, in the words of Jessel, M.R., that “the trustee ought to conduct J. D., the eldest son of G. L. D., who died in 1859, whose title was

The plaintiff claimed as purchaser of the property from the business of the trust in the same manner that an ordinary man derived from the heir-at-law of T. D. The plaintiff alleged that the of business would conduct his own. But he adds an important settlement still remained in the possession of the defendant, and that qualification not, we believe, hitherto stated in the text-books ever since the death of E. the defendant and his predecessors in title had "that the trustee may not do all that a prudent man of business retained it and received the rents of the property, with.full notice that might do in managing his own concerns, but that which the prudent under it the property rightfully belonged to the plaintiff and his preman of business would do while strictly following the ordinary course

decessors in title, and had fraudulently concealed from them the existence of business."

of the deed, and made it impossible for them to discover their right and The chapters on Permissible Investments” and “Investments not title to the property until the year 1876, when the existence of the deed Permitted” will be found useful. The general conclusion that the first came to the knowledge of J. D. and the plaintiff. The plaintiff author comes to is that—(1) In the investment of trust funds the claimed to recover the possession of the estates and the rents or mesne trustees should never employ the solicitor who acts for the borrower; statement of claim to be struck out as embarrassing.

On the application of the defendant, North, J., ordered the (2) Trustees, when entertaining the question of investment, should THE COURT OF APPEAL (Cotton and LINDLEY, L.JJ.) affirmed the not favour the tenant for life at the expense of the remaindermen; decision. COTTON, L.J., said that in such a case, where the plaintiff (3) Any conditions annexed to the power to invest or vary invest sought to escape from the Statute of Limitations on the ground of a ments should be observed strictly; and (4) Trustees should avoid concealed fraud, he ought to state his case with extreme particularity, so making any investment which subjects the trust funds to the control as to enable the defendant to meet the case without disclosing all' his of any one of the trustees singly. Perhaps the best part of the book title. The alleged settlement should have been stated so as to enable the is the discussion of lending money on personal security, on real defendant to raise the defence that such a settlement never existed. The securities, and on second mortgages. The author also discusses the rule was well stated by Bramwell, L.J., in Phillips v. Phillips (4 questions of profits made by the trustee out of the trust property, the fact should be stated

It was not enough to state an inference of law, but

from which the court could see the of neglect by the trustee to invest, of bringing money into court, and of investments by the court.

plaintiff's title. The plaintiff must not say simply, “Under and We rather wonder that the author by virtue of a certain deed I am entitled"; he must state what has not discussed the cruel decision of Millett v. Haworth (29 SOLICI- the limitations of the deed were and the other facts, so TOR'S JOURNAL, 555)--a decision which appears to render it desirable, enable the court to infer what his title was. In the present case the in all cases where a wide range of investments is authorized, to give plaintiff had not stated his case in such a way as to enable the defendant power to the trustees, notwithstanding the opposition of the bene- to meet it without embarrassment and without disclosing all his title. ficiaries, to change any investments wbich may, in the event, throw There was no statement at all that T. D. was named as a remainderman liability on the trustees.

in the settlement, but only of an inference of law that she became entitled. That was not a reasonable statement; it was embarrassing. Under rule 27 of order 19 his lordship thought that the court had juris. diction to strike out the whole of a statement of claim if the whole of it was embarrassing. You could not fairly judge whether there had been

fraud in concealing a settlement without knowing what its limitations CASES OF THE WEEK.

The whole thing depended on the statement of the settlement. EDEN v. THE WEARDALE IRON AND COAL CO.-O. A. No. 2, by the principle of Phillips v. Phillips. The action was clearly a fishing

LINDLEY, LJ., thought the case was near the line, but that it was covered 11th Jannary.

one, and one could not help feeling that the plaintiff had not a case Tuind l’arty_INTERROGATORIES-"Opposite Party”-R. S. C., 1883, which he knew, but that he thought he had a case, and hoped he would XXXI., 1.

be able to fish one out. His statement of claim was not in accordance The question in this case was whether a plaintiff was entitled to

with the requirements of rules 4, 6, and 7 of order 19. The only fraud deliver interrogatories for the examination of a third party. The plaintif, suggested was fraudulent concealment of the settlement, and it was quite of an agreement by the defendants to take a lease of the coai under the might be the plaintiff's misfortune if he could not state any more than land. The defendants commenced to work the coal, but they were served

he tad done about the settlement, but this vague statement was not by the Ecclesiastical Commissioners with a notice that the coal belonged to

sufficient - COUNSEL, Cookson, Q.C., McClymont, and C. E. Allan ; Napier them as lords of the manor. The defendants served a third party notice on

Higgins, Q.C., and Herbert Stephen. SOLICITORS, J. E. & H. Scott; Western the commissioners, claiming indemnity from them in case the plaintiff should establish his claim. °An order was afterwards made giving the commissioners leave to defend and to deliver a counter-claim. The Court

Re THE FLINT COAL AND CANNEL CO. (LIM.)-Chitty, J., 11th

January. of Appeal decided (28 Ch. D. 333) that there was no power to give leave to ahhird party to deliver a counter-claim against the original plaintift. COMPANY-Winding up-PROCEEDINGS AFTER PRESENTATION OF WINDINGThe counter-claim was accordingly struck out, and the commissioners

PETITION-SUMMONS EXFORCE PAYMENT Poor RATES afterwards obtained an order to strike out their defence. By a subsequent

COMPANIES ACT, 1862, s. 85. order it was directed that the question of indemnity as between the com In this case, a petition having been presented for the winding up of the missioners as third parties and the defendants should be tried after the company, and an order made appointing a provisional liquidator, an ex trial of the action, and that, pursuant to rule 53 of order 16, the commis- parte application was made by the provisional liquidator for an injunction sioners, as third parties, should be at liberty to appear at the trial and restraining the overseer of the poor from proceeding before the magistrates

ppose the plaintiff's claim so far as they might be affected thereby, and, upon a summons for the enforcement of poor rates. Re Briton Medical and tors that purpose, to adduce evidence, oral and documentary, and to General Life Assurance Association (34 W. R. 390, 32 Ch. D. 503), was cross-examine the plaintiff's witnesses. Chitty, J., gave the plaintiffs referred to. leave to deliver interrogatories for the examination of the commissioners. CHITTY, J., said, as the poor rate was not a Crown debt, its enforcement

The Court of APPEAL (Corton, LINDLEY, and Lopes, L.JJ.) affirmed had no priority by virtue of the Crown's prerogative. Nor was he aware this order. It was contended on behalf of the commissioners that they of any legislation especially giving priority to claims for poor rates, there being no issue between them and the plaintiff'. " THE COURT held the summons after the presentation of a winding.up petition fell within the

as to

were.

f Sons.

[ocr errors]

TO

OF

& Co.

jurisdiction conferred upon the court by the Companies Act, 1862, s. 85. formalities ordinarily required in practice for his protection. And the He therefore made the order asked for upon the provisional liquidator bishop had stated in his evidence that in exceptional cases he did in entering into the usual undertaking.-SOLICITORS, Boltons, Robbins, Busk, practice dispense with attendance before a notary, and that it would be

very inconvenient if he could not. The bishop could not make a practice

for himself contrary to law, but there was nothing to show that his Re GAULARD & GIBBS' PATENT-North, J., 11th January. practice was of that character. In the present case the bishop had

expressly waived the appearance of the plaintiff before a notary. As to PETITION FOR REVOCATION OF PATENT TRIAL WITH ORAL EVIDENCE

the second point, his lordship said it was clear that a resignation of a PATENTS Act, 1883, s. 26.

benefice must, except in the case of an exchange, be unconditional, or, as This was a petition for the revocation of a patent (this being the mode the old writers said, it must be made pure, sponte, absolute, et simpliciter. of procedure substituted by section 26 of the Patents Act, 1883, for the There was no evidence of any pressure being applied to induce the old scire facias to repeal a patent) on the ground of want of novelty in plaintiff to resign. He was, no doubt, in a difficult position by reason of the alleged invention. Particulars of objection had been delivered by the his own misconduct, but he had free choice between resignation by his petitioner. This was a motion by the respondents to the petition (the own act and deprivation by hostile proceedings in the Ecclesiastical Court, patentee and the assignees of the patent) that the petition might be heard and he deliberately chose the former. There was no pecuniary considera with witnesses vivá vooe, and transferred into the list of witness causes. tion for the resignation ; the plaintiff was merely left in receipt of the

NORTH, J., held that, the petition being equivalent to an action to try legal emoluments of his office during the time he filled it. Nor was the the validity of the patent, the applicants were entitled to the order for resignation really upon any condition. It was necessary to fix some time which they asked.-Counsel, Aston, Q.C., and J. C. Graham ; Moulton, from which the actual resignation should operate. If proceedings in Q.C., and L. E. Pyko. SOLICITORs, Campbell, Reeves, f Hoopor; A. Curtis the Ecclesiastical Court had become unavoidable, some time must Hayward

have elapsed before any sentence of deprivation could have been passed, REICHEL v. THE BISHOP OF OXFORD– North, J., 12th January. formal acceptance should be dated and declared. The plaintiffs' argument

and the bishop acted within his powers in fixing a time at which the ECCLESIASTICAL BENEFICE-RESIGNATION-VALIDITY-CONDITION must go to this extent, that any resignation which has not to come into full WITHDRAWAL.

operation at the very moment at which it was sent in and accepted, but The question in this case was as to the validity of a resignation by a only at a future time agreed on, would be invalid. His lordship did not clerk in holy orders of his benefice. The plaintiff in the action claimed assent to this proposition. It was a confusion of language to call fixing a declaration that an instrument of resignation of his benefice executed the date when a resignation was to operate the insertion of a condition. by him was void, and an injunction to restrain the defendant, the bishop He thought that an honest arrangement that a resignation should take of the diocese, from accepting the plaintiff's resignation, or treating it as

effect from a named future day was not illegal. It could not prejudice valid, or declaring the benefice vacant, or instituting any other person the patron of the living, for the time for lapse ran only from the date thereto. In September, 1885, a charge of immoral conduct was publicly when the patron had notice of the actual avoidance. As to the third made against the plaintiff in his parish, and the bishop called upon him point, his lordship was of opivion that the sending in by the plaintiff of to clear his character or to resign his benefice. The plaintiff then took his resignation of the 2nd of June was not an offer which required some proceedings for this purpose, but without success. The bishop then acceptance by the bishop, and was revocable by the plaintiff until such wrote to the plaintiff to the effect that he expected to receive from him at acceptance, but that an offer was made by the bishop to the effect that, once an intimation that he was ready to resign his living without delay, if the plaintiff would place in the bishop's hands his formal resignation and, after some further correspondence, the bishop's secretary, by his (the formal acceptance of which declaring the benefice vacant the bishop authority, wrote to the plaintiff that "the bishop desires me to send you would date on the 1st of October) the bishop would abstain from taking a deed of resignation, and to inform you that his lordship proposes to

the threatened proceedings against the plaintiff in the Ecclesiastical date his formal acceptance of it on the 1st of October next, and not to Court. This offer was accepted by the plaintiff and acted on by the declare your benefice vacant until that date if the deed is at once executed bishop, and after that it was impossible for the plaintiff to withdraw his and returned to me, and if his lordship also receives in the meantime an resignation. Even if it was open to the plaintiff to withdraw his resignaparish during your absence. The deed requires to be executed by you should be in writing, and that he did accept the resignation when he assurance of satisfactory arrangements for the care and duties of the tion before acceptance, in his lordship's opinion the plaintiff had not done

He thought that it was not necessary that the bishop's acceptance before witnesses, and, if you are unable to obtain the attestation of a notary public in London, it may be remitted to me attested by two received back the deed without objection, and abstained from further persons.” The date October 1 was mentioned in this letter in conse. action. At any rate, the onus was on the plaintiff to prove the withdrawal quence of a communication which had been made to the bishop by a friend before acceptance, and he had failed to prove it. Moreover, according to of the plaintiff, and the bishop, in his evidence at the trial, stated that one the ecclesiastical law, if a man had once given up his benefice, and afterreason for fixing that date was that the plaintiff might be able to receive wards, changing his mind, wished to return to it again, this later a half-year's tithe.

With this letter the bishop's secretary sent to the wish would be in vain, unless some cause existed which made the plaintiff a printed form of resignation. The plaintiff, on the 2nd of June, ordinary think that the former cession should be undone and treate! as executed this instrument, and it was attested by two witnesses, neither of nothing. It was not stated in terms that this applied to a case in which whom was a nсtary public. On the same day the plaintiff returned the the resignation had not been accepted, but his lordship thought that it instrument so executed to the bishop's secretary, who received it the next did, because, if the avoidance had been completed by acceptance, a new day, and signed a memorandum of surrender which was attached to it. presentation, institution, and induction would have been necessary, and He then sent the document to the bishop, with a memorandum of accept

such ceremonies could not be dispeused with by a mere change of mind on ance attached to it for his signature, and the bishop signed it and the part of the bishop and the priest. According to ecclesiastical law, as returned the document to his secretary.' On the 16th of July the plaintiff his lordship understood it from the authorities, a person who had tendered handed to the bishop's secretary a document dated the icth of June, a resignation which had not been accepted, and who might withdraw it it executed by him, by which he purported to withdraw his resignation matters remained as they were, was prevented from withdrawing it, even This document was not communicated to the bishop or his secretary before acceptance, if, in consequence of the tender, any party was in a before the 16th of July. The action was commenced on the 14th of different position from that in which he would have been if no tender had September, and the plaintiff, on the 22nd of September, applied to been made. The plaintiff, by sending in his resignation, procured a postGrantham, J., as vacation judge for an interlocutory injunction. This ponement of legal proceedings against himself, and thereby, by ecclesias, application was refused (38 SOLICITORS' JOURNAL, 762). The plaintiff tical law, incapacitated himself from withdrawing it during the interval appealed; and the Court of Appeal, without deciding any question, before the 1st of October, and this would be so even if the true view was ingly now tried! On behalf of the plaintiff it was contended that the qnently the plaintiff's attempt to withdraw his resignation failed entirely. resignation was invalid on three grounds – (1) that the deed of resignation -Counsel, Cozens-Hardy, Q.o., and A. Young; Jelf, Q.C., Muir Mac: was invalid because it was not made before the bishop in person or before kenzie, and Mackarness. Solicitors, Hyde, Tundy, & Mahon ; Cunliffes & a notary public ; (2) that the deed was void because it was made under Davenport. pressure, on condition, and for a pecuniary consideration ; (3) that no that it might be withdrawn before such acceptance, and that the plaintiff ADMINISTRATION-PRESUMPTION OF Death-CHRISTIAN Name Unknown

IN THE GOODS OF THOMPSON.-P. D. & A. Div., 11th January. had withdrawn his resignation before acceptance. North, J., overruled all these objections and dis nissed the action.

EVIDENCE-PEDIGREE. As to the first objection, he said that the authorities cited did not bear out the proposition. Resignation might be to the bishop in person, and presumption of death. In an administration action in the Chancery

This was an application for a grant of letters of administration on that this was the only mode by which a resignation could be effected. certain settled property, and it became necessary to prove the death of the making it essential that a resignation, to be valid, ' should be either have had a daughter, who had married a Mr. Taylor. The deaths of a directed to the ordinary, He could not see why it would not be legal it also been a sor born of the marriage who had died before the birth of the made to a wrong person. The bishop was entitled to prescribe what being no evidence as to either his Christian name or the date of his birter Formalities he might require for the purpose of preventing any dispute, at he was proved, by production of her baptismal certificate, that the daughter a future time, whether an incumbent had actually resigned or not, and his as to the procedure he should insist upon in such cases, or which pre of them that she had had a son who had died before her daughter's birta

vants of the family, it appeared that Mrs. Thompson had stated to each yented him from dispensing, in any particular instance, with the but, to the best of the recollection of both deponents, she had never

mentioned the Christian name of such son, and they both stated that when was to be “in respect of business connected with a lease. What, then, they were respectively servants of the family the said daughter was the only was the meaning of “undertaking" the business? In his lordship's living child of Mr. and Mrs. Thompson.

opinion the business was "undertaken ” by the solicitor as soon as the HANNEN, P., said that the mother's statement was plainly admissible as client retained him and he accepted the retainer. He thought that, in a declaration by a deceased person as to a question of pedigree. He saw the present case, the solicitors had, before the 19th of October, “ underno reason to doubt its genuineness, and, therefore, the grant might be taken " the business to which the scale fee applied, and that the proper made. The grant must state the surname of the deceased, and that his conclusion was that, when P. put into their hands the letter of the 24th Christian name was unknown. There would be a limitation as to date, of July from the claimants' solicitors, he instructed them to attend to the and it would be recited in the grant that the death occurred after the date matter, and to undertake the preparation of the lease, if they should be of the marriage, and before the date of the daughter's birth.-COUNSBL, satisfied that the applicants were entitled to it. They then undertook Bayford, Q.C. SOLICITORS, Lindo & Co.

the business for which the scale fee provided the remuneration, in case the lease should be granted. If the lease had not been completed their remuneration would have been under schedule II. The proper conclu

sion was that they accepted the letter handed to them by their client as CASES AFFECTING SOLICITORS.

instructions to attend to the matter referred to in it, and their own Re ALLEN -0. A. No. 2, 12th January.

letter to the claimants' solicitors shewed that they understood it as

instructions to carry out the lease, if the persons who had applied for SOLICITOR-Costs-PREPARATION OF LEASE-ELECTION TO BE PAID UNDER it should prove to be entitled to it. Consequently the election on the

OLD SYSTEM -.“ BEFORE UNDERTAKING ANY BUSINESS" SOLICITORS' 19th of October was made too late. His lordship would give no REMUNERATION ORDER OF Avgust, 1882, RR. 2, 6.

opinion now whether the business of getting P. put on the rolls This was an appeal from the decision of Kay, J. (35:. R. 100, ante : LINDLEY, L.J., said that the expression “ before undertaking any business,"

and obtaining the licence of the lord was covered by the scale fee. 78), the question being at what time a solicitor was entitled to exercise the right of election given to him by rule 6 of the Remuneration Order of August, in rule 6, was obscure, and to understand it the earlier part of the order 1882, to be remunerated according to the old system as altered by schedule must be looked at. Subject to the question of election, it was obvious II. to the order, instead of by the scale fee. Rule 2 of the order proschedule I., and it was for the solicitors to shew that they had done what

that the business would have to be paid for according to part II. of vides that the remuneration of a solicitor“ in respect of business connected with leases is to be regulated as follows, namely :

was necessary to exclude that. Rule 6 provided that, in order to exclude, () In respect of leases, and agreements for leases, of the kinds men

the solicitor must elect, in writing, “ before undertaking the business." tioned in part II. of schedule I. to this order, when the trans- Looking at the facts of this case, and the correspondence, his lordship actions shall have been completed, the remuneration of the solicitor could not see any ground for saying that the business was undertaken in having the conduct of the business is to be that prescribeù in part II. of October ; he thought it was undertaken in July. The only other pos. such schedule I.” And by rule 6, “In all cases to which the scales pre- sible view was that that part of the business which was done before the scribed in schedule I. hereto shall apply, a solicitor may, before under.

notice of the 19th of October had nothing to do with the granting of the taking any business, by writing under his hand communicated to the lease ; but it was very difficult to say that it was not business "connected client, elect that his remuneration shall be according to the present system

with” the lease. If the court were to accede to the view of the appelas altered by schedule II. hereto; but if no such election shall be made, lants, a solicitor might always sub-divide any business, and elect, as to a his remuneration shall be according to the scale prescribed by this order." part of it, not to be paid according to the scale. This would be totally In the present case a summons was taken out by lessees to review a taxa- | inconsistent with the rules. Lopes, L.J., concurred.--Counsel, Millar, tion of the costs of the lessor's solicitors, which the lessees were liable to Q.C., and 4, J. Allen ; Haldane. SOLICITORS, Allen f Son; Parker, pay. The question arose thus:-On the 29th of January, 1823, a lease Garrett, $ Parker. was granted which contained a covenant by the lessor that he or his representatives would grant to the lessee or his representatives, at his or

Re SYKES (DECEASED)-Chitty, J., 11th January. their costs, new leases of the demised premises until ninetynine years in SOLICITOR-Costs--SCALE Fees For CONDUCTING SALE by Auction.Com the whole had been granted, every such renewed lease and the counterpart thereof to be prepared by the lessor's solicitor for the time being,

MISSION PAID TO AUCTIONEER--SOLICITORS' REMUNERATION ACT, 1881 (44 and the costs thereof paid by the lessee or his representatives. The

& 45 Vict. c. 44)-GENERAL ORDER, SCHED. I., PART I., R. 11. property was copyhold, and a lease of it could not be granted without the This was a summons to review taxation. It appeared that an orler licence of the lord of the manor. In July, 1885, a renewed lease which had been obtained in an administration action for the sale of the testator's had been granted under the covenant was about to expire, and on the 24th real estate. The property was situate in Yorkshire, and the plaintiff, who of July the solicitors of the persons who claimed to be entitled to a fur- had the conduct of the sale, obtained in chambers an allowance by the ther renewal wrote to P., who was the representative of the original lessor, chief clerk of £23 12s. 6d. for the auctioneer's fees and £52 10s. for claiming on behalf of their clients a renewal of the lease in accordance surveyor's fees, the latter sum being directed to expressly ir.clude valuawith the covenant, and asking to be put in communication with P.'s tion fees. These two sums were included in the bill sent in by the solicitors, and that he would instruct them to prepare a lease accordingly. plaintiff's solicitor for taxation together with items amounting to £31 10s., They offered at the same time to produce to P.'s solicitors certain docu- being scale charges for conducting the sale of property by public auction ments shewing the title of the claimants to the benefit of the covenant for as fixed by schedule I., part I., of the General Order made in pursuance of renewal. P. took this letter to his solicitors, and on July 25 they wrote the Solicitors' Remuneration Act, 1881. These scale fees were disallowed to the claimants' solicitors :—“Our client has seen us with your letter of by the taxing master on the ground that rule 11 of schedule I, part I., yesterday addressed to him, and the matter therein referred to shall have provided that “the scale for conducting a sale by auction sball apply only our attention.” P.'s solicitors were afterwards satisfied that the claimants in cases where no commission is paid by the client to an auctioneer,” and were entitled to the renewal, but some delay took place in getting P. that the case fell within Re Wilson (29 SOLICITORS' JOURNAL, 438, 29 admitted on the rolls of the manor, and in obtaining the licence of the Ch. D. 790). The plaintiff took out a summons to review taxation. He lord for the lease. This having been done, P.'s solicitors, before com stated that, in accordance with the prevailing practice in the North of Eng: mencing the preparation of the draft of the lease, on the 19th of October, land, the auctioneer had merely offered the lots in the auction-room and had 1885, gave notice in writing to P., that on the grant of the lease it was been paid for that only, and the surveyor for valuing, measuring, surveying, their intention to charge their costs thereof and incidental thereto in and lotting the property, but that all the work in connection with making accordance with schedule II. The lease was afterwards prepared. On arrangements for the sale, preparing, printing, and distributing the parti. the taxation of the costs, at the instance of the lessees, it was objected culars and conditions of sale and lithographing the sale plan, advertising that P.'s solicitors bad not made their election in time " before under- in newspapers and by bill-posting, and getting a full attendance at the taking the business," and that they were only entitled to remuneration auction-rooms was done by the solicitor, and all the bills for printing, according to the scale fee under part II. of schedule I. The taxing master advertising, &c., &c., were sent in to the solicitor and paid by him. On held that the election had been made in sufficient time, and that the the appointment to tax, and also on seeing the taxing master on the Solicitors were entitled to be remunerated according to the old system as objections carried in to the taxation, the plaintiff's solicitor asked the altered by schedule II. Kay, J., reversed this decision, holding that the taxing master to strike out the auctioneer's charges and permit the solici. business was “undertaken” on the 25th of July, when P.'s solicitors tor himself to pay them, but this the taxing master declined to do, wrote to the solicitors of the claimants, that being a part of the business stating that when a sale took place through the court the solicitor was for which they could charge P., and being business connected with” the not allowed to pay the auctioneer. It was contended by the plaintiff that lease, and that after that it was too late for P.'s solicitors to elect under it was the solicitor and not the auctioneer who had done the work, and rule 6.

that In re Wilson was merely a decision that when the auctioneer had This decision was affirmed by the Court of Appeal (Cotton, LINDLEY, and done the work and been paid for it the solicitor could not charge scale

It that, after a solicitor had done any part of the business which would be should be stated that the taxing master had added an additional 10 covered by the scale fee, he was at liberty to say that that fee would not guineas to the bill of costs as extra remuneration to the solicitor in schedule II. That would be giving the solicitor the option of accepting intended to include, pay him for the work, and that he would elect to be remunerated under respect of labour incidental to the sale which the scale fee was not the scale fee when it would pay him and rejecting it when it would not. CHITTY, J., said that the case fell within the principle of In re Wilson. Rule 6 applied, and the question was whether the notice of election of the The auctioneer and surveyor had not been paid by the solicitor but by

The 19th of October was given early enough. That depended upon what was the client, and the case therefore was exactly within rule 11. meant by the words * undertaking" and "business" in the rule. In his taxing master was right in not permitting the solicitor to pay the lordship's opinion the word " business” meant all that business the pay. auctioneer, for, had the solicitor had the power to make such payment, meant for which would be covered by the scale fee, for, though part it. Of the application in chambers to the chief clerk for his sanction to the pay. completing lease and counterpart," yet rule 2 said that the remuneratich ! had done the business which, in London, usually falls within the duties

of the auctioneer, but that the custom in the North of England was different to that in the South. That might be so, but, inasmuch as rule

LAW SOCIETIES. 11 of the General Order did not constitute any distinction between the

INCORPORATED LAW SOCIETY. custom obtaining in different parts of the kingdom, he had no option except to dismiss the summons.-SOLICITORS, H. B. Clarke of Sons, for

The following notices of motion have been given for the special general W. 7. Clough, Checkheaton, Yorks; Flower & Nussey, for Carr & Cadman, meeting to be held on Friday, the 28th inst., at 2 o'clock :Gomersall, Yorks.

Mr. H. E. Gribblewill call attention to the resolution of the society passed Ex parte THE MAYOR, &c., OF LONDON, Re THE METROPOLITAN at the annual provincial meeting held at York on the 12th and 13th of AND DISTRICT RAILWAYS ACT, 1879–Kay, J., 13th January.

October, 1886, and subsequently approved by the council, and will move : SOLICITOR—“ INVESTIGATING TITLE"-SOLICITORS' REMUNERATION Act,

“That a committee be appointed to consider and report to the council

on the measures necessary to be taken with the object of assimilating 1881–GENERAL ORDER, August, 1882, R. 2, SCHED. I., PART I.

the practice in England generally to that which prevails in the North of This case raised the question as to a solicitor's right to be paid the scale England with respect to the employment and remuneration of auctioneers, charge, under the General Order, “for investigating title." &c., on a

That the committee (of whom ten shall be a quorum) shall consist of purchase of property, where the nature of the title and the circumstances members of the society, to be named at the meeting, with power to add of the purchase were such as rendered the labour of investigation slight, to their number. That 'it be an instruction to such committee to especially whilst owing to the large amount of the purchase-money (over £20,000), invite the co-operation of members familiar with the practice in the the sum payable under the scale was considerable. The question arose

North of England.” out of a re-investment in land by the Corporation of London of moneys

Mr. F. K. Munton will ask : “What steps have been taken by the which had been paid into court by the above-mentioned railways in council in relation to the resolution passed at the last annual meeting as respect of property required for the purposes of their undertaking under

to the questions with the Middlesex registry?" and will move: “That the the special Act, and of which re-investment the railways were liable to pay the costs. The moneys had been re-invested in the purchase of the special committees' county court report be remitted back to such com

mittee for reconsideration, with the aid of the council's observations old Bankruptcy Court, Basinghall-street, which, under section 68 of the thereon, and especially in conjunction with the official rules and regulaBankruptcy Act, 1861, was vested in the Commissioners of her Majesty's tions promulgated since the report was drawn up-the committee to have priated to such purposes as the Lord Chancellor shall direct." on the power (with the concurrence of the council) to add to their number.”

Mr. Samuel Day will move: “ That the following be added to the purchase an intimation had been given by the Solicitor to the Treasury existing rules of the Law Society Club: "The committee, notwithstanding that the Government did not intend to furnish any evidence of title to anything to the contrary in these rules, shall have power, subject to the and by the direction, of the Lord Chancellor, under the above section: specially called for the purpose, to elect, as honorary memter, any person The purchaser's solicitor had previously prepared a

not being a member of the Incorporated Law Society.' procuring the sanction of the court to the purchase, by which the usual inquiry into title was asked. On receiving the above intimation ings of this society, a printed copy of all the papers be handed to every

Mr. J. J. Coulton will move: "(1) That, at the annual provincial meethe referred to section 68 of the Bankruptcy Act, and subsequently member on application at the place of meeting or during the meeting. wrote to the Solicitor to the Treasury on the subject of whether the Lord (2) That the papers be taken as read and the whole time of the meeting de Chancellor had authorized the sale. The reply was that the authority voted to their discussion. (3) That the papers be grouped into sections, and had been given in a letter signed by the secretary, but that an authority the time apportioned to each section in proportion to quantity and im; signed by the Lord Chancellor himself should be procured, and it was portance." (4) That no speaker be allowed more than ten minutes. (5) procured accordingly, and a copy sent to the purchaser's solicitor. Upon That the author of a paper should have the right of reply. (6) That no this he amended the summons by omitting the inquiry as to title, as he thanks be given to any member or official of the society... thought he should be able to satisfy the chief clerk that the inquiry would

Mr. Charles Ford will ask : " be unnecessary. In the result the chief clerk, after adjourning the matter

* (1) Is the president of the society, and for the purpose of the original of the authority from the Lord Chancellor (as constituted after the commencement of my Chancery action in regard

are the members of the council, unanimously of opinion that the Law Club being produced before him, sanctioned the purchase without referring to the old club) is beneficial to the general body of members of the society; the title to the conveyancing counsel, and the purchase was accordingly what is the estimated value of the premises occupied by the club; and completed. On the taxation of the purchasers' costs their solicitor what is the present number of members of the club who are members of amount of the purchase-money, under schedule 1., part I., of the General dent of the society, at general meetings held in July, 1885, and January, claimed the scale fee for investigating the title, &c., calculated on the the society? (2) Referring to the statements made by Mr. Roscoe, when presi: Order, which thus amounted to £278 158. 7d. This the taxing master 1886, as to the students' Fee Fund created by section 8 of the Solicitors and the purchasers now applied by summons to review his taxation. In Act, 1877, what is the sum now available for legal education in connection support of the application it was contended that there had been an

with that 'section ?" And will move: “(1) This meeting, whilst recognizinvestigation of the title, for the chief clerk would not have sanctioned ing the good intentions of the council in small grants recently made to the purchase except upon being satisfied that the title was a good one, and Liverpool and Newcastle-on-Tyne for educational purposes, is of opinion that Re The Merchant Taylors' Co. (33 W. R. 693, 30 Ch. D. 28) established made without the conditions hitherto imposed by the council. (2) That that a solicitor was equally entitled to the scale fee whether the title was inquired into by the court or not. On behalf of the railway companies, appointments, from which solicitors are at present excluded, should be it was contended that there had been no investigation into the title, as the vendors had stipulated that they were not to shew any ; the reference

thrown open to them." to the general Act of Parliament under which their title arose amounted to no more than a proviso by a vendor that a purchaser should assume that he was seised'in fee; and that Re Lacey & Sons (32 W. R. 233, 25 Ch. D. 301) shewed that, where the work included in the schedule was not in fact performed, the scale fee was not payable.

LAW STUDENTS' JOURNAL. KAY, J., decided in favour of the claim. His lordship said that he was

THE INCORPORATED LAW SOCIETY. sorry not to be able to agree with the taxing master, but there had clearly been an investigation of the title by the purchaser's solicitor. The reason

FINAL EXAMINATION. the Solicitor to the Treasury refused to furnish evidence of title obviously

Under the Solicitors Act, 1877. was merely because the Act of Parliament, on which the vendor's title rested, was perfectly accessible to the purchasers. But there was, never

Subjects of examination in the year 1888:theless, a title to investigate, and the purchaser's solicitor would have

1. The Principles of the Law of Real and Personal Property, and the been wanting in his duty to his clients if he had not investigated it.

Practice of Conveyancing. And that he, in fact, did so, was shewn by the fact that, not being satis.

2. The Principles of Law and Procedure in matters usually determined fied with the sufficiency of the authority to sell, he required, and obtained, 3. The Principles of Law and Procedure in matters usually determined of

or administered in the Chancery Division of the High Court of Justice. the furtber authority from the Lord Chancellor. The question as to the commissioners' power of sale was one that required careful considera

administered in the Queen's Bench Division of the High Court of And had the solicitor allowed the matter to be referred to the con.

Justice, and the Law and Practice of Bankruptcy. veyancing counsel to the court, in that case there would clearly have been 4. The Principles of Law and Procedure in matters usually determined or an investigation of title within the General Order.

His lordship added

administered in the Probate, Divorce, and Admiralty Division of the that it was no part of his duty to consider whether the result of the Act

High Court of Justice; Ecclesiastical and Criminal Law and Practice; of Parliament and of the General Order was to produce hardship or not.

and Proceedings before Justices of the Peace. It was true that this was by no means the first case in his court where

Candidates are required to give potice in writing forty-two days at least the scale had resulted in grons overpayment, but presumably the Legista- before the date of the examination to the Secretary of the Incorporated ture intended the possibility of this being so. In this case an investiga

Law Society, Chancery-lane, London. reluctance, to differ from the taxing master, and to allow the summons,

Candidates are also required, at the same time, to leave with the secre: with costs: --Counset, Sir 4. Watson, Q.C., Tweedy ; Farwell. Solicitors, met he canditheaniswers to the questions as to due service and conducthe bouge H. H. Crawford; Baxters & Co. The retirement of the Irish Lord Chief Justice is announced. It is porated Law Society.

these questions can be obtained on application at the office of the Incorstated that the Irish Attorney-General, Mr. Holmes, will succeed to the Where articles of clerkship expire between 10th January and 15th post.

April candidates may be exalained in January, 1888 ; between 14th

[graphic]

tion.

April and 22nd May in April, 1888 ; between 21st May and 2nd November Mr. Thomas Kennedy RAMSAY, a Puisne Judge of the Court of in June, 1888 ; between 1st November, 1888, and 11th January, 1889, Queen's Bench at Quebec, died at St. Hogues, Canada, on the 22nd ult. in November, 1888; or at any subsequent examination.

Mr. Justice Ramsay was the youngest son of Mr. David Ramsay, of Grim. The examinations in 1888 will be held at the hall of the society, met, Ayrshire, and was born in 1826. He was educated at the Ayr Chancery-lane, London (the dates of the examinations will be published Academy, and at the University of St. Andrews, and he was called to in July next].

the bar in Lower Canada. He was secretary to the Commissioners for the Candidates who fail to pass, or attend at the examination for which they Codification of the Laws of Lower Canada. He was assistant judge of have given notice, may attend at any subsequent examination. A renewed the Superior Court of Canada from 1870 to 1873, when he was appointed notice must, in that case, be given fourteen days, at least, before the date a Puisne Judge of the Court of Queen's Bench at Quebec. of such subsequent examination. The fee payable on giving notice of examination is £5, for a renewed

Mr. Thomas Platt, barrister, died at Brockley Lodge, Finchley, on the notice £2 10s., and for the honours examination £1. Cheques or post.

14th ult, in his eighty-seventh year. Mr. Platt was the fourth son of Mr. office orders should be crossed “Messrs. Gosliugs & Sharpe."

Samuel Platt, and was born in 1800. He was educated at St. Paul's
School. He was called to the bar at Lincoln's-inn in Trinity Torm, 1826,

and he had for many years a considerable practice as a conveyancer. He LAW STUDENTS' DEBATING SOCIETY.

was the author of a work on the Law of Covenants, and of a well

known work on the Law of Leases. Mr. Platt was married first, in 1839, The society held its usual quarterly meeting at the Law Institution, to the eldest daughter of Mr. John Hugh Smyth Pigott, of Brockley Hall, Chancery-Jane, on Tuesday, January 11th; Mr. E. P. Bilbrough in the Somersetshire. He became a widower in 1853, and he was married chair; when, owing to the prolonged discussion of special business, the secondly, in 1859, to the eldest daughter of Mr. Charles Phillips, Comsubject on the agenda paper was not reached.

missioner of the Insolvent Debtors Court.

PRESTON LAW DEBATING SOCIETY.

APPOINTMENTS. The first general meeting of this society for session 1886–87 was held

Mr. EDWARD MACNAGHTEN, Q.C., M.P., who has been appointed a on the 7th inst. The chair was occupied by Mr. W. E. M. Tomlinson, Lord of Appeal in Ordinary on the resignation of Lord Blackburn, is the M.P., barrister-at-law. Six legal queries were discussed and satisfactorily second son of the late Sir Edmund Workman Macnaghten, Bart., and rettled. The following case was then argued : :-“Should the case of was born in 1830. He was formerly Fellow of Trinity College, Cambridge, Blackburn, Low,.& Co. v. Vigors be reversed on appeal to the House of where he graduated in the first class of the Classical Tripos, and as Lords ?". In this case, which was one on marine insurance, a principal Chancellor's Medallist, and a Senior Optime in 1852. He was called to appointed an agent to effect a policy of insurance on his ship. Before the the bar at Lincoln's-inn in Hilary Term, 1857. He was Secretary to the agent could effect it he discovered that the ship was lost. He told his Chancery Funds Commission. He became a Queen's Counsel in 1880, principal that he could not effect an insurance, but concealed the fact and he has since practised in the Rolls Court and before Mr. Justice Chitty. that the ship was lost. The principal then appointed another agent to

He was M.P. for the county of Antrim in the Conservative interest from try to effect an insurance, and this agent succeeded. Was the policy 1880 till 1885, when he was returned for North Antrim. He is a bencher effected by the second agent good ? Mr. A. Bush opened the case on of Lincoln's-inn. He is married to the daughter of the late Mr. Baron behalf of the affirmative, and he was supported by Messrs. A. W. Lady- Martin. man and R. A. McNab. Mr. Rawsthorne upheld the negative contention, and he was followed by Messrs. T. H. Clarke and H. Whiteside, After The Right Hon. Sir Henry THURSTAN HOLLAND, Bart., G.C.M.G., Mr. Rawsthorne bad summed up and Mr. Bush replied, the chairman very M.P., who succeeds Mr. Stanhope as Secretary of State for the Colonies, impartially summed up and put the question to the jury, when it was

is the eldest son of Sir Henry Holland, Bart., M.D., and was born in unanimously decided for the negative-i.e., that the policy entered into

1825. He was educated at Harrow and at Trinity College, Cambridge. by the second agent was void, and, therefore, that the case ought not to Be was called to the bar at the Inner Temple in Michaelmas Term, 1849, be reversed on appeal to the House of Lords. A vote of thanks to the and he formerly practised on the Northern Circuit. He was Secretary to chairman brought the proceedings to a termination.

the Common Law Commission, and he was Assistant Under-Secretary of State for the Colonies from 1870 till 1874. He was M.P. for Midhurst in the Conservative interest from 1874 till 1885, when he was elected M.P. for Hampstead. In June, 1885, he was appointed Financial Secretary to

the Treasury, and two months afterwards he was appointed Vice-Presi. LEGAL NEWS.

dent of the Committee of the Council on Education, and was sworn in as

a member of the Privy Council. He went out of office in February, OBITUARY.

1886, but he was re-appointed in the July following. Sir H. Holland was age of seventy-five. The deceased was the eldest son of Mr. William for Surrey, and a deputy-lieutenant for Middlesex. Serjeant William Ballantine died at Margate on the 9th inst., at the created a Knight Grand Cross of the Order of St. Michael and st.

He is a bencher of the Inner Temple, a magistrate Ballantine, magistrate at the Thames Police-court, and was born in 1812. He was educated at St. Paul's School. He entered at the Inner Temple The Right Hon. EDWARD STANHOPE, barrister, M.P., Secretary of State at an early age, and, after having been a pupil in the chambers of the late for the Colonies, has been appointed Secretary of State for War. Mr. Baron Watson, was called to the bar in Trinity Term, 1834. He selected Stanhope is the second son of the fifth Earl Stanhope, and was born in the Home Circuit, and for over twenty years he practised at the Central Criminal Court and at the Middlesex Sessions.

1840. He was educated at Harrow, and at Christ Church, Oxford, where

He was for several years he graduated B.A. in 1862, and he was subsequently elected a Fellow of a revising barrister, and he soon acquired a large criminal practice, besides of All Souls' College. He was called to the bar at the Inner Temple in being extensively employed in licensing business. In 1856 he was created a serjeant-at-law (at the same time with the late Serjeant Parry), and he

Easter Terma, 1865, and he formerly practised on the Home Circuit.

acted as an assistant commissioner on the Employment of Women and gradually acquired a leading civil business both on circuit and in London, Children in Agriculture, and he was M.P. for Mid Lincolnshire from 1874 while still holding special briefs in criminal cases. In 1863 he received a till 1885, when he was returned for the Horncastle Division of that county. patent of precedencē, and for the next fifteen years he occupied a leading Mr. Stanhope was Secretary to the Board of Trade from 1875 till 1878, position at the Common Law bar. He was a powerful cross-examiner, and Under-Secretary of State for India from 1878 till 1880, Vice-President of his tact and powers of sarcasm rendered him very successful with juries. He the Committee of Council on Education from June till August, 1885, and often appeared as leading counsel for the large railway companies, and he President of the Board of Trade from August, 1885, till February, 1886. was frequently successful in defeating fraudulent claims to compensation. He was appointed Secretary of State for the Colonies in July, 1886. He was also largely employed in election petitions. It would be impossible here to enumerate all the important cases in which Mr. Serjeant

Mr. ALFRED Milner, barrister, who has been appointed Private Ballantine was engaged, but we may mention among criminal Cases Secretary to the Chancellor of the Exchequer, is the only son of Dr. Reg. v. Manning, Reg. v. Muller, Reg. v. Baker, the Rachel case, the Overend

Charles Milner, and was bort in 1854. He was formerly scholar of Balliol and Gurney, case, the Boulton and Park case, and among civil cases the College, Oxford, where he graduated first class in Classics in 1876. He Chetwynd divorce case, the Mordaunt divorce case, aná the Risk Allah Bey obtained the Hertford Scholarship in 1874, the Craven Scholarship in 1877,

chie was also leading counsel for the plaintiff in the Tichborne eject and the Derby Scholarship and the Eldon Law Scholarship in 1878, and went suit. In 1875 he went to India, being specially retained for the he was subsequently elected a fellow of New College. Mr. Milner was defence of the Guitwar of Baroda, when he was understood to have called to the bar at the Inner Temple in January, 1881, and he is a received the unprecedented fee of 10,000 guineas. His health gave way member of the Midland Circuit. about six years ago, and since thnt time he had gradually ceased to Mr. EDWARD BRADFORD MedLYCOTT, barrister, has succeeded to a practice. About five years ago he published two volumes of "Experi- Baronetey on the death of his elder brother, Sir William Coles Medlyen ces of a Barrister's Life,” which contained some amusing experiences cott. Sir E. Medlycott is the second son of the late Sir William Coles of professional and social life. He afterwards went to the United States Medlycott, and was born in 1832.

He was educated at Merton College, on a lecturing tour, which was not believed to have been successful, and Oxford. He was called to the bar at Lincoln's-inn in Michaelmas Term, on his return he published another work, entitled World to the New."

From the Old 1855, and he practises on the Western Circuit. Mr. Serjeant Ballantine was a bencher of the Inner Temple. He had filled the office of treasurer of Serjeant's-inn, in

Mr. WILLIAM BOWEN ROWLANDS, Q.O., M.P., has been appointed a society: "He was married in 1845 to the daughter of Mr. George Gyles, Hobich, capacity he carried out the sale and division of the property of that Magistrate for Cardiganshire.

Mr. James FOTHERGILL Evans, solicitor, of Chepstow, has been apHilary Term, 1871, and is a member of the South-Eastern Circuit. Henry Walter Ballantine, was called to the bar at the Inner Temple in Shire and for the Lydney Division of Gloucestershire. Mr. Evans was

admitted a solicitor in 1874.

He

case.

« PreviousContinue »