Lodge v. Prichard.

siduary legatees of a testator against the executors, praying the usual accounts, and that a purchase by the executors of certain shares in a ship, which belonged to the testator's estate, might be set aside. The case made by the defendants was, that the residuary legatees had themselves endeavored to sell the testator's shares in the said ship, but not succeeding, had requested the executors to become the purchasers, which they declined, upon the ground that trustees could not lawfully purchase the trust property from their cestuis que trust: that in order to remove this objection, and to induce the executors to purchase the shares, the residuary legatees instructed their solicitor to wait on the defendants: that he did so, and produced a document signed by the residuary legatees, whereby they expressed their willingness to sell the shares to any person at the sum then proposed;

It is clear that the act of parliament nowhere, in express terms, gives this jurisdiction to the commissioner, or to any other court; but by the 12th section it enacts, "that the court, in the exercise of its primary jurisdiction by virtue of this act, shall have superintendence and control in all matters of bankruptcy, and shall hear, determine, and make order in any matter of bankruptcy whatever, so far as the assignees are concerned, relating" &c. Then follow matters purely touching the administration of the bankrupt's estate; and then the section goes on- "and also in any application for a certificate of conformity, and in any other matter (whether in bankruptcy or not) where the court, by virtue of this act, has jurisdiction over the subject of the petition or application, save and except as may be by this act otherwise specially provided." Now, supposing that the 104th section had been omitted from the act, would the commissioner, under these general words of the 12th section, have had jurisdiction to entertain a proceeding, under the 233rd section, to annul the adjudication? In Ex parte Thorold, 3 M. D. & De G. 285; 1 Ph. 239; 7 Jur. 1003, Lord Lyndhurst decided, that a petition to the Court of Review by a bankrupt to annul the fiat, after the advertisement, was a "proceeding," within the meaning of the 24th section of the 5 & 6 Vict. c. 122, which was in the same words as the 233rd section of the present act; but at that time the fiat was the act of the Great Seal, and the commissioner had no jurisdiction over it. Now the adjudication is the act of the commissioner, and the superior court has no jurisdiction over it but an appellate one. The reporter ventures to submit, that the words of the 12th section are extensive enough to include that jurisdiction, and that the only objection to the possession of such jurisdiction is the occurrence of the word "primary" in the first line of the section; and that it would not be doing much violence to the term "primary" by holding that the commissioner has jurisdiction to entertain a petition of a bankrupt to annul the adjudication after advertisement, where the bankrupt had not attempted to show cause, under the 104th section, against the adjudication, for then the petition would be the primary step by the bankrupt to annul. If, then, this jurisdiction would have been possessed by the commissioner had the 104th section been omitted from the act, the reporter submits that the argument, expressio unius est exclusio alterius, cannot be deducted from it, as that section was dealing with a peculiar matter. Enough has been said, however, to show, that unless this construction can be put upon the 12th section, there exists in the bankrupt a right to commence a proceeding, under the 233rd section, to annul the adjudication, at a time when there is no jurisdiction in bankruptcy to entertain that proceeding; and he must therefore resort to the other means mentioned in the 233d section for disputing the adjudication namely, by action at law or suit in equity. The law, therefore, calls for further speedy amendment.

The reporter begs to observe, that in the argument of the above case the attention of the Lord Chancellor was not drawn to the circumstance so much commented on in this note-namely, that the utmost extent of jurisdiction given by the act to the Vice-Chancellor was to entertain an appeal from the order of the commissioner, if entered within twenty-one days after the date of the order; whereas the bankrupt has, by the 233rd section, an implied right to commence a "proceeding" at any time within twenty-one days after the advertisement to annul the adjudication.

Lodge v. Prichard.

and that the solicitor at length succeeding in removing the objections of the executors, and satisfied them that the sale could not be impeached, being authorized by the only persons interested in the shares; and that by these means the executors were induced to become the purchasers. To support this defence, the solicitor who had negotiated the sale was examined, and gave evidence as follows:"On or about the 16th April, 1838, at the instance and request, and as the professional adviser of the plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, I called upon and had an interview with the defendants Richard Williams Prichard and William Rushton Coulbourn respecting the sale to them of the shares then late of the said testator, Adam Lodge, in the ship Ganges; such request was conveyed to me by a letter from the plaintiff, Adam Lodge, as follows:

-

"Woodford Park, Saturday evening.

"My dear Sir,- Mr. Hindle is strongly of opinion that your professional and friendly intervention might be serviceable in a course of proceeding at Liverpool, rendered expedient by entire want of confidence in the executors of my late father, and the person acting as their solicitor, who is by a variety of circumstances disqualified from furthering the interest of my brother and myself. Could you accompany us to Liverpool, 'special,' on Monday? Mr. Hindle intended to proceed there, but is prevented by an access of gout. "Yours very truly,

"A. LODGE.'

"Bland Walker, Esq. I was authorized to act on behalf of the plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, as their professional adviser. I had for ten years and upwards before that time been well acquainted with the plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, and also with their sister, Mrs. Hindle, but I had not before that time been acquainted with the defendants Richard Williams Prichard and William Rushton Coulbourn, or either of them. I did at such interview with the said Richard Williams Prichard and William Rushton Coulbourn as aforesaid, and on behalf of the said Adam Lodge and John Lodge Ellerton, endea vor to induce the said Richard Williams Prichard and William Rushton Coulbourn to become the purchasers of the shares late of the said testator, Adam Lodge, in the ship Ganges. It was sug gested at such interview, but by whom I do not now recollect, and it was determined in consequence thereof, that the said plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, should take steps to satisfy themselves as to the value of the said shares. I acquiesced in the propriety of such suggestion; and I know that the plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, consulted Mr. Daniel Buchanan, of Liverpool, broker, and Mr. Henderson, of Liverpool, merchant, as to the value of the said ship. I afterwards, on behalf of the said plaintiff, Adam Lodge, and the defendant John Lodge Ellerton, endeavored to negotiate a sale of the said testator's shares in the said ship to the said Richard Williams Prichard and William

Lodge v. Prichard.

Rushton Coulbourn, but the said Richard Williams Prichard and William Rushton Coulbourn expressed a reluctance to enter into a negotiation, on the ground that it would in effect be a purchase by trustees from their cestuis que trust, which a court of equity would not sanction. I endeavored to remove such objection, and to satisfy them that such sale, if effected, could not be impeached, inasmuch as the said Adam Lodge and John Lodge Ellerton were the only persons interested in the shares of the said ship, and they were both of full age, and one of them a barrister at law; and I was also there as their professional adviser. The defendants Richard Williams Prichard and William Rushton Coulbourn still persevering in their objection, in order to remove the same the following paper writing was prepared :

Exhibit C.

"We, John Lodge and Adam Lodge, being the residuary legatees of the personal estate of our late father, Adam Lodge, Esq., do hereby consent to an absolute transfer of his interest in the ship Ganges, to any person or persons, for the sum of 12007. in cash; such interest to vest in the purchaser as and from the termination of her last voyage. The purchase-money to be paid into the bank of Messrs. Moss & Co. in your names, as executors of Mr. Lodge. As witness our hands this 19th day of April, 1838.

"To Messrs. Prichard and Coulbourn.'

"JOHN LODGE. "ADAM Lodge.

It is in my own handwriting, and the names 'John Lodge' and 'Adam Lodge,' thereto subscribed, are in the respective handwritings of the said John Lodge and Adam Lodge. The said paper writing was, to the best of my recollection and belief, originally drawn up by the plaintiff, Adam Lodge, and it was copied or put into it present form by myself, and it is the same paper writing or document which I delivered to Richard Williams Prichard and William Rushton Coulbourn. John Lodge, who subscribed his name to the same paper writing or document, is the same person as John Lodge Ellerton in the pleadings of this cause named. I said, on delivering the said paper writing to the said William Rushton Coulbourn, Now I think you are safe, and the transaction being in my opinion unimpeachable, you may either keep or sell the shares to whom you like;' and the said Richard Williams Prichard and William Rushton Coulbourn thereupon agreed to take the said shares at 12007., the sum mentioned in the paper writing."

Baily, Dickinson, and Selwyn, for the plaintiff, objected to this evidence, and sought to suppress it on the grounds that the witness was, at the time of the transactions to which his depositions referred, the solicitor of the residuary legatees, and therefore that it was a breach of professional confidence to produce the letter containing his authority to act; that the interview to which he deposed was in consequence of that letter; that he ought not to have verified the signature of the plaintiff to the document authorizing the sale.

Wright v. Barlow.

Bacon and Tillotson, on behalf of the executors, argued, that the letter from the residuary legatees, giving authority to the solicitor to act, was not material; and that a solicitor of one party in a suit was bound to give evidence of statements made by himself to adverse parties by the directions of his client.

In the course of the argument the cases of Gainsford v. Grammar, 2 Camp. 9; Ripon v. Davies, 2 Nev. & M. 310; Griffith v. Davies, 5 B. & Ad. 502; and Turner v. Railton, 2 Esp. 474; and 1 Ph. Ev. 776, ed. 1843, were referred to.

KNIGHT BRUCE, V. C., said that he was of opinion that in this particular case the evidence of the solicitor, as to the document marked C, was so associated, blended, and united with the professional confidence existing between him and his employer-it was so infected, if he might use the expression, with professional confidence, that he could not select any part of it, and depose as to that. The whole was affected by the original confidence. If his honor was the only judge who in any event would have to decide upon the facts of the case, the admission or rejection of the evidence would be of very little importance. He agreed that parts might be selected which might be free from the objection, if they could be separated, but he thought they were not with propriety separable. The whole evidence must, therefore, be rejected.

WRIGHT V. BARLOW & others.1

November 13, 1851.

Practice- Dismissal of Bill against useless Defendant- Costs.

A bill was filed against several defendants for the recovery of certain small tithes; one of these defendants being a quaker, his solicitor applied to the plaintiff's solicitor to dismiss the bill against him, and to proceed to recover the tithe from him under the 3 & 4 Will. 4, c. 74. The plaintiff consented, on condition that the defendant would admit the plaintiff's title to the tithe, so as to bring the case within the statute. The defendant prepared an answer not admitting the title. Subsequently by arrangement, the answer was revised, so as to admit the plaintiff's title. Proceedings were then taken against the defendant to obtain a warrant of distress under the above statute. Before the magistrates the defendant again refused to admit the plaintiff's title, but his admission in his answer being read, the warrant was granted. The plaintiff now moved to dismiss the bill against this defendant, without costs, and that the defendant might pay the costs of the motion:- His honor made an order, dismissing the bill, without costs, but refused to give any costs of the motion.

Where a suit becomes useless against a particular defendant, it is a laudable course for the plaintiff to dismiss the bill against him, and he may incur censure if he brings the suit to a hearing without doing this.

A MOTION was made in this case that the plaintiff's bill might stand dismissed against a defendant, Samuel Jesper, without costs,

1 15 Jur. 1149.

Wright v. Barlow.

and that Jesper might pay the costs of the motion, and consequent thereon. The bill was filed to recover certain small tithes which were in arrear, the real object being to establish the right to such tithes. Jesper being a member of the society of friends, his solicitor applied to the plaintiff's solicitors to inform them of that fact, and to request that the bill might be dismissed as against him, and proceedings taken to recover the tithes under the statutes applying to such a case. This was consented to, on condition that Jesper, by his answer, should admit the plaintiff's title to the tithes in question. The draft answer of Jesper, as at first prepared, referred to and claimed the benefit of the stat. 5 & 6 Will. 4, c. 74, but, in the opinion of the plaintiff's counsel, it denied the plaintiff's title to the tithes. By arrangement the answer was altered, and as altered contained a statement that the defendant did not, nor had he ever in any way, questioned or disputed, the actual title of the plaintiff to the tithes sought to be recovered from the defendant; but that the defendant was a member of the society of friends, called quakers, and that the value of the tithes sought to be recovered was under 50%, and their yearly value was under 10l.; and the defendant insisted that he was entitled to the protection of the act of the 4 & 5 Will. 4, intituled," An Act for the more easy Recovery of Tithes," and of the several acts of parliament therein referred to. The plaintiff's solicitors, in some further correspondence which passed, offered to allow the answer to be filed on signature only, if Jesper would undertake not to dispute the plaintiff's title in proceedings against him before the magistrates. Jesper refused to give such undertaking. The 4 & 5 Will. 4, c. 74, after reciting that by the 7 & 8 Will. 3, c. 34, provision was made for the recovery of great and small tithes (not exceeding the amount of 10%.) due from quakers by distress and sale under the warrant of two justices, and reciting certain other acts extending these provisions to any amount not exceeding 50%, enacted, that from and after the passing of this act "no suit or other proceeding shall be had or instituted, in any of her majesty's courts in England or Ireland now having cognizance of such matter, for or in respect of any great or small tithes, moduses, compositions, rates, or other ecclesiastical dues or demands whatsoever, of or under the yearly value of 501, withheld by any quaker either in England or Ireland, but that all complaints touching the same, if in England, shall be heard and determined only under the powers and provisions contained in the 7 & 8 Will. 4, c. 34, and in the 53 Geo. 3, c. 127; provided always, that nothing hereinbefore contained shall extend to any case in which the actual title to any tithe, oblation, composition, modus, due, or demand, or the rate of such composition or modus, or the actual liability or exemption of the property to or from any such tithe, oblation, composition, modus, due, or demand, shall be bonâ fide in question." On the 19th July last, Jesper was summoned before the magistrates under the provisions of the above act, and he on that occasion denied or refused to admit the title of the plaintiff to the tithes in question, but on the above passage from his answer having been read, the magistrate granted a warrant for distress against him.