IN THE MATTER of the EstatE OF JOHN HENRY most intimate friend, if not a near connection, of

terwards, even heard of the existence of "Anne sons to receive said money. The secretary havGarstin, a widow," (hereinafter named). Peti-ing then required petitioner to draw up an affitioner conceived that said principal sum of £600, with interest, &c., as aforesaid, was payable to the said Annette Garstin Moll, as the personal representative of said Anne Garstin, spinster, deceased, and accordingly apprized his said clients of the information which he had so obtained from the examination of said final schedule, and which was the only document in this matter he then saw or considered it necessary to examine. In reply, the said Annette Garstin Moll, stated to petitioner that such information, which was most agreeable, confirmed her own impressions that her aunt, the said Anne Garstin, spinster, deceased, had claims upon the property of said John Henry Keogh, of which she had often heard her said aunt and her grandmother (hereinafter named) speak, and the said Annette then instructed petitioner to adopt the necessary steps to obtain payment for her of the said money, as the personal representative of the said Anne Garstin, deceased, and that, when all was ready, she and her said husband would come over to Dublin to receive the same. Accordingly, upon receipt of said letter, the petitioner waited upon the secretary of said court with the administration first herein alluded to, who examined same, and concluded that petitioner's clients were the proper parties to be paid the money in question, and he thereupon informed petitioner that the Commissioner's draft or order on the Bank of Ireland for £1109 6s. had been lying with him since the month of May preceding for the representative of Anne Garstin, deceased, and said secretary then filled the blank in said check or bank order with the name of "Annette Garstin Moll, the wife of the said Richard Albert Moll," as the payee thereof, and told petitioner that whenever his said clients came over to Dublin, they should be paid the amount thereof, and consequently petitioner never for a moment conceived that there was any necessity for making further investigation as to the right of his clients to receive said money, more particularly as there was no stop or stay put upon said draft or bank order by any person, although it had been issued by the said Commissioners on the 9th of May, 1853, nor was any notification given to said secretary that any party had a better right or claim thereto. Annette Garstin Moll and her said husband having come over to Dublin, and having stated to petitioner that the said Anne Garstin, spinster, during her lifetime received the interest upon the principal or greater portion of the money secured by said judgment, (a fact which has since been corroborated by the affidavit of the Rev. Henry Clopton Keogh, filed in this matter on the 27th of January, 1854,) petitioner was still further impressed with the belief that the said Annette's claim as such representative to the money in question was indisputable, and accordingly pe titioner accompanied her and her said husband to said secretary's office on the 31st October, 1853, when said letters of administration were again produced, and marked by the assistant of said secretary, who also concluded that same were correct, and that petitioner's clients were the proper per

davit for his client as in such cases usual, stating that to the best of her knowledge and belief said money was justly and fairly due and payable to her as such administratrix as aforesaid, and he did accordingly, and in conformity to the instructions of his said client, prepare such affidavit, which was sworn to by said Annette, and handed to said secretary or his assistant, and in return she received the aforesaid draft on the bank for said money. The petitioner shortly afterwards accompanied his clients to the accountant-general's office of said court, where the entry in that officer's books corresponded with the bank order, and stated that the money was payable to the representatives of Anne Garstin, deceased, without any further description or identification of her, and the accountant-general likewise considering that all was right, he got the said Annette to sign the proper books, and acknowledge the receipt of said money, which was subsequently paid to her by the Bank of Ireland. No notice was given by or on behalf of said Annette or her husband to any person, previous to her drawing out said money, such notice not being required by the rules of said court, nor considered necessary upon this occasion, as the claim appeared to be perfectly fair and payable to her as representative of her said aunt upon the production of said letters of administration as aforesaid, besides which there was no stay or other memorandum placed upon said commissioner's draft or bank order, and which had been lying unclaimed by any other person from the 9th May, 1853, as hereinbefore mentioned. During his client's stay in Dublin, in November, 1853, the said Annette Garstin Moll, obtained administration to her father, the late Cunningham Douglas, Esquire, and her proctor thereupon adopted the usual preliminary steps necessary for her to obtain administration to her grandmother, Mrs. Elizabeth Douglas, deceased, so as to substantiate her claim on foot of the aforesaid bond for £640 and interest thereon so due by Colonel O'Bins's representatives as hereinbefore mentioned, but nothing further could be done towards obtaining said last mentioned administration until Hilary Term, 1854, in consequence of the intervening Christmas vacation. Accordingly after remaining in Dublin for some time, the clients of the petitioner returned to London, when he heard no more of the transaction till the 13th of December, 1853, when he was informed by the secretary that the wrong party was paid, and that there was another person entitled to the sum of £1109 6s., viz., the Rev. Henry Clop. ton Keogh, who had the day previously obtained administration to Anne Garstin, a widow, of whose existence petitioner alleged he was totally ignorant. That he has since ascertained that the description of the last named Anne Garstin in the Final Sche dule did not correspond with the original judgment obtained by her, or with the redocketting thereof. The petitioner distinctly denied there was any fraud or collusion between him and his clients, and that the only pecuniary consideration which he expected to receive or had received was the sum of twelve pounds, which was paid him by his said clients.

Hayes, Q. C., and Longfield, Q. C., in support | could be moved, the execution was put in force, and of the petition.

Rolleston, Q.C. for the respondent, cited Erart v. Goodhill, (5 Beav. 585.)

Oct. 19. THE LORD CHANCELLOR, after reviewing the facts of the case, stated that although there was no fraud or mala fides on the part of the appellant, he concurred in making a representation which there was no reasonable ground for believing to be true, but which, on the contrary, there was abundant evidence to show was untrue. When the appellant found that his client's alleged rights were founded upon a judgment, he ought to have gone to the Roll, and certified himself with that muniment of her title. He should also have made inquiries as to the interest upon the debt, of which there should be a great deal more due than was actually the case if the representation were true. It was gross negligence to forget to make these inquiries. He ought not to have assumed as a fact that his client was the real person, and in that view of the case he was bound to pay. Having circumstances before his eyes to lead him to inquire as to the genuineness of the statement, he should not have embarked without investigating it further. They must all regret that an innocent party should be made the victim of a transaction of this kind; but the principles of justice could not give way to individual hardship. The order of the court below must therefore stand confirmed.

COURT OF QUEEN'S BENCH.
MICHAELMAS TERM, 1854.
[Reported by FLORENCE M'CARTHY, Esq., and SAMUEL
V. PEET, Esq., Barristers-at-Law.]
DOWLING v. BROWNE.-Nov. 4—6.

Judgment Debtor-Right of assignee of creditor to
intervene 3 & 4 Vic. c. 107.

the notice was varied accordingly. It appeared from the affidavits that on the 22nd of November, 1852, the Tipperary Joint Stock Bank, of whom Wilson Kennedy, the assignee, is the public officer, recovered judgment against Dowling for £470 10s.; and that at the time of its recovery Dowling was in prison, at the suit of a person named Crotty, and a detainer was lodged by the bank on the 23rd of November. Dowling not having presented any petition to the Insolvent Court, on the 25th of April, 1853, Mr. Kennedy presented a creditors' petition, upon which, on the 11th of May, a vesting order was pronounced, by which the property of the plaintiff vested in the provisional assignee, and on the 13th of August Mr. Kennedy was appointed ad interim assignee. The plaintiff refused to file his schedule, and still remains in custody. Since then an action for libel had been brought by the plaintiff against the defendant, in which he recovered £350 damages, and the assignee served notice upon the defendant, cautioning him not to pay over the money to the plaintiff in that action. Mr. Kennedy, as assignee, had recently been applied to for £200 rent due to the landlord of Dowling, by the nonpayment of which a valuable interest would incur the risk of being evicted. It also appeared that the sheriff had very recently made his return with respect to the writ issued for the principal debt and costs, that he had seized a cistern worth £1, and with reference to a second writ for the levy of £11 costs on foot of an interlocutory order in the cause, he returned a seizure of two printing presses, forty cases of type, &c. value for £10, which remained unsold for want of buyers. In the cause of Dowling v. Sadleir an order had been made, on consent, that the amount of £1100 damages should be paid into court, but upon the not prejudice or affect the discussion afterwards to express terms that the payment into court should take place as to the right of Mr. Kennedy in that case to have the money paid in, and, on the plaintiff's subsequent application to have the same paid

A recovered judgment against B in an action of libel for £350. Prior thereto the estate of A had been vested in C, the ad interim creditors' assignee un-out to him, the court made no rule. der the Insolvent Court. C, after judgment J. D. Fitzgerald, Q.C. and R. Armstrong, Q.C. marked and execution issued on foot of said judg-in support of the present application contended that ment, having applied to the court for an order for the payment of said money, either into this court or the Insolvent Court, for behoof of creditors, was refused on the ground of absence of jurisdiction to make such an order, independently of any other difficulty arising from the nature of the judgment.

the court had the same jurisdiction to deal with this case in a summary way as a Court of Equity on a bill filed for an injunction to restrain execution. By the 20th section of the Insolvent Act the effect of the vesting order was to vest in the assignee of the insolvent all the property to which he was then entitled, and the assignee was further entitled to THIS was a motion on behalf of Wilson Kennedy, all that the insolvent should acquire previous to the the ad interim assignee of the plaintiff, that the adjudication, which had not taken place, as yet, in Sheriff of the County of the City of Limerick, if he this case. There was a distinction between that, had levied, and, if he had not levied, that the de- and the future acquired property of the insolvent, fendant should lodge in court, to the credit of the as provided for by the 78-80 sections of the Act, cause the sum of £350 recovered by the plaintiff (3 & 4 Vic. c. 107.) It was, however, impossible against the defendant, as damages in an action of for the assignee in this case to make himself a party libel, tried at the late Assizes of Kildare, or that to the record of the judgment by sci. fa., as the he should lodge the same amount in the Insolvent judgment had been recovered subsequent to the Court to the credit of the ad interim assignee, with-vesting order. Even assuming that a sci. fa. lay out prejudice to the lien of the plaintiff's attorney for the assignee, still the court would not, in the for his costs. There had been a previous notice of meantime, and until he could avail himself of that motion, that the plaintiff should be restrained from remedy, hesitate to protect the property for the issuing execution for the above, but, before the same creditors. With respect to the character of the

action in which judgment had been obtained, admitting that the cause of action would not per se have passed to the assignee, as being of a nature personal to the insolvent, as soon as judgment had been obtained, its nature was changed, and it henceforward acquired the character of property, which would pass under the Act.

Macdonough, Q. C. and Whiteside, Q. C. contra, contended that the court had no jurisdiction to make the present order, and should not interfere, even though it had jurisdiction. No authority had been cited in support of such a proposition: and, as to the case of Dowling v. Sadlier, the order for the payment of money into court was made expressly by consent. If they have a case for an injunction, they ought to resort to that jurisdiction, where the proceedings would be subject to an appeal, and not to the summary jurisdiction of this court, which could not be reviewed. [They also cited several authorities, in answer to the proposition that the property in the judgment passed to the assignee.] LEFROY, C. J.-We are clearly of opinion that this motion ought to be refused. This is an application by a third person to interfere with the rights of the parties to the judgment recovered by the plaintiff against the defendant, and to have a sum of money on foot thereof paid into court on his account. We have no such jurisdiction. Let him, if he can, make himself a party to the record, but we cannot take notice of the rights of a third party. We must therefore refuse this motion with costs. Rule accordingly.

larity, upon the grounds that the residence of the plaintiff, and the registered residence of the plaintiff's attorney, as stated in the writ of summons, were not the true residences of the plaintiff or his attorney respectively. It appeared from the affidavit of the defendant's attorney, that there was reason for suspecting that the writs in these cases had been sued out without the knowledge of C. Harrison, the attorney of the plaintiff upon the record; and that the writs had been issued by one G. P. M'Grath, acting in concert with another person named O'Byrne, a clerk of Harrison's. This application was opposed by counsel, but the learned judge set aside the proceedings in these actions with costs, according to the terms of the application; and of his own mere motion directed a conditional order for an attachment against G. P. M'Grath for practising in the name of an attorney without his authority. Affidavits were filed as cause by MGrath, Harrison, and O'Byrne, and it appeared that Harrison was an attorney residing for the greater portion of his time in the country, and seldom coming to Dublin; that in January, 1853, he had employed O'Byrne, who was not an attorney, as his town agent, the latter being also the conducting clerk of another attorney named Lyons; that, when employing O'Byrne, he had told him to procure all the business he could for him, and gave him authority in any plain and simple case, such as an action upon a bill of exchange, when the bill might have been lodged with O'Byrne, and instructions given to him to institute proceedings upon it, that in such a case he might issue the necessary writ or writs without having previously obtained the express authority of Harrison so to do. It also appeared that M'Grath, who was the person really interested in the bill of exchange (Wisdom being confessedly nothing more than a trustee for him), had instructed O'Byrne to sue upon the bill in question, and had lodged it with him for that purpose. Upon the 24th of November following an Attorney — Unprofessional agent—13 & 14 Geo. 3, application was made for the purpose of making

COURT OF EXCHEQUER.
TRINITY TERM, 1854.

[Reported by BECHER L. FLEMING, Esq. Barrister-at-Law.]
WISDOM V. J. Kelly; Same v. R. Kelly; SamE
v. M'COURT.-June 2 and 3.

cap. 23.

this order absolute, and the above facts were laid A Dublin attorney, residing in the country, and sel- nied by the other side (although it did not appear before the court, and it was also stated, and not dedom coming to town, employed a nonprofessional by affidavit), that the writs in the above action, agent to transact his business, with instructions which were produced at the hearing of the motion, that whenever a plain and simple case came into pursuant to notice, were filled up in the hand-writhis hands he might commence proceedings and sue out writs of summons, without communicating cause was shown, made absolute the conditional oring of M'Grath. Baron Pennefather, before whom with his principal, and also that he should pro- der, directing that the costs of the motion should be cure for him all the business he could. It did not paid by M'Grath, with a further direction that the appear that the agent had received instructions to attachment should not issue until further order; inform his employer what was done in the conduct and the court further directed that M'Grath, Harof such suits as might be commenced without the knowledge of the latter. A conditional order for day of the ensuing Term, to answer such interrorison, and O'Byrne should attend upon the first an attachment against the attorney and agent was made absolute, upon the ground that such a prac-quence of the illness of Mr. Baron Pennefather the gatories as should be put to them; but in consetice was a violation of the provisions of 13 & 14 matter stood over until the month of April, 1854, Geo. 3, c. 23. when M'Grath and O'Byrne attended in court acTHESE actions had been brought to recover the cording to the order. Harrison being prevented amount of a bill of exchange, against the several par- by indisposition from doing so, counsel on behalf ties liable: and in the month of October, 1853, an ap- of M'Grath and the others then submitted (without plication was made in chamber before Judge Jack-objecting to the propriety of the attachment that son on behalf of the defendants, that the proceed- had been ordered to issue) that inasmuch as M‘ings in these actions should be set aside for irregu-Grath had already paid a suni of £42 as costs of

the attachment order, and was desirous of express- this case has become necessary, in order to ascering in the most ample manner his contrition for the tain how O'Byrne acted in connection with Hartransgression he had been guilty of in violating the rison, and whether or not we are to consider that practice of the court, the attachment should not is- the provisions of 13 & 14 Geo. 3, c. 23, s. 8, have sue, nor the matter be further prosecuted. Coun- been violated. It appears to us upon the facts sel appeared on behalf of the Law Society, stating, stated in the affidavits that there has been a prima that after what had occurred it was considered neces- facie case of violation of this statute. The person sarytopress the matter further; protesting, at the same issuing these writs was not an attorney, and there time, against the impropriety and inconvenience of were other matters connected with the case which attorneys residing in the country employing unpro-induced us to think that it would be desirable to fessional persons to conduct their business in Dublin; and the court, after conferring together, expressed it to be their opinion that further inquiry as to this matter would be desirable; stating, that they were much struck by the admissions of Harrison in reference to the nature of the authority with which he had invested O'Byrne; and that in order to put the matter in train for further inquiry they would direct a conditional order for an attachment against Harrison and O'Byrne, grounded upon the facts which had appeared upon the affidavits filed in the preceding motions. A conditional order having been made for this purpose, Martley, Q. C. in support of the order. It is submitted that the authority given to O'Byrne amounts to a permission to practise generally for Harrison. [Pennefather, B.-The view I took of the matter upon the former motion was this-that Harrison, residing in the country, acted very improperly in allowing O'Byrne to institute suits without communicating with him; and that O'Byrne acted very improperly in so doing.] An agent acting in this manner may conduct a suit for both plaintiff and defendant. [Pigot, C.B.-That objection does not apply in the present case, as such a practice may be carried on even though the agent be an attorney.]

give O'Byrne an opportunity of explanation, and of removing, if possible, the inference raised in this case. This inference was, not that an attorney had acted through his clerk, but that the clerk had acted in the name of the attorney; and, upon comparing the several affidavits that have been made in the case, we decided that there was a case substantiated that the clerk did act in the name of the attorney, and that the wrong done was of that nature; it is necessary that we should state distinctly, as a matter of fact, that such is the conclusion to which we have arrived as the foundation of our judgment. The Act of Parliament is one of great importance with a view to the interests and protection of the members of the profession of attorney; but this is a consideration only secondary to another which is, the interests of the suitors, who must employ attorneys to conduct their suits. The provisions of the statute are as follows:-[His Lordship read 13 & 14 Geo. 3, c. 23, s. 8*.] Such are the large and summary powers vested in the court for the suppression of such acts; and it appears to me that in such cases there is an obligation laid upon the court to exercise its powers. In the present case the court did not think it right, in the first instance, to exercise these powers to their full extent, conceiving that it would be more proper, as regarded the inArmstrong, Q.C. (with him Brown,) contra.-Anterests both of the attorney and his clerk, instead attorney residing in the country requires an agent in Dublin to conduct his business, and it may be extremely difficult to obtain the services of a professional man to do so at certain periods of the year, when attorneys are employed on circuit. [Pennefather, B.-This is altogether a different case; the attorney in the present instance residing in the country for the greater portion of the year, and employing an unprofessional agent to conduct his business without communicating with him.] Harrison had, at the time of the issuing of these writs, a registered residence in Dublin, and in contemplation of law that must be regarded as his place of abode. It is submitted that the com. mencement of these suits would not admit of delay; and it was only in cases of this kind, and where the suits were of a very simple nature, that Harrison permitted O'Byrne to commence them without communicating with him. [Pigot, C.B.One question in this case is, whether Harrison is to be considered as substantially carrying on business in Dublin at all.] This case does not come within the provisions of 13 & 14 Geo. 3, c. 23, in which practising in the name of an attorney means not merely using his name, but also appropriating the proceeds of suits in which his name is so used. Walker, Q.C., was heard in reply.

Sec. 8, "And be it further enacted by the authority aforesaid, that no person shall for the future be permitted to practise or make use of the name of any attorney of any of the said Four Courts in Dublin, unless he shall have been regularly admitted an attorney in some other of the said courts; and that from and after the first day of Trinity Term, 1774, it shall and may be lawful for the Judges and Barons of the said courts respectively, wherein any tise, or make use of the name of any attorney as aforesaid, person not properly qualified shall presume to act or pracby order of the court to require any person so making use of the name of any attorney as aforesaid or otherwise practising without being properly qualified, as also any person or persons permitting his or their name or names to be so used, and all and every such other person or persons as the said judges or barons respectively shall think necessary or proper, to appear before them respectively in open court, and to examine upon oath such person or persons in rela. tion to such practice; and if such unqualified person, or such person permitting his name to be made use of as aforesaid, shall, upon such order being duly served upon him, refuse or neglect to appear, or if after appearance by his or their voluntary confession, or by proof made by one or more credible witness or witnesses upon oath, it shall appear that such person or persons hath or have so acted or practised, or permitted his or their name or names to be made use of as aforesaid, that then and in any of these cases it shall and may be lawful for the said judges or barons of the said courts respectively for every such offence to punish such unqualified person or persons, or such person or persons so permitting his or their name or names to PIGOT, C. B.-An investigation into the facts of be made use of, as for a contempt of such court."