Erish Jurist No. 34.-VOL. I. JUNE 23, 1849. PRICE Per Annum, £1 10s. (Single Number, 9d. The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows: Court of Chancery, including Bankruptcy Appeals....... Rolls Court.... Equity Exchequer. ROBERT LONG, Esq., and JOHN PITT KENNEDY, Esq., Bar- WILLIAM BURKE, ESQ., and CHARLES HARE HEMPHILL, Esq. Bankrupt Court....... ROBERT GRIPPIN, Esq. and W.G. DUBLIN, JUNE 23, 1849. A CASE of much practical importance to solicitors was recently the subject of adjudication in the Court of Exchequer, in the case of Levinge v. De Montmorency, (not yet reported.) A petition was presented on behalf of the receiver in the cause, that the solicitor should deposit certain deeds in his possession in Court, for the purposes of the suit, and to enable the receiver to bring ejectments; and was resisted on the part of the solicitor, on the ground that if the deeds left his possession his lien was gone, and could not be transferred to any fund that would be realized in the cause; that even assuming the right to resist production could not be maintained against the party moving for it, every other party in the cause would incidentally gain thereby, to the prejudice of the solicitor, as the character of an incumbrance, the result of a contract, does not belong to the lien of a solicitor; and for this position the cases of Blunden v. Desart, (2 Dru. & Warren, 405,) Taylor v. Gorman, (6 I. E. R. 333,) and Bozon v. Bolland, (4 M. & Cr. 354,) were cited. In Bozon v. Bolland, the solicitor had been discharged by his client, the plaintiff in the cause. During the progress of the cause, costs had become due to him, as well in that as in other matters in which be had been also employed. The solicitor produced the deed, through which he sought to establish his lien, as evidence in the cause; he subsequently became bankrupt, and his assignee presented a petition claiming a lien on the fund in the cause, for the benefit of which the deed was in Court, for the entire of the costs incurred in the cause and otherwise, and contended, that as the title to the fund was established by the production of that deed, he was therefore entitled to the same lien upon the fund he was entitled to upon the deed. The Lord Chancellor Cottenham decided that the assignees of the solicitor were entitled to payment out of the funds in the cause alone. In Blunden v. Desart, (Flan. & Kel. 572,) before Sir M. O'Loghlen, the lien of the solicitor was upheld, under the following facts:-Mr. Maxwell was the solicitor of Sir J. Blunden; from the year 1800 till 1805, different title-deeds relating to Sir John's estates came into his possession. In 1812, costs became due to the solicitor. In 1815, a judgment was recovered against Sir John Blunden, and further costs were incurred from that period to the death of Sir John, in 1818. An order having been made in the cause of Blunden v. Desart, that the solicitor of the late Sir John should furnish his costs, the Master reported under that order, that £1544 17s. 10d. was due to the solicitor. On the 27th of June, an order was made-Maxwell, the solicitor, "not objecting thereto"-that he should lodge in the Master's office all the title-deeds, relating to the lands decreed to be sold, in his power or possession, and without prejudice to such lien as he might establish against the funds in the cause. The Master, in allocating the funds, reported the solicitor's demand to be in priority to creditors whose claims were subsequent to 1812. The assignee of the judgment of 1815 objected to this report, and Sir M. O'Loghlen upheld the report of the Master. This case came by way of appeal before Sir E. Sugden, C. (2, D. & W. Judgment, 422,) who reversed the order of the Master of the Rolls as far as regarded the costs incurred subsequently to the judgment of 1815. The next case relied upon as unfavourable to the lien of a solicitor who has parted with the possession of his client's papers, is that of Taylor v. | Gorman, (6 Ir. Eq. Rep. 330,) before Mr. Black burne, M. R., the present Lord Chief Justice. In that case, the solicitor of the defendant, in 1819, obtained possession of several deeds relating to the estates of the defendants, and on which he claimed a lien. These deeds he brought into Court, under an order in the cause, the lodgment to be without prejudice to such lien as he had thereon. There was a mortgage of 1777 on the lands which these papers related to, and claims on behalf of younger children, prior to 1819. Subject to these prior demands the Master found that the solicitor had a lien on the papers in Court, and that he was entitled to be paid in priority the portion of the several costs incurred by him prior to the rendition of certain judgments affecting the estate of the defendant. The suit was instituted to carry into effect the trusts of a deed by which the defendant conveyed certain estates to trustees for the payment of his debts, to which deed the solicitor was a party. In his judgment, (p. 333,) the Master of the Rolls says "The solicitor having parted with the deed, it is argued that his right is transferred to the fund, and that, the estate being sold and the prior mortgagee paid, he is, in place of the lien he has lost, to be paid out of the surplus of the funds realized by the sale." He then goes on-" This claim is at variance with the nature of the right which the lien on the deed confers, and is repudiated by Lord Cottenham in Bozon v. Bolland. "The solicitor's claim on the fund," he observes, "has been called transferring the lien from the document to the fund recovered by its production; but there is no transfer, for the lien on the deed remains as before, although perhaps of no value; and whereas the lien on the deed could never have been actually enforced, the lien on the fund, if established, would give a title to payment out of it." The solicitor, to get rid of the difficulties those arguments create, has endeavoured to found his right on the decree or order, as amounting to a recognition of a right to be paid out of the fund, but they have no effect save that of preserving his right, if right he had, to get back the deed, and cannot be argued to have altered the nature and character of that right, substituting for it actual payment of his demand." This decision was confirmed on appeal by Sir E. Sugden, C. (7 Ir. Eq. Rep. 259.) These cases have been generally considered by the profession as authorities for the position-that by parting with the possession of the deeds, even under the order of the court, the solicitor in every case virtually lost his lien upon the deeds in his possession, inasmuch as, according to the view taken by the Master of the Rolls in Taylor v. Gorman, that lien was not transferred to the fund; and the possession being parted with, the lien which it was admitted by the court still attached to the papers, became valueless, though being one which, if the analogy between this and other instances of lien be correct, would revive upon re-possession. Hartley v. Hitchcock, (8 Taunt. 149.) The doctrine upon which the lien of a solicitor on the papers of his client, which have properly come to his possession rests, is founded upon the plainest principles of justice, and, in the abstract, is one upon which no difficulty can arise. The rule is settled beyond question, that if a client discharges his solicitor, the court will not take the papers from the latter, unless upon payment of his bill. To travel through the infinity of decisions on this subject, or reconcile them, would not be, perhaps, possible, and the attempt would be beyond the limits of our present enquiry; but it will be found on examination to be generally true, that in every case where the court has denied the solicitor's claim upon the fund, it was either on the ground that no lien existed, or there were circumstances amounting to a waiver of it. The solicitor having obtained possession of the deeds, has a right to retain them, and it would cer tainly appear to be contrary to the principles of justice, which first gave that right, that the court, by ordering the production of the deeds, should deprive him of it, if it be unaffected by any infir mity. And, as we heard Mr. Baron Richards observe, in the case which led us to these observations, it would be monstrous to say, that if a soli citor have a lien against a subsequent creditor, that a prior creditor should be deprived of the means of getting at the deeds for the purposes of his suit; and that if the court had not the power of getting possession of the deeds, and of preserv ing the rights of the solicitors in their integrity, that the whole cause should be paralyzed. The solicitor for the defendant, Montmorency, resisted the application for the production of the deeds; his counsel citing the cases referred to, to shew the prejudicial effect the production would have upon his rights, and relied upon his right to retain possession till paid. The court held there was a marked distinction between those cases where the solicitor voluntarily produces the deed, and where the court makes the order in invitum. Mr. Baron Pennefather, observ ing on the case of Taylor v. Gorman, said, that though the observations of the Master of the Rolls went to the length of the proposition they were cited to maintain, that the Lord Chancellor had upheld that decision on a different ground-holding that the solicitor, by executing the deed of 1824, had waived his lien; but that he could not be understood as deciding that, if the order was in invitum, the court could not protect the interest of the solicitor. The court directed the deeds to be brought in without prejudice to the attorney's lien, if any he have, or against the puisne creditors making a special reservation as to the rights of the attorneyMr. Baron Pennefather concluding by saying that he by no means thought such a reservation necessary, as in his opinion the ordinary order to bring in the deeds without prejudice would be sufficient. The case of Bozon v. Bolland which was relied upon by the Master of the Rolls in his judgment in Taylor v. Gorman, was also, it was observed by the court, within this principle, the solicitor having voluntarily produced the deed. Lord Cottenham, in that case, held that the solicitor having produced the deed voluntarily, was entitled to be paid the costs in that suit alone in which it was produced, and that by the production he disentitled himself to that lien for his general balance which he previously had. Worrall v. Johnson, (2 Jac. & W. 214), before Sir Thomas Plumer, M. R., was observed upon by Lord Cottenham in. Bozon v. Bolland, and he appeared to doubt its authority as to the question whether the solicitor was entitled to be paid his general balance, or merely those arising in the suit in which the fund was realized. But there appears to be this plain distinction between the two cases— in the latter the voluntary production having de stroyed the general lien, the particular one on the funds in the cause only remained. The Chancellor, p. 357, says, "It appears to me, that in these observations, (referring to those of Sir T. Plumer in Worrall v. Johnson), the distinction between the solicitor's lien upon the fund realised in the cause, and his lien upon, or rather right to retain his client's papers in his hands, as solicitor, is not sufficiently kept in view. The lien upon the fund realized in the suit is confined to the costs of that suit, Lann v. Church, (4 Madd. 391,) although that seemed to be doubted in Worrall v. Johnson." These observations of the Lord Chancellor appear to have been made without attentively considering the report of Worrall v. Johnson, which appears to us to confirm, rather than clash with the opinion of Lord Cottenham-the lien being upon the papers, which, it is clear from the judgment of the court, the solicitor had never lost possession of. At p. 218, Sir T.Plumer adverts to the distinction which Lord Cottenham thought to be not sufficiently attended to. "There are two kinds of lien that a solicitor has for a bill of costs-one on the fund recovered, and the other on the papers in his hands;" and at p. 219" It is of no consequence there is a compromise here the fund cannot be transferred without an application to the court; and the other parties would then object, unless the deed be given back to them; and it cannot be got at, except from the solicitor. The plaintiff's assignee can therefore never succeed, without applying for the possession of it;"-evidently shewing the demand of the solicitor was on account of the general lien on the papers, which, being in his possession, in the language of Lord Cottenham in Bozon v. Bolland, "he had a right to withhold, and, if essential to the client, might, by those means, compel payment of his general professional demand." This proposition must, however, be taken with this qualification, that no person has a title to the papers superior to that of the client. In Molesworth v. Robins, (2 Jon. & Lat. 358), Sir E. Sugden in his judgment, p. 370, after saying "that a solicitor to enforce his lien, can only withhold the deed, so as to prevent the party entitled having the benefit of them," goes on "but no man can give a lien to a solicitor of a higher nature than the interest he himself has in the deed. The client had no right to charge the deed which did not belong to him alone, but to himself in common with others, and which he could not withhold from the class of persons entitled to them." rights accorded to the solicitor for his protectionthe injustice of depriving him of that right we have already adverted to. The proper course for every solicitor whose lien is sought to be interfered with, will be, to dissent to the production of the deedto act on his strict right of retainer-and in this manner compel the parties requiring the benefit of the papers, either to purchase that benefit by the settlement of the whole costs due, or by driving them to the necessity of an application to the court to compel their production, obtain, as in this case, a full protection-a course recommended by Sir E. Sugden in Taylor v. Gorman, who, after adverting to the hardship inflicted upon the solicitor in the case before him, adds, "that he should be cautious never to enter into such an arrangement as existed there that his course should be to call upon the court to decide the question of lien." To the Editor of the Irish Jurist. MR. EDITOR-Whoever has read the recent debates in the House of Commons, on the subject of the sale of incumbered estates in Ireland, cannot but be struck with the feeling of discontent exhibited, that so little has been done to diminish the delay and expense of the procedure in the Court of Chancery. To describe the Court of Chancery as an unwieldy engine, costly in its working, and tardy in its movements, seemed to be the ambition of every member who addressed the house, while the annals of bygone litigation have been ransacked for the purpose of amusing the house with the story of some unhappy purchaser under that court, who afterwards finds himself embarked in a sea of litigation, and shipwrecked in the end. In this state of feeling, the project for taking the sale of incumbered estates from the Court of Chancery, and entrusting it to government commissioners, was introduced into the house, and passed almost without opposition. Now, while I freely admit that greater facilities should be given for the transfer of land, and that although a good deal has of late been effected, yet that many improvements might still be made in our judicial proceedings, I would altogether deprecate the system of modern legislation, which, in the rage for novelty, endeavours to discover some new machinery for the working of each specific case, rather than improve the old, which is so well adapted for all. The Court of Chancery has been in existence for centuries; the excellencies of its system, and the impediments to its working, are now well understood. Some of the greatest men that ever lived have left upon it the impress of their characters; and surely it would be much wiser to remove whatever has been found to clog the working of this wondrous machine, than to substitute for it the weak inventions of modern theorists, whose patch-work devices, if found to work at all, would require much time to be understood, and a long series of judicial decisions to consolidate, before they could be re These authorities go far to support the view of the Court of Exchequer in Levinge v. De Mont-duced into a system of practice. morency. They shew the very high nature of the Now, to apply these observations to the object which appears to be so desired, of selling the estates of incumbered proprietors in Ireland, it would not be difficult to shew, that by giving increased powers to the Court of Chancery in a few particulars, estates could be sold by this court with as much expedition, more economy, and with far greater safety to the parties interested, than by the proposed new machinery, or almost any other that could be invented. To make this intelligible to some readers, let me observe, that the delay in the sale of estates through the court of Chancery, arises from two causes. The first is, that by the present practice the sale is not made until the end of the suit, after the rights of all the parties has been adjudicated upon, and the sum due to each ascertained. The second is, that after the sale is made, it is now necessary to trace the title of the party whose estate is decreed to be sold. But let these two impediments be removed, and any estate might be sold through the Court of Chancery, within three months after the application to it for that purpose is made. For instance, there exists in Ireland more statistical information respecting land, than, we believe, in any other country in the world. First, there is the ordnance survey, which gives the value, or the approximate value of every estate in the country. Second, there is the registry office, where an abstract of every deed creating any limitation or charge, can be had. Thirdly, there is the new office for the registry of judgments, established by Sir Edward Sugden, where, at a glance, any one that pleases, can see every judgment that has been entered up against any individual in the community. Suppose, then, that an incumbrancer desires to have an estate sold; let him file a short bill or present a short petition, succinctly stating the nature of his own incumbrance, the value of the estate, as appearing from the Ordinance Survey, and the amount of the other charges or incumbrances that appear to affect it, (which, for greater conciseness, could be done by referring to a schedule, to be affixed to the bill or petition, giving merely the dates, sums, and parties' names connected with each charge;) and then, after serving all parties with notice, let him be at liberty to set down the cause or matter to be heard before the Lord Chancellor, who upon receiving proof by a witness, viva voce, at the hearing, of the plaintiff's or petitioner's incumbrance, and being satisfied of the genuineness of the other charges, and that the plaintiff or petitioner has in fact the right to sell the estate, should be at liberty to pronounce a decree for a sale at once; and at the same time direct that the purchaser is to have a parliamentary title, and to be put into possession of the estates immediately upon lodging his purchase-money in Court; and thenceforward be freed from all the future litigation in the suit connected with the claims of the various incumbrancers or parties interested, whose demands are to be transferred from the estate sold to the purchase-money in Court, which represents it. After the fund is brought into Court, the usual allocation order could be made, referring it to the Master in the cause, to report the rights and priorities of the several incumbrancers, and to allocate the fund amongst them accordingly. By what new machinery could a sale be effected so cheaply or expeditiously? What more perfect system could be invented? And yet, all this is to be superseded, and new Judges, together with their hosts of secretaries, clerks, and other officials, are to be sent over from England, to make new rules and orders, and to sell the estates of incumbered proprietors in Ire land, where there is for that purpose so great an establishment, and so perfect a system already in existence. Fearing on this occasion to trespass too much on your space, I will, with your permission, again refer to this important subject. Court Papers. B. C. L. L ROLLS COURT-LONG LIST.-June 12, 1849. Alexander v. Robinson Allen v. Colthurst Archdall v. Irvine Bannatyne v. Alton Same v, same Barton v. M'Dermott Same v. same Berne v. Fagan Same v. same Same v. same Cane v. Fitzgerald Carberry v. Ronaynę Carpenter v. Carew Carson v. Allingham Cashin v. Hayes Cassidy v. Guinness Caulfield v. Giles Black v. Dobbin Blackley v. Elwin Blackley v. Soll Blackmore v. Rose Blackstock v. Burke Blackwood v. Gort Blair v. Nugent Blake v. French Same v. same Bloomfield v. Egan Bond v. Thompson Bond v. Tatlow Borough v. Williams Borough v. Butler Boyd v. Burke Boyle v. Sleator Brennan v. Moran Brereton v. Westropp Buchanan v. Colhoun Burke v. Darcy Burton v. Helsham Butler v. Glengall Same v. same First Fifty. Chamley v. O'Shaughnessy Clanmorris v. St. George Same v. same Cooney v. O'Reilly Same v. same Cosby v. Cosby Duignan v. Snogg Same v. same Second Fifty. Harris v. Farren Harte v. Littledale Same v. same Same v. same Knox v. Molloy Harris v. Daunt Third Fifty. Hynes v. Redington Same v. same Same v. same Same v. same Fourth Fifty. Levingston v. Levingston Lewis v. Nesbitt Lindsay v. Bunkman Lynch v. Lynch Lynch v. Rorke M'Connell v. Hawkshaw M'Cormack v. M'Cormack M'Culloch v. Knox M'Donnell v. M'Donnell M'Ilwaine v O'Donnell Magee v. Chaine Magee v. Foster Maher v. Lanigan Mahony v. Dennehy Marjoribanks v. Tottenham Same v. same Malcolmson v. Bunbury Same v. same Mills v. Mills Rubie v. Young Ryan v. Ryan Rynd v. Fleming Scanlon v. Powers Sealy v. Bond Shannon v. Tracy Shaw v. M'Mahon Sheil v. Dillon Shortt v. Shortt Simpson v. Synge Skeffington v. Blenherhassett Skelton v. Gerrard Smith v. Cooke Smith v. Dungannon Smith v. Roberts Sothergill v. Thornton Spelman v. Dry Stanford v. Slator Stanus v. Tripping Shoney v. Garty Stewart v. Collingham Stratford v. Stratford Stritch v. Carncross Sugrue v. Nash Sullivan v. Delany Sullivan v. Costelloe Same v. same Seventh Fifty. Wellesley v. Mornington White v. Boland White v. Barron White v. White Whitehead v. Macneil Williams v. Morris Same v. same Williams v. Walker Same v. same Williams v. O'Brien Wilson v. Crawford Wood v. Hutchins Woodroffe v. Tyler Woodroffe v. Hamilton Woulfe v. Dalton Wrixon v. Blood |