« EelmineJätka »
some evidence to shew that the allegation is true. it is clear from the construction of the covenant
, The understanding undoubtedly was, that one was “ that the said John Maxwell should and would to give a lease, the other to have it. If a man make out a new lease,” that the landlord was bound grants a lease and covenants to renew, and executes to make out a new lease ; therefore I am of opia it, that is some evidence that he covenanted to give; nion my Lord Chief Baron was right in saying and his covenanting for quiet enjoyment during the that the plaintiffs were on this ground entitled to but term granted, is evidence to the same effect, as is nominal damages. On the question of variance also the covenant to pay renewal fines, and the also agree. Further, as to the charge of the Chief fact of their being paid to John Maxwell, and to Baron, I am of opinion it was perfectly right; all his executors. The executors had no title except the evidence went to shew that John Maxwell'had upon the assumption of there being a title to renew. power to renew. With respect to the question of I am not able to bring my mind to the conclusion the talesman, I am of opinion, as far as appears that there was no evidence of a power in John from the record, that it is impossible to say that Maxwell to grant a renewal, notwithstanding that any thing was wrongly done. Maxwell Close had treated himself as owner by RICHARDS, B.--This is an action for a breach of giving a notice to quit. I approve of the verdict covenant for renewal of a lease; the lease was for as not being against the weight of evidence. The 20 years, and contained covenants for renewal
, and next objection is that it was left to the jury to say for quiet enjoyment. The tenant of John Max. whether the title of John Maxwell was legal or well, after the expiration of the term of 20 years
, equitable—if the latter he could not renew. Sup was served with notice; the premises were evicted pose the jury came to the conclusion, that at the in an adverse suit. If the lessor had such a title as is time of the granting of the lease, the premises were contended he had, he was guilty of great default în vested in trustees, and that John Maxwell had but not renewing, and the jury were bound in las to an equitable title, that would shew a clear ground assess the damages; but had the title been evicted for ample damages for having screened himself be- before the lease had expired, I am not prepared to hind the outstanding legal title. On these grounds say the plaintiffs could maintain any action. This I think the Chief Baron left the question correctly case is plainly distinguishable from Williams v. to the jury. With respect to the next question, it Burrell (1 c. B. 402), there no eviction had taken does not appear but that there may have been place. À renewal, if executed in the present case, twelve good jurors on the panel ; it ought to appear would have operated but for two years. I shall confine that there was there one person not competent to my observations to the principle upon which damages be drawn. On these grounds I am of opinion this ought to be assessed. An exception was taken to writ of error is not sustained.
the line of examination of a witness produced or JACKSON, J.–The twelfth objection is resolve the part of the plaintiff, (Mr. H. L. Prentice.) Now able into those contained in the first second, and assuming that the plaintiff was entitled to more seventh, and may be summed up in this, that this than nominal damages, I am at a loss to know what is a case for nominal damages only, and that the means this witness had, more than any of the jury, Chief Baron should have so directed the jury. The of knowing whether the College would renew. I see question of damages is one for the jury, not the no reason why he should be considered more comjudge. The subject for our consideration is whe- petent to form an opinion upon this subject than ther in an action of covenant the judge can direct any of them ; a witness may be asked a question a verdict for nominal damages, and give his opinion upon a matter of science or skill ; but in my opinioni respecting the effect of the covenant for renewal, the objections to this witness were well-founded that for quiet enjoyment, being qualified, is con- Evidence was given on the part of the defendaat
, fined to the lessor's own acts, and of those claiming which shewed primâ facie that there was no title under him. I am of opinion, that in this case the in John Maxwell. Defendant called the solicitar covenant for renewal is independent of the cove- of the College, and he produced a lease to Robert nant for quiet enjoyment. The tenant whose re- Maxwell. There is a chain of evidence shewing presentatives the plaintiff's are, gave £950 for the the existence of the lease from the College in perinterest in the lease. The lessor refers to his hav- sons other than Jobu Maxwell. I now come to the ing a lease from the College ; taking that, with the exceptions to the charge of my Lord Chief Barou. evidence of the renewals being uniformly granted by There being some ground of presumption that the College, I think the tenant was fully entitled to a John Maxwell had some title, it may not have aprenewal. The third exception was that which my peared so clearly that John Maxwell bad no such brother Moore spoke of first, and is to the recep title as that the judge was bound to withdraw that tion in evidence of the receipt for £950. It is true question from the jury; but I am not disposed to that the receipt is not strictly applicable to the affirm the manner in which he did leave the ques. issues ; but we must recollect that this is an action tion; it was not left in such a way as to satisfy me for damages, and as such, the jury must have some that the jury were not misled. Possibly I may be guide as to the amount they should give; the re- wrong, and that no real grounds exist for disputing ceipt was not contradictory of the lease. I am of upon this point. Possibly at the close of the deopinion that it is evidence to regulate the amount fendant's case there was no reason for suggesting of damages, and was properly admitted. The next that John Maxwell had no real interest in the preobjection is to the reception of the evidence of Mr. mises. The direction of the Lord Chief Baron as Prentice. In this also I agree with my brother to the matter of fact, as to excessive damages, was Moore, as well as there being no necessity for a not as precise or as explicit as they should
. I am notice to renew. With respect to the objection | very decidedly of opinion that no valid renewal that no deed of renewal was tendered for execution, could have been granted ; and seeing that the jury
have given substantial damages, they must have as fere ; but when the amount becomes the main sessed them upon some illegal principle of law question, and the judge directs the jury to assess This is not an action of tort; it is founded upon them upon an erroneous principle, the charge may contract. It has not appeared whether any real be made the subject of exception. The lease in injury has been sustained in point of law; on the question is from John Maxwell to John Craig, at a contrary I hold that no real damage resulted from rent of £6, with a triennial fine of £1, and a cove. the non-renewal. Regarding that to be the case, nant for perpetual renewal. The lease contained I think the learned judge would have been right in no covenant for title-it was an unqualified covedirecting the jury to give nominal damages. Nomi- nant to renew at the expiration of the term ; the nal damage is a phrase very well understood in the damages were for the breach of this covenant. The law. I think the jury ought to have been directed second count alleged no title in the lessor, but in in this case, if they believed the evidence, to find whom we are called upon to presume a title. The nominal damages. The judge left it to the jury to covenant in the lease was indubitably broken, and say whether there might not have been an equita- had there been a covenant for title, the plaintiff ble title in John Maxwell. This part of the charge would have been entitled to substantial damages. is not warranted by the evidence; there was no The third count was founded on the supposition that ground for submitting, as a matter of fact, that there was no covenant for title, on this count the John Maxwell had an equitable estate. I do not plaintiff had a verdict by the concession of the see in what character this trust estate is to be viewed. plaintiff. John Maxwell was evicted by title parI confess I am not aware of any question being amount. The plaintiff could not sustain an action raised for the jury. As I understand the case, John for a breach of the covenant for quiet enjoyment. Maxwell did not hold under any lease, but was What, then, is the proper measure of damages for tenant from year to year. This part of the charge the breach of this covenant for renewal? On what appears to me to be objectionable. If the jury be- principle should they be assessed? The rule is lieved the whole of the evidence, they might find stated in Robinson v. Harman (1 Ex. Rep. 150.) substantial damages for the plaintiffs. I am at a The defendant knew he could not grant a lease. loss to understand that part of the charge, “ Although we must then consider what was the value of you believe that John Maxwell had no title to grant the thing the plaintiff lost-if the lessor had no a renewal, you may find substantial damages." I title the plaintiff lost nothing. If a renewal had think substantial damages cannot be given upon a been given in this case, no action could be brought, covenant of that kind, unless there was a power to though all the evidence went to shew it would be perfom the covenant.
valueless. The Lord Chief Baron told the jury, Perrin, J.-I concur in the opinion of my bro- that if, on the whole of the evidence on both sides, ther Moore, that the judgment of the court below they were of opinion that John Maxwell had power should be affirmed. I shall confine my opinion to to execute a valid lease in 1820, the plaintiff
' was the question of damages. This is a lease for 20 entitled to substantial damages; if otherwise, he years, with a covenant for renewal, in which he was entitled to nominal damages only. His direcmentions his lease from the College, and for which tion was founded upon the whole evidence; he he received a consideration of £950. The lease stated to them the substance of the evidence on to John Maxwell might have been either to him- both sides. It is contended that, considering all self or a trustee. There was no proof of an actual the evidence, there was no ground for the judge to payment of rent by him to any one during his life ; send such a case to the jury, that a title in John it is plain he had some interest in what he calls his Maxwell can be only upheld through the presumplease, under which he was in possession, and under tion of a fact. The evidence for the defendants which he made the lease and received the fines. removed any presumption created against them. It is a principle to be preserved against him and The evidence on the part of the defendant shews his executors, that he told the truth. The eviction that these lands were a portion of the College esby title paramount might have been collusive. It tate, the leases of which contained no covenant for was a serious question for the jury, whether the renewal; that John Maxwell became the owner of testator told the truth in 1800; and if he did not the lease as the executor of Henry Maxwell ; that keep it in his power, the means of performing the he was not the tenant to the College, but that contract, he should pay; and this view is consistent Henry Maxwell alone was so, and paid rent every with the facts in evidence. It seems strange that year, and that John Maxwell never paid. In 1801 his executors should hold him up as putting his Henry Maxwell renewed with the College, and still hand and seal to what he knew he could not per- continued to be the tebant; that after the death of form; and notwithstanding the appeal made to Henry Maxwell the rent was regularly paid by his them by the conscience and justice of the court, legatees; but John Maxwell never paid, but was in they appear to me to evince a stronger regard for possession of 40 acres as the tenant of Henry Maxthe property, than the character of the testator. well, who had the beneficial ownership. Taking
CRAMPTON, J.-1 differ from the opinions of my the whole evidence, John Maxwell was only tenant brothers Moore and Perrin ; my opinion is wholly from year to year. The material question left to founded upon the charge of the Lord Chief Baron. the jury was, whether John Maxwell had not, unFor the defendant it is contended that under the der some instrument or another, the legal or equitcircunstances the plaintiff is entitled to nominal able interest under the College; this was a vague damages only; the jury have given substantial, if way to leave the question; there was no evidence not excessive damages, it is peculiarly their pro- to warrant such an inference; it is not possible to vince to measure the damages where damages may say that the landlord could be a trustee for a be given, and the court in general should not inter- tenant, from year to year, at a rent of £19. Here
then is a case of evidence on both sides for the have read these exceptions with as much care as I plaintiff
, that Johu Maxwell had a lease from the could, and have been able to find nothing to show College, for the defendant that it was the lease of that any exception was presented so as to lead the Henry, and that John was his tenant from year to mind of the Court to what the learned Chief Baron year. It was said that Henry Maxwell was a trus- did say in that case. If we take this portion of the tee for John Maxwell, or that John may have as- learned judge's charge alone, it could not be sassigned his interest to him-and it was left to the tained : “ That if the jury believed the whole of the jury to presume that there was a legal or equitable evidence they might find a verdict for the said plaintitle existing in John Maxwell. There is no in- tiffs for substantial damages, but the amount thereof, consistency between the evidence of the plaintiff and whether the same should be substantial or other and defendant ; but there is a difficulty in recon: wise was entirely a matter for them;" if that portion ciling the interest of John Maxwell with that of stood alone it is impossible to say that the jury were Henry. The charge of the judge should not have properly directed. The defendants say they required told the jury tbat there was evidence on the one side the Lord Chief Baron to tell the jury that on the and the other, but that there was no evidence of a whole evidence they should find for noninal dana. title on the one side or the other. It is not easy to ges; that exception is not properly framed. I can account for the payment of the £950, as but £70 not come to the conclusion that the real case we was given for the assignment.
properly submitted to the jury. If John Maxwell TORRENS, J.-I shall confine my opinion to the had an interest either as cestui que trust, or otherquestion of damages, having changed my opinion as wise, the plaintiff would be entitled to substantial to the substantiality of the charge of my Lord Chief damages; if he had no title, the plaintiffshould have Baron, it is right to state it. The question is whe- but nominal damages. Henry Maxwell was the ther John Maxwell had not such an interest as would legatee of this property, and the legal estate of Joha enable him to grant a renewal; the question was Maxwell was barred by the statute of limitations, already decided by the Court of Queen's Bench, The effect of a series of renewals executed to the (reported 9 Ir. Law Rep. 74.) It is necessary Maxwell family was not stated to the jury by the to see what is the evidence by which it is shewn that Lord Chief Baron; it can only be guessed that it John Maxwell held from the College. The lease might have been so properly left to them. had been renewed from 1792, according to the cus Pigot, C. B. I have been anticipated in a tom of the College. John was appointed executor, great deal of what I had intended to say. In the and took out probate of the will of Robert Maxwell; absence of any averment to the contrary
, 1 mast and it is important to observe that no estate vested hold that all the jury were properly elected
. Of in Henry till the assent of John Maxwell was first the remaining exceptions, those to the evidence were had. We have then a legal possession in him spring- taken during the progress of the trial
, and the ing from the death of Robert
. There was undoubted others to the charge. I ain of opinion, that whether evidence of the title and possession from 1754 to there was a demand of renewal, or a tender of a deed 1800, and it is clear that without the covenant for for execution, those facts not being in issue, could not renewal the £950 was an excessive consideration. affect the question of damages, the breach of coveThere was no evidence of any rent having been paid nant having been committed. As to exception on to Henry Maxwell, or any other person prior to the question of variance, I agree in the opinion of 1818. I do not see anything in the evidence incon- my brother Moore ; and with that of my brother sistent with the estate being that of John Maxwell. Pennefather, on the dislocated manner in which
PENNEFATHER, B.--I concur in the opinion of the exception to the charge bas been framed. I my brother Moore as respects the exceptions to the regret I did not scrutinize the manner in which this evidence. But as to the exceptions to the charge of bill of exceptions was made up. The simple quesmy Lord Chief Baron, although there clearly was tion left to the jury was whether there was such as evidence to go to the jury at the close of the plain- estate in John Maxwell, as would serve a renewal
, tiff's case to entitle him to a verdict for substantial and warrant a verdict for substantial damages. damages, I think at the close of the defendant's First, with a view to the amount of damages upon case there was conclusive evidence the other way; the admitted breach of the covenant to reber. and that the plaintiff's evidence was entirely dis- Secondly, that there was evidence of such an estate placed. The difficulty on my mind is that the ques- ' in John Maxwell
, proper to be submitted to the tion of damages was left to the jury in a manner cal- jury. The first proposition follows from the ruling culated to lead them to form a wrong conclusion on of this court, and the sole question was whether the matters referred to them. This bill of excep- there was evidence that John Maxwell had or had tions, as far as it relates to the judge's charge, is not a title to renew. There was evidence that John framed in a manner not to be brought into a prece- Maxwell had, under his hand and seal
, declared dent; it is taken to different portions of the charge, that he held these lands by a lease under the Coland is not framed in such a manner as to enable me lege; that he had received rent to 1819, and also to say in what way or to what evidence the defen- of the payment of renewal fines. The question was dants required the learned judge to direct the jury, one of damages. It was for the jury to weigh the or what the learned judge did say. With respect evidence. It is contended that the evidence for the to the authority of the Lord Chief Baron to sign the defendants showed an estate in the Maxwell family
, bill of exceptions, I should not have put my signa- not in John Maxwell. It was the province of the ture to them. These observations are thrown out, jury to estimate the weight of that evidence. In my not from any doubt on iny mind as to what ought opinion the evidence given by the defendants did to be done, but as to what actually was done. I not extinguish the evidence of the plaintiffs
might be a sub-lease ; Maxwell Close does not say the plaintiffs had a right to call the attention of the that John Maxwell had no lease. If there was any court to the circumstances, I cannot say that Mr. evidence from which a jury might infer that John Joly was not entitled to come in here against an Maxwell had an interest out of which a renewal order made on affidavits, reflecting on his integrity, might have been served, the plaintiff was entitled competency or care; at all events when an order is to substantial damages.
made against an officer of the court I cannot think DOHERTY, C. J.-I coincide in the judgment of him wrong in coming here to have the order set the majority of the court.
aside. When I say that none of the parties in the BLACKBURNE, C.J.-I also concur in the opinion cause oppose this motion I do not mean that it is of the majority of the court. The main question made on consent, for it was competent to remove him which has been argued, namely, whether there was by consent if the parties chose. The matter was sufficient evidence of any such estate or interest in discussed on various grounds; but not the least emJohn Maxwell, at the date of the lease in 1808, as barrassing part of the case was that those grounds would have enabled him or his executors to execute were not the foundation of the order below, for the a renewal, is a question not raised, and indepen- counsel here did not insist on Mr. Joly's being disdently of that question, I am of opinion that the qualified by being a solicitor, but on this intelligible bill of exceptions is totally deficient in precision, ground, that, having regard to the condition of the and on that ground alone that these exceptions property, it had been improperly managed. Now, should be overruled.*
in that point of view, it is important to see what Judgment affirmed. authority there would be for affirming the Rolls'
order. In general the grounds for removal are that
the receiver has become unfit from some personal COURT OF CHANCERY.
calamity, from bankruptcy, or insolvency, or from MOLONY, PETITIONER, NUGENT, RESPONDENT. default. If he has not collected the rents with sufGEALE AND WIFE v. NUGENT.-July, 30, 31. ficient diligence he may be charged in his account Practice-Receiver--Solicitor-Judgment
with the arrears. While, if not satisfied with the
decision of the Master, the parties may bring the Creditor's Petition. A solicitor may be a receiver. Two or more judg. case before the court, though it has never been the
ments may be included in one petition under the habit of the court to encourage appeals against reJudgment Creditor's Acts.
ceivers from the Master's decision, unless a question
of principle be involved. By the rule in England, The facts of this case sufficiently appear in the judg- at least, the court will not re-discuss items unless on ment at the Rolls, reported ante p. 319, from which a question of principle: in the office all parties have this was an appeal.
the opportunity of scrutinizing every thing. The Mr. F. Fitzgerald, Q.C. and Mr. Tuthill for the court has there a machinery by which minute facts appellant.
can be better ascertained than in court on solemn Mr. Brewster, Q.C. and Mr. De Moleyns contra. motion. It is a question what may be the character
Mr. Gayer, Q. C. for the Incorporated Law of this inotion? 'It is not to open or to review the Society.
accounts; it is not to complain that any particular LORD CHANCELLOR.— The question which I have
charge has been allowed or has been disallowed ; at present to dispose of is, whether, upon the grounds that the Master has charged or omitted to charge on which this case was argued before me, or on the the receiver with any particular rents; it is not grounds on which the Master of the Rolls decided founded on any default of the receiver, or on any to dismiss the receiver, his order ought to be affirmed. attachment against him. It seems to be founded on This was an order obtained on the motion of the this, that on the face of the accounts there is someplaintiffs in the cause, who have an interest in the thing to show the court that a professional gentleproper management of the property which is subject man residing in Dublin is not a fit person to have to their incumbrance; and they are fully justified in the management of this property, and in that way coming to the court on every occasion when they it was argued at the bar. I confess I should be think it material to call attention to the conduct of startled at causing the introduction of such disthe receiver. They applied to the court to discharge cussion, considering the length it might go, and from his office a receiver appointed in 1816, ap- the number of cases which might occur; for inpointed according to the course of the court in regu, stead of making a specific case, this would call lar form, when it was open to every one interested on the court to examine all the dealings of the to suggest persons for the appointment, and to call receiver from his appointment, to see whether the attention of the court to the objections to any too much arrear had been allowed to accumulate; individual nominated if he were an improper person. and, in fact, to institute a kind of revision of all However, the plaintiffs have a right to move to dis- his proceedings. There are officers of the court place an improper person. I do not understand that appointed to watch step by step all the proceedings the other parties in the cause concur in this applica- of receivers ; these accounts have all received their tion, but they do not dissent from or oppose it. approval, there has been no default nor attachUnder these circumstances an order was made by ment for any disregard of any orders of the court, the Master of the Rolls, an officer assisting the and the only question of detail is as to the propriety Chancellor, to remove the receiver. Although this of certain proceedings, although those proceedings order did not reflect on the moral character, it did were sustained by the rental returned by one of the on the competence of Mr. Joly. While, therefore, defendants; but on examination of the circumstanThis case is reported 10 I, L. Rep. Ex. Ch.
ces of that part of the case I find the receiver per
fectly blameless, and free from censure. These few as it were, under tutelage. It was very wise to matters were referred to in detail not as showing exclude individuals whose time was not their own that more rents might have been received from the from a situation of this nature, but the office of solitenants, but as showing that the receiver tried to citor was not considered a disqualification: eligibility get rents to which he was not entitled, and that costs of solicitors seems implied by the exclusion of the were thereby accumulated. If costs were improperly others. When the Court of Exchequer framed their incurred, that matter could be disposed of in the rules they examined very particularly the new rules office, (the proper place for such investigation,) upon of Chancery, and endeavoured to adapt them to the passing the receiver's account. I cannot see where exigencies of their court; some they modified, some would be the end if the time of the court were to be they adopted, and some they rejected in regard to occupied in reviewing from first to last the acts of the matter in hand; to others they added a few receivers, and in considering why a particular por- words, making a specific rule out of an established tion of the rent was not got, or what was a sufficient practice, that solicitors in a cause were not to be quantum of rent; or if it were to be held that be receivers, but left untouched the general question. It cause certain rents had not been recovered this or is in the knowledge of every one that, in point of fact, that person was not to be continged as receiver, I the appointment of solicitors to be receivers is a comdo not know how to determine how much rent would mon practice in the Master's office. Few cases were entitle the court to say that a receiver was good, mentioned, but I may refer to Reynolds v. Reynolds, how little would make him deserve to be called bad, where a long discussion took place on a large arrear what quantity would constitute an indifferent re being brought in against a receiver. It was menceiver; I therefore think that so far as the case tioned that he was a solicitor, and some stress was rests on any amount not having been collected laid on that as showing that the arrears had acerned there is no point of principle; I cannot say that on that account, but the question was not raised because out of £600 he only collected £400 he is whether he ought to have been appointed receiver to be discharged. The only principle which I or not. When that case was discussed before me I could discover is one open in every case, to en. thought that the Master ought to re-consider bis quire whether, having regard to the entire cir- judgment on the grounds that he had not sufficiently cumstances of the case, the receiver should be resi- weighed certain matters which required to be taken dent on or near the property, and whether, having into account, and not being sure whether he had regard to these circumstances, it is expedient that considered these matters I referred it back to him the receiver should be continued. Even that is for that he might have the whole case before him on reference to the Master's office, where the court is principle, he then came to the same conclusion that sure that it will receive full investigation. It is only the receiver was in default, but it was not before with reference to that part that the plaintiffs seem me as a matter for any one to decide that a solicitor to have made a case to come before the court, and could not be a receiver. In Lupton v. Stevenson it if they wish to have an enquiry whether it is desirable was mentioned that Mr. Bruce, a solictor, was apthat a person residing near the property should be pointed a receiver, but it was not discussed on the appointed receiver I will grant it. As the case was ground that he was a solicitor, but that by the arargued before me the only intelligible principle it rangement on his appointment he was bound to be involves is, whether, having regard to the condition guided by the advice of another person who was not of the property, it was expedient that a particular responsible to the court; I sent it back on that kind of receiver ought not to have been appointed.ground. I believe, that he was re-appointed, and The case was not decided on that ground, for, as that he, as well as the receiver in Reynolds v. I find it reported, the judgment of the court below Reynolds, are both still receivers. Till this order, professed to proceed on the abstract principle of the it has never been decided in any branch of the disqualification of the receiver as being a solicitor of court
, that a solicitor is a disqualified person ; an the court. I shall only say that when a question is opinion has been thrown out that they are not comraised as to the law of the court on a particular point petent, but I must decide upon the practice. The the decision ought not to be founded on a specula- practice is, that solicitors are eligible, and it was tive notion of what ought or ought not to be the so decided by Sir William M Mabon, in a case proper practice; every judge is bound to determine so far back as 1826. On this ground it seems according to the course and practice of the court, that if the case rested solely on the objection that which are the law of the court, until it be changed Mr. Joly is a solicitor, his removal would not be by the Legislature or by a general order made by consistent with the law of the court. Whether the the authorities, to which the power of legislation for Masters will in any case appoint solicitors, must be such purposes has been delegated; until that is done left to the discretion of the Masters, who, both in the law and practice of the court ought not to be England and this country, are considered the prochanged. Now, what law, practice, or rule of the per judges; and it will require a strong case to court exists which prohibits a solicitor from becom- entitle a party to call on the court to re-agitate ing a receiver? No case until this has decided that a question which has been disposed of by the a solicitor as such is disqualified. The rule of court, Master by whom these matters of detail are to be framed by Sir Edward Sugden and the late Master considered, and the business of this court would be of the Rolls, the present Chief Justice, does not con- overwhelming if such questions were considered by tain one word to prohibit them; on the contrary the it. So far as regards that ground, the order canrule is directed against very inferior classes, the not be sustained. So far as the particular details, clerks and apprentices of solictors, persons obviously I do not see my way to make any order against Mr. not in a proper position to be receivers, they being Joly, unless the parties will consent (which they