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pockets, and so buy their votes without liability to the penalties for bribery. It was right to prevent this to some extent by forbidding persons so employed to vote, and thus to destroy the motive for sham engagements. But it is quite otherwise with professional agents. They cannot be dispensed with. An election could not be conducted without their assistance, and they are so costly, that no candidate would employ more of them than necessity compelled. To enact that they shall not vote is an insult for which the parties to it should be called to account by those whom they have insulted. It is too late to repair the wrong now, but we trust the solicitors will not rest until this undeserved stigma shall have been removed from them.
Partnership-Liability of Law Agents.-Sawyer v. Goodwin, 16 L. T., N. S. 622, decided by Stuart, V.C., involves an interesting point in regard to the liability of the executor of a law agent for the fraud of that law agent's partner. In negotiating a mortgage on the property of a client, the partner of a firm of solicitors, who was entrusted with the whole business of the firm in London, fraudulently furnished to the mortgagee an abstract which concealed prior mortgages, upon which the mortgage was completed. The members of the firm of solicitors having all died, and all having proved insolvent except one, Goodwin, the persons interested in the mortgage claimed damages from the estate of Goodwin. It was argued against the claim that partners were not liable for fraud of which they were not personally guilty; and moreover that this was a case in which, if Goodwin had incurred liability, the remedy was only against him personally, the rule applying actio personalis moritur cum persona. The latter ground of defence is not of much practical interest in this country, where, leaving the subtle distinctions of the Roman Law, (see Savigny Syst. v., 47, sq.) it has been settled at least since 1809* MacNaughton v. Robertson, 15 F.C., 199; Morrison v. Cameron, ib. 279) that the civil action for reparation, grounded on delict, is not, like the penal action in criminal law, confined to the delinquent. The wrongdoer's representative is liable for reparation (Bell's Pr. 546). The question of partnership liability is also said in both English and Scotch books to be free from doubt; and indeed the argument for the defender was chiefly rested on the cases which distinguish fraud committed beyond the scope of the partnership business, an attempt being made to bring the case within Harman v. Johnson, 2 E. and B. 61, in which a transaction of this kind, where money was entrusted to a firm of solicitors for general investment, and not for a particular loan or mortgage, was found to be rather part of the business of a scrivener than of a solicitor. The law is quite clearly laid down in Clark on Partnership and Joint-Stock Companies, p. 253. The judgment of the Vice-Chancellor seems, * It was so ruled as early as 1582, Monro v. Wishart, M. 10,337, and it is so stated by Ersk. iii. 1, 15; and Bankton iv. 24, 8. But doubt was afterwards thrown upon the principle by the case of Syme v. Erskine in 1801, M. Sup. & Vassal, App. 3, 4 Pat. App. 510.
however, to suggest a doubt as to the correctness of what must be held since Cox v. Hickman, 8 H. of L. Ca. 268, to be the fundamental principle of the law of partnership, viz., "that the relation of partners in questions of liability rests on the principle of agency. This," says the V. C., "may not be a very perfect mode of describing the principle upon which that liability depends; but certainly, as far as it goes, it is accurate enough. It is not suggested that the profit to be derived from the making out and delivery of this abstract was for the separate benefit of Williams, or that it was to be applied in any other way than as ordinary partnership profits." The V. C. therefore thought it was impossible, "upon the well understood principles of the law of partnership," not to hold all the partners liable for the breach of professional duty committed by Williams. A writer in the Law Times, adopting the principle of Cox v. Hickman, questions, on the other hand, the decision of the Vice-Chancellor :
"If the theory of partnership liability is agency, the liability of one of the partners for the fraud of the other cannot be regarded as settled by decision any more than, we should submit, it is settled by principle. In Smith's Mercantile Law, the author learned not by courtesy, remarks, with his wonted caution, that the principal has been thought to be responsible, not merely for the negligence, but for the deliberate fraud of his agent committed in the execution of his employment, though without the principal's authority; as, for instance, by selling false jewels for true ones;' and he quotes the reason given by Lord Holt, that some one must be the loser, and he who confides in the deceiver ought, rather than a stranger, to be such loser. But in the Exchequer, in Udell v. Atherton, 4 L. T. Rep. N. S. 797, 7 H. & N. 172, on a sale by an agent of a log of mahogany represented by him as sound, with a fraudulent concealment of a defect, and an action of deceit brought against the principal, the court was equally divided: Pollock, C. B., and Wilde, B., holding that the principal was liable; but Martin and Bramwell, BB., the contrary. Bramwell, B., looked on the fraud as no part of the sale; no part of the contract-it was collateral to it; and thought that Lord Holt's reason affected the purchaser more than the principal. He reviewed all the authorities, ending with Wilde v. Gibson in the House of Lords. In like manner Martin, B., argued that the agent was not authorised to make the misrepresentation respecting the state of the log; and all that the principal did was to authorise him to sell it honestly. No doubt the principal afforded the occasion on which the fraudulent misrepresentation was made, but he did nothing more.
"Besides the opportunity of misappropriation by a member of a solicitor's firm as to mortgage money, cases have occurred of a like danger relating to money in court. Thus, in Brydges v. Branfill, 12 Sim 369, on a sale of estates under the direction of the court, the tenant for life obtained an order for payment out of part of it to him by fraud, to which the member of the firm who acted for him in the suit was privy. The Vice-Chancellor decreed all the members of the firm liable. Upon 'general principles,' with respect to liability, he could not distinguish the innocent members from the peccant members. They were all of them solicitors and officers of the court, and the court could not regard any division of labour as among themselves, but must look upon the act of the partnership towards the court as the act of all and every of them. The safety of the public required this. Todd v. Studholme, 3 K. & J. 324, was a case of the same description.
"The doctrine of partnership in fraud falls with peculiar hardship on solicitors, owing to the confidential relation subsisting between a partner and the client whose business is attended to by him, and the largeness, in many instances, of the interests involved.
"It is a standing tribute to the profession that, holding, as they do, men's fortunes and good names in their hands, they habitually deal with both as faithful stewards, and that an unjust steward in the law is seldom found. In one sense their interest in ascertaining the true bounds of partnership liability is small, but in another it is great. Notwithstanding, then, the cases above noticed supporting the doctrine of
liability for a partner's fraud, we venture to think that when partnership liability is rested on agency, as after Cox v. Hickman, and in the interest of jurisprudence, it should be rested, considerable doubt arises whether the foundation of all those cases is not sapped. The operation of law which would attach on an innocent person liability for the moral fraud of another, because those persons have agreed to share between them the profits of business, meaning of course honest business, and because the fraud is committed in the business, is repugnant to reason as well as to morals. Fraud is in its nature personal. There can be no technical participation in it. It is altogether out of the region of partnership."
Dundee Sheriff Court.-Among various improvements recently introduced in the conduct of business in this important local court, the system of publishing the motion roll and debate roll of each day in the morning newspaper has been introduced. This is only taking a hint from the Times, which has long published a list of the cases set down for hearing or decision in the Supreme Courts in London. We used to wonder why the Edinburgh and Glasgow newspapers did not copy in their morning issue the cases set down in the Court of Session Rolls of the previous evening; excluding of course the motions in the Outer House, which occupy too much space, and are not of sufficient importance. But at last we discovered that they abstained on the ground that their doing so might lead to frequent disappointments-the fact that a case is set down in the Inner House roll being no reason why it should come on. We understand that that reason does not apply at Dundee, and that the cases set down are invariably proceeded with. We observe in the slip with which we have been furnished, that there is also a brief record of "yesterday's business," comprising a note of the interlocutors by the Sheriff-substitute, and of papers lodged; and also a list of the cases to be heard before Sheriff Heriot at his sittings in Julv.
Obituary.-ROBERT WRIGHT, Esq., of the firm of Wright and Morrison, Writers in Greenock, Clerk of the Peace for Renfrewshire, died at his house in Kilblain Street, Greenock, on July 12. Mr Wright, who was a native of Dollar, came to Greenock in 1843, and shortly afterwards was admitted a procurator before the Sheriff Court. He was a sound lawyer and a safe adviser, possessing in a rare degree the confidence of his numerous clients. He took an active and prominent part in politics, having been from the first a warm supporter of Mr Dunlop, M.P. for Greenock, whose principal agent in election matters he became. In local politics, he was always on the side of liberal principles, and opposed to everything in the shape of high-handed government. In August 1863 he was appointed Clerk of the Peace for the County-an appointment which was received with much favour not only by his professional brethren, but by the community generally. He was at the same time nominated by Sheriff Fraser to be one of the substitutes to act in absence of Sheriff Tennent. He was a member and office-bearer of the Free Church. He was of a most genial and social disposition, and being ever ready to lend a helping hand to any one in distress, he had be
come endeared to many who will miss not merely his warm and kindly sympathy, but his generous and liberal assistance.
JAMES MORTON, Esq., of Belmont, writer in Ayr, was the father of the profession in the west of Scotland. He was born in the parish of Loudoun in December 1776. He was eldest son of John Morton, manager of the Loudoun colliery, and of Helen Mac Math, his wife, daughter of Mac Math, wright in Galston, and Jean Smith, his wife. This John Morton was second son of James Morton, farmer at Green, near Wishaw, by Janet, his wife, daughter of John Cunningham of Cairneyhead. James Morton of Green was son of John Morton sometime farmer at Whitshaw and afterwards at Green, by his wife, Mary Newlands. (Paterson's Ayrshire Families and Lyon Office Records.) Mr Morton attended law classes in Edinburgh, and became in 1802 a procurator in the Sheriff-Court of Ayrshire. By indomitable perseverance and attention to business, he attained the highest position in his profession. From 1832 he was agent for the Liberal party, until increasing business and advancing years compelled him to retire from politics. He was law agent of the Ayrshire Bank from its commencement in 1830 till it merged in the Western Bank in 1847. His connection with this bank as well as with many monied men and landed proprietors, was the source of a lucrative conveyancing business; and when sasines were taken upon the ground of the lands conveyed, almost every week saw him and his apprentices on an infeftment excursion. His kindness to his "boys" on these occasions is remembered with delight. "He then threw aside the working man and became the friend. His watchword was work while you are at work and play while at play, but never unite both." Mr Morton was a captain in the volunteers of the French war period, and he used to refer to this period with great elation. In early life he was of a hospitable and social disposition, but for more than thirty years he had ceased to go into society, and few friends were entertained in his house. His entailed estate of Belmont descends to his nephew, Mr Mathie. The Ayrshire Express pays this tribute to him.
"As a professional man, Mr Morton combined a thorough knowledge of law with an intuitive perception of character. He was not so famous as a lawyer as he was as a guide to his clients, both local and county. Mr Morton was one of those grand old whigs who fought the battle of progress, when to acknowledge such in a provincial town was death to a young man. But like all other whigs of that age, he thought that the Reform of 1832 should be considered final. We cannot conclude our notice of Mr Morton without recommending his character and habits to the special consideration of the now young members of the Ayr bar. A more punctual, diligent, and considerate practitioner we have never met. In point of fact Mr Morton was never known to leave work undone at night which might be done in the morning. He always had a charitable disposition, and professionally did his utmost to bring about an arrangement between two parties before advising them to go to law. He will be much missed for his common sense advices, for
"His life was work, his language rife
Appointments.-Sir James Ferguson, Bart., M.P. for Ayrshire, has
been appointed Under Secretary of State in place of the Earl of Belmore. The Government appear to have thought better of their intention to appoint a Scotch Under Secretary to perform the functions of the Lord-Advocate. The Hon. A. F. O. Liddell, Q.C., has been appointed permanent Under Secretary for the Home Department, in place of Mr Waddington, resigned. Sir Robert Phillimore, has been appointed judge of the Admiralty Court in succession to Dr Lushington. Sir Robert was called to the Bar in 1841, and has held the office of Queen's Advocate under the present government. Sir Robert Phillimore has long been known as a successful practitioner in the Ecclesiastical and Admiralty Courts, and as the author of a large and useful, but carelessly compiled, and often inaccurate, book, in four volumes, on Public and Private International Law.
Dr Travers Twiss, Q.C., has been appointed Queen's Advocate in room of Sir R. Phillimore. The learned gentleman has long been distinguished by the academical offices he has held, as well as by his learned works on the Law of Nations.
Mr John Bartlemore, writer, Paisley, has been appointed by the Crown Clerk of the Peace for Renfrewshire, in room of Mr Robert Wright, deceased. Mr Bartlemore thus becomes a pluralist, having held since Feb. 1857 the office of Commissary Clerk for the county, the fees of which were returned to Parliament as amounting in 1863 to L.474 2s. 6d.
A CIRCUIT COURT AT GREENOCK-When we suggested in May last that the Inverary Circuit Court should be transferred to Greenock, we overlooked the fact that the Act of 1864, giving power to alter the circuits of the Court of Justiciary, contains a proviso (introduced, it is said, at the suggestion of the ducal obstructive to whom we referred in our former notice) that " Circuit Courts shall continue to be held at such towns as are appointed in the Acts" 1672 and 20 Geo. II., c. 43. The village of Inverary and its noble owner can therefore be deprived of their prerogative only by an Act of Parliament. The Town Council and the Faculty of Procurators of Greenock resolved some time ago to petition for an order in council making the change which is so obviously expedient, but it was pointed out by that vigilant and accurate lawyer Sheriff Fraser that this course would be unavailing. We are informed that the Faculty has now agreed to memorialize the Home Secretary to sanction the establishment of a Court at Greenock, having for its territory, in the meantime, the shires of Renfrew and Bute and the parish of Largs. The people of Bute and Largs are of course favourable to this plan. Greenock itself will supply more than the average amount of crime tried at a Scotch Circuit. At the next Glasgow Circuit there will probably be brought from Greenock, in addition to other cases, the very serious case of Tasco, the negro sailor, for murder; the brothers Service for fire-raising; and the captain of a steamer for culpable homicide.