C. A. 1896 CAULD v. BOUSTEAD. length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far ROCHEFOUas relates to the remedy.'" Lord Blackburn goes on to say: "I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry." In questions of this kind it is not only time, but the conduct of the parties which has to be considered. Before 1882 the defendant had mortgaged the estates as if they were his own, but he concealed such mortgages from the plaintiff. Since 1882 the estates have been sold, and he has received the moneys arising from their sale, but he concealed these transactions from the plaintiff. The defendant also destroyed the books containing the accounts of these estates. He says he did this not because the plaintiff abandoned her claims, but because he had no room for the books. Under these circumstances he can hardly invoke the loss of the books as a reason for refusing relief to the plaintiff. But, as already stated, since 1882 the defendant has done nothing to induce the plaintiff not to sue him, nor to lead her to believe that any claim by her would be recognised. On the other hand, the plaintiff has done nothing actively to lead the defendant to suppose that she abandoned any claim she might have against him as her trustee. There is nothing to be said against her except that she has forborne to sue for twelve years. In 1887 she wrote a letter to Mr. Hollams asserting her rights, but she did no more. Under these circumstances, to hold that time is a bar to the plaintiff's claim would be to decide that, although the Statute of Limitations is no bar to a suit by a cestui que trust against a trustee in a case of express trust, yet that lapse of time without C. A. 1896 CAULD v. more is a bar. Such a conclusion cannot be correct, and it was decided to be inadmissible in In re Cross. (1) Even where ROCHEFOU there is an express trust, lapse of time, coupled with other circumstances which render it unjust to give the plaintiff relief BOUSTEAD. against the defendant, will induce the Court to refuse the relief, although no Statute of Limitations might bar his claim: see Bright v. Legerton (2) and In re Cross. (1) But in this case, which is one of express trust, there is nothing except time, and that without more is not sufficient apart from some Statute of Limitations. This view of the case renders it unnecessary to examine the excuses given by the plaintiff for not instituting proceedings sooner. The appeal must be allowed and the judgment be reversed. It must be declared that the defendant purchased the Delmar estates as a trustee for the plaintiff, but subject to a charge for the amount paid to the Dutch company. An account must then be directed of the defendant's dealings and transactions with the Delmar estates. The account will be an account as between a trustee and his cestui que trust, not an account as between mortgagor and mortgagee, and there must be no account on the footing of wilful default. The defendant must be allowed all his advances and outlays, with colonial interest; but he ought only to be charged simple interest at 4 per cent. on balances in his hands, unless it appears that he has made more. Minutes had better be prepared and signed, and, if necessary, they can be mentioned to the Court. The defendant must pay the costs of the action up to the hearing and the costs of the appeal. Gilmour, for the defendant, asked that the costs might be taxed on the higher scale. LINDLEY L.J. We have power to make such an order, but it is a power which ought only to be exercised under very special circumstances. There is no ground for exercising it here. Gilmour then asked that the accounts might be taken by an official referee instead of in chambers. He referred to the (1) 20 Ch. D. 109. (2) (1861) 2 D. F. & J. 606. C. A. 1896 Arbitration Act, 1889 (52 & 53 Vict. c. 49), ss. 13, 14, and Order XXXIII., rr. 2, 3, 4, as giving power to order this, and urged that there would be a great saving of time, as an official ROCHEFOUreferee took a case continuously, whereas the chief clerks could only give appointments at distant intervals. Renshaw, Q.C., doubted whether in a case of this nature an official referee would be able to proceed continuously, but he did not strongly oppose. LINDLEY L.J. This is eminently a case for an official referee, and sending it to him will cause a great saving of time. THE COURT accordingly directed that the case should go to an official referee. Solicitor for appellant: G. H. C. Lea. Solicitors for respondent: Hollams, Sons, Coward & Hawksley. CAULD V. BOUSTEAD. H. C. J. MARSH v. JOSEPH. [1877 M. 123.] Principal and Agent-Fund in Court-Payment out to wrong Person-Fraud - Solicitor— Use of Name by uncertificated Solicitor-Ratification Solicitor Partner-Liability-Commissioners of Treasury-Replacement of Lost Fund-Court of Chancery (Funds) Act, 1872 (35 & 36 Vict. c. 44), s. 5—Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 10—Form of Order. Where negligence or other breach of duty is committed by a solicitor in a matter of which the Court has seizin, the Court can summarily order the solicitor, as its officer, to make good the loss actually occasioned thereby, but cannot mulct him in damages for his misconduct. To constitute a binding adoption or ratification of acts done without previous authority, (1.) the acts must have been done for, and in the name of, the supposed principal; and (2.) full knowledge of them, and unequivocal adoption after knowledge, must be proved; or else, the circumstances must warrant the clear inference that the principal was adopting the acts of his supposed agent whatever their nature or culpability. Without the knowledge or authority of X., a solicitor, A. B., another solicitor, used X.'s name in proceedings, wherein by acts of fraud and forgery, A. B. obtained an order for the payment out of a fund in court, and was thereby enabled to get the fund paid out by a cheque from the Paymaster-General, with which he opened a fictitious account at a bank. Two days later, and after the account had been partially drawn upon, X. was told by A. B. that his name had been made use of for a formal party. X. reprimanded A. B. for this, but, without inquiring into the nature of the business, accompanied A. B. to the Paymaster-General's Office, and received a cheque for 157. for costs; over 107. of this he paid to A. B. for out of pocket expenses, and the balance of 4l. 5s. 6d. he handed to his partner Y., who entered it to the credit of the firm in their books without knowing anything of the circumstances under which the money had been paid. A large portion of the fund formerly in court having been lost : Held, (1.) that, even if X. had previously authorized the use of his name for a formal party, he would not have been responsible for the acts of fraud and forgery committed by his supposed agent for that agent's own fraudulent purposes; (2.) that, under the circumstances, X. had not condoned or ratified the use of his name by A. B., and was not liable for the whole of the loss sustained, but only for the amount of the 157. cheque which he took; and (3.) that Y. was liable only for the 47. 5s. 6d. received by him for the partnership. Form of order for making good a loss occasioned to the Consolidated Fund under the Court of Chancery (Funds) Act, 1872, s. 5, through payment of a fund out of court to the wrong person. The order of Kekewich J. varied. APPEAL from Kekewich J. The question on this appeal was whether Messrs. John Clear and James Ernest Green, of 1, Old Sergeants' Inn, who were in partnership, as solicitors, under the firm of Clear & Green, were, or whether either of them was, liable to make good, all or any and what part of a sum of 63871. Os. 2d., the proceeds of a fund formerly standing to the credit of this action, and paid out of court pursuant to an order dated July 13, 1895, which order had been procured by the fraud of one John Arthur Hales, a solicitor falsely representing himself as practising at 15, Clifford's Inn. Hales was an undischarged bankrupt and an uncertificated solicitor. The former fact was known to Clear; the latter was not. Hales was also a commissioner for taking affidavits, and had been in that character brought into connection with Clear; but Green did not know him at all. The material facts of the case were as follows: Under a settlement dated July 9, 1858, certain property was vested in trustees upon trust for Jacob Moses (who subsequently changed his name to John Moses Marsh) during his life, with reversion to such one or more of his children as he should appoint, and in default of appointment for all his children in equal shares. In 1877 this action was brought for the carrying into execution of the trusts of the settlement, and in the same year the usual judgment was pronounced therein. In 1882 the property comprised in the settlement was sold, and the proceeds were paid into court to the general credit of the action, and invested in 3 per cent. India Stock. J. A. Hales acted as solicitor for the plaintiffs in the action. In 1892 John Moses Marsh died, leaving Joseph Moses Marsh, his eldest son, and several other children. On March 25, 1895, Mr. Clear, who had previously carried on business alone, entered into partnership with Mr. Green, and since that time they had carried on their business under the name of "Clear & Green" at No. 1, Old Serjeants' Inn. Clear had then known Hales for about five years, but had had no business transactions with him beyond occasionally requiring his services as a commissioner as above mentioned. About the beginning of January, 1895, Clear had, at Hales' request, accompanied him to the Paymaster-General's Office, and had there identified him, without being told for what particular business the identification was required. Clear did not see Hales again till July, 1895, when Hales called on him at his office and said, "I have some business, and I want another solicitor to act for one of the formal parties: will you act for me?" To which Clear replied, "We shall be very happy on receiving instructions." Whereupon Hales rejoined, "Of course"; but no name of any business or person was mentioned, and Hales did not ask for leave to make use of Clear's name or that of his firm. Nothing more was heard from Hales until Monday, August 12, 1895. In the meantime, towards the end of June, 1895, a petition was presented to the Court by Hales in the name of "Joseph Moses Marsh," which, after reciting the settlement of 1858, that Joseph Moses Marsh had been certified by the chief clerk C. A. 1896 MARSH v. JOSEPH. |