Statement of Defence of the Defendant J. B. claim for an illegal seizure. 1. The defendant denies that the plaintiff H. C. B. was Defence to appointed receiver of the L. Mines Colliery by the late High Court of Chancery as alleged, and that he took possession as such receiver of the said mines, colliery, and business, and of the plant and machinery thereon and connected therewith, and that he was in possession of the said property at the time when the defendant levied execution upon the said property. And the defendant further says that none of the plaintiffs were in possession of the said property or entitled thereto at the time of the said execution. 2. The defendant denies that the testator was at the time of his death equitable mortgagee of the said L. Mines and Colliery, or was owner of the said plant and machinery as alleged. 3. The defendant further says that the testator's title to the said property (if any) was by virtue of a bill of sale within the meaning of the "Bills of Sale Act, 1854," which was made more than twenty-one days before the said execution, and was unregistered at the time of the said execution, and that no possession was taken by the testator or his representatives under the said bill of sale at the time of the said execution. 4. With regard to the claim of the testator's executors, the defendant says that the goods seized by the defendant were the property of the said E. B., subject only to an agreement between him and the testator, which agreement did not pass the property in the said goods to the said testator, but was only personally binding on the said E. B., and was only enforceable in a Court of Equity, and that the defendant at the time of the said execution had no notice of the said agreement and of the said equitable claim of the testator's executors. 5. On or about the 3rd December, 1875, the defendant's officers, under a valid writ of fieri facias upon the judgment in the 6th paragraph of the statement of claim mentioned, lawfully seized and sold some machinery and movable plant on the said colliery, the same being the property of the said E. B. liable to seizure under the said writ of fieri facias, but they did not seize any of the brickwork of the said colliery. 6. The defendant denies that the said colliery was a going concern, and that by means of the alleged grievances and Defence to claim against sheriff for an illegal seizure. trespasses the said colliery was wrecked, and its value as a going concern ruined. 7. The defendant further says that if any trespasses or wrongful acts were committed by the defendant or his officers as in the statement of claim alleged, the defendants, the Crewe Coal and Iron Company Limited, are liable to indemnify the defendant in respect of any damages recoverable against the defendant for such trespasses or wrongful acts on the ground that the said Crewe Coal and Iron Company Limited having caused the writ of fieri facias above mentioned to be issued and indorsed and delivered to the defendant to be executed, directed and required the defendant's officers to execute the said writ by entering the colliery and premises in the statement of claim mentioned, and taking the machinery and other goods and chattels in the same statement mentioned and alleged to be wrongfully seized and caused to be sold by the defendant as and for the goods of the said E. B., and thereupon the defendant's officers, acting upon the said direction and request, and bonâ fide believing that the said L. Mines and Colliery, and all the goods and chattels thereon, were the property of the said E. B., seized and sold the goods and chattels in the 5th paragraph of this statement mentioned. 8. This defendant J. B. claims that if at the trial of this cause any damages are awarded to the plaintiffs in respect of the alleged trespasses or other wrongful acts, such damages may be awarded against the defendants, the Crewe Coal and Iron Company Limited, either directly to the plaintiffs in discharge of this defendant, or as indemnity to this defendant against the payment of such damages. Reply. 1. The plaintiffs join issue upon the 1st, 2nd, 3rd, 4th, 5th, and 6th paragraphs of the statement of defence. The plaintiffs further say that they have no concern with the defendant's claim for indemnity against the Crewe Coal and Iron Company Limited, but claim that any damages which may be awarded to the plaintiffs may be so awarded both against the defendant J. B., and against the said Company. Action against Sheriff for selling with undue Haste and without sufficiently Advertising. 1. The plaintiff is a retired officer in her Majesty's Indian army, and the defendant is a gentleman residing at C. Hall, in the county of S., and was in the year 18— sheriff of the said county. Against a misconduct sheriff for in connection with a sale of goods 2. In the month of September, 1876, a writ of fieri facias was issued from the Division of the High Court of Justice plaintiff, directed to the defendant as execution. and indorsed for £415, with interest against the goods of the the then Sheriff of S., 3. The defendant, on the afternoon of the 8th September, seized under the said writ certain race-horses, the property of the plaintiff, named Lady Jane, the Coquette, and others of great value, which said race-horses were then in the care of and being trained by Thomas, trainer at Newmarket, in the said county of S. 4. The defendant wrongfully sold by auction the said racehorses so seized with undue and unnecessary haste, without reasonable notice of the said sale, and without it being possible for the plaintiff, after the seizure and before the sale, to hear of the seizure, so as to enable him to satisfy the execution and avert the sale, and the defendant improperly allotted the said race-horses and sold the same for a price which was inadequate and less than their reasonable price, and without taking due and reasonable care in advertising and giving notice of the sale, and also conducted himself negligently in the conduct and management of the sale, whereby and by reason of the premises the sale realised much less than it otherwise would have done. 5. The defendant also sold a greater number of the said race-horses to satisfy the said execution than was necessary, and converted to his own use some or one of the said horses and a part of the proceeds of the sale. The plaintiff claims : (1.) £1500 as damages for the grievances above complained of. (2.) Such further or other relief as the nature of the case may require. taken in Against for refusing Ship-owner. And see Charter-party-Bill of Lading. Action against Ship-owner for refusing to give a clean Receipt for Goods shipped in his Vessel and sold subject to clean Receipt being given. 1. In the month of August, 1877, the plaintiff sold to one shipowners G. S. 17 tons of glucose at the price of £19 12s. 6d. per ton, on the terms that the plaintiff should deliver the same free on board an export ship in the Thames, and that the plaintiff should give to the said G. S. a clean receipt for the same from the owners of such export ship or their master or agent. to give a clean receipt for goods shipped and for trover. 2. On or about the 7th of August, 1877, it was agreed by and between the said G. S. and the defendants that the said 17 tons of glucose should be shipped on board the defendants' ship "Orient" and carried therein to Adelaide upon certain terms then settled between them. 3. Accordingly the said G. S. gave notice to the plaintiff to ship the said 17 tons of glucose in the "Orient." The plaintiff thereupon conveyed the said 17 tons of glucose packed in 345 cases alongside the said ship in lighter, and gave instructions to the chief officer of the said ship only to receive and keep on board such of the cases as were in good condition, and for which the chief officer would give a clean receipt, so as to enable the plaintiff to comply with his contract with the said G. S. in that respect. 4. The chief officer of the "Orient," the defendants' agent, received and kept on board the said 345 cases of glucose, but did not give and wholly refused to give a clean receipt of bill of lading for them, whereupon the said G. S. refused to accept the said 345 cases in pursuance of the said sale, and the plaintiff demanded the return of the said 345 cases, but the defendants wholly refused to return the same or any part thereof, and converted the same to their own use. The plaintiff claims £500 damages. Solicitor (a). Claim by one of a Firm of Solicitors for his Charges incurred before Partnership and Charges for Work done by the Firm (b). 1. The plaintiffs are solicitors carrying on business in part- Claim for nership at W., in the county of (a) In order to enable a solicitor to recover his charges for professional services he must be prepared to prove solicitor's charges. A solicitor must take out a certificate to enable him to recover his fees. 1. That he was duly admitted, enrolled, and qualified as a solicitor. By the Stamp Act, 1870, a solicitor who directly or indirectly acts or practises in any Court as such without having a duly stamped certificate in force at the time, shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement in relation to any act or proceeding by him in such capacity. And by the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68, s. 12), no costs, &c., in relation to any act or proceeding by a solicitor without being duly qualified to act as such, shall be recoverable in any action, &c. By Law list 23 & 24 Vict. c. 127, s. 22, the Law List shall be prima facie evidence that prima facie the persons whose names are inserted in it, in the list of solicitors, have evidence of obtained stamped certificates for the current year (Nov. 16 to Nov. 15) and the absence of a solicitor's name therefrom is prima facie evidence that he has not obtained a certificate for such current year; but in the latter case an extract from the Roll of Solicitors, signed by the secretary of the Law Society, shall be evidence of the facts appearing in such extract. 2. His retainer as solicitor by the defendant, which may be done by showing either an express retainer, or that the defendant attended at his office and gave directions, or otherwise recognised his employment. 3. That the business was done, which may be proved by a clerk or other agent who can speak to the existence of the cause or other business in respect of which the charges are made, and can prove the main items. (Roscoe Ev. Nisi Prius, 13th ed. 473.) his qualification. 4. That a bill was delivered pursuant to 6 & 7 Vict. c. 73, s. 37, which Delivery provides that no solicitor, nor an executor of any solicitor, shall com- of a bill mence or maintain an action for the recovery of any fees, charges, or month disbursements for any business done by him as such solicitor until the before expiration of one month after he shall have delivered to the defendant, action or sent by post, or left for him at his counting-house, office, dwelling- essential. house, or last known abode, a bill of such fees, &c., which shall be subscribed by him or any one of the partners, by his name or the name of his firm, or be accompanied by a letter so subscribed, and referring to such bill. Under this enactment a solicitor's bill cannot be recovered on an account stated, without proving the delivery of the bill, though the amount has been admitted. (Eicke v. Nokes, 1 M. & Rob. 359.) But he may recover on a promissory note given for the amount. (Jeffreys v. Evans, 14 M. & W. 210.) The bill must after delivery be left with the defendant for examination. (Brooks v. Mason, 1 H. Bl. 290.) A delivery to the defendant's solicitor, if he himself afterwards attends the taxation, is sufficient. (Vincent v. Slaymaker, 12 East, (b) For this note, see post, p. 578. |