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Heinrich's solicitors, were substituted for Mr. Fiddey as solicitors for the Plaintiffs in the suit.

In June, 1870, the bill in Jones v. Frost was dismissed by consent of all parties, and the property reconveyed by Frost.

In November, 1870, the suit of Heinrich v. Sutton was commenced by Heinrich against some other persons claiming interest in the property.

Mr. Fiddey had his bill of costs in Jones v. Frost taxed at £120, and took out a summons in the Chamber of the Master of the Rolls, asking for a charge for his costs upon the property recovered in that suit, under the 28th section of the Solicitors Act, 1860 (23 & 24 Vict. c. 127). The Chief Clerk refused the application on the ground, as was stated, that the summons was not intituled "In re Fiddey (a Solicitor)," and that the suit of Jones v. Frost no longer existed; and the summons was never adjourned into Court.

Mr. Fiddey then took out a similar summons before Vice-Chancellor Malins in the suit of Heinrich v. Sutton, who made the order asked for; but his decision was reversed by the Lords Justices on the ground that the application ought to have been made in the branch of the Court to which the suit of Jones v. Frost had been attached (1).

L. JJ.

1872

JONES

v.

FROST.

In re FIDDEY

(A SOLICITOR).

Mr. Fiddey then presented this Petition to the Master of the Rolls, which was served upon Mr. and Mrs. Jones and upon Heinrich, stating the circumstances, and praying for a declaration that the Petitioner was entitled to a charge upon the reversionary estate of the Plaintiffs, Mr. and Mrs. Jones, for the amount of his taxed costs with interest. The Master of the Rolls made the order prayed for, and from this decision Heinrich appealed.

Mr. De Gex, Q.C., and Mr. Ramadge, for the Appellant:The order is erroneous for several reasons. In the first place, the 28th section of the Solicitors Act, 1860 (23 & 24 Vict. c. 127), under which this application is made, gives power to make the order "to the Court or Judge before whom any such suit, matter, or proceeding has been heard or shall be depending." The suit of Jones v. Frost never was heard and is not now depending, for it has been dismissed; therefore the Court has no jurisdiction.

VOL. VII.

(1) See Heinrich v. Sutton, Law Rep. 6 Ch. 865.

3 Q

1

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In the second place, nothing at all was recovered or preserved by means of that suit. For at the time when the deed was executed Mrs. Jones had no interest but a mere possibility, which she could not convey. If she had been a feme sole she might have been bound by way of estoppel by the statement in the deed that her father was dead, but there is no authority for holding a married woman bound by estoppel in such a case. She did not even profess to convey the estate, but only her "interest" in it, which was nothing. The suit and subsequent reconveyance were therefore entirely useless.

[The LORD JUSTICE JAMES referred to Crofts v. Middleton (1).}

Again, Mr. Fiddey was not the solicitor at the time when the bill was filed, nor when the suit was dismissed. He cannot be said to have recovered or preserved anything.

Mr. Southgate, Q.C., and Mr. Cecil Dale, for the Petitioner, were not called on.

Mr. Pace, for Mr. and Mrs. Jones.

SIR W. M. JAMES, L.J.:

In this case several points have been raised and argued whichr have no real bearing on the question at issue. A solicitor asks for a declaration that he has a charge on some property recovered in a suit in which he was employed, and the Respondent says that he recovered nothing whatever, because the suit was practically useless. The solicitor was employed by Mr. and Mrs. Jones for the purpose of getting rid of a deed which Mrs. Jones had executed, and by which she was bound as fully and effectually as if she had been a feme sole. By the deed she purported to convey all her interest in the property, and it contained a statement that her father was dead. It is not necessary now to decide what is the effect of a married woman making a statement of that nature in a deed, but I apprehend that when the point comes to be decided it will be held that it has exactly the same effect as if she were a feme sole. However, the suit was carried on, and, as it seems to me, for the benefit of Heinrich, who was the purchaser; and then, (1) 8 D. M. & G. 192,

L. JJ.

1872

W

JONES

v.

FROST.

In re FIDDEY

by a compromise, the bill was dismissed and a reconveyance made which was really for the benefit of the purchaser. Under these circumstances, I am of opinion that the property was property recovered by the instrumentality of the solicitor. It was freed from that charge, incumbrance, or cloud which affected it, by the suit; and therefore the solicitor is entitled to the charge he asks for. I can see no difference between the position of the Plaintiffs (A SOLICITOR). and the purchaser. He knew that there was a pending suit, and that costs must have been incurred in it, and he ought to have inquired whether the solicitor had been paid; at all events, the purchaser ought not to stand in the way of the solicitor's right to a charge.

I am therefore of opinion that the order was right; and the appeal must be dismissed with costs.

SIR G. MELLISH, L.J., concurred.

Solicitors: Messrs. Wilkinson & Howlett; Mr. Fiddey.

BEATTIE v. LORD EBURY.

[1868 B. 257.]

Misrepresentation of Fact or Law-Liability to make good Representation —
Directors-Personal Liability.

Three directors of a railway company opened, on behalf of the company, an account with a bank, and sent a letter signed by the three as directors requesting the bank to honour cheques signed by two of the directors and countersigned by the secretary. The account having been largely overdrawn by means of such cheques, the bank sued the company at law, recovered judgment in 1865, and issued an elegit. The proceeds being insufficient to satisfy the debt, the bank filed a bill to make the directors personally

liable :

Held (reversing the decision of Bacon, V.C.), that the letter did not make the directors personally responsible for the debt, for that, assuming the letter to contain a representation that the directors had power to overdraw the account, and such representation to be erroneous, this was not a misrepresentation of fact which the persons making it were bound to make good, but only a mistaken representation of the law; and, moreover, that even if it had been such a false representation as the directors were bound to make good, the bank would have had no claim against them, since it had been able to

L. JJ.

1872

July 28, 11, 29.

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enforce the same remedies against the company as if the representation had been true.

Semble, that the letter did not involve any representation that the directors had any other power than the ordinary powers of directors.

In 1864 a negotiation took place between the company and the bank as to the company giving security for the overdrawn account, and in December, 1864, the bank manager wrote to the secretary of the company, "I am directed to apply to you for a transfer of at least £20,000 of the unissued preference shares into the joint names of myself and J. A. B., to be held for the bank as collateral security, and I am to request that your unissued debentures are to be transferred into the same names, you undertaking to do this when you are in a position to issue them," The secretary replied that the directors assented, and had directed him to allot the shares to the bank manager and J. A. B. as collateral security. In the following month, the company having sanctioned the issue of the preference shares, the secretary wrote, "I am now prepared to place the shares and debentures named in your letter in your possession as collateral security to the bank. I propose, as the course usually adopted in such cases, to register the shares in the names of two of the directors of the company, who will execute a transfer of them to you and J. A. B. on a mutual understanding that they are to be held by you only as collateral security for the debt due to the bank." The manager replied, "I am quite prepared to accept the shares and debentures as collateral security pending your disposal of them." Preference shares were accordingly issued to two of the directors, and transferred by them to the bank manager and J. A. B., and debentures given to the same two directors, which were similarly transferred. Nothing had been paid on the shares, and the company were not yet in a position legally to issue the debentures.

Held (reversing the decision of Bacon, V.C.), that the above circumstances did not make the directors personally liable, and that, on the construction of the correspondence, the directors had not made any representation that the shares and debentures were valid and fully paid-up shares and debentures, but the nature of the agreement was only that the shares and debentures should be placed under the control of the bank, so that when they were taken up by the public the money paid for them must come to the hands of the bank.

Collen v. Wright (1), Richardson v. Williamson (2), and Cherry v. Colonial Bank of Australasia (3) distinguished; Rashdall v. Ford (4) approved.

THIS was an appeal by the directors of the Watford and Rickmansworth Railway Company from a decree of Vice-Chancellor Bacon, who had held them personally liable for a debt due from the company to the Union Bank of London.

The bill was filed by John Beattie and John Arthur Barton, the managers, and John Chapman, a public registered officer of the

(1) 8 E. & B. 647.

(2) Law Rep. 6 Q. B. 276.

(3) Law Rep. 3 P. C. 24,

(4) Ibid. 2 Eq. 750.

bank, against Lord Ebury, the Hon. R. A. Capel, the Hon. R. W. Grosvenor, Joseph Cary, and J. H. Dillon, five of the directors of the Watford and Rickmansworth Railway Company, Alexander Forbes, the secretary, and the railway company itself.

By the Watford and Rickmansworth Railway Act, 1860, passed on the 3rd of July, 1860 (23 & 24 Vict. c. cxi.), it was enacted that the four first-named Defendants, with four other persons, should be incorporated by the name of the Watford and Rickmansworth Railway Company; and the same eight persons were named the first directors. The share capital of the company was to be £40,000 in 4000 shares of £10 each.

Sect. 9 provided that the company might borrow on mortgage any sum not exceeding £13,000, but no part of such sum was to be borrowed until the whole of the capital should have been subscribed for and one half paid up.

The Union Bank were appointed the company's bankers; and, in pursuance of a resolution passed at a board meeting of the company's directors, held on the 4th of July, 1860, the following letter was on the same day written and sent:

"To the Directors of the Union Bank of London, or their Manager, at the Temple Bar Branch, Chancery Lane.

"Gentlemen

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Watford and Rickmansworth Railway.

"Please to honour the cheques of this company signed by two of the directors, and countersigned by the secretary.

L. JJ.

1872

BEATTIE

LORD

EBURY.

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Early in 1861 an advance of £6000 from the bank being requested, the bank took from the Defendants, Lord Ebury, Capel, and Cary, and a fourth (then) director, Warwick, a letter whereby the writers "undertook," in consideration of the advance of that sum by the bank, "that the said sum of £6000 and interest shall be repaid you within six months from the date of the advance, from the calls due on the shares of the company.'

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On the 8th of August, 1861, the Defendant Dillon became a

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