3PLR – BARRATT V. GOUGH-THOMAS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BARRATT
V.
GOUGH-THOMAS
COURT OF APPEAL
4, 5, 6, 24 OCTOBER 1950
CITATIONS
[1950] 2 ALL E.R. 1048
BEFORE THEIR LORDSHIPS:
SIR RAYMOND EVERSHED MR
ASQUITH AND
JENKINS LJJ
REPRESENTATION
Cross KC and D H Cohen for the defendant.
Gray KC and J A Brightman for the plaintiff.
Cooke & Sons agents for W Gough-Thomas, Ellesmere (for the defendant);
Field, Roscoe & Co agents for Botten & Whitsed, Peterborough (for the plaintiff).
F Guttman Esq Barrister.
MAIN ISSUES
ESTATE ADMINISTRATION/PLANNING:- Solicitor acting as co-executor of deceased client’s estate – Mortgage transaction between deceased client and another client – Whether solicitor can exercise a right of lien over mortgage deeds on account of fees – Conflict of interests relative to other co-executors – How treated
DEBTOR AND CREDITOR – MORTGAGE:- Redemption proceedings – Right of solicitor to exercise a right of lien over mortgage deeds over fees – What needs to be shown
ETHICS – LEGAL PRACTITIONER: Solicitor acting for both parties to a mortgage transaction – Where mortgagee dies and appoints solicitor co-executor of estate – Exercise of right of lien due to unpaid fees by mortgagor – When precluded by conflict of interests
ETHICS – LEGAL PRACTITIONER: Solicitor – When can claim a lien on title deeds in his custody against a person demanding their delivery – Need, at date of such demand, for possession of the deed to be referable to the relationship of solicitor and client between himself and the claimant
SUMARY OF FACTS AND JUDGMENT
A solicitor can claim a lien on title deeds in his custody against a person demanding their delivery if, but not unless, at the date of such demand his possession of them is referable to the relationship of solicitor and client between himself and the claimant. If this condition is not satisfied, the solicitor cannot make good his lien by showing that he originally received the deeds from the claimant as his client and subsequently retained physical possession of them down to some past date in the right and on behalf of the claimant, but that thereafter and at the date of the demand he retains them in the right and on behalf of some other person through whom the claimant now makes title.
In 1919 the plaintiff purchased certain freehold property, and the documents of title were left by him in the custody of the defendant as his solicitor. Later in the same year the plaintiff mortgaged the property to R. The defendant acted as solicitor for both parties, and, on completion of the mortgage, continued to retain the original documents of title together with the mortgage deed, and these documents of title were never removed from his custody. R died in February, 1941, and in the following year his will was proved by the defendant and others, executors thereby appointed, and the documents were thenceforth held by the defendant on behalf of himself and his co-executors as joint mortgagees. On 12 June 1943, the plaintiff served on the defendant and his co-executors notice to redeem the mortgage. In redemption proceedings which ensued the defendant claimed to be entitled to a lien on the deeds of the property in respect of solicitor’s costs incurred by the plaintiff both before and after the original deposit of the deeds in 1919, and asserted a right to withhold the deeds from the plaintiff on the redemption date unless, in addition to the payment of the mortgage debt and interest, the amount due to him for costs was paid. In January, 1946, the defendant took a transfer of the mortgage from the mortgagee’s executors to himself alone and thenceforth held the documents in question as sole mortgagee, the redemption proceedings, accordingly, being stayed against the other executors. On 3 February 1948, an order for redemption was made which left open the question of the defendant’s claim to a lien, and, in February, 1949, the defendant applied by summons in the redemption proceedings, under the liberty to apply reserved by the order, for a declaration as to his right to a lien on the documents of title.
Held – (i) The defendant’s possession of the mortgage deed and the right to demand it from him which the plaintiff now had as a redeeming mortgagor were referable solely to the relationship of mortgagee and mortgagor, and not to that of solicitor and client, and, therefore, the defendant was not entitled to any lien against the plaintiff so far as the mortgage deed was concerned.
Sheffield v Eden (1878)(10 ChD 291), applied.
(ii) when a client for whom a solicitor held title deeds mortgaged the property comprised in them to another client of the same solicitor, then, even though the deeds before and after the mortgage remained continuously in the solicitor’s possession, the solicitor held them after completion of the mortgage exclusively in the right and on behalf of the mortgagee. By this change in the character of the solicitor’s possession of the deeds the solicitor’s lien against the mortgagor was destroyed, since the conditions necessary to support it, namely, the mortgagor’s right or title to the documents, had ceased to exist. Consequently, the defendant was not entitled to any lien on the documents.
Barratt v Gough-Thomas ([1945] 2 All ER 414) and Re Nicholson, Ex p Quinn (1883)(53 LJCh 302), approved.
Re Messenger, Ex p Calvert (1876)(3 ChD 317) and Colmer v Ede (1870)(40 LJCh 185), overruled.
Drummond v Muirhead & Guthrie Smith (1900)(2 F (Ct of Sess) 585), not followed.
Appeal
Appeal by the defendant from an order of Romer J dated 21 March 1950, whereby he held that the defendant, a solicitor, was not entitled to a lien on the documents of title of certain property belonging to the plaintiff.
The property in question was purchased by the plaintiff in June, 1919, and the documents of title were left in the custody of the defendant as his solicitor. In December, 1919, the plaintiff mortgaged the property to one Reece to secure a sum of £5,000. The defendant acted for both parties in this matter, and the documents of title were never removed from his custody. In February, 1941, Reece died and by his will appointed the defendant and three others as executors. In March, 1944, having previously given six months’ notice to pay off the mortgage, the plaintiff instituted redemption proceedings against the executors, and these proceedings were adjourned into court for argument on the defendant’s claim to a lien on the documents of title held by him. Vaisey J held ([1945] 2 All ER 414) that since the defendant had, by operation of law, become joint owner, subject to redemption, of the mortgaged property and the title deeds, the deeds must be regarded as having passed out of his custody as solicitor, and, since redemption involved the return, by the mortgagee, not only of the estate, but also of the indicia of the title to the estate, he was not entitled to any lien on the documents. The Court of Appeal reversed this order (ibid, 650) on the ground that it was premature. In January, 1946, the defendant took a transfer of the mortgage from the mortgagee’s executors to himself alone and thenceforth held the documents in question as sole mortgagee. The redemption proceedings were, consequently, stayed as against the other three executors. In February, 1948, a redemption order was made. The question of the defendant’s claim to a lien was expressly left open in the order, with liberty to apply. In February, 1949, the defendant applied by summons in the redemption proceedings for, inter alia, a declaration as to his lien on the documents of title. Romer J following the decision of Vaisey J held that the defendant was not entitled to the lien claimed. On the present appeal against this decision, it was contended for the defendant that, having received the deeds in his professional capacity, the defendant became entitled to a lien over them so long as they remained in his physical possession, and that a lien so acquired continued to be available against any claim to possession of the documents regardless of any intermediate change in the ownership of the documents or in the identity of the person for whom the defendant held them.
MAIN JUDGMENT
Cur adv vult
24 October 1950. The following judgments were delivered.
SIR RAYMOND EVERSHED MR.
On 13 June 1919, the sale of certain freehold property at Oswestry to the plaintiff was completed, and the documents of title relating to such property were received by the defendant, the present appellant, as the solicitor for the plaintiff. Six months later, on 11 December 1919, a first mortgage of the same property to a Mr Reece was completed by the plaintiff. The defendant was also Mr Reece’s solicitor and on completion of the mortgage he continued to retain the original documents of title together with the mortgage and he has, in fact continued to retain them ever since. No special agreement was made at any time between the plaintiff and the defendant in regard to the defendant’s rights to retain the documents against the plaintiff. In 1941 Mr Reece died. The defendant and three others became his personal representatives. On 12 June 1943, the plaintiff served on the defendant and the other co-executors, as successors in title to Mr Reece, notice to redeem the mortgage on 14 December following. At that time the defendant had ceased to act as the plaintiff’s solicitor. On 2 December 1943, the plaintiff’s then and present solicitors asked for a statement of account showing the sum which would be due for principal and interest on the redemption date. In reply, on 4 December the defendant claimed to be entitled to a lien on the deeds of the property in respect of solicitor’s costs incurred by the plaintiff both before and after the original deposit of the deeds in 1919 and asserted a right to withhold the deeds from the plaintiff on the redemption date unless not only the mortgage debt and interest were paid to him and his co-executors, but there was also paid by the plaintiff the amount due to the defendant for costs. It is the validity of this claim for a lien which now, nearly seven years later, comes to this court for determination and which for five years held up the redemption of the mortgage.
The first step in the litigation was the issue by the plaintiff in March, 1944, of an originating summons for redemption of the mortgage in which proceedings he joined the defendant and, later, his co-executors. It was thought possible and convenient to try the question of the validity of the lien as an issue in the action, and the originating summons was, accordingly, adjourned into court and came on for hearing on 10 July 1945, before Vaisey J. The learned judge held that on the redemption of the mortgage, ie, on payment by the plaintiff of the sum due for principal and interest, the plaintiff was entitled to the delivery up of the documents of title relating to the property and that the defendant was not entitled to any lien in respect of such documents against the plaintiff. On an appeal by the defendant to this court the order of Vaisey J was discharged. This court expressed no view on the correctness, as a matter of principle, of Vaisey J’s, judgment, but was of opinion that the matter could not properly then be tried as part of the redemption proceedings, but before actual redemption. It was pointed out in the course of his judgment by Lord Greene MR not only that the interests of the defendant as solicitor were liable to be in conflict with the interests of his co-executors and himself as mortgagees, but also that at any time prior to actual redemption the defendant might have become bound to hand over the deeds to his co-executors or as they might direct so that at the critical point of time the deeds would not be in the defendant’s possession and no question of a lien could then arise.
On 28 January 1946, the defendant took a transfer to himself alone of the mortgage so that he then became sole mortgagee and all possible conflict of interest between himself and his co-executors was resolved. On 3 February 1948, a redemption order was made and at the same time all further proceedings in the action against the second, third and fourth executors were stayed. It is unnecessary to refer at length to the terms of this order. Its effect was (or was treated by the parties as being) that the amount of interest in respect of the mortgage since 14 December 1943 (being the date of expiry of the plaintiff’s original notice to redeem) and the amount of certain costs of the defendant were to be separately certified, but on the plaintiff paying to the defendant the sum certified to be due for principal and interest on the mortgage up to 14 December 1943, and paying into court the remaining interest and costs to be certified, the property was to be reconveyed to the plaintiff, but that the defendant was to be entitled to retain physical possession of the title deeds pending the determination of the question of the defendant’s lien, for which purpose the parties were to be at liberty to apply by separate summons in the action. The certificate contemplated by the order is dated 8 November 1948. The plaintiff complied with the terms of the redemption order and redeemed the mortgage, and on 7 February 1949, the defendant issued a summons in the action for the determination of his claim to a lien. The summons came before Romer J on 21 March 1950. Romer J expressing no view of his own, followed the view expressed by Vaisey J in 1945 and declared that the defendant was not entitled to any lien. Against that order the defendant has again appealed and now the matter comes for a second time before this court.
The proceedings before Vaisey J and the Court of Appeal are reported at [1945] 2 All ER 414 and 650. I have, therefore, recited somewhat briefly the earlier narrative. It is, however, to be noted that it has been recently appreciated that the original conveyance to the plaintiff was dated in June, 1919, and not (as had previously in the proceedings been supposed) immediately prior to the mortgage to Reece. The circumstance does not affect the question to be tried, but it has, perhaps, emphasised an important distinction between the title deeds other than the mortgage deed, on the one hand, and the mortgage deed itself, on the other. There is no doubt that when the plaintiff deposited the deeds (other than the mortgage) with the defendant as his solicitor, the deeds were the property of the plaintiff who was immediately prior to such deposit entitled to their possession. There is, therefore, also no doubt that from the time of the deposit until the date of the mortgage the defendant was entitled to a lien on the deeds for his costs incurred for, and unpaid to him by, the plaintiff. The mortgage deed, however, from the moment of its execution and coming into existence as a deed was the property of the mortgagee, Mr Reece, and, having regard to the decision of this court in Sheffield v Eden, to which I shall later refer, counsel for the defendant felt unable to press any argument on the defendant’s behalf for the existence of a lien as regards this document. Since the mortgage deed is now nearly thirty-one years old it must be confessed that the result is to rob the case of a considerable measure of its reality. I observe, finally, that though the amount alleged by the defendant to be due for costs (much of which is, unless preserved by lien, said to be statute barred) is in dispute, it is conceded by the plaintiff that, if the defendant is entitled to his lien, there is some sum of costs in respect of which it may operate.
The essential features of the above recital are then: (i) At the time of the original deposit of the deeds (other than the mortgage) the defendant was acting as the plaintiff’s solicitor and he continued to act as such until some date after the date of the mortgage and prior to the notice of redemption. (ii) At the date of the mortgage and until the transfer to himself of its benefit on 28 January 1946, the defendant acted as solicitor to the mortgagee and (after the death of the mortgagee) to his estate, and (iii) the defendant has until the present time retained continuously in his physical possession the title deeds of the property, as to all such deeds (other than the mortgage itself) from the date of their deposit with him by the plaintiff in June, 1919, and as to the mortgage deed from the date of its execution in December, 1919. In these circumstances counsel for the defendant has contended (subject to the qualification already stated as regards the mortgage deed itself) that the lien, admittedly created by the plaintiff’s original deposit, has never been lost and is available still to the defendant, and that it is immaterial that from and after 11 December 1919, the defendant’s possession of the deeds was attributable, or, as counsel for the defendant would have it, attributable primarily, to his capacity as solicitor for the mortgagee or his estate or to his capacity as mortgagee or one of the mortgagees.
The nature of a solicitor’s general retaining lien has more than once been authoritatively stated. It is a right at common law depending, it has been said, on implied agreement. It has not the character of an incumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers on him merely the right to withhold possession of the documents or other personal property of his client or former client—in the words of Sir E Sugden in Blunden v Desart (2 Dr & War 418):
“to lock them up in his box, and to put the key into his pocket, until his client satisfies the amount of the demand.”
It is wholly derived from, and, therefore, co-extensive with, the right of the client to the documents or other property: see the statement of Lord Cranworth LJ in Pelly v Wathen, cited by Chitty J in Re Llewellin ([1891] 3 Ch 148).
When the characteristics of the lien have been stated serious difficulties at once appear in the way of the contention of counsel for the defendant. In my judgment, the capacity by reference to which the documents are held is essential. The absence at any time of any right to or property in the documents on the part of the client seems, as a matter of principle, fatal to the continued existence of the lien. The fact that the mortgagee’s solicitor is able to assert a lien against his client, the mortgagee, postulates a deposit of the deeds with the solicitor by the mortgagee, which appears necessarily inconsistent with the conception of a continuing deposit of the same deeds by the mortgagor, and since counsel admits that loss of possession in fact by the solicitor will (save in special circumstances) operate to determine the lien, its existence must to some extent be capricious and hazardous.
The matter is not, however, free from authority. Numerous cases were cited to us, but, as regards the law in England, three only of the authorities, or, perhaps, four, are directly in point. The first case—and it is the foundation on which the defendant’s argument is found to rest and the foundation of the Irish decisions to which I refer later—is Colmer v Ede before Stuart V-C. That was a foreclosure suit by a mortgagee, the defendants being the mortgagor’s assignee in bankruptcy and Stretton, the solicitor. The essential facts were the same as those in the present case tabulated above. It was held that Stretton’s lien had not been lost, but there are two observations to be made on the case. First, the general question of principle does not appear at all to have been considered. The argument for the assignee in bankruptcy seems to have been that there had been a special agreement which negatived the lien. In default of such special agreement the lien appears to have been conceded. Secondly—and, perhaps, as a consequence—Stretton was, as I read the judgment, treated as an incumbrancer or as having rights analogous to those conferred by an incumbrance. Indeed, according to the report at 40 LJCh 187 the form of order made gave to Stretton liberty to redeem the property.
The second case Re Messenger, Ex p Calvert, came six years later before Sir James Bacon V-C, sitting as Chief Judge in Bankruptcy. The facts were, in essentials, again the same. The learned judge, founding himself on Colmer v Ede, treated the law as settled. He said (3 ChD 318):
“The law is clear that a person who from his position has a right of lien, does not lose that right unless there is some special agreement that he shall do so. Is not then the result this, that the property was subject to the mortgage and also to the solicitor’s lien. Colmer v. Ede is a distinct authority”
The learned judge was prepared to accept the result that the mortgagee, on redemption and on the mortgagor’s demand for delivery of the deeds, could be heard to refuse the demand on the ground of the solicitor’s lien &which you have created and which I cannot destroy.”
Seven years later, in 1883, the point again came before the same judge, Sir James Bacon, in Re Nicholson, Ex p Quinn. The essential facts were indistinguishable from those in Colmer v Ede and Re Messenger and both those cases were cited in argument, but the learned judge felt no hesitation or embarrassment in delivering a judgment wholly contrary in effect to his previous judgment in Re Messenger, and containing no reference either to that case or to its predecessor. He said (53 LJCh 303):
“A solicitor’s right to a lien on deeds and papers depends on his possession and on the question for whom the deeds are held. There was a time when these deeds belonged to Nicholson; but the time came when he wanted money, and the appellants were requested to procure him an advance on these deeds, which they did, obtaining the money from another client. In so doing they undertook duties of a twofold character. It was their duty to deduce a good title for the mortgagee, and, when the money was paid, to hand the mortgagor’s deeds to him. If they had declined to hand them over, the mortgagee could have compelled them to do so; and his right to compel the handing over of these deeds is totally inconsistent with any right being left in the mortgagor to continue to hold them. The title-deeds, on payment of the mortgage money, became the mortgagee’s, and the mere fact that they remained in the hands of his solicitors, who happened also to be the solicitors for the mortgagor, cannot alter the rights of the parties.”
The fourth case to which I have referred is Re Walker, Meredith v Walker before Kekewich J. The facts were somewhat special. The personal representative of a solicitor was claiming against the personal representative of a testator a lien on certain policy moneys. The moneys arose from policies which had been transferred by the testator to the solicitor to enable the latter to raise moneys in Ireland on his principal’s behalf and subject thereto to hold the policies on trust for the testator. It is, however, true to say that the learned judge referred to Messenger’s case as authority for the proposition that the solicitor’s lien in circumstances such as those now under consideration was not lost. He said (68 LT 520): “There is no case against that view.” Re Nicholson was not cited. In my judgment, Re Walker cannot in the circumstances be regarded as providing any substantial or added support for the defendant’s argument.
The four cases to which I have referred appear to be the only English cases in the books directly in point in this appeal, for the report of the earlier case of Re Mosely is admittedly too unsatisfactory to be of value. The matter stands, therefore, thus on the authorities. On the one hand, there is Colmer v Ede, in which the question of principle was not, apparently, considered, but which was followed and treated as authoritative by Sir James Bacon V-C, in Re Messenger and by Kekewich J in Re Walker, and on the other hand is Sir James Bacon’s later and quite contrary decision in Re Nicholson. Other cases were cited to us on other aspects of the solicitor’s lien. They cannot, therefore, be regarded as authorities directly on the point now in question. Yet they tend, in my view, in favour of Sir James Bacon’s later opinion. In Re Snell the question was on the same essential facts whether the solicitor could assert against his mortgagee client the lien which he claimed to have against his mortgagor client. No doubt, if the true view be that a solicitor in such circumstances must be taken in any case, in the absence of some contrary agreement, to have lost his lien against the mortgagor, that would have been a short and complete answer to the solicitor’s claim. It is also true that neither Colmer v Ede nor Re Messenger were cited in the argument, but Sir George Jessel MR said in the course of his judgment (6 ChD 107):
“If the solicitor chooses to act not only for the mortgagee but for the mortgagor also, he is still equally bound, as solicitor to the mortgagee, to see that his client obtains a good security, including possession of the deeds; and if he has a bill of costs against his mortgagor client, he, by acting for both parties, loses his lien upon the deeds, and holds them for his mortgagee client, unless his lien is expressly reserved. He cannot say to his mortgagee client, ‘I have been guilty of negligence; I do not hold the deeds on your account.’ He must be taken to have performed his duty, and to hold the deeds for his mortgagee client. That is his duty; and the fact that such client knew that he acted as solicitor for the mortgagor, and had a claim for costs against him, is therefore wholly immaterial. Moreover, the mortgagor, having authorised his solicitor to prepare the mortgage, has by so doing authorised him to act in a proper manner, that is, to do all necessary acts for the completion of the security, which of course includes handing over the title deeds. The solicitor requires no further instructions for that; he holds them as agent for the mortgagee client, and must therefore give them up to him when required to do so.”
Ex p Fuller, Re Long came before Sir James Bacon in 1881—between his two decisions of Re Messenger and Re Nicholson. In that case the learned judge rejected the solicitor’s claim to a lien against the mortgagor in the case where the latter became his client after and not before the execution of the mortgage in favour of the solicitor’s mortgagee client. Counsel for the defendant accepts this conclusion, conceding that there must have been an original deposit of the deeds with the solicitor by the mortgagor and the existence of a lien before the transaction of mortgage. If the matter is to be judged by the standards of fairness and reason and if, as counsel contends, the conception is permissible of the solicitor’s possession of the deeds being primarily attributable to his capacity as agent for the mortgagee, but attributable also, and subject to the mortgagee’s rights, to his agency for the mortgagor, the distinction seems to my mind a little capricious. However that may be, in Re Long, Sir James Bacon uses this language (16 ChD 619):
“The plain law is this, that a lien can only exist where there is a lawful possession of the thing upon which it is claimed by the person who claims it. What rightful possession of the deeds had the solicitors in the present case? The deeds were the deeds of the mortgagees, and they were placed in the solicitors’ hands only for safe custody. The solicitors had the deeds in their possession, not in any right of their own; their possession was that of the mortgagees, and nothing more.”
Finally, in Sheffield v Eden the question arose whether the solicitors who were themselves the mortgagees could assert a lien against their mortgagor client in respect of the mortgage deed itself. Sheffield v Eden is the only one of the cited cases which came before this court and James, Baggallay and Thesiger LJJ rejected the solicitors’ claim. For that reason counsel for the defendant has felt unable to press his argument as regards the mortgage deed in the present case. It is true that all three judges in their very short judgments were careful to confine themselves to the particular question they had to decide, namely, the alleged lien on the mortgage deed. Colmer v Ede had been cited to them. Nevertheless, their reasoning clearly indicated, in my judgment, as had the reasoning of Sir George Jessel MR in Re Snell and Sir James Bacon in Re Long, that the capacity in which the solicitor held the deeds is of the essence of the matter and that agency for the mortgagee is incompatible with agency at the same time for the mortgagor. James LJ said (10 ChD 293):
“They might have had a claim against their client as mortgagor for [the] preparation [of the deeds], but when the deeds were executed they became the deeds of the solicitors. A lien only attaches to documents which are the client’s property; it cannot extend to what is the solicitors’ own property.”
Similarly Baggallay LJ said (ibid):
“Directly these deeds were executed they remained in the possession of the solicitors, not in their capacity of solicitors to the mortgagor, but as their own property as mortgagees. The property was in them, not in their client.”
In this state of the authorities it is clearly open to this court to decide the present question as a matter of principle. That being so, I think the judgment of Sir James Bacon in Re Nicholson was correct and ought to be preferred to his own earlier decision in Re Messenger, and to the decision in Colmer v Ede which in Re Messenger he had followed and that the two latter cases must be treated as wrongly decided. In my judgment, from the moment of the execution of the mortgage the solicitor’s retention of the documents of title must be exclusively referable to his agency of the mortgagee, and the mortgagor has ceased to have any right or title to the documents from which any lien could be derived. The lien has ceased because the conditions necessary to support it have ceased to exist. On redemption of the mortgage it is the mortgagee’s duty to hand back the deeds to the mortgagor: see Graham v Seal (88 LJCh 36, 38). That duty the solicitor, as the mortgagee’s solicitor, is bound to perform. He cannot discharge the duty by handing the deeds to himself on the mortgagor’s behalf unless he has the mortgagor’s authority, as being still his client or otherwise by agreement, so to do. I think, accordingly, that the view suggested in Cordery’s Law Relating to Solicitors, 4th ed, p 458, is erroneous and that the doubts expressed in the note (m) to the text are well-founded. Counsel for the defendant says that it is hard on the solicitor thus to lose his lien, but, if it be relevant to consider hardship, I cannot agree. It is open to the solicitor who acts also for the mortgagee to make it plain to his mortgagor client that before the mortgage is effected his bill for costs must be met or a special agreement made so as to preserve his lien. The opportunities of protecting himself are, I should have thought, less rather than more difficult for the solicitor where the proposed mortgagee is another of his clients.
I have earlier referred to the Irish decisions which followed Colmer v Ede. Two Irish cases were cited to us, both at first instance, namely, Re Harvey’s Estate and Re Stannard’s Estate. I think it would be possible to distinguish both cases on their facts from the present case, but, undoubtedly, in both the learned Irish judges treated Colmer v Ede as authoritatively stating the law applicable to such a case as the present: see per Monroe J (17 LRIr 67) in the first case, in which Re Nicholson was not cited, and per Ross J ([1897] 1 IR 419) in the second case where he expressly preferred Re Messenger to Re Nicholson. With all respect to those two judges, I am, for the reasons I have given, unable to agree with them and I do not think their conclusions should now be followed in England.
We were also, finally, referred to the Scottish case in the Court of Session of Drummond v Muirhead and Guthrie Smith. The essential facts are indistinguishable from those in this appeal and the Court of Session, affirming the opinion of the Lord Ordinary (Lord Kincairney), decided in the law agent’s favour. Both Sir James Bacon’s decisions were cited to the Lord Ordinary, but he, like Ross J in Ireland, expressed his preference for Re Messenger. The decisions of the Court of Session are not, of course, binding on us. They are entitled to great respect and I am certainly not at all inclined to create divergencies between the law of England and the law of Scotland on such a matter as the general lien of a solicitor or law agent. Having given the matter my best consideration, I am unable, however, to reconcile the judgments of the Scottish judges with the principles which I think are applicable to such a lien in England. I think counsel for the plaintiff may be justified in suggesting that the Scottish judgment proceed on the basis that the right of the solicitor is in character analogous to that of an incumbrancer, and so it may be by the law of Scotland—at any rate the lien in Scotland cannot rest on the English common law.
I have not so far distinguished the position of the defendant as solicitor to the mortgagee from his position as mortgagee himself either alone or jointly with his co-executors. In truth, there is for present purposes no distinction—certainly his position is not strengthened by his interest as mortgagee. If I am right in thinking that the capacity in which he holds the deeds is of the essence of the matter and that a present right or title to the deeds on the client’s part is necessary to support the lien, the solicitor’s claim is gone whichever of the two capacities, agent or principal, he assumes. If, as solicitor to the mortgagee, he seeks on redemption to retain the deeds against the mortgagor, he involves his client, the mortgagee, in a breach of his legal obligations, which the solicitor cannot, consistently with his duty as solicitor, do or be heard to suggest. On the other hand, if, as mortgagee, he seeks to retain the deeds on redemption, he is himself asserting a right inconsistent with his legal obligations. I, therefore, agree with the decision of Vaisey J when this matter was before him in 1945. At that time the defendant had not taken a transfer of the mortgage to himself alone, as he has since done. In my judgment, Vaisey J correctly anticipated the result of the transfer. He said ([1945] 2 All ER 416):
“Suppose that the claimant in the lifetime of Reece had taken a transfer of the mortgage, thereby becoming sole mortgagee, and then suppose that the plaintiff had sought to redeem. In such a case the claimant would, in my judgment, have been bound not only to re-convey or otherwise release the mortgaged property to the plaintiff but also to restore to him the title deeds. Redemption involves the return by the mortgagee not only of the estate but of the indicia of the title to the estate. It seems to me that the claimant could not, in the case supposed, have been heard to say that in his capacity of solicitor he was entitled to preclude himself from discharging in full his duties as mortgagee—chiefly, as I think, for the reason that he would not be holding the deeds as solicitor at all but solely as mortgagee.”
In the passage which follows that which I have cited I think the learned judge went somewhat further than was justified or was necessary for his decision, but I think that his decision was right and that the present appeal ought to be dismissed accordingly.
ASQUITH LJ.
I agree with the judgment just delivered by the Master of the Rolls. I also agree with the judgment about to be delivered by Jenkins LJ which I have had the advantage and pleasure of reading.
JENKINS LJ.
In this case the defendant, Willian Gough-Thomas, who formerly acted as solicitor to the plaintiff, Frank Digby Barratt, claims a lien on the documents of title relating to certain freehold property of the plaintiff at Oswestry, in the county of Salop, in respect of the costs, charges and expenses which became due from the plaintiff to the defendant while so acting, and the question for decision is whether, in the circumstances I am about to mention, this claim is well founded.
The property in question was bought by the plaintiff in June, 1919. The defendant acted for the plaintiff in the matter of this purchase, and the documents of title were left by the plaintiff in the custody of the defendant as his solicitor. It is not in dispute that at this stage the defendant was entitled to the ordinary solicitor’s lien on these documents for any costs owing to him by the plaintiff, whether in respect of that particular transaction or in respect of other professional services rendered to the plaintiff by him. In December, 1919, the plaintiff mortgaged the property to a Mr Reece to secure a sum of £5,000 and interest, the mortgage taking the ordinary form under the law as it then stood of a conveyance of the property to the mortgagee in fee simple subject to a proviso for redemption on payment of the moneys secured. The defendant acted for both parties in the matter of this mortgage, and the documents of title were never removed from his custody in which they have continuously remained to this day. It is, however, not open to doubt that from and after the completion of the mortgage the defendant ceased to hold the documents as solicitor to the plaintiff and held them thenceforth as solicitor to Mr Reece, the mortgagee, who became as such exclusively entitled to their possession and control so long as the mortgage subsisted. Mr Reece died in February, 1941, and in the following year his will was proved by four executors therein named, of whom the defendant was one, and the documents were thenceforth held by the defendant on behalf of himself and his three co-executors as joint mortgagees. In June, 1943, the plaintiff gave the usual six months’ notice to pay off the mortgage, and in December of the same year the defendant asserted his claim to a lien on the documents for costs owing to him by the plaintiff in addition to the amount due to the mortgagee’s executors for principal, interest and costs under the mortgage itself.
In March, 1944, proceedings were instituted by the plaintiff against the mortgagee’s executors for redemption of the mortgage, and in the following year the proceedings were adjourned into court for argument on the defendant’s claim to a lien. The case came before Vaisey J who, in a considered judgment delivered on 10 July 1945 (see Barratt v Gough-Thomas), held that the defendant was not entitled to any lien on the documents in question and made a declaratory order accordingly. From that order the defendant appealed to this court, which, on 19 October 1945, without expressing any view as to the correctness or otherwise of the decision of Vaisey J on the merits of the case, discharged his order on the ground that (for reasons already mentioned by the Master of the Rolls) it was premature: see [1945] 2 All ER 650. I should perhaps mention that in the proceedings so far described the conveyance and mortgage were treated as having both been executed on the same date, whereas they now appear to have been executed in June and December, 1919, respectively. It is, however, agreed that this variation in the facts has no material bearing on the legal result.
In January, 1946, the defendant took a transfer of the mortgage from the mortgagee’s executors to himself alone and thenceforth held the documents in question as sole mortgagee, the redemption proceedings being accordingly stayed as against the other three executors who had thus ceased to have any further interest in the matter. On 3 February 1948, an order for redemption was made, the master’s certificate thereunder was signed on 8 November 1948, and it appears that the directions therein contained as to payment and re-conveyance have been duly complied with. The redemption proceedings were thus at long last disposed of, apart from a question as to the defendant’s right to interest after the expiration of the plaintiff’s notice to redeem (with which we are not concerned) and the defendant’s claim to a lien, which questions were expressly left open in the order for redemption, with liberty to apply. In February, 1949, the defendant applied by summons in the redemption proceedings, under the liberty to apply reserved by the order, for declarations as to his right to the disputed interest and to a lien on the documents of title, with consequential relief. By order dated 21 March 1950, Romer J declared that the defendant was not entitled to the lien claimed. As appears from his judgment delivered on the same date he founded his decision on the judgment of Vaisey J referred to above without expressing any opinion of his own, considering (in my view, quite rightly) that as the Court of Appeal had not formed any view as to the correctness or otherwise of this judgment on the merits of the case his duty as a judge of first instance was to follow it. Thus, while the present appeal is in form an appeal from the order of Romer J in substance it involves a review of the reasoning which led Vaisey J to decide the matter adversely to the defendant on the previous occasion.
The documents over which the lien is claimed comprise not only the title deeds originally left by the plaintiff in the hands of the defendant as his solicitor on the occasion of the plaintiff’s purchase of the property, but also the mortgage deed subsequently executed by the plaintiff, and, when executed, left in the hands of the defendant as solicitor to Mr Reece, the mortgagee. Vaisey J seems to have drawn no distinction between the former and the latter. There is, however, a distinction of some importance. The documents originally deposited with the defendant on the occasion of the purchase were, of course, the property of the plaintiff when so deposited, and admittedly then as against the plaintiff became subject to the ordinary solicitor’s lien in the defendant’s favour, the question, so far as these documents are concerned, being whether that lien has remained in existence notwithstanding the subsequent events above referred to, involving as they did changes in the ownership and right to possession of these documents and the capacity in which they were held by the defendant. As will be seen hereafter, that question is not free from difficulty, and has been the subject of a remarkable conflict of authority. The mortgage deed is in a different position. It never was the property of the plaintiff at all. From the moment of its execution and delivery it was the property of the mortgagee, and it came into the defendant’s possession simply in his capacity as solicitor to the mortgagee. Whatever the position may be as regards the other documents, I think it is clear both in principle and on authority that in these circumstances the defendant is at all events not entitled to any lien against the plaintiff so far as the mortgage deed is concerned. The defendant’s possession of this deed and the right to demand it from him which the plaintiff now has as a redeeming mortgagor are referable solely to the relationship of mortgagee and mortgagor, and not to that of solicitor and client, which as between the defendant and the plaintiff never had any relevance to the receipt and retention of this deed by the defendant: see Sheffield v Eden, a decision of the Court of Appeal which apparently was not cited to Vaisey J. I am, accordingly, of opinion that the defendant’s claim must fail as regards the mortgage deed.
As regards the other documents, the argument for the defendant requires more detailed examination. It proceeds substantially on these lines: (i) A solicitor who in his professional capacity receives deeds from a client becomes entitled to a lien over them so long as they remain in his physical possession. (ii) The lien so acquired continues to be available against any claim to possession of the documents by that client or any person claiming through him so long as physical possession of the documents is retained by the solicitor, and is not destroyed by any intermediate change in the ownership of the documents or in the identity of the person for whom the solicitor holds them. (iii) Thus, if a client deposits title deeds with his solicitor and subsequently mortgages the property comprised in them to a third party for whom the solicitor also acts, and the solicitor without ever parting with physical possession of the documents retains them on behalf of his mortgagee client, his lien against the mortgagor client survives, though postponed to the paramount claim of the mortgagee to possession of the documents unless and until the mortgage is redeemed. (iv) Further, in such a case the mortgagor client of the solicitor retains an interest in the documents corresponding to his equity of redemption in the mortgaged property, and it may thus be said that the solicitor, while holding the documents primarily for the mortgagee, yet continues to hold them quoad this subordinate interest for the mortgagor from whom they were originally received. (v) It follows that when the mortgagor redeems the mortgage and becomes entitled to possession of the documents, the solicitor is entitled to assert the lien to which they became subject at the time of the original deposit, and this notwithstanding the cesser in the meantime of the relationship of solicitor and client between himself and the mortgagor.
The defendant’s argument finds support in a number of authorities. In Colmer v Ede the solicitor’s lien against the mortgagor was upheld, but the lien seems there to have been disputed only on the ground that the deeds had been deposited with the solicitor for the specific purpose of preparing the mortgage, and not on the more general grounds advanced by the present respondent. Next in order of date is Re Messenger, Ex p Calvert, a decision of Bacon VC, as Chief Judge in Bankruptcy, which is closely in point and which, if accepted as a correct statement of the law, would conclude the present appeal in favour of the defendant. It should, however, be observed at once that in the later case of Re Nicholson, Ex p Quinn, the same learned judge on substantially similar facts and after argument in the course of which Re Messenger was cited, came to precisely the opposite conclusion. In Re Walker, Kekewich J followed Re Messenger, though it is fair to say that the facts differed in a possibly material respect from those in Re Messenger and Re Nicholson, and that according to the report the latter case was not cited. There are also two Irish cases, Re Harvey’s Estate and Re Stannard’s Estate, of which the latter, in particular, affords strong support for the defendant’s contention, to which should be added the Scottish case of Drummond v Muirhead & Guthrie Smith to the like effect.
The argument for the plaintiff proceeds substantially as follows: (i) Retention of physical possession of documents of title by a solicitor acting for the two parties to a disposition of the property comprised in them does not necessarily preserve his claim to a lien against the party for whom he held the documents before the disposition. Regard must be had to the person for whom and the capacity in which the solicitor holds the deeds at the time when possession is claimed, and the lien can only be asserted if the solicitor then holds the documents in his capacity as solicitor to the party seeking to recover them. (ii) A solicitor’s lien is a mere passive right to retain the documents, conferring no proprietary interest or charge, and available only against an owner of the documents entitled but for the lien to claim them as documents belonging to him and held on his behalf by the solicitor in the capacity of solicitor to the claimant. Thus, when the ownership of documents in a solicitor’s possession passes from one client to another, with the result that he holds the deeds for the latter in place of the former, his lien against the former owner is necessarily destroyed, and can only be revived if and when the deeds once more become the property of the former owner and are once more held by the solicitor in the capacity of solicitor to that owner. (iii) In circumstances such as those of the present case the mortgagor’s right to recover possession of the deeds on redemption is a right against the mortgagee, whose duty it is to return them to the mortgagor, and whose right to possession of them is admittedly paramount to any lien the solicitor may have had against the mortgagor prior to the mortgage. (iv) Where, as here, the solicitor himself takes over the mortgage, his possession of the deeds becomes possession in his own right as mortgagee, not possession in right of and as solicitor to the mortgagor and accordingly he can claim no lien against the mortgagor on redemption by the latter.
As regards the authorities more or less directly in point, the plaintiff’s sheet anchor is Re Nicholson, and we are invited on his behalf to accept that decision as correctly stating the law in preference to the three English, two Irish, and one Scottish, decisions the other way. For my part, I think that of the English cases Re Nicholson should be regarded as of the greatest weight. As a later decision of the same learned judge it must, I think, clearly be regarded as supplanting Re Messenger, especially as that case was cited to him in Re Nicholson. Re Walker, apart from the difference in the facts, loses much of its force from the circumstance that Re Nicholson was not referred to. Colmer v Ede was, as I have said, argued on a different ground. The Irish and Scottish cases are, no doubt, worthy of the greatest respect but I see no ground for preferring them to Re Nicholson, and the Scottish case may have turned to some extent on conceptions different from those of English law as regards the nature of liens and mortgages. The authorities standing thus, I conceive myself free to decide this case as seems to me right in principle, and regarding it in this way, I have little hesitation in rejecting the defendant’s claim.
I see no justification in principle for holding that the mere accident of continued physical possession of deeds by a solicitor, in circumstances such as the present, necessarily involves the continuance of his lien against the original depositor. No doubt, he loses his lien if he parts with possession, but this is far from establishing the converse proposition that if he retains possession his lien is necessarily preserved. When a client for whom a solicitor holds deeds mortgages the property comprised in them to another client of the same solicitor, who acts for both parties in the matter, then, even though the deeds before and after the mortgage remain continuously in the solicitor’s possession, it is plain that after the completion of the mortgage the solicitor holds them exclusively in the right and on behalf of the mortgagee, and that the character and legal basis of his possession is precisely the same as if the deeds had been handed over to the mortgagee on completion of the mortgage and thereafter returned by him to the solicitor to hold on his behalf. I find myself in complete agreement with the view expressed by Bacon VC, in Re Nicholson to the effect that in these circumstances the mere fact that the deeds remain in the hands of the solicitor because he happens to be solicitor to both parties cannot affect the result, and with his conclusion to the effect that in such a case the solicitor loses any lien he previously had against the mortgagor.
It is not in dispute that a solicitor can acquire a lien on deeds in his possession against a new owner of them without any change in their physical possession. Thus, in circumstances such as those now under consideration the solicitor would have a lien against his mortgagee client for costs owing to him from that client from the moment that he began to hold the deeds in the right and on behalf of the mortgagee. Again, it is plain that the solicitor can lose a lien on the deeds without parting with physical possession of them. Thus, from the moment he holds the deeds in the right and on behalf of the mortgagee he loses as against the mortgagor his lien for costs owing by the mortgagor: see Re Snell, Re Mason & Taylor. Similarly, when the mortgage has been paid off, the solicitor cannot assert against the mortgagor client a lien claimed in right of the mortgagee for costs owing to him from the latter, although he originally received the deeds as solicitor to the mortgagor and they have thereafter remained continuously in his possession: see Re Llewellin. Again, mere possession of a client’s deeds will not necessarily give the solicitor a lien upon them: see Ex p Fuller, Re Long, where solicitors holding the deeds of mortgaged property received from a mortgagee client were held to have no lien on the deeds against the mortgagor for costs due to them from him because they had never held the deeds as his solicitor.
The right conclusion seems to me to be that a solicitor can claim a lien on deeds against a person demanding their delivery if, but not unless, at the date of such demand his possession of them is referable to the relationship of solicitor and client between himself and the claimant. If this condition is not satisfied the solicitor cannot make good his lien by showing that he originally received the deeds from the claimant as his client and has since retained physical possession of them down to some past date in the right and on behalf of the claimant, but thereafter and at the date of the demand retains them in right and on behalf of some other person through whom the claimant now makes title. This may be illustrated by the imaginary case of a sale of property by “A” to “B,” the same solicitor acting for both parties and holding the deeds continuously for “A” down to the date of the sale and thereafter for “B.” After the sale “A” changes his solicitor, and later re-purchases the property from “B.” On completion of his re-purchase “A” demands the deeds. In such circumstances it is obvious that “A’s” former solicitor (holding the deeds for “B”) cannot assert any lien against “A” for costs due from him, the fact that the solicitor originally received the deeds from “A” as his solicitor and held them in that capacity down to the date of the sale to “B” and had never since parted with physical possession of them being wholly irrelevant.
Precisely the same reasoning seems to me to apply in the case of a mortgage. The fact that the mortgagor retains an interest in the form of his equity of redemption is, I think, immaterial. That gives him no right to possession of the deeds unless and until he redeems the property, and such right when it arises is a right against the mortgagee, not against the solicitor, who is simply bound to deal with the deeds as the mortgagee may direct and cannot set up against him or any person claiming through him any lien he formerly had against the mortgagor. I think this is borne out by the reasoning on which the judgment of Chitty J in Re Llewellin proceeds although the lien there unsuccessfully asserted against the mortgagor was a lien claimed in right of the mortgagee for costs due from him to the common solicitor. There was on the facts of the case no question of any lien in respect of costs owing to the solicitor from the mortgagor personally, as admittedly none were so owed, but the learned judge said ([1891] 3 Ch 147):
“I will assume in favour of the respondent [i.e., the solicitor] that though he received them originally from the applicant [i.e., the mortgagor] the custody was changed; that he afterwards held them as solicitor for the mortgagee. The lien claimed on the documents of title is thus a lien in virtue of the right of the mortgagee to hold such documents.”
Then he says of the lien (ibid, 148):
“It does not confer on the solicitor any higher right to retain deeds than the client himself has.”
After citing a number of authorities in support of this proposition he continues (ibid):
“From these it follows, that when the mortgagor has paid to the mortgagee all that is due to him ¼ and the mortgagee has given the mortgagor a release, the mortgagee’s solicitor has no right to retain the deeds as against the mortgagor, even for costs due to the solicitor from the mortgagee for work done relating to the mortgaged property pending the mortgage.
By parity of reasoning, and, indeed, a fortiori, it seems to me that the solicitor holding the deeds in virtue of the right of the mortgagee to hold them cannot set up against the mortgagor a lien for costs due from the latter which not only could not be set up by the mortgagee himself against the mortgagor, but could not even be asserted by the solicitor against the mortgagee. Re Llewellin thus, in my view, bears out the direct authority of Re Nicholson. The same may, I think, be said of the ratio decidendi in Sheffield v Eden, although (as appears above) the actual decision in that case is confined to the mortgage deed itself.
The theory that the solicitor’s lien against the mortgagor client survives after his custody of the deeds is changed to custody as solicitor for the mortgagee client, though subject to the paramount right of the mortgagee to their possession, seems to me clearly inconsistent with the nature of the lien as defined in Re Llewellin and the cases there cited, particularly Blunden v Desart and Pelly v Wathen. The lien being neither the result of contract, nor an equitable charge, nor an incumbrance on the estate, but merely a right of the solicitor &to keep back from his client the deeds and papers, which he holds as solicitor, until his bill of costs is satisfied” (per Lord Cranworth LJ in Pelly v Wathen (1 De GM & G 23), it is difficult to see how, once the solicitor has ceased to hold the deeds for the mortgagor and holds then for the mortgagee, whose right to possession completely ousts that of the mortgagor and is free from any lien the solicitor could previously have asserted against the latter, the lien against the mortgagor can fail to be completely extinguished not merely as against the mortgagee but against the mortgagor also. A new lien against the mortgagor might no doubt arise if in the circumstances of the particular case the solicitor could be shown after the discharge of the mortgage to have resumed custody of the deeds in the capacity of solicitor to the mortgagor, but no such circumstances exist in the present case.
In the course of his argument for the defendant counsel pointed out that a solicitor’s lien against his client may continue though the relationship of solicitor and client has ceased, as, for example, where the client changes his solicitor, or on the death of the solicitor or the client, but this carries the defendant’s argument no further. In such cases the possession of the deeds on the strength of which the lien is asserted is still referable entirely to the relationship of solicitor and client formerly subsisting between the original parties even though that relationship has been brought to an end, and the rights appropriate to possession so referable survive accordingly. In the type of case now under consideration there is not merely a cessation of the relationship of solicitor and client between the solicitor and the person for whom the deeds were held, but a change in the character of the solicitor’s possession of the deeds from possession as solicitor to and on behalf of the original client (the mortgagor) to possession as solicitor to and on behalf of a different client (the mortgagee), and it is by this change that the solicitor’s lien against the mortgagor is destroyed.
It follows from what I have said above that I am in substantial agreement with the views of Vaisey J on the aspect of the case which he made a subsidiary basis of his decision (ie, the effect on the lien of the mortgage transaction in which the defendant acted for both parties). Logically, however, I think this aspect of the case comes first, as, if the defendant lost his lien from the moment he held the deeds as solicitor to and on behalf of the mortgagee, it is unnecessary to consider whether apart from this the lien would in any event have been lost when the defendant subsequently assumed office as one of the four executors of the mortgagee and later (since the date of Vaisey J’s judgment) took a transfer to himself of the mortgage. At all events it is abundantly plain that neither of these subsequent events can have improved the defendant’s position in regard to the lien he claims. Accordingly, while by no means dissenting from what has been said by the Master of the Rolls on this aspect of the case, for my part I find it unnecessary to express any opinion on the effect of these later transactions as it might have been if the case had depended on them alone. In the result I agree that the appeal fails and should be dismissed.
Appeal dismissed with costs.
Cases referred to in judgments
Sheffield v Eden (1878), 10 ChD 291, 40 LT 283, 42 Digest 263, 2980.
Blunden v Desart (1842), 2 Dr & War 405, 42 Digest 269, f.
Pelly v Wathen (1849), 7 Hare, 351, 18 LJCh 281, 13 LTOS 43, 68 ER 144, affd (1851), 1 De GM & G 16, 21 LJCh 105, 18 LTOS 129, 42 ER 457, 42 Digest 266, 3004.
Re Llewellin [1891] 3 Ch 145, 60 LJCh 732, 65 LT 249, 42 Digest 268, 3021.
Colmer v Ede (1870), 40 LJCh 185, 23 LT 884, 42 Digest 260, 2944.
Re Messenger, Ex p Calvert (1876), 3 ChD 317, 45 LJ Bcy 134, 34 LT 920, 42 Digest 268, 3023.
Re Nicholson, Ex p Quinn (1883), 53 LJCh 302, 49 LT 811, 42 Digest 269, 3027.
Re Walker, Meredith v Walker (1893), 68 LT 517, 42 Digest 263, 2981.
Re Mosely (1867), 15 WR 975, 42 Digest 268, 3020.
Re Snell (1877), 6 ChD 105, 46 LJCh 627, 37 LT 350, 42 Digest 268, 3024.
Ex p Fuller, Re Long (1881), 16 ChD 617, 50 LJCh 448, 44 LT 63, 42 Digest 261, 2957.
Graham v Seal (1918), 88 LJCh 31, 119 LT 526, 35 Digest 609, 3459.
Re Harvey’s Estate (1886), 17 LRIr 65, 42 Digest 272, 3056i.
Re Stannard’s Estate [1897] 1 IR 415, 42 Digest 269, 3032ii.
Drummond v Muirhead & Guthrie Smith (1900), 2 F (Ct of Sess) 585, 37 ScLR 433, 7 SLT 401, 42 Digest 268, 3023iii.
Barratt v Gough-Thomas [1945] 2 All ER 414, 650, 174 LT 329, 2nd Digest Supp.
Re Mason & Taylor (1878), 10 ChD 729, 48 LJCh 193, 42 Digest 268, 3025.
