167 / 244
cutting. In the present case, the amount which
the member of the union would have had, as
purchaser, to pay under the scale was £24, whereas
Mr. Evill only charged him £4 15 s.
Mr. Evill, it should be said, had been perfectly
frank throughout.
The evidence on which the
Disciplinary Committee had acted was in substance
contained in his own letter written in reply to the
complaint.
In his (his Lordship’s) opinion, in
acting as he had, Mr. Evill, had undoubtedly
infringed Rules x and 2 of the Rules o f 1936, and
the appeal should be dismissed. Mr. Justice Oliver
and Mr. Justice Sellors agreed.
—(The Times
Newspaper, xst May, 1951).
Solicitor’s lien defeated by set-off between
parties
Petitioning
creditors—Bowmaker
Limited,
presented a petition in the Windsor County Court
against the debtor and a receiving order in
bankruptcy was made. On November 13th, 1950,
an appeal td the Court by the debtor was allowed
(1950, 2 All E. R. 1129), and the receiving order
was set aside on account o f defects in the bankruptcy
proceedings. The applicants were thereupon ordered
to pay to the debtor the costs of the appeal and of
the proceedings in the Windsor County Court
amounting to £72. The applicants were, however,
judgment creditors o f the debtor for a balance
of £409 Is- 4d., remaining out of a larger sum
for which they originally obtained judgments.
The debtor’s solicitors notified the creditors,
Messrs. Bowmaker, o f an intention to issue execution
against them to recover the said sum of £72 for
costs. In these circumstances the creditors applied
to a Divisional Court of the Chancery Division
for a stay of execution of the order for payment
of the costs and intimated that they proposed to
bring a fresh bankruptcy petition against the
debtor. This application for a stay o f execution
was resisted by the debtor on the ground that to
grant such a stay would be equivalent to allowing
a set-off to be made and (
a
) a set-off would interfere
with the lien of the debtor’s solicitors for costs
on the sum of £72, and
{b)
that the judgment
creditors would be obtaining payment in full in
priority to other possible creditors. Harman and
Danckwerts, J .J ., held that the Court had a
discretion to allow a set-off when reasonable,
notwithstanding a solicitor’s lien : Reid
v.
Cupper
(1915, 2 K .B . 147), applied. There being at the
time no bankruptcy no question of undue preference
arose, and, in any event, money set-off under an
Order of the Court could not constitute an undue
preference^ and on the facts o f the case, it was
just that the creditors should have a stay o f execution.
Per Harman, J. : “ The old decisions about the
practice in bankruptcy were based apparently,
on the view that the practice in Chancery was
being followed. Now, whatever the practice in
Chancery was at one time, it has, at any rate since
1916, allowed a set-off in all proper cases, notwith
standing the solicitor’s lien, and I see no reason
why bankruptcy practice should not follow the
same rule. I agree that we have a discretion to
allow this set-off, or a stay, which amounts to
much the same thing, if it be just. In my opinion,
it would be right to allow it. I cannot see that
as between the parties themselves there cannot
be any justice in allowing the debtor to levy execution
against the goods of his creditors, nor do I think
that this ought to be allowed for the sake of the
debtor’s solicitor. I cannot see any reason why
the creditors should pay the costs of the debtor’s
solicitor if the debtor is unable to do so, nor do
I believe that a solicitor accepting the retainer
of a person against whom bankruptcy proceedings
are pending, does so in reliance on the view that
the petitioner’s solicitor may blunder and thus
give him the advantage of an order for costs against
the petitioner.”
(Re.
A Debtor (1951) L All E. R.
600).
LEGAL LITERATURE OF THE
MONTH
A selection of articles from periodicals.
Taw Times,
May 4th.—“ False Imprisonment.”
“ Insertion of a Nominal Considera
tion in Deeds.”
May n th .—“ Solicitor acting for both
Parties—Fees.” ; “ Fatal Accidents—
Damages in Court.”
May 18 th.—'“ Order of Application of
Assets—Lapsed Shares.”
May 25 th.—-“ The Tucker Report and
Partnerships.” ; “ Power to appoint
Additional Trustee.”
The Solicitor,
May— Liens of Sub-Agents.” “ The
Assignability of Leases.”
The Solicitors’ Journal,
May 5th.—
“ Investment
Clauses.” “ How to revoke
an appointment as executor.”
“ Boundary Adjustment.”
May 1 2th.— “ Postponement
of Order for Possession.”
May 19th.—-“ Trusts for the
relief of Old Age,”