13 / 120
MAY, 1914]
The Gazette of the Incorporated Law Society of Ireland.
well-known case of
Wintle
v.
Freeman
(11
A. & E. 539) as an authority for that pro-
'
position. I also decide that a return of
milla
bona
may be made when there >has been in
fact no seizure of anything. In this case,
on the facts before me, I have no evidence at
all of there being either any " execution " or
any withdrawal at the instance of the
execution creditor. I have no proof before
me that the sheriff was directed to withdraw.
Indeed in the carefully prepared return to
the writ he says that he " abandoned said
seizure." This decision is not in any way in
conflict with
Pirie v. Stewart
([1899] 2 I. R.
54'6), in which it was decided by Mr. Justice
Kenny that the writ had been in fact
executed in that case. In his judgment he
pointed out that a sheriff who returns
milla
bona
to a writ of
fi. fi.
does
prima facie
preclude himself from alleging that a seizure
took place. I quite agree. The whole of the
facts here go to show that the bailiffs, finding
that there was nothing to seize, nude no
attempt at a seizure, and returned to their
employer. This case does not, in my opinion,
decide any question of law. I must reverse
the decree of the learned Recorder, but I do
so entirely upon the questions of fact which
were involved in this case.
(Reported
I. L. T. Reports,
Vol. XLVIL,
p. 261.)
Preparation of Conditions of Sale
by Auctioneers.
THE
Irish Times
of 18th April states that at
Londonderry Quarter Sessions upon the 17th
April the Recorder made an important
statement in reference to the preparation of
conditions of sale by auctioneers. The
matter had been brought under the notice of
the Judge by Mr. Joseph Loughrey, solicitor,
during the hearing of a case, when an
auctioneer stated that the draft conditions of
a sale of land had been made in his office by
his managing clerk. On behalf of the legal
profession Mr. Loughrey raised an objection
to auctioneers preparing draft conditions of
sale. It was an abnegation of the rights of
solicitors. He handed in a decision on the
point, and asked for an expression of opinion
from the Recorder, mentioning that in this
particular instance he did not ask for any
condign punishment.
The Recorder said that he thoroughly
agreed with the decision of County Court
Judge Moore of Tipperary on the point. It
was given in a case where an auctioneer had
acted absolutely as a solicitor and con
veyancer by preparing abstracts of title, con
ditions of sale, and conveyances. This
auctioneer was sued before His Honor Judge
Moore for a penalty under the third section
27th and 28th Victoria, chap. 8.
That
section provided that except a man was
registered as a conveyancer, or got a special
qualification as such, or was a barrister,
solicitor, or attorney—people who were
entitled to draft conveyances—he was liable
to a penalty not exceeding £20 or less than
£5 in a suit brought against him by a common
informer, or anybody, for doing so. For any
act done by such a man as conveyancer any
person could sue him before the Court, and
if it be proved a penalty could be recovered
against him. There was before His Honor
at these Sessions a case where an auctioneer
in that and the neighbouring county had been
acting as a conveyancer by drafting con
ditions of sale and doing various acts that
should be done by solicitors or other properly
qualified conveyancers. The matter did not
come before him in a way that he could deal
with it: but the solicitors asked him to make
some mention of it, and he did so, not only
in the interests of the solicitors, but
auctioneers throughout the country. He
informed the auctioneers that if they pro
ceeded in the way he knew from personal
experience they had been doing, in drafting
these documents and acting as conveyancers,
any member of the public could sue them
before him, and recover £20 or not less than
£5.
It was only right that they should be
warned and know what the law was. He
now gave that warning, and he would
undoubtedly follow Judge Moore's decision
in
any
case that came before him.
NOTE.—The decision of His Honor Judge
Moore referred to above is that in the case of
Wakely
v.
Toppin,
reported in GAZETTE of
February, 1914, page 86.