Farrelly v Lynch

• Jurisdiction: Ireland
• Judgment Date: 06 February 1897
• Docket Number: (1896. No. 5520.)
• Date: 06 February 1897
• Court: Queen's Bench Division (Ireland)

Farrelly

and

Lynch (1).

Q. B. Div.

(1896. No. 5520.)

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Sheriff — Fees on execution — Liability of solicitor — Rules of Supreme Court, 1893 — Order LXV., Rule 90.

A solicitor who issues a writ of fieri facias and. hands it to the sheriff becomes, on the execution or return of the writ, personally liable to pay the sheriff the fees prescribed in the schedule contained in Appendix S, Part iv., of the Rules of the Supreme Court, 1893.

Motion by the solicitor for the defendant, who had recovered judgment for costs and issued a writ of fieri facias thereon against the plaintiff, seeking to discharge so much of an order made at Chambers by Mr. Justice Gibson, as declared that the sheriff's fees awarded for the execution of the writ should be paid by the solicitor personally.

The defendant had recovered judgment against the plaintiff Thomas J. Farrelly for the sum of £37 2s. 7d., costs payable to him by the plaintiff. William J. Girvan, the defendant's solicitor, thereupon issued and handed to the sheriff a writ of fieri facias directing him to levy the said sum, and sheriff's fees, off the plaintiff's goods. The sheriff caused a horse and car to be seized under the writ. A claim to the goods seized was made by a man called John Farrelly, and the sheriff obtained a summoning order. By consent the question as to the property in the goods was tried and determined on the hearing of the interpleader summons before Mr. Justice Gibson on January 29th, 1897. Witnesses, including the claimant and the plaintiff, were examined before the learned Judge, and an affidavit sworn by Lorcan G. Sherlock, manager of the under-sheriff's office in the city of Dublin, and made for the purpose of obtaining the interpleader order, formed part of the evidence produced. This affidavit referred to the writ

of fieri facias, and stated that, “on the 14th day of January, 1897, the sheriff caused to be seized one mare, car No. 61, and harness, which were pointed out to sheriff's bailiffs by defendant's solicitor, W. J. Girvan, immediately before seizure, as the property of the plaintiff, Thomas J. Farrelly.” The affidavit then referred to the claim made by John Farrelly, stated that notice of the claim was given to Mr. Girvan, who gave notice that he disputed the claim so made. The affidavit concluded with the averment that the sheriff claimed no interest in the subject matter in dispute other than for charges and poundage, denying collusion and submitting to the jurisdiction of the Court.

At the conclusion of the evidence, having heard counsel for the sheriff, the claimant, and the executor's creditor, Mr. Justice Gibson found that the goods seized by the sheriff under the writ of fieri facias were at the time of such seizure the property of the claimant, and accordingly ordered that the sheriff should withdraw from the possession of the said goods, and that the execution creditor should pay to the claimant and to the sheriff their costs in the matter (measured at £5 5s. and £3 3s. respectively), and further ordered that the sheriff be declared entitled to the sum of £3 16s., his expenses in keeping said goods, said sum, on the application of the sheriff, to be recovered and recoverable against Mr. W. J. Girvan, the solicitor for the execution creditor personally.

Henry, Q.C., and Gaussen, for Mr. Girvan:—

The sheriff at Common Law was entitled to no fees or remuneration. By statutes (10 Chas. 1, sess. 3, c. 19, and 6 Anne, c. 7) the sheriff was given poundage on the amount recovered; and by the Rules of 1885, Order III., the sheriff was first given fees for executing writs. These fees were payable by the party at whose instance the sheriff was required to execute the writ, Order III., Rule 2, and might be levied by the sheriff with his poundage. Nothing can be found in any rule priorto those of 1893, under which it can be suggested that the solicitor was liable to pay the sheriff his fees; but there are decisions which show that the solicitor might be held liable to pay the sheriff his fees on an express or implied promise: Wallbank v. Quaterman (1); Foster v. Blakelock (2). It is said, however, that Order LXVI., Rule 90 (of 1893), alters the law in this respect, and in every case makes the solicitor who issues the writ liable to pay the sheriff his fees: this view was adopted by Madden, J., in Stevenson v. Moorehead (3), and his decision was followed by Mr. Justice Gibson in this case. If the new rule alters the old law so as to create a liability on the solicitor, it is ultra vires. The object of the rule was not to alter the liability of the parties; it leaves the law as it stood before; it declares the fees to be payable by the solicitor or party in person, recognising that under certain circumstances the solicitor was liable to pay the fees. The solicitor is only an agent for a disclosed principal: Ex parte Hartop (4). Clear words in Rules as well as in Acts of Parliament are required to create new liabilities.

P. A. O'C. White, for the sheriff:—

The rule admits of only one interpretation. It gives the sheriff his fees on the return of the writ, and declares that he may recover them either from the solicitor who issues the writ or the party in person. Stevenson v. Moorehead (3) is expressly in point. The sheriff need not issue the writ unless he be indemnified by his client.

Henry, Q.C., and Gaussen, for Mr. Girvan:—

P. A. O'C. White, for the sheriff:—

O'brien, J.:—

I entertain a view of the case perhaps not altogether identical with that of my colleagues, but I am disposed to think the most convenient course is to affirm the decision of Mr. Justice Gibson. I feel two difficulties in the matter. First, the construction of the rule adopted by the Court obviously alters the position of professional men, and subverts the principles which from the earliest times had regulated the liability of solicitors, and further introduces a state of law different from that which now exists in England, and thus seems to transgress the direction laid down in the sixty-first section of the Judicature Act (Ireland) 1877. Secondly, if the concluding words of the rule are to be read literally, they clearly say that all

the fees given in the schedule are to be payable by the...