George Stephenson v Henry Theophilus Higginson

• Jurisdiction: Ireland
• Judgment Date: 20 January 1847
• Date: 20 January 1847
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

GEORGE STEPHENSON

and

HENRY THEOPHILUS HIGGINSON.

Bernard v. Gosling 1 b. p. 245.

Lady Hatton Finch 3 Hog. 255.

Spencer v. SwannellENR 3 m. & W. 164.

The King v. PatemanENR 2 T. R. 777.

Hughes v. SlathanENR 4 B. & C. 193.

Attorney-General v. LockwoodENR 9 M. & W. 398.

The King v. The Inhabitants of RamsgateENR 6 B. & C. 712.

Sussex Peerage case 11 Cl. & F. 143.

Fraran v. Beresford 10 Cl. & F. 335 ; S. C. 5 Ir. Law Rep. 487.

Lumby v. Allday I C. & J. 306.

The King v. HoggI T. R. 721.

Dock Company of Kingston-upon-Hull v. BrowneENR 2 B. & Al. %9.

The King v. MillerENR 6 T. R. 300.

Sheppard v. GosnaldENR Vaugh. 169.

Collett v. Collett 3 Curtis, 735.

Prankan v. Deacle 1 Hog. 186.

Neale v. RowseUNK 13 Rep. 24.

Girsling v. Wood Cro. Eliz. 85, pl. 4.

Vincent v. HoltENR 4 Taunt. 452.

H. T. 1847. Eath6Clatn. 458 CASES AT LAW. eydrquer artaittr. GEORGE STEPHENSON v. HENRY THEOPHILUS HIGGINSON. Jan. 20. (In Error front the Exchequer of Pleas.) A registrar of THIS was an action of debt, brought in the Court of Exchequer, for one of the Ec- clesiastical penalties under the 54 G. 3, c. 68, s. 10. The declaration contained Courts, in Ob- thirty-six counts. These counts were divisible into two clams taining pro bate or letters one class, "for having done acts and things appertaining and of administra- Lion in uncon- belonging to the office, functions, or practice of a proctor ;" and the tested cases, other, "for having done acts and things appertaining to the office and and charging and receiving " practice of a proctor, with a view to participate in the benefit to fees and costs be derived from the office, functions, or practice of a proctor, for the same, is - not liable to " without being admitted and enrolled." The first count of the the penalties imposed the declaration stated, that after the 17th of June 1814, and within three by 10th section of months before the commencement of this suit, to wit, on the 4th of the 54 G. 3, c. 68, which pro- April 1844, at, &c., the defendant did, in his own name, in the 68 bibits any per- Consistorial Court of Down and Connor, perform a certain act, son or persons, in his or their matter, and thing, appertaining to the office, function, and practice of own name, or in the name of a proctor, that is to say: by obtaining and procuring letters testa- any other per. mentary, to wit, the probate of the last will and testament of one son, from per- forming any Euphemia Thompson deceased, to be granted forth of the Ecclesias. act in any way tical Court ; and the defendant, for the purpose of obtaining the appertaining or belonging to same, then and there extracting probate of the said will, and in the the office, func- matter of the goods and chattels of the said Euphemia Thompson in tion ,or practice of a proctor, the said Court, drawing and preparing the inventory of the goods for or in consi- of and chattels of the said Euphemia Thompson, and the schedule of deration gain, fee, or the said goods and chattels, and the affidavit to verify the said reward, or schedule, and the certificate thereto annexed, he, the said defendant, with a view to participate in then not being or having been admitted or enrolled a proctor of the the benefit to . be derived from said Ecclesiastical Court, or of any other Ecclesiastical Court in the office,func tions, or practice of a proctor, without being admitted and enrolled.-Dissentientibus BALL, J., CRAMPTON, J., DOHRRTY, C. J., and BLACKBURN; C. J. Held also, that the evidence of witnesses to prove the practice of other EcclesiasÂÂtical Courts in England and Ireland, in permitting the registrars thereof to obtain probates and letters of administration in uncontested cases, and to charge costs and fees for the same, was admissible on the part of the registrar in an action brought against him for penalties for performing such acts contrary to the provisions of the foregoing Aot. CASES AT LAW. 459 Ireland, or within the meaning of the of the 54 G. 3, c. 68, contrary to and against the power of the said Act ; whereby, and by force of the said Act, an action hath occurred to the plaintiff to have the sum of 46. 2s. ld. so forfeited as aforesaid, parcel, &c. These charges are varied through the other counts of the declaration, every one of which stated similar acts done with respect to the wills of other speciÂÂfied persons. The defendant pleaded nil debet to the whole declaration. The issue was tried at the Assizes of 1846 for the county of Armagh, before PERRIN, J., when it appeared that the acts complained of were done by the defendant, who was the Registrar of the ConsisÂÂtorial Court of Down and Connor, or in his office, and that* the costs were furnished by and paid to him or. his deputy ; and that there was no contest about any of the wills mentioned in the declaration. It also appeared, that there were several proctors practising in the said Court, and that the defendant had never been admitted or enrolled as a proctor. The plaintiff having closed his case, the defendant produced a witness, one John Samuels, who was, and had been the Deputy Registrar of the Consistorial Court in Dublin for more than twenty years, and whom the defendant's Counsel proposed to examine as to the practice of his Court during that period, as respected the employment of a proctor in uncontested suits ; but the plaintiff's Counsel objected to such evidence as not being admissible upon the issue, inasmuch as the practice of the said Court was not relevant thereto, and should not be admitted to conÂÂstrue or control the meaning of the statute; but the objection was overruled by the learned Judge, who admitted the evidence, and to this ruling the first exception was taken. The witness then stated, that it had been the practice of his Court, during his time, in cases where there was no contest or suit upon the subject, for the registrar to extract probate and letters of administration without the intervention of a proctor, when the parties came themselves to the office, or when they employed the deputy registrar ; and that proctors might be, and frequently were, emÂÂployed to do so ; that he knew the practice of the office long before • The bill of costs was set out in the bill of exceptions, and was as foliows :- Down and Connor Office, Lisburn, April 4, 1844. Costs of obtaining probate of the will of Euphemia Thompson, deceased, inventory, affidavit, and schedule, s. d. 0 15 5 Registrar 's fees, parchment, and probate 3 15 10 Vicar 's-General fees thereon .. -. • • 1 N 4 Probate duty and parchment .. 60 0 11 66 4 6 Paid, P. R. O'Flaherty. 460 OASES AT LAW. the 54 G. 3 in these cases, and that where no proctor was employed, the engrossing of the will, the preparing fiat for securing the parties, and attending with them before the Judge, and filling up the scheÂÂdules, probate, certifying under the Stamp Act, and renunciation of executors, were all done by the deputy registrar ; also, the affidavit to verify schedule and inventory ; also, that in cases of intestacy he filled oaths, papers, affidavits, and schedules, and measured stamps, duty, renunciation, or consent, and issued marriage licenses. The witness also stated that he was not a proctor, and that he did all the foregoing with the privity of the Judge of the Court ; and that if there was a contest he did not interfere ; but that a proctor must be employed, and that he was obliged to exhibit his proxy before he could act or be recognised as a proctor ; but that in the foregoing acts, as being sometimes done by the registrar, he is not called on to exhibit a proxy ; and that in taking out marriage licenses, a proctor seldom or ever acted or interfered ; and that witness was paid for doing all these acts independent of his official fees as a registrar, and that the bills in this Court were moderate compared with Dublin charges ; and that in Kildare diocese he never knew a proctor employed ; and that the Dublin proctors might practice in any other diocese. On cross-examination this witness stated, that the registrar would not be entitled to charge for inventory, affidavit, and schedule, if a proctor were employed, nor to the same amount, for engrossing or copying of will, &c. ; and that if there was a proctor employed, neither the registrar's or Judges' fee on admiÂÂnistration or renunciation would be so high ; that proctors were employed in the majority of cases, and that no person but a proctor, unless it were the registrar or some one in his office, would be perÂÂmitted to do or perform these acts, and that the practice had been for one or the other to do them. On re-examination, it appeared, that if a proctor were employed, the combined charges would be higher than if the registrar were employed. The defendant also examined the registrar of the diocese of Chester, to show that a similar practice prevailed in England ; and the Vicar-General of the diocese of Down and Connor, and the registrars of the respective dioceses of Ardagh and Elphin proved that the practice in those dioceses was similar to those deposed to by the first witness. Exceptions were taken to the admissibility of their evidence. The defendants having closed their case, the Counsel for the plaintiff called on the learned Judge to direct a verdict for the plaintiff, on some one count of the declaration ; but his Lordship refused so to do, and on the contrary, directed them, that if they believed the evidence, they should find a verdict for the defendant CASES AT LAW. 461 on all the counts, inasmuch as the evidence, though believed, did not in law sustain any one count of the declaration-and therefore, the Counsel for the plaintiff excepted to the said charge, as well because the Judge refused to direct a verdict for the plaintiff; as because he directed a verdict for the defendant. The jury found a verdict for the defendant. The Court of Exchequer overruled the exceptions, and entered up...