The Estate of The Trustees Harrison

• Jurisdiction: Ireland
• Judgment Date: 14 February 1894
• Date: 14 February 1894
• Court: High Court

In the Matter of the Estate of the Trustees of Harrison.

Monroe, J.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Money lodged in Court under provisional offer — Solicitor Duty as to investment.

A public department who were anxious to acquire the reversion on a lease which they held, being part of the estate to be sold in this matter, agreed to lodge in Court the sum of £8750 under a written proposal which provided: 1, that the department should continue payment of rent under the lease until a conveyance should be executed by the Court; 2, that the sum to be lodged should be invested in 2 per Cents., and the dividends thereon paid to the Secretary of the department to the date of the conveyance; 3, that if good title could not be shown the sum lodged in Court should be repaid to the department.

The money was lodged, but neither the solicitor having carriage nor the solicitor for the department took steps to have it invested:—

Held, that although the solicitor having carriage is responsible, not merely to his own client, but to all persons interested in the property for sale, and to the Court, in seeing that everything in connection with the sale, the fund realised, and its distribution, is properly done, the obligation of causing the fund in the present case to be invested was not, under the special circumstances of the arrangement, so clearly shown to lie on the solicitor having carriage, as to make him personally responsible for the loss occasioned by the non-investment

Motion, on behalf of Her Majesty's Principal Secretary of State for War, that Messrs. Wallace & Co., solicitors having carriage of sale, be ordered to lodge in Court the amount of dividends which would have accrued due on the sum of £8750, brought into Court by the War Department on the 31st March, 1893, if the same had been invested in the purchase of New Consols, pursuant to the terms of the proposal for purchase of the Department, accepted on the 28th March, 1893. The circumstances of the case are fully stated by Mr. Justice Monroe in his judgment.

Matthew J. Bourke, and J. F. Vesey Fitzgerald, in support of the motion:—

When the Court makes an order for investment, the solicitor having carriage is the proper person to look after the investment: sects. 56, 67; Rules (1859), 29, 30. The Court holds him in the first instance responsible for any irregularity that may occur: In re Devereux (1); In re Cleary (2); In re Assignees of John Frewen (3); Batten v. Wedgewood Coal and Iron Company (4). There the question arose as to the liability of the solicitor for the plaintiff for non-investment of the purchase-money. Pearson, J., says, at page 349:—“The conduct of the sale rested with him because he was the solicitor for the plaintiff, and as such he was discharging the duty which devolved upon him, and no other solicitor would have been entitled to charge for that which he was doing. But he was acting as an officer of the Court, and in that character, I conceive, he was liable to the Court for the due discharge of his duty. Until I am corrected by a higher tribunal, I shall hold that the Court has a summary jurisdiction to make a solicitor liable for not properly discharging his duty under such circumstances. I think, therefore, that he is liable to make good to the receiver the loss of interest which has resulted from the non-investment.”

Gordon, Q.C., and Hume, for the solicitors having carriage:—

Here the War Department obtained privity, and lodged the money themselves. The order was obtained at the urgent instance of the Department. The solicitor having carriage received no notice of the lodgment, and was never required to take steps for investment of the money. The proposal was not complete at the...