111 H.L.C., 636 STEPRENSON W . HICCINSON [ 1 8 5 1 - 5 21

the redemption of the annuity of &42 granted to Elizabeth Pratt by E6361 William

Mitchell Bloye; the sum of &79 lOs., interest thereon up to the 6th December, 1846;

the sum of &120 11s. 6d. paid by Overton and Hughes IB Ann Susannah Hillman;

the sum of 253, being the amount of the auctioneers, Messrs. Turner and Athertsn’s,

charges in respect of the sale ofithe reversionary interest of Ann Susannah Hillman,

in the original petition mentioned; the sum of 3 2 Ts., being the charges of Mr.

Sewell in respect of the sale; the sum of 2 9 11s. 6d., being the charges of Messrs.

Tebbs, the proctors for the probate granted to Ann Susannah Hillman of the will of

William Mitchell Bloye, deceased ; all which said aeveral sums amount to the sum of

2865 : and i t is further ordered, that out of the sum of $35 in the original petition

menticpned, charged by the appe l l an~ Overton and Hughes to Ann Susannah Hillman

as professional charges, there be deducted the sum of $10, and that the remaining

$25 be paid to Dmid Hughes out of the fund in the Court of Chancery; and that;

there be also paid to David Hughes out of the fund in cau& the sum of &12 5s. Id.,

being the taxed costs of James Trundle and Machin Lake, ordered to be paid to their

solicitor by the order of the Victd2hancellor of the 2nd March, 1849, but which costs

have in fact been paid to such solicitor by Overton and Hughee out of their own

funds: and with respect to the interest to be allowed to Hughes, it is ordered that

Hughes be charged with interest on the sum of 31757 16s. 8d. for the internal between

the same having been paid out of court. to Hughes by the order of the Vice-

~ h ~ c e l l u r of the 2nd March, 1849, and ib having been repaid by Overton arid

Hughes into court under the order of the 10th November, 1849, hereby affirmed,

that is to say, from the 23d March, 1849, until the 19th December, 1849, being 271

days, and that the rate of interest be the same which has been produced by the

;E1770 1s. 9d. so invested in the purchase of the 3 per cent. Cons. Bank Annuities,

that is to say, 2 3 2s. per centum per annum ; and that Hughes be allowed interest a t

the same rate on the sum of 226-8636 for such time as the sum of 21757 16s. 8d. shall

have borne interest, that is to say, for the said interval of 271 days, and alm from the

time at which the sum of 21770 1s. 9d. was invested in the 3 per cent. Cons. Bank

Annuities until the sum omf 2865 shall be paid thereout to Hughes, as herein directed ;

and that the difference of the interest hereby allowed to Hugbes be paid to him

out of the fund in court: and it i s ordered, that so much obf the &I827 3s. 9d. 3 per

cent. Cons. [6371 Bank Annuities as shall be sufficient to raise the sums of A€865,

and ~€25, and 212 5s. Id., and the difference of interest hereby ordered to be paid to

Hughes, be =Id, and the sum^ so raised be paid to him accordingly: that the reeidue

of the Bank Annuities, and any dividends on the same until sale, and cpn the residue

thereof until transfer, be transferred to Ann Susannah Hillman, as executrix of

William Mitchell Bloye: and that upon payment to Hughes of the hereinbefore-

mentioned sums of 2865, &25, and 212 5s. Id., and the difference of interest, the

appellants do deIiver up to Ann Susmnah Hillman, as such executrix aa afcpraaid,

the annuity-deed of the 6th of April, 1840, and the asaignment to William Lewis, of

the 27th of NoTember, 1846, the probate of the will of William M i ~ h e ~ Bloye, and

the indenture of mortgage of the 3rd o f June, 1839, in the original petition mentioned ;

and that the appellants do cause satisfaction t o be entered on the roll of the judgment

signed on the warrant of attorney given collaterally with the annuity-deed herein-

before mentioned, the respondents, by their solicitor Mr. Lake, undertaking to pay

the custs out of pocket occasioned to the appdlants thereby : and i t is further ordered

that, with this judgment, the matter be remitted back to the Court of Chancery, to

do therein as shaIl be just and necessary for giving fuII effect to this judgment.-

Lords’ Journals for 1852, 25th March, p. 66.

[a] GEORGE STEPHENSON,--PL&tif &I% Ewor; HENRY THEOPHILUS

H I G G I N S O N , - ~ e ~ e n ~ u ~ ~ in Er ro r [Feb. 18, 20, July 9, 1851 ; June 16, 1852j.

[Mews’ Dig. i. 349; v. 1395; xiii. 1918. On point as to construction of Act. bee

Income Tax Commissioners v. Pemsel (1891), A.C. 532, 580; Dickenson v.

Fletcher, 1813, L.R. 9 (4.P. 7 ; RzLmbafl v. Schmidt, 1882,8 Q.B.D. 608 j Zlewellyrb

252

STEPHENSON 'U. HIQCINSON [ 18 5 1-5 21 I11 H.L.C., 639

v. Vde of Glamorgan Ry. Co. (1898), 1 Q.B. 473,478; and cf. Rawley v. Rawley,

1876, 1 Q.B.D. 460.)

Ecclesiastical Court-Proctor-Registrar-Evidence-Practice--Sfatufe,

construction. of.

In construing an ordinary Act of Parliament, every word must be understood

according to its legal meaning, unless the context shows that the Legislature

has used it in a popular or more enlarged sense: but in a penal enactment,

where it is sought to depart from the ordinary meaning of the words used,

the intention of the Legislature that those words should be understood in a

larger or more popular sense must plainly appear.

The 54 Geo. 3, G. 68, S. 9, prohibits a proctor from permitting or suffering " his

name to be in any manner used in any suit, the prosecution or defence of which

shall appertain to the office of a proctor, or in obtaining probates of will,

letters of administration, or marriage licensm )' for the benefit of any other

person. The 10th section enacts, " that in case any person shall, in his own

name, or in the name of any other person, make, do, act, exercise, or perform

any act, matter, or thing whatsoever, in any way appertaining or belonging

to the office, function, or practice of a proctor, for o r in consideration of any

gain, fee, or reward, or with a view to participate in the, benefit to be derived

from the office, function, or practice of a proctor, without being admitted and

enrolled, he shall forfeit 2250 :"

Held, that, construing these two sections together, the acts intended by the latter

section to be prohibited were those which were legally incident to the office

of a proctor; not those which, though usually performed by him, were not of

right incident to his office.

And, therefore, that a registrar of an Ecclesiastical Court, who, in cases where

there was no testamentary contest, had prepared the documents, and done the

acts necessary, for obtaining letters testamentary, and probates of wills, and

other similar matters, had not thereby subjected himself to the penalty im-

posed by the 10th section.

On the trial of an action brought on this statute, evidence from certain Ecclesi-

astical Courts was tendered, to show that it was customary for the registrar

to do these acts, and to receive fees on account of doing them :

Held, that such evidence was properly admitted.

[e391 The Lords allowed the opinion of a learned judge, who had been present

a t the hearing of the cause, but who was unable to attend when the judges'

opinions were delivered, to be read by one of his brethren ; but it was expressly

declared that this could not be done as a matter of course.

This was an action of debt, for penalties under the 54 Geo. 3, c. 68.X

* 54 Geo. 3, c. 68. '' An Act for the better Regulation of the Ecclesiastical Courts

in Ireland, and for the more easy Recovery of Church-rates and Tithes." By the 9th

section it is enacted, " That i f any proctor of his Majesty's Court of Prerogative in

Ireland, or of the Consistorial and Metropolitan Courts of Armagh and Dublin, o r of

any other Ecclesiastical Court or Courts in Ireland, in which he shall be entitled to act

as a proctor, shall act as such, or permit and suffer his name to be in any manner used

in any suit, the prosecution or defence whereof shall appertain to the office of a

proctor, or in obtaining probates of wills, letters of administration, or marriage

licenses, to, for, o r on account, or for the profit and benefit of any person or persons

not entitled to act as a proctor, or shall permit or suffer any such person or persons to

demand or participate in such profit and benefit, and complaint thereof shall be made

to the Court or Courts wherein such proctor hath been admitted and enrolled, and

proof given to the satisfaction of the said Court or courts that such proctor hath

offended therein as aforesaid, then and in such case every such proctor so offending

shall be struck off the rolls of proctors, and be f o r ever disabled from practising as a

proctor, or be suspended from the office, functions, and practice of a proctor, in all

and every of the said court or courts for SO long a period as the judge or judges of the

253

IXI R.E.C*, 6.po ~~~~~~~~~~ v. ~~~~r~~~~ 1-52]

[MO] George S t e p ~ ~ n s ~ n vas a proctor of the ~ c c l e s ~ a ~ c a ~ Court of the Bishop of

Down and Connor, and IRCennry Theophilus Higginson was registrar of the diocese of

Down and Connor, but was not a proctor of the Ecclesiastical Court there, o r of any

other Eeclmiast-ical Court in Ireland.

~ ~ ~ g ~ n s o n , whib S U G ~ registrar, had bsao in the ha&% of ~ ~ t r a ~ t ~ n ~ probt-t% on

wills where there was no ~ s ~ m ~ ~ t ~ ~ conta&, snd d drawing up and en-ngmgsing

affidavits tQ verify the sauze, snd of perforaiing varioa~ atheir- wh rehting to tfits

obtaining Mad procuring fetters ~ s t a ~ e n t a r ~ , which long^, as Stephenson alleged,

to the office and practice of a proctor. He has also been in the habit of making chargee

for the performance of these actas, in addition to the fws to which he was entitled as

registrar.

The first count, of &e d ~ ~ a ~ ~ ~ o ~ stated &at the d e f ~ ~ d a n t ~ on tqhe 4th of April,

I B i l , did, i~ bie own name, in &e Consistorial Court e€ the Bishop of Down and

Connor, the said GOU& b i n @ one in which proctors had ben a ~ ~ ~ ~ ~ ~ i a ~ ~ y ad-

mikted, snd had praetisd, far and in ~ ~ s ~ d 6 r ~ t i o n of a certain fee-to wit, &I@,

make, do, exercise, and perfomi a certain act, matter, and thing appertainixLg to the

office, function, and practice of ti proctor ; that 4s to say, by the defendant in the said

Ecclesiastical Court obtaining and procuring let

the last will and ~ ~ e ~ t of one ~ u p ~ ~ i ~ ~ a T h a n i s o ~ , deems&, t5 be granted forth

of €he said mu&, by- the Bishop of Down i d Cosinor and the d ~ f e n d a n ~ for the pur-

pose of o ~ ~ a ~ n ~ n g and procuring the said lettern ~ ~ a ~ n e ~ t a r y ~ in and forth of tile said

~ c c l ~ ~ ~ s t ~ c a l Court, mtr-actiag pmbata of tha. said will, and in the r n a t ~ ~ r of the

goods and chattels of the said Eupheni~a T h o i ~ ~ ~ s o n in &e said courb, praparlng and

drawing the inventory of the goods and chattels of &e said Euphemia Thompwn, d e

ceased, and tha schedule of t l i ~ said goods and chattels, and the &davit to verify the

said schedule, and the c e r t ~ ~ ~ ~ ~ therete annexed, he, the def~nd&n~, the^ n ~ t being or

hwing been a ~ ~ ~ t t ~ d or enrolled a proctor of t h e =raid E e € ~ ~ ~ a s t ~ ~ a ~ Cowti3 or of any

other ~ c e l ~ ~ ~ ~ c a l Court In I m h d , QI ia m y manner a d ~ i ~ d or e n d l e d a proctor

wit& &e? mmning of tho sta~uLe ti4 G-= 3, c. 88, contrary to and ab oainst &e f o t ~ i of

the said statute. There were a great‘ mmy other counks, varying the s t a ~ n i ~ ~ i t of the

alleged offence. The delfendant, pleaded, aecording to the privilege given him by the

statute, the general issue, that he did not owe, etc.

The cause was tried at C a ~ r ~ e k f e r g ~ s ~ on &e 2lst July3 2845, b&ra Mr. Justim

Perfin, when it appeared that acts ~~~~~~~~ #f wem done by the d ~ € a ~ ~ ~ ~ ~ ~ who

was the registrar of &e ~ o n ~ ~ ~ t o r ~ ~ ~ CoDr , d Davn and Conx~or, or in his &icet and

that the were f u ~ n ~ s h e d by, and paid to him, o r his d ~ ~ u t ~ , and &at them was no

c o ~ i b ~ k about any of the wills mentioned in the de~~ara t ion ,

E6421 It also appeared that there were several proctors practising in the said

court, and &at the defendant had never been admitted or enrolleid as a proctor.

_ _ __

said mui% or court^ may deem fit ; save and except a8 to any ~ ~ ~ w ~ n c e : or dlowances,

sum or sums of money that %re or shall be agreed to be made to1 the widows or children

of any dcscewd proctor or pmctors, by any suwiving ptrtner or partners il€ any suck

deceased proctor or proctors j and also save and excelppt aa t-o any agreement made, o r

understood to have been made, between prwtors and articled clerks, whose asticlefi

have been axwutad prior to the paming of this Act.” By section 10 it k enacted,

‘* That in case any person or persons shajl, in his o r their own n m e , or in the name of

any other pema or p ~ r s o n ~ , m&e2 do, act, exercise, or perform any actx, inabttsr; or

thing wkatwevx, in any way ~ ~ p e ~ i n ~ n g or belonging Lo tile oEce, function, o r

pact-iee of 8 proctor, for or in consideration af any gain, fse, or rewards or with a

view to participite in the: benefit to be derived from the office, function, or practice, of a

proctor, without being admitked and enrolled, every such person for every such ofi’enoa.

shall forfeit and pay the SWA af &50, t o be sued for and recovemd in manner herein-

after inontioned.”

The 11th ,section providos &et the e i ~ ~ ~ ~ ~ ~ t ~ of the statute ;.hail not extend b l~a

salary of a clerk 6 0 m fide se~v ing in the ogee of a proctor.

he 12th aeettion allows the action to jLf&. br~ughht irt any of -the superior cou&s of

law in Dublin, and the 15th section requires it to be b r o u ~ ~ ~ within thrm calendar:

months after the act c o ~ m i ~ t ~ ~ , and allows the defendant the bmmfit of the plea of the

general issue.

254

~ ~ ~ P H ~ ~ ~ O ~ W. H ~ G ~ ~ ~ ~ ~ ~ [185f-52] If1 E.L.C., 643

The plaintiff having closed his case, the defexidant prvduced w i t n ~ s e s from the

Ecclesiastical Courts of Dublin and Chester to prove a custom for the registrar to do

tliese ach, and to receive fees on account of them, in addition to his official few.*

And thereupon the counsel for the plaintiff excepted to the charge.

The jury found a verdict for the defendant^ in accordance with the direction of

the judge.

On the 15th of April, 1846, judgment was entered for [6433 the defendant, by the

Court of Exchequer overruling the exeptions.

On the 12tb of May, 1846, the plaintiff brought a writ of error in the Court of

Exchequer Chamber in Ireland. There the judgment was affirmed by a majority o f

seven judges to four (9 Ir. Law Rep. 458). This was a writ of error on that judgment.

Barons Parke and Alderson, Justices Patteaon, Coleridge, Mauls, ~ ~ ~ i ~ h t m a n , &le,

~ i l ~ i ~ ~ ~ , and Ta~fourd, and Xr. Baron Martin attended the argunient.

Mr. Napier and Mr. Unthank, for the piaintiff in error.-The question here raised

relates to the right of the de~endant o take fees for extracting probate, and doing

other similar acts as the private agent of parties. The defendant insists that the actx

which he is charged with having performed, though they are ordinarily the acts of 1~

proctor in the discharge of his duty, are not acts exclusively to be performed by pro+

tars, and do not, as such, ‘( appertain to the office of a proctor,)’ within the ~ e a i i i n g of

the statute. On the 0 t h hand, the ~ ~ l a i n t ~ ~ ~yia ntains that i t is not necessary for him

to show that them acts are such as must be performed esclusirely by proctors, but

that they fall within the provisions. of the statute if they are acts ordinarily done by

proctors, and are performed “ for gain, fee, or reward ” by persons not admitted and

enrolled as such. They are undoubtedly acts of this kind,--acts properly aud ordi-

narily performed by proctors; and the evidence given on the part of the defendant

shows that they are p e ~ o r m e d for fee, gain, or reward.

The 9th and 10th

sections of the statute must be read tagether ; and so read, they- show that there is no

E6441 ground for the distii~ction which will be set up by the other side between a volun-

tary arid a contentiousu proceeding. It is quite clear that, whether a p r o c ~ d i n g is

contentious! or not, a solicitor could not do these acts with reference ta it, nor can a

registrar do them. They are acts which plainly hlong to the office, function, and

practice of a proctor; and if so, the Act forbids them to be done except by a proctor.

The statute fixes a penalty on the proctor who shall allow an unqualified person to do

these acts in his name. Surely, it is a very strange thing for tbe stat$ute t o do this,

and yet allow any unqualified person to do these very act8 in his own name, without

subjecting him to any penalty whatever.

The law intended to establish a marked distinction between the1 office of a proctor

arid that of a registrar. The fees of the latter are fixed by ststute; not so those of

the fonner. Thus the 38 Geo. 3, c . 39 (Irish), provides that no proctor shall sue for

The case is equally clear on the construction of the statate.

* The result of the whole of tlie evidence given in the cause was thus stated by Rlr.

Justice Crampton, in his judgment (9 Irish Law Reports, p. 454) :-‘‘ The material

facts are these: first, the defendant is not, a proctor of the1 Ecclesiastical Court of

Down and Connor, or of any other court, and there are proctors of that court;

secondly, the defendant is the registrar of the Consistoriat Court of Down and Connor ;

thirdly, the defendaiit did, for f ee and reward, do tlie acts, and perform the semicm

stated in the declaration and bill of exceptions, viz., in obtaining probatss of wills and

administrations from the Court, in preparing and drawing inventorb, schedules,

and a ~ d a v i t s for the parties, in preparing and drawing r ~ n u i i ~ ~ a t i o n s f probatR;

bonds, etc., and also fiats for commission to swear esecutors and administrators in the

country, and affidavits or commissions; fourthly, i t is admitted that these are all

acts which proctors, qua proctors, are entitled to perform for their clients, and for

xhich they are entitled to charge certain fw, and are acts mmt usually p e r f o ~ ~ e d by

proctors; fifthly, it i s admithd that none but proctors can, for fee or reward, perform

such services for others, unless the registrar be entitled so to do; and sisthly, the de-

fendant, in his bill of cosh, specified in the bill of exceptions, claims to be paid for the

services in question, in addition to, and distinctly from, the fees which heclaimed and

was paid as registrar.”

255

In H.LC., 645 STEPHENSON 9, HI~GINSON [1 8 5 1-5 21

or recover his bill of fees and charges till OR^ month after the ddivery. of such hill,

and that the bill is to be delivered to the registrar of the murt. Now i t is clear that

the ~ e g ~ s l a t u r e nevar could have intended the registrar t o ba the taxing ma9ter of his

own bill of chargm ; and as it is his duty, as the oEcer of the court, to tax the proctor’s

bill, that of itself excludw him fmm performing the proctor’s business.

The 9th section affords no warrantc for the argument that the character of proctor

is to be limited to a contentious suit\ The same r u b must be applied to the proctar as

to the attorney. Both alike are liable to the supe r~~s ion af the Court in their conduct,

whether a suit is in wistence or not. Blackstone expressly puts them into the same

category, for he says (3 C o r n . 25) : ‘‘ An a t ~ r n e y - a ~ l a w answers tn the procurator

or proctor of the civilians and canonistsi;” and [64fi] ha adds, ‘‘ That no man can

practise as an attorney but such as is admitted and sworn.” The ecclecXiasticd autho-

rities put proctors in the like manner upon the footing of attorneys. Prankard v.

Deacle ( I Hagg. Eo. Rep. 169, 186), and Collett v. Collett (3 Curt. 726, 735). In the

case of the Lady Hatton Finch (3 Hagg. Ec. Rep. 255), a proctor‘s bill was referred f o r

taxation to the registrar upon a complaint of extortion, and the reference was made

to the regi&rar i n the exercise of the ordinary power of the Court. The

r e ~ s t r ~ mould ba an unfit person to whom tu refer such a matter, if he

himself acted as a proctor ; and the reference being in the exercise of the ordinary

jurisdiction of the Court, shows that the supervision of the bills of proctors is part of

his ordinary duty. Ayliffe’s Parergon (382) and the Irish Canons (78-82) show that,

though the regisixar ought to be a person qualified for oBce a8 having been first ad-

mitted as a notary, the duties of the two ~ f f i ~ m are entirely distinct from emh other,

The case of iVeale v. Rowse (13 Co. Rep. 24 ; 4 Inst. 336) astablishea that the officers of

the court are, under the stsbtute 21 He.n. 8, e. 5, p r o h ~ b ~ t ~ d from taking f e for work

done in court, when other pemons may take them ; and that stat,ute, which has thus

received a judicial interpretation in this country, is the model on which the Irish

stat,ute 28 Hen. 8, e. 18, was drawn, both being passed for the purpose of regulating

the fees, to be taken on probates of wills in the Ecclasjastical Courts.

If the plaintiff is right in his construction of the Act, the question of the admissi-

bility of the evidence of cu&m raises no difficulty whatever, for then it is clear that

no evidence of a custom in the court can control or restrict the clear words of a statute.

Suppo&ng, however, that the evidence was admissible, it does not warrant the direo-

tion [6.46] of the judge to the jury that it did not appear that the acts done by the de-

fendant were acts exclusively to be performed by a proctor. In the first place, the

evidence only goes back to a period of from t*wenty to tweaty-five years; and in the

next, i t only establishes a practice in particular caurts, but not over the whole even of

any one diocese. So that5 independently of the principle that no custom of the courts

can be admit^ in ~nt ravent ion of tXle words; of a statute, the evidence of G U & O ~ is

itself insufiCieient to make out this dafenw. But. We evidence ought not to have been

received. The criterion of exclusion is the quality of the act performed, and not the

character of the person who performs it. The Dock Company of NuEl v. BTOW?~ (2

Barn. and Ad. 43). The construction of a. statute is not to be gathered from particu-

lar e ~ p x e ~ ~ i o n s in the statute, espeeiaRy i f they are of a doubtful kind, b u t from the

general intendment of the statute, and the ordinary law of the oountry, as explained

in a judgment in this woum in A ~ c ~ e ~ ~ r ~ e r v. ~ ~ ? z o ~ l ~ (6 CIark and F. 658).

The plain question oe the statrute is , whether the acts ‘bfleged in the declaration to

have bean performed by the defendant are not acts which belong and appedsin to the

duty of a proctor? If 6037 are, they cannot be lawfully performed by any person who

does not hold that character.

Mr. Rolt and Mr. Fleming, for the defendant i n error.--The s u ~ t ~ n t ~ i a l question

in this cam is, whether, in discharge of any obligation cast by law upon the subjwt, he

is ~ompelIable at all time5 to employ B proctor as his agent, The p ~ a i n t i ~ maintains

the a ~ r m a t i v e of that p ~ p ~ i t i o n ; but he cannot m a ~ n ~ a j n it msuccmsfully, u n l m he

can show that the words of the statute plainly create that compulsion. There are no

words in this &&tub which can be so 16471 construed. It cannot be affimed that all

the bus inw which is u@uaI$ performed in the office of a proctor necessarily appetr-

tains to his office.

[Lord Brougham.--Just~ in the same way a5 i t cannot ba a E m e d that receiving

256

~ T ~ P ~ ~ ~ ~ ~ ~ 21. SO^ Cl85 1-52] uil a.r&c., 648

d ~ ~ i d e n d ~ ou stock n e c s s ~ ~ . ~ ~ y a p p e ~ a ~ n s to the ~ u s ~ n ~ of a solic~tor.; yetx clients

often employ him to receive theni.]

Here the real r ~ p o n s ~ b i ~ ~ t y of grant~ng probate res& witk the judge; the steps

necessary ta obtain it are those which &e party hinimif inay p e r f ~ ~ i i i wi t~out any

agent, or which any agent may perforni for him. ~ u ~ l ~ ? , ~ o ? ~ v. Bi~orz (4Hagg. Ec.

Rep. 402). There i s no act necessary te be dons in order to obtain probate which is

not described by the tex~wx~ters a ~ ~ m o n g &e acts to be per for^^ by the r ~ ~ s t r ~ r of

tfie Court,. AyliEe par erg or^, p. 382) calls him indi~erently ‘‘ s c r i ~ , no^^^^, or

registrar ;” and then states his duties, which include e7ery act now set forth by the

~ ~ ~ a ~ n t i ~ as pecu~iarly a p p e r t a ~ n ~ n ~ to the office of a proctw, from the perform~r~ce

of whick it i s now said that the registrar i e excluded. The Irish Act 28 Ben. 8,o. 18,

which settles the fees, mentions the making of i n v ~ i i t o r i ~ , making s c h e d u l ~ and

~ ~ d a s ~ t s .

The case of Neak s. Rowee (13 Rep. 24 ; 4 Inst. 336) was a case of e x t o ~ ~ o n , and

does not at. all show that &e- r ~ ~ ~ t r a r ought not to do the work, but ~ e - r e ~ y that there

he had c h a r ~ ~ d too xnuch for it ; which implim that there was no legal o b ~ e c t i o ~ ~ te his

doing it..

may act, and the proctor i s not necessarily r ~ q u ~ r ~ .

tit* 15 ; vol. 5. bk. ii. tit. 5, s. 2) shows that a proctor is the r e p r ~ n ~ a ~ i s e of a party

by a

proxy being given him, and he i s called ‘‘ procurat in&-

tute p r o c ~ i n ~ ; ” but he doss not extend this obligation cases

where no conte~tious ob~~gat ioa exists. fa like m ~ n n ~ Dr. Cowel thus (Dict tit.

Proctor) describes him: Proctor is he who u n d e ~ a ~ e ~ te msnage another man’s

cause in any court of the civiI law, or ~ c l ~ ~ a s t ~ c a l , for his fee. Qui ~~~e~ ~ ~ ~ i b ~

g a r e d a sw~i(pyib.” And ~ u n i n ~ h a m , Jmob, and ~ o m ~ i n s o n adopt this d ~ ~ r ~ p t i o ~ .

Pothier (vol. iv. c. 5, 271, 8vo edit,. j Trait6 du Gontrat~ de ~ a n d a ~ , c. v. aEuvrw, sol.

ii, p. 897, 4to edit; see also Furrikre’s Dict. de Droit et de ~ r a t i q i ~ e ~ is to the same

That

object was not to prevent procte~s from k ~ p i n g a clerk who was not a a a ~ m i t ~

proctor, though of course, if the plaintiff’s contention i s right, he would be a person

within &e very dsscription of the statute; namely, a person who, i ~ o t ~ ~ K ~ g a proctor,

was doing acts in the name of Uie proctor, for fea or reward : the object* n.as a different

one. Xt w~ to prevent persons who were not a d I ~ i t ~ as procto

t h e ~ s e ~ v ~ as proctors, doing what was properky the work of pro

fees of proctors for it. Some proct~rs, for instance. would all

profits to solicitors who acted in their names, and thus ~ e p r e ~ e I ~ t ~ them elv~s a

proctors. The Act intended to strike a t that practice, and dso, perhaps, to prevenf.

This latter

It must have existed prior to

the statute, fox the last portion of the 9th section expressly refers to that state of things,

and excludes from its o p e r a ~ ~ ~ n a g r ~ m e n t s of that sort previously made with clerks,

R&O were p e r ~ i a p ~ paid d the last period of service by a pa~icipat~ion i the

profits. Two descr~ption f of things were forbidden by the s t~ tu te . The first

was, the pern~ission to u ame of a proctor in bringing or defending suits, for

that was bus~ness which clearly ~ p p e ~ a i n ~ to the office of a proctm ; and the next, to

use a proctor’s name in suing out p r o ~ a t ~ of wills and other In this pra-

~ i ~ b i t ~ o n itself, in this p a ~ ~ c u l a r mode of f r a m i n ~ the section, t lature took the

distinct~on between c o n ~ ~ t ~ o u $ suits, which are matters appertaining to the businms

of a proctor, and the obtain in^ pro bat^ of wills, which are not 80, and w ~ i c ~ , there

fore, required to be s ~ e e ~ ~ c a l l y ~ ~ e ~ t ~ O n e d by name, and are s p ~ i ~ c & l i y mentio

name in the statute for the purpose of being proki~ited from being done by a third

person in the name of a proctor. The IOib section is only direchd a ~ a i n s t tile im-

proper alliance of u n q u ~ ~ ~ f i e ~ parties wit& prociars. The defenda~t~ here made no

such a~liance, and th%refore does not come within t‘he words of tlze seekion. It is im-

possible to give a literal m e a ~ i 1 ~ ~ t o the words of the 10th section, for tha t would be to

prevent proctors e ~ p ~ ~ v ~ ~ ~ their clerks to do the work of their offices.

LT‘Ite Lord C ~ a n c e ~ ~ o r . - ~ o t if paid a weekly s a h y ; t k k e section p ~ o h ~ b i i $ from 80

acting persons who are to participat~ in the profits.]

It is clear that, in any c where fibere i s no Gontentious ~itigation, the registr

Doniat (Civil Lav, vd. i. bk.

in a conten~~ous ~~t igat ion, and that be must be a u t ~ o r ~

et ; so is Burn (Ecc. Law, tit. Proctor). The- objeet of the Act* is plain.

rs paying their clerks by a share of the profik.

to be prevented for the future.

H.L. x. 257 9

4

I11 H.L.C., 630 S T ~ ~ ~ E ~ ~ O ~ If, H ~ G G ~ ~ S O ~[1851-521

That may be so ; but what> effect, then, is to be given to the 11th smtion, which says

that nothing herein contained shall extend to a salary paid by a proctor to a clerk

who is really and bona fide serving in the office at the time of the passing of this Act?

That section includes the clerk.

[The Lord Chance~~or,-The sdary may be i n the shape of p a y ~ e n t of a p a ~ i c u ~ a r

sum,--any salmy partaking of the nature of a fee or reward.]

I t must be admitted that the statute is very imperfectly worded in the 10th section ;

but its real meaning appears to be what is ~ Q W contended for. The 10th section

omita [@@J some important words contained in the 9th section; such, for i n s b e e ,

as those which relate to the business of administrations and licenses. Why were

these words left out, exxoept for the purpose of preventing the application of the

numerous prohibi t~on~ in the 9th section 1 A proctor is a p r ~ u r a ~ r , o person who

does an fact under a proxy ; but there can be no proxy except in the case of B litigious

conttlstation. After the proxy is given, and till it is withdrawn, he is dominus li&

3urn’s E c c l e s i ~ ~ c a l Law (vol. iii. 9th edit. by Phillimore, 376).

[Lord Brougham.--In Scotland, where the law Qf the country eomm from the civil

law, proctor means an adviser. Hence the phrase, “ The Court having heard the

parties’ procurators,” J

The cas- cited on the other

side, i f properly considered, show that the Court8 have only treated as proctorial acts

those whjch are d m e under the authority of a PKOSY. The act8 here complained of are

not exclusively proctorial.

Then, tm to the objection with respect to the fees. It may be true that, if a proctor

did these acte, the registrar might tau his bill ; but i f a registrar does the acts3, the fees

in respect of them are settled by statute, and there may be an action against him if

he takes too much. It seems, also, that in the ~ c l ~ ~ a s t i c a l Courts the charges of the

rgistrrdr go directly before the judge, whereas those of the proctor go in the first

instance before the registrar.

The statute on whicli

this action is brought was pasgod in the year 1814, adopting the provisions of an

English Act passed in the previous year (53 Geo. 3, c, 127, ss. 8, 9, 10) ; and not B

single action of this sort has been brought upon $hi& statute, though the evidence of

Mr. Raikes, of Chester, given @51] in this case, shows that a pract,ice of this sort has

existed in that diocwe, at least, if not elsewhere. Now, in construing Acts of Pnrlia-

ment, usage may be most important. The Bank of England v. Anderson, (3 Bing.

N.C. 589, 666). The absence, therefore, of any action of this sort on the English

statute, affords strong evidence of what has been the practical construction put upon

the English Act by the pra~t~t ioners d the courts of this country. The principle

adopted in that case is well expressed by the present Sir J. Wigram, in his work on

‘( Extrinsic Evidence ” (propos. 5, example 4, p. 57. See also 2%e A ~ t o ~ e ~ - G e n e r ~ l

v. ~ ~ ~ z e n n o s e ~ ~ ~ ~ e g e , 2 Clark and F. 295) :-“ It. is upon &he principle before ad-

verted to, naniely, that all writings tacitly refer to the existing circumstances under

which they are made, that courts of law admit evidence of particular custonis and

usages in aid of the interpretation of written instruments, whether ancient or modern,

whenever, from the nature of the case, a knowledge of such customs and usages i s

necessary to a right understanding of the instruments. The law is not so unreasonable

RS to deny to the reader of any instrument, the same light which the writer enjoyed.”

The principle here so clearly stated applies, as the case already cited shows, to stakuh,

as well as to ordinary written instrumente ; and the evidence was therefore admissible

to exp~ain o r ~ l l u s t ~ a t e the m e a n i ~ g of this particular enactment.

Mr. Napier, in reply.---Ae to the statute of Hen. 8, d1 that was to be done under

that statute was as registrar, as the public oEcer of the court, The argument on the

other side is good for nothing without introducing into the last statute the word

‘ I exclusiveIy,’-thus, “ exclusively appertaining to the [@2] functions of a proctor.”

But that word is not, in the statute, and emnot be introduced into it in order t o favclur

a particular construction.

The Lord Chanc~llor proposed the following quest,ions for the consider~tion of

the Judges:-

“ I n an action a t law brought, against a registrar of an ~ c l ~ s i ~ t i c a l Cou&, in

Ireland, to recover a penalty claimed by the declaration to have been forfeited by the

158

But that can ~ n l y be applied to l i t igat~d business.

Now, as to the question of the a d m i s s ~ b ~ ~ i t y of the evidence,

STEPHENSON ‘U, EIGCINSON f 18 5 1-5 21 IIf H.L.C., 663

doing of certain acta alleged to appertain to the ofitice, function, and practice of s

proctor, would it be competent to the defendant to give evidence that for several years

it had been the practice of the registram of different ecclesiast,ical courts to do such

acts ~LS those referred to in common with p r ~ ~ r s ?

‘’ Would such a declaration be sustained by proof that the defendant was not a

proctor, and that he had prepared the documents, and done the acts necessary for, and

connected with, the obtaining and procuring letters testamentary and probata of

wills, and e ~ r a c t i n g probates of wills, and drawing and prepaxing inventories of

goods of deceased testators, schedules of such goods, and affidavik of verification, and

certificates thereunto annexed, fiats for commission to swear executors, renuncia~ions

of executors, eh. in the absence of any evidenee that the acts done and the instruments

or documents so prepared appertained and belonged to the &ice, function, and prac-

tice of proctors$ ”

Mr. Baron Parke, in the name of all the Judges, requested time to answer tliese

quest ions.

The following opinions were afterwards delivered by the Judges (July 9, 1851) :-

Mr. Justice Talfourd.-~y answers to the questions proposed by your Lord-[653]-

ahips to her ~a jes ty’s Judges are, to the first question in the afitirmative, to the second

in the negative.

The answers to both questions seem to depend on the solution of this inquiry,

whether the 9th section of 54 Geo. 3, c. 68, intituled ‘* An act for the better Regulation

of Ecclesiastical Courts in Ireland, and for the inore easy Recovery of Church Rates

and Tithes,” contains a legislative declaration that acts done in obtaining probates

of wills, letters of administration, and marriage licenses are, within the 10th section,

“ Acts appertaining or belanging to the office, funet‘ion, or practice of a proctor,”

so as to subject s party performing one of such acts to the penalty of $50 imposed

by the latter section, although not professing to, do those acts in the name or character

of a proctor, and independently of any evidence showing that, those acts are in them-

selves of a proctorial character. If the 9th section of the statute does contain such

legislative declaration, then evidence to show that such actg have been usually per-

formed by registrars is admi~ible , and the d ~ ~ a r a t i o n is supported by the mere

proof that they were done by the defendant, not being 8 proctor ; if it contains no

such declaration, f apprehend the converse of both propositions follows.

The object of the 9th section is to prevent proctors from giving the sanction of

their names to the practice of persons who may want the1 skill and experience which

the state of a proctor presumes, and who will not be personally amenable to the courts

of which proctors are officers. The object of the 10th sedcpn i s to protect true proo

tors and the public from the exercise of proctorial functions by persons not, entitled

as proctors to perform them, [The learned Judge here read the 9th and loth sections.]

Now it is obvious that these sections are not correlative ; th8t the penalty incurred

by strangers under the last is not [654] confined to cwm in which proctor% may be

liable to punishment by the first. They are independent, provisions framed to meet

distinct evils ; the first is directed against, a pmctor selling the proctorial character ;

the second i s directed, not merely against persons buying it, and acting in the names

of proctors, but against persons doing proctorial acta, whether in their own names or

those of others. Neither do I se^ any reasonable inte~~dment that the L ~ i s ~ a t u r e

desired to enumerate in th0 9th section case8 in which absdutely, and without refer-

ence to assumption, the 10th should apply ; for, if such was the intendment, the enu-

meration is manifestly imperfect, as there are many case& of proctorial action, a t

least as much dependent on skill and as much requiring supervision as those men-

tioned, which are left unnoticed.

In the absence of such intendnient, it seems to me that the question, whether any

particular act done out of court, and not# in prosecution of a suit, is nwwsarily a

proctorial act, is left open to evidence, and that? the general words of the 10th section

are well construed by applying them to all caaes so proved, m d to other acts which

may lawfully be done by any one, but which if done by a party under the1 assumption

that he is a proctor, do then so appertain to the ofice he ~ssumes as tcF subject hini

to &e penalty prescribed. I think the very enumeration of the particular acts contem-

plated by the 9th section after the words “ which shall appertain to the office, of a

proctor ’’ tends to show that those acts so enume~ated do riot necessarily, like the

259

1x1 R.L.C., dbs. S T ~ P ~ ~ ~ S ~ ~ 9. ~ I G ~ I ~ S O ~[ 18 5 1-52]

suits, (‘ so appertain ; ” but that, being acta generally performed by proctors, it was

desired to prevent proctors from d ~ ~ a t i n g to others a right to perform them in

their names, although without such assuniption others might lawfully perform them ;

else the object might have been attained by simply employing in the 9th section the

words of the loth, [@5] ‘‘ any act, matter, o r thing in any way appertaining to the

office, function, o r practice of a proctor.”

If there i s no legislative declaration defining particular acts to be acta a p p ~ ~ ~ i n -

ing to the office of a proctor, it seems to follow, that. whether any particular act does

so appertain, i s matter of evidence; and if so, proof that such act has been for some

years performed by other officers or persons is admissible on the part of the defendant

on that issue. On this ground, and not on any exception in favour of registrars as

distinguished from others, I think the first question should be answered in the

a f f i r ~ ~ t ~ v e .

Conside~ng, for the reasons already offered, that there is no legislative declaration

that any one of the acts enumerated in the second question is necessarily a proctorial

act, I think, in the absence of evidence, which it asmines, it should be ansnrered in the

negative.

Mr. Justice Wil1iams.-The first of the two questions put to the Judges by your

Lordships in this case I answer iii the affirmative, and the second in the negative.

I will take leave to give my reasons, in the first place, for my answer to the second

question.

The point involved in it eeems to be, whether a registrar of the Ecclesiastical Court,

by preparing the documents, or doing the acta, necessary for and connected with the

obtaining and procuring letters t e s t a n i e n ~ ~ , and extracting probates of wills, and

the other things mentioned in the second question of your Lordships, does any act

which, per se, independent of extrinsic evidence, is demonstrated to appertain or

belong to the office, function, or practice of a proctor, within the ineaniiig of s. 10 of

the statute 54 Geo. 3, c. 68, which relates to Ireland.

E6561 It appears to be impossible to maintain the affirmative of this proposition,

unless the 9th section of the statute amounts to a declaration by the Legislature to that

effect.

The object of that silction was to prohibit ~k proctor from lending himself, o r his

name, to others, not being proctors, for their profit, either wholly or by way of par-

ticipation. And the Legislature appears to have regarded it as mischievous that a

proctor should so conduct himself, not only with respect, to his proper proctorial

office and function in representing parties for whom he; appears in prosecuting or de-

fending suitq but, also with rmpect to his practice in obtaining, as proctor, probates

of wills, letters of administr~tioIi, and marriage licensm. The enactments of the

section are framed in accordance with this view ; and the remedy would certainIy

have been incomplete if it had stopped short of this; for example, it would have

made it penal for a proctor who wished to retire from buainess to let out his name for

hire to one not a proctor, for the purpme of making profits by p r o s ~ u t i n g or defend-

ing suite in his name, but i t vPould not have made it penal to sell so much of his

business as consisted of obtaining, as proctor, probates and letters of administratio~,

and marriage licenses, with a permission to use his name as proctor in carying it on.

In this view of the case, the 9th section undoubtedly declares the fact, that the

obtaining, as proctor, of probates and letters of administration, a,nd marriage

licenses, belongs to the practice of a proctor. But it is quite consistent with this

fact that a t the time of the passing of the statutute it was, and had long been, the

established and lawful mage of the Ecclesiastical Court, fully recognised by the Judge.

and acquiesced in by the proctors (and in accordance wit.b the practice as disclosed

to be already in existence, partially, if [%7] not wholly, by the statute 218% Ben. 8,

e. 5) , that in cases where the applicant for probate, or letters of administration, or

a marriage license, could not or did not choose to employ a proctor, the registrar

himself niight prepare the requisite doc~iments, and take the requisite steps, and make

charges for his trouble in so doing. If such a usage wuld be shown to have existed

coneurrentJy with the proctorial privilege that a proctor might act in the same way,

in case the applicant should choose to employ one, although a proctor, so employed,

would be doing an act ~ e ~ o n g ~ n ~ to his practice as a proctor, yet, as it seems to me,

a registrar so acting would be doing an act belonging to his office of registrar, and

260

And I am of opinion that it doea not.

111 H.LC, 668

consequently he would not be doing an act in any way appertaining or belonging to

the office, function, or practice of a proctor.

For these reasons I am of opinion that the 9th section dow not amount to a de-

claration by the Legislature that, in all cases, and under all circumstances, a registrar

who has prepared the documents and performed the acts described in the sacond

question of your Lordships has done an act appertaining o r belonging to the office o r

function or practice of a proctor.

The views which have induced me thus to answer the seeond question of your

~ r d s h i p s , in the negative lead me also to answer the first; question in the affirmati~e.

For I think it would be competent to the defendant in the supposed action to give the

evidence suggested by that question, for the purpose of repelling the allgation in

the declaration, that the acts dmcribed appertained to the office, function, or practice

of a proctor.

Mr. Justice Er1e.-Both the questions appear to me to depend on the same point,

and the effect# of the facts raising the1 point is, that [@8J the defendant as registrar

did for gain the, acts requisite for obtaining probate.

The point is, whether from these facts it follows in law that he did an act apper-

taining to We function, office, or practice of a proctor.

The plaintiff maintains the affirmative, on the ground that the 9th section has

made the acts requisite for obtaining the probate not only to appertain to the practice

of A proctor, but also to be his right, exclusive of all others.

But I am of opinion thak the 9th section does not admit of the construction SO

contended for. The intention of the 9th and 10th sections appears to me to have been,

to prohibit the fictitious performance of the part of a proctor, and to require that, the

person professing to be a proctor should be really so when he acts for gain.

By the 9th section a proctor is prohibited from permitting his name to be used

by another in all matters of contentious jurisdiction, and in three matters of volun-

tary jurisdiction.

By the 10th section persons not proctors are prohibited from acting as proctors,

either in their own names or in the names of proctors, and this whether the) proctors

whose names are used have permitted such use or not ; and i t extends not only to the

matters mentioned in the 9th section, but also to all. other matters appertaining to

the office, function, or practice of a proctor.

According to the plaintiff, these two sections were intended, not only to t&e away

from registrars matters which upon the evidence were their right, and a profit of Weir

office a t the time, and probably had been so for some centuries (regard bebeing had to

the 21 Hen. 8, c. 5, limiting the fees which they are to receive for doing them), but

xlno to grant a monopoly aver those m ~ t k ~ r s to proctors. And although such intention

i s not expressed directly by the 16591 words of the enactment, nothing K i n g said of

forfeiture o r compensation, o r grant, or alteration of any existing right, yet it is sup-

posed to be a necessary inference, from,.the two sections being correlative in this

respect, that the 9th section is directed against the proctor permitting his name to

be used in obtaining probate, and that the 10th section is against the person, so per-

mitted, so acting.

But even if this effect be given to the two sections, and if they are so correlative,

and a person using the name of a proctor by his permission in obtaining probate be

liable to the penalty in the 10th section, and acts done in obtaining probate, if done

in the character of proctor, are matters appertaining to the practice of a proctor,

yet it does not follow that the same acts when done by a person having right to do

them in his own name, and without reference to any proctorial capacity, should be

acts appertaining to the practice of a proctor prohibited by the 10th section. Though

the copying of the will for the purpose of obtaining probate is prohibit^, if the

writer, in so copying, professes to act as a proctor, yet the same act of copying by

a law-stationer upon the hire of the executor, for the same purpose, may not be pro-

hibited ; and though the preparing of an inventory, if done by him as proctor, is

prohibited, still the same preparing of an inventory by an appraiser, on the same

hiring and for the same purpose, niay be lawful. I cannot suppose that the Legis-

lature would prohibit an executor from obtaining a copy of the will and an inventory

unlws he first retained a proctor. And if a writer or an appraiser would not be

liable to a penalty in the cases above supposed, neither i s the registrar liable in the

261

I11 H.L.C., 660 STEPHENSON 'U. HIGGINSON [ 1 8 5 1-5 21

case before us ; for a t the time of the passing of the statute, part of the acta requisite

for obtaining probate appertained to the practice of a proctor, and the same part

also at the same time appertained to the practice of a registrar, both [660] having a

concurrent right to do the acts, and either doing them according as the suitor chose.

The registrar, as registrar, might do the acts, or the proctor as proctor ; and they

would appertain to the practice of a proctor if the person doing them professed to do

them as proctor. The statute in words applies to proctors, regulating them and

protecting them, and both sections may have full operation, whether registrars

continue their practice or cease therefrom. Indeed the notion that the 10th section

includes registrars because it correlates to the 9th, seems far from a logical inference,

seeing that the lending of a proctor's name, prohibited by section 9, makes i t probable

that the correlative borrowing of such name would be also prohibited, but does not a t

a11 make i t probable that a person should be prohibited from acting who neither

lends nor borrows any name, and neither has nor professes to have any proctorial

relation.

If it was conceded that the words are capable of including registrars, there are

reasons for supposing that they were not intended to be included ; for if the Legis-

lature intended to change the general practice of all registrars throughout England

and Ireland (there being an English statute also), and to turn what had been thereto-

fore acts of duty into offences subject to penalties, justice required that the registrars

should have notice by name, and that a day should be fixed for the change, and that

so penal a law should at least be expressed so as to be commonly understood, and that

the proctorial acts to which the law was to apply should be defined.

But the contrary of this is the case ; the registrars are not named ; no time is fixed ;

the change was made, if a t all, a t the time when the statute came into operation, and

the penalties then began to attach in respect of acts which the moment before were

duties, and which a t that moment [661] may have been in the course of completion.

So far from the law being clearly expressed, it is so worded that it was not perceived

at all a t the time of the enactment, nor for thirty years after, although it would have

affected numerous and important interests if i t existed ; and now, after full discussion,

the majority of the Judges of the land to which the Irish statute applies cannot find it,

though they are men remarkable for learning, vigour, and acuteness; and so far are

the acts from being clearly defined to which the penalties are attached, that those who

now concur in awarding the penalties against the defendant are not agreed as to the

acts to which the statute extends, and cannot point out the line between duty and

delinquency ; for the declaration charges some acts to be proctorial which are admitted

to be curial, as the issuing of the commission ; other acts, supposed to be proctorial,

are so combined with what is curial, that the registrar must take part in them ; thus

the affidavit is said to be proctorial, but as i t is to be annexed to the commission, which

is curial, the registrar must annex it, and be responsible for i t ; and thus the copying

of the will is said to be proctorial, but as it is in the certificate of probate, which is

curial, the registrar must be responsible for the copy contained therein; and thus the

inventory is said to be proctorial, but i t is in substance prepared by an appraiser

employed by the executor, and he would be as much liable to a penalty for pre-

paring the substance as the registrar for furnishing the form. These considerations

appear to me strong against the plaintiffs construction of the statute, and in favour

of a construction whereby the rights and duties of proctors would be protected and

regulated, and other rights and duties would remain as they had before existed.

The argument of intention in the Legislature from expediency appears to me to

be also adverse to the plaintiff. [662] It is said that the registrar in doing the matters

in question acts consistently with his duty as taxing officer ; for if he makes over-

charges the suitor would have no redress from his taxation of his own bill, and it is

supposed that these matters were taken from the registrar, and given to the proctor,

to save the suitor from the risk of overcharge. But if a proctor is necessarily required

in all cases, the suitors, as a body, would always pay more than at present, and the

effect of the supposed enactment would be to establish an increased payment on all

occasions, for the sake of saving the risk of an increased payment on some occasions.

Besides, unless the registrar is dishonest, there could be no increased charge, and if

he is dishonest in charging, he might be the same in taxing, and so give no relief.

Also, if he waa dishonest, and did overcharge, the suitor is not now without remedy, as

a62

STEPHENSON v. HIGGINSON [ 1 8 5 1-5 21 I11 H.L.C., 66s

he might bring the registrar before a jury, for extortion, and before the Judge of his

court, for misconduct.

The law is beat administered if a suitor, at least in an uncontested matter, can

attend to his own interests, and his advantage would be sacrificed if an additional

necessity for a legal adviser was created.

For these reasons, I am of opinion that the plaintiff has failed to niuke out the

construction of the statute necessary to support his case; and that a l t~~ough t e

defendant did the acts proved against him, it doas not therefore follow, by law, that he

did matters appertaining to the practice of a proctor within the 10th section; con-

sequently the answer as to the first question is in the affirmative, and as to the second

question in the negative.

Mr. Justice VVightman.-As the answer which 1 propose to give to the first of the

questions put by your Lordships depends mainly upon [663] points which have

determined my answer to the second, it will be more convenient that I should state my

answer to the second of those questions first.

The second question is, whether such a declaration as that in the case of Stephelzson

v. Iligginson would be supported by proof of such matters as are stated in that

question.

The declaration is founded upon the 10th section of the 54 Geo. 3, c. 68, by which

it is illegal for any person who is not a proctor to do anything in any way belonging

to the office. function, or practice of a proctor, for fee or reward. Proof that the

defendant, not being a proctor, prepared the document and did the acts necessary

for and connected with the obtaining and procuring letters testamentary and pro-

bates of wills, and extracting probates of wills, and drawing and preparing in-

ventories of goods of deceased testators, schedules of such goods, and affidavits of

verification, and certificates thereto annexed, fiats for commissions to swear executors,

and renunciations of executors, would, if the defendant prepared the documents and

did the acts for fee or reward, sustain the declaration, if the preparation of those

documents and the doing those acts necessarily and as a matter of legal inference

appertained or belonged in any way to the office, function, or practice of a proctor,

though no evidence to that effect was given.

Is it then an inference of law requiring no proof that the preparation of such

documents and the doing such acts appertain and belong to the office, function, or

practice of a proctor?

In considering this question, it is n ~ ~ s a r y to refer to the immedia~ly preceding

saction of the Act of Parliament. By that section, the ninth, it is enacted-[the

learned Judge read it].

Reading the two sections in connection with each other, [664] it seems clear to me

that obtaining probates of wills or letters of administration is doing a thing apper-

taining and belonging to the office, function, or practice of a proctor within the

meaning of the Act of Parliament, and that it was the intention of the Legislature,

by the 9th section, to prevent proctors lending their names to unqualified persons,

or acting themselves for the benefit of such persons, in the matters of business

specified in that section, and by the loth, to prevent unqualified persons acting proprio

jure in matters appertaining and belonging in any way to the ofice, function, or

practice of a proctor, including, as it must, to avoid inconsistency, the matters par-

ticularly expressed in the 9th section, which proctors are prohibited doing, as such,

for the benefit of unqualified persons.

A different construction would enable the registrars or any other persons not

proctors not only to do all the acts stated in the second question of your Lordshi~)s in

their own names, for fee and reward, but to allow their names to be used for the

profit of unqualified persons, which the Legislature can hardly have intended. By

the 9th section of the Act the obtaining probates of wills is mentioned &s a descrip-

tion of business which might be done by a proctor as such, and for a profit, but he

is prohibited from allowing unqualified persons to do the same acts in his name for

a profit, o r to do them himself for the profit of unqualified persons; and taking the

9th and 10th sections together, it appears to me, that by the 10th saction all persons

not proctors are prohibited, under a penalty, from transacting any of the business

specified in the 9th section for fee o r reward, such business by the statute itself

appearing to appertain and belong to the office, function, and practice of a proctor.

263

111 B.L.C., 666

And I therefore answer the second of your Lardships' questions in the aBrmativs, the

acts specified being done in obtaining probates or letters of administration.

[666] The reason upon which I have answered the second question in the affirmative

being that the acts stated in the d ~ ~ a r a t i o n to have been done by the defendant do

appertaiii to the office, function, or practice of a proctor by the terms of the Act of

Parliament, it follows as a consequence that my answer to the first of the questions

proposed by your ~ r d s h i p s is in the negative, and t;Liat evidence of practice or

custom would be inadmissible to show that such acts do not appertain to the office,

function, or practice of a proctor.

If it was a mere question of fact to be determii~ed by a jury, such evidence would

no doubt be ad~i i ss jb~e; but as it appears to me that the matter is one of judicial

cognizance, turning upon the construction of the terms of the Act of ~ar l iament , the

evidence ought not to have been received.

The Lord C~~aIicellor.-~y h r d s , oiie of the earn^ Judges, present at the

hearing of this case, is unabIe to be prwent to-day. Ee has, however, considered the

case, and has committed his opinion to writing, and one of the learned Judges now

present, Mr. Baron Alderson, is prepared to read it. I would therefore propose that

that opinion should be read by that learned Judge. It must

not, however, be considered by any means as a matter of course. I see no objection

to its being done on the present occasion, and therefore X move your Lordships that

the ~ u d ~ ~ e n t of Mr, Justice Coleridge be read by Mr. Baron Alderson.

Lord ~ r o u ~ ~ i a m . - ~ y Lords, I have no doubt whatever as to the proper course

to take, with the qualification expressed by my noble and learned friend, that it is

not to be considered quite as a But no mischief can arise

from allowing this to be done. In the first place, if we had not the benefit of the

learned Judge's opinion in this form, w e might have it in another form, which has

happened more than once here, par t~cular~y in a very well-known case,--the Bethnnl

Green Case, in which there was great difference of opinion in the ~ ~ c h e ~ u e r Ch~ ~iber,

and in which case we had the benefit of having the manuscript j u d ~ ~ e n t s of those

learned persons, ahich Were not used in moving the judgment of your Lordships

(see post, g. 697). But, ~ ~ ~ d e p e n d e n t ~ y of former cases, to which my noble nnd learned

friend has referred, in which the same thing has been done precisely as is proposed to

be done now, there is no difference of principle, when you come to consider it, between

tlie course now about to be taken and that which i s taken every day, namcly, that

of one of the learned Judges in the absence of all his brethren reading their opinions.

In that case it comes to your Lordships, not as the opinion of tha% learned Judge

vho reads it, but as the opinion of all his absent brethren. So that really in prin-

ciple there is no difference. Though I agrce with my nobIe and learned friend, that

i t ought not to be taken as a mat>ter of course.

The motion %'as agreed to.

Mr. Baron Alderson.-My Lords, I have to read to your Lordships the opinioir

of my brother Coleridge.

'' It appears to me that the ai~swers to your Lordahi~s' questions depend in great

measure upon the proper construction to be given to the 9th and 10th sections of 54

Geo. 3, c. 88 ; and that it will be more convenient to debrniine that constructio~ in

the first instance. The ~ u w t ~ o n s i deed arise expressly on the 10th section ; but [%?'I

the two seem to me in a great degree, if not entirely, correlative to each. other ; and

in order to settle tbe meaning of the latter, the better course is to ascertain that of the

former. This makes it an offence punishable by striking off the roll or suspension,

for any proctor, among other things, ' to act as such, or permit his nnme to be used in

any manner in any suit the prosecution or defence of which shall pertain to the office

of a proctor, or in obtaining probates of wills, letters of ad~inistration. or marriage

licenses, on aecoun~ or €or the profit of any person not entitled to act, as a proctor.'

The words ' to act+ as such, or permit his name to be used,' elefhrly override and govern

all that follows. The proctor may neither act as such himself, or permit another

to use his name in acting, in any suit in which it is the duty of a proctor to prosecute

or defend, or in o~ta in ing probates, etc. for the profit of any on0 not entitled to act as

proctor. There are no words of exception j he may no more act for the benefit of it

registrar, or allow a registrar to use his name, than any other person ; nor is ang

d i~ inc t ion pointed out between things which a proctor only can do and things which

264

It has been done before.

matter of course.

~ T E P ~ ~ N S O ~ 21, EIGGINSON p851-521 In H.L.G., 668

he may do but others also have concurrent right to do. As to the suit, it is enough

to bring a case within the statute if it be one the prosecution or defence of which

pertains to his office; and as to the residue, the specific acts are mentioned. Whoever

might do them before (if any one could}, it is thenceforward penal for the proctor to

do them, or to allow any one to do them in his name, for the benefit of one not entitled

to be a proctor. Certain specified sayings follow; but thew do not affect the present

case, except in so far as the expression of them niay seem more pointedly to exclude

a11 other savings or exceptions ; so general is the provision as to proctors; and i t is

ofear that it would not be a defence to a proctor charged under this section to show

that the person for whom he [668] had acted or whom he had suffered to use his name

was a registrar.

" The 10th section then takw up the case of the other party to the practices which

&e statute was passed to prevent ;-the case, namely, of those who, not being proctors,

shall act as such, whether in their own nanie-s or in the name of any other person, in

consideration of gain, or with a view to participate in the profit. Here, too, the words

are very general; no exception is made of r ~ i s t r a r s or any other class; nor, in

describing the acts forbidden, is any distinction made between acts exclusively proc-

torial and any which registrars may have ~t concurrent right to do. If they ' in any

way appertain or belong to the oflice, function, or practice of a proctor,' it is for-

bidden to every one, withuut excepkion, who is not ' admitted and enrolled ' as a

proctor, to do them in consideration of gain, or with a view to participate in the

benefit to be derived from the office, function, or practice of a proctor. Here, again,

if the act done was shown to be within the provisions of the section, it would be no

defence for the party to show that he was a registrar, or that he had been accustomed

to do them before the law was made.

" The only question then seems to ine to be, what acts within the m e a n ~ n ~ of the

statute ' appertain or belong to the o%ce, function, or practice of zb. proctor.' And

I think that the Legislature has itself declared that a t least all such acts fall within

that category as are mentioned in the 9th section. Unlem w e hold this, the, registrar

may still do this in his own name for profit which the proctor is restrained from doing

for him in his name, or allowing him to use his name in the doing of. And what i s

still stronger, the registrar may do in the name of the proctor what the proctor will.

be struck off the rolls if he allow him to use his name in the doing of ; for the pro-

hibition of the loth sec-[669]-tion extends to the doing in the name of any other person

as well as in his own. If the registrar is not prevented Prom the latter, how can he

be from the fornier ; and if he is not prevented from the former, why may he not, with

a proctor's leave, use his name, which yet, i f he does, as to any act specified in section

9, the proctor admittedly will be brought within the penalty of that section P

U But the words of the 10th section as to the acts forbidden are not so specific

as those of the 9th. The 9th section speaks of ' suits the p r o ~ u t i o i i or defence of

which shall appertain to the oEce of a proctor, and the obtaining probaks of wills,

letters of administration, or marriage licences.' The loth speaks of ' any act,

matter, or thing whatsoever in any way appertaining or belonging to the oEce,

function, or practice of a proctor.' Those words may certainly include more than

the former ; and wherever the question arose with regard to any act done not within

the 9th section, other modes of interpretation must be had recourse to than that

already relied on.

" I come now to the mswers which E think ought to be given to your Lordships'

specific questions. And rn to the first, if the declaration only alleged acts which fell

within the provisions of the 9th section, the defendant could not, in my opinion, be

allowed to give the evidence stated in that question ; i t would be simply irrelevant,

in the case of a statute so recently passed, to show that registrars had been used to

do such acts for any number of years before, o r since i t passed, as those which it

was clear the statute pro~~ibited. But I am not prepared to say, looking a t the very

general language of the question, that in no case might such widence be receivable.

The declaration might charge act8 not expressly within the language of the 9th

section, and allege them to be acts which appertained to the office or functions or

practice of a proctoi ; and in order to meet this E6701 allegetion, which would ber

simply one of fact, it might be material to show that registrars always did those acts ;

whence it might be argued that they pertained to the oEce or functions or practice of

H.L. x. 265 9a

111 R.L.C, 671

a registrar, aiid therefore did not appertain to those of a proctor. Of course, I say

nothing of the weight of such evidence, but speak only oif its admissibility. I

answer, therefore, the first qumtion in the negative, with the qualifications I have

just stated.

Some of the acta which it

supposes the defendant to have done are clearly within the language of the 9th

section ; and it would not be nffcessary, in order tu sustain the count, that all should

be. If it was shown that the defendant was not a proctor, and had done any act

necessary for obtaining a probate or letters of administration, no parol evidence

beyond this would be necessary, in my opinion, to show that he had done an act

which belonged to the office, functions, and practice of a proctor. I should say the

same of drawing inventories, schedules, affidavits of veri~cation, and certificates

thereto annexed, and fiats for commissioners to swear execubrs. I am not sure that

I understand whrat is meant by extracting probates, and therefore I doubt whether

parol evidence might not be necessary as to these.”

Mr. Justice Mau1e.-Both questions in this case turn on the construction of the

9th and 10th sections of 54 Geo. 3, c. 68, of which it may be remarked in general,

that they do not purport to deal with or regulate the office of registrar, or to make

any mentioii of those oBcem.

Section 9 applies to proctors deceiving the Court by practising fur others, or

lending their n a m a to others in proceedings in court, contentious or not. If they do.

so, the Court may punish.

E6711 Section 10 applies to persons, not proctors, doing anything in any way

appertaining to the practice, etc., of a proctor, in their own name or in the name of

any other person. This has a more extended application than section 9, and is, I

think, intended tu prevent persons not proctors deceiving their employers, by making

them believe that the business they pay for has been done by a proctor, whose name

is used, but who did not do the business, or that the person who did it was a proctor

when he really wa& not. Far doing so, the offender is to forfeit &50, to be recovered

by action. This section applies to all business in any way appertaining to the practice

of a proctor ; section 9 only to businms done in court. So that I conceive that the

penalties in section 10 would be incurred, not only by a person not a proctor who

borrowed the name of a. proctor, who lent it in violation of section 9, but by one

assuming that character and doing anything relsting to what proctors are

commonXy employed about such as advising in matters of law or practice ecclesi-

astical, or preparing documents such as proctors commonly prepare, though the

same acts might lawfully be done by a person who is not a proctor, provided he did

not assume that character or act in the name of one. It might be said, if he could

act without being a proctor, why should be: assume the character ; and what harm

is there in assuming it if he does no more than he lawfully might? But it is evident

that a mischievous deception is practised on a person who i s made to believe that he

is paying for the skill and experience which a proctor must be presumed to possess,

when in fact his businem has been done by a peraan not having that qualification.

Where the act is one which, though ordinarily done by a proctor in the course of his

practice, is yet one which may lawfully be done by a person who is not a proctor,

such as preparing an instrument or doing other things out of court, if the [672]

person doing it represent that he is a proctor, or that the business is done by a

proctor, he is within this section doing an act pertaining to the practice of a proctor,

though if he did not pretend that the work was done by a proctor he would be

guilty of no offence. It appears to me that with regard to things usually but not

necessarily done by proctors, when the person doing them holds himself out as a

proctor, or represents that they were done by a proctor, he is

doing things appertaining to the practice of a proctor; but where he

does not so hold himself out, or make such representation, the things done do not

appertain to the practice, etc. of a proctor, and no offence is committed within

section 10.

The section is not generally for pretending to be a proctor, and deceiving by such

pretences, and therefore could not apply to persons pretending to be proctors, and by

such pretence obtaining credit or advantage of any kind, but doing nothing which

proctors usually do in the course of their professionaI business: the object of the

two sections being to prevent the court or the public from being deceived by having

266

STEPHEXSON 21. HIUGlNSON [ 185 1-521

(( The second question I answer in the affir~ative.

STEPHENSON v. HIQGINSON [ 1 8 5 1-5 21 I11 H.L.C., 673

proctor’s business pretended to be done by proctors, but really done by others. When

neither the Court nor the public is so deceived, I think the sections do not apply

It appears therefore to me, that if the practice of the Ecclesiastical Courts

allowed persons in general, not proctors, to do any particular kind of business,

though such business might also be done and commonly was done by proctors,

the doing such business in his own name, without using that of a proctor, by a person

not a proctor, and not pretending to be one, would be no offence

within the Act. And the same would be the caw with a particular class

of persons allowed by such practice to do certain acts. I do not think thah the 9th

section, which speaks of obtaining [673] probates, etc. as acta which may be done

and are done by proctors as such, is to be taken as a declaration that they cum only

be done by proctors; though I think it certainly shows that they may be done by

proctors in that character ; so that a person acting as a proctor, that is, assuming

to be one, or using the name of a proctor in obtaining probat-, etc., would be doing

an act appertaining to the business of a proctor within the 10th section.

My opinion therefore is, that a person who, without assuming the :haracter of a

proctor or using +,he name of one, does an act which, though such as proctors may do

and usually do in the course of their practice as such, is not an act which they alone

may lawfully do, is not within the prohibition and penalty of the 10th section, and

that the 9th section does not supply the assumed want of evidence, that the act

supposed in the second question appertains to the practice of a proctor. I con-

sequently think that on the supposition of that question the assumed declaration

would not be supported.

With regard to the first question, it would be a material question, in the case

supposed, whether the acts done appertained to the practice, etc. of a proctor. The

nature of the acts is not suggested in this question, and they must be assumed to

be such as that it is a question of fact whether they appertain to the office of a

proctor. On the before-mentioned construction of the 9th and 10th sections, if the

act done is one that others as well as proctors do, it would be an act not appertaining

to the practice of a proctor, unless done under the assumption of this character or in

the name of one. The supposed evidence would therefore be material, and admissible

on this question.

Mr. Justice Patteaon.-In answering the first question put by your Lordships

[674] to her Majesty’s Judges in this case, I feel myself in some little difficulty,

arising from the use of the words “ certain acts,” without any specification of the

very acts themselves. I apprehend it to be a question purely of fact whether any

given act does or does not appertain to the office, function, or practice of a proctor,

unless that given act be such a0 that the Court or a Judge, in any action a t law

respecting it, is bound judicially to notice its character and relation to such office,

function, or practice. But I also apprehend that the Court o r a Judge may be

bound to take such judicial notice, either by some rule of the common law or by

reason of the enactments in some statute. In the absence of any such rule of law

or statute, I am of opinion that in such an action as is stated in your Lordships’

question, it woulc! be competent to the defendant to g i p evidence that it had been

the practice of the registrars of different Eccleaiastical Courts t o do such act in

common with proctors, because although such evidence might not necessarily nega-

tive the fact that the act in question did in some sense appertain to the office,

function, or practice of a proctor, yet it would be relevant to that question of fact,

and would therefore be proper to be admitted to the jury, in whose province i t would

then lie to determine the fact. Taking, therefore, the words of the question first put

by your Lordships in the most general and unrestricted sense, and assuming the

absence of any such rule of law or statute as I have already alluded t~ (but o.-ly by

reason of such assumption), I answer your Lordships’ first question in the affirmative.

The second question put by your Lordships directly raism the point as to the

proper construction to be put on the 10th section of the statute 54 Geo. 3, C. 68,

tRken in connection, as I apprehend it necessarily must be, with the 9th section of

the same Act.

Now the 9th section makes it highly penal in any proctor [676] to act as such, or

to permit his name to be used for the benefit of any person not a proctor, or to

allow such person to participate in his profits, as well “ in any suit the prosecutiori

or defence of which shall pertain to the office of a proctor,)’ a8 (‘ in obtaining probates

267

In H.L.Q., 676

of wills, letters of a d ~ i n i ~ r a t i o n , or marriage licenses,” The ~egis la ture here treats

the obtaining probates of wills, inclusive, as I apprehend, of a11 steps incident tQ

such obtaining (which are the matters mentioned in your Lordships’ second question),

as appertaining in some way to the office, function, or practice of a proctor, or at all

events as that which may be done and is ordinarily done by a. proctor. But this

section, though highly penal against the proctor himself, contains no penalty agalnst

the person, not a proctor, for whose benefit the businem i s done.

Then follows the 10th seetion, which applies exclusively to persons not proctors,

and inflicts a penalty of 250. The words of that section do not in terms embrace

the case of a proctor acting as such for the benefit of one who is not a proctor, or

permitting such person to participate in his profits, though the proctor himself

would be punishable for so doing under the 9th section, for the words of the 10th

section seem to extend only to acts, matters, and things ” done by a person no‘

himself a proctor, either in his own name or the name of a proctor, and not to the

mere pa~icipat ion in or taking the whole profits where the ‘‘ acts, matters, and

things ” are actually done by the proctor himself. Yet I cannot doubt that they extend

to the other bianch of the 9th section, namely, to the doing by a person, riot a proctor,

for his own gain, in the name and by the permission of a proctor. any of those acts,

matters, and things, for permitting the doing of which, in his name, the proctor is

so highly punishable under the 9th section, and, amongst others, the obtaining

probates of wills, which is E6761 expressly mentioned in that section. In other

words, I apprehend that wherever a person, not a proctor, is not merely a recipient

of profits, but is an actor in the doing th& which is made so highIy penal in the

proctor by the 9th section, he brings himself within the true meaning of the 10th

section, and is liable to be sued f o r the penalty of &50; as, for instance, if he

obtains probate of a will for hi8 own gain in the name of a proctor. It is true that the

10th section does not use the words, “ obtaining probates of wills, letters of adminis-

tration, or marriage licenses,” which are found in the 9th section. The words used

are, “ I n case any person shall in his own name, or in the name of any other

person, make, do, act, exercise, o r perform any act, matter, or thing whatsoever

in any way appertaining or belonging to the office, function, or practice of a

proctor, for gain.” But as the 9th section has specified the obtaining probates of

wills, and thereby treated it as within the practice of a proctor (to say the least of

it), I cannot doubt that it comes within the words of the 10th section, as an “ act,

matter, or thing in any way appertaining to the office, function, or practice of a

proctor,”-at any rate, wherein a proctor’s name is used.

The 10th section, however, applies to cases where the act done by a person not

a proctor is done in his own name, no real proctor’s name being used; cases which

manifestly do not fall within the 9th section a t all, that section relating only to the

acts of perscna who really are proctors. Tbe case put in your Lordships’ second

question i s trhat of a person not a proctur doing acts for obtaining probates of wills

in his own name for gain; a t least, ao I take the question to import, for it cannot be

intended to relate to a person obtaining probate on his own behalf. Now 1 cannot

think that the words, “ any act, matter, or thing whatsoever in any way ap~ertaining

or belonging to the office, [6?7] function, or practice of a proctor,” ought to receive

a different construction where a proctor’s name is not wed from that which I have

already endeavoured to shaw that they must receive if L proctor’s name be used. In

either case, I think that they must be construed with reference to the 9Q1 section,

and that the Legislature must be taken to have exclusively enacted in the statute

that the obtaining probste of a will is an act in some way appe~ain ing and

belonging to the office#, function, and practice of a proctor, and so that the very

case arises to which I referred in my answer to your Lordships’ first question,

namely, that in which the Court, o r Judge is bound to take judicial notice of the

character and relation of the act done, by reason of the enactments of the statute, and

by consequence to exclude any evidence of the practice of Eeclesiasticd Courts.

With regard to any distinction between registrars of the Ecclmiastical Courts and

other persons unconnected with such courts, I am unable to see on what ground it

can be made; the statute in the two sections in question has made no exception in

favour of registrars; indeed, it does not mention or allude to them at all. ~t is

plain that the obtaining probate of wills can be no part of their duty as registrars;

268

STEPRENSON 9. BIGGINSON [1851-52]

~ T ~ ~ ~ ~ ~ s ~ ~ W. ~ x ~ ~ r ~ s ~ p851-523 X X I ff& a, 678

if i t was, they would have some remuneration assigned them for doing it, or must,

do it gratuitously; neither of which state of things is pretended to exist; and their

duty as officers of the courts would seem in many respects to be inconsistent with

their practising in any way in those courts. They must, therefore, be treated with

reference to this statute in the same way as mere strangers wholly unconnected with

the courtcs. ~s suming them to have been in the habit of o b t a ~ n ~ n g probates of wills

and doing other acts not of a ~ n ~ n t i o u s nature for gain, that habit cannot legake

what is in itself illegal, much less can {6'78] it alter &e provisions of a statute. X i

indeed, th0 question could be an open one of fmt, that habit would be evidence of

the character of the act done; but, as I have already said, it appears to me that

the questiion is not an open one of fact, but one which is conclusively determined by

the enact men^ of the ~ ~ s l a t u r e .

It is argued that the 10th swtion is framed for the protection of proctors, aiid

applies o ~ l y to acts which appertain to the office, function, and practice of a proctor,

exclusive of all other persons, and that obtaining probates of wills, and nther such

ex parte and voluntary p r o c ~ i n g s not being of a contentious character, and which

do not require any proxy to be exhibited, and which are done by a person in his own

name, not practising any deception nor pretending to be a proctor, are not within

the section. I csanot, however, gather any such intention from. the words used by the

Legislature, which axe " in any way appertain~ng ;11words of as large and extensive

a meaning as I can well conceive to have been used; nothing being said a9 to falsely

pretending to be a proctor, or anything of the kind. I should rather ronjecturo,

if this was properly matter of conjecture a t all, &at the Legislature had in view

acts of the very like description mentioned in your Lordships' second question; fo r

it is hardly likely that any person could do, in his own name, acts pihick required

the e ~ h i b ~ t i o n f a proxy, or any acts but those of a common and ordinary charackr.

Conjecture, however, is not admissible. I found my opinion on the words of the

statute, the construction of which appears to me to be S U G ~ that I am bound to

answer the second question in the affirmative.

Some doubt may exist whether one or two of the acts specified in the questioa

may not rather be acts of the Court than proctorial acts ; but as most of them are

plainly {67$YJ of the latter character, I presume that it is not material to enter into

any discussion in that respeot. . Mr. Baron Parke.-The answers which I give to the two questions proposed by

your Lordships to her hfaje&y's Judges are, in the negative ta We first, and the

affirmative to the second; and in giving my reaons for them answers, it will be

comenient to consider both the questions together.

They both depnd on the true construction of the 54 Geo. 3, c. 68, the two

material sections of which are the 9th and 10th. (The learned Judge mad the two

seetions.)

Under the 9th section, if any proctor in any e c c ~ e s ~ a ~ c a l court in whicIi he shall

be entitled to a& as proctor shall act as such, or permit or suffer his n m e tct be

used in any suit, etc., or permit his name to be used in obtaining probates of wills,

letters of a d n i ~ n i s ~ a t ~ o n , r marriage license"$, for or an account, etc. of any person

not entitled to act aa proctor, he shall be struck oft the roll of proctors.

Now- I think that this is a dear legislative dedaration that the obtaining pro-

bates of wills, letters of administration, and marriage licenses i s ~ ~ w f u l l y a part of

the business of the proctors within the meaning of the Act, for they are heavily

punished for acting themseives or p e r ~ i t ~ n g %heir names to be used in doing those

acts for the benefit of others; and the Legislature could never have intended %hose

very Acts to be lawfully performed by any person whatever, witkout using the name

of a proctor a t all, which, by so severe a penalty, i t prohib~ted the proctors doing

for the benefit of othei%, or leading their names to others to enable them to do. Surely

it could not have intended to permit all t@hose acts in athers, and punish the proctors

for a fraud in p e r ~ i t t ~ n g their names to be used, or acting [SSO] theniselvm in them

for the benefit of others, when such a fraud was totally u ~ i n e c ~ s a r y and useless.

It i s said that the Act meant to prohibit the acting a8 proctors; &at is, the

doing of acts representing themselves to be proctors when they really were not.

But the 10th sectiw irupmes the penalty upon any p e m n doing the act prohibited,

siz., anything whatever in any way belonging tu the office, function, or practice of a

269

111 H.LG., $81 S T E P ~ ~ ~ S ~ ~ 21. ~ 1 ~ ~ ~ s ~ ~ [1851-52]

proctor; not upon his doing it as a proctor, or acting aa a proctor, for it applies as

well to acts done in his own name as to those done in the name of another,-a proctor’s,

for example.

The prohibition in section 9 affects those who are proctors, and those only ; and

the “ acting as proctors,” in the several particulars therein mentioned, and thereby

ptinished by deprivation of office, cmnot mean the pr&ending to he proctors when

they are not, and the doing of those aets under the fdse representation of their

being proctors. The section cleaxly means to prohibit thw w b actually are proctors

from acting in that capacity in the several particulars and under the circumstances

therein mentioned, for fee and reward to be substantially received by another. This

enactment is not for punishing fraud upon the partiert employing and consulting

others in matters of business, usually done by prochrs, by permns representing them-

selves inipliedly to have skill and experience which they do not possess, for it applies

to proctors themselves acting personally in suits or other matters, and giving the

full benefit of their skill and knowledge to their clients, provided they do it, for the

gain of others. It is clear that the object of the Legislature was to insure the gains

of the profession of proctors to those who are duly entitled to act as such.

These considerations lead, I think, to the true construction of the 10th stjction,

which imposes a penalty of A50 on E6811 any person who5 in his own name or in

the name of anoither, does, acts, exercises, or perforins any aet, matter, or thing

whatsoever in any way appertaining or belonging to the office, function, or practice

of a proctor for or in eonsideration of gain. This certainly do@ not prevent parties

acting for themselves nor for others gratuitously, for the clause only prevents the

doing these acts for gain, fee, or reward ; but, for gain or reward to himself or others

it is clear that a person not admitted and enrolled as a proctor cannot act in a Iuit,

for it is beyond a doubt that sui& are part olf the businem of proctors.

Obtaining probata, and acts eriunieratad in the 9th section, when done for others

for reward, are also, I think, clearly nieant to be prohibited in all, except proctors

duly admitted and enrolled ; and strangers wholly unconnwtd with the spiritual

court would be clearly liable to the penalties for such acts.

If so, it is impossible to contend that there can be any implied exception of re-

gistrars or their deputies from the nature of their offices. There is a stronger reason

for prohibiting registrars than mere strangers. Enawledgu, of the forms and

practice of the Courti they have, and am therdorei qualified to do all those act&

correctly; but their duties are wholly inconsisbtent with those of agents or repre-

sentatives of suitors. They are 03%~3rs of the Court; deputies of the Judge for

certain purposes. It is their business to act in each case judicially; to do a11

curial acts without favour to anybody. To allow the1 registrars to’ have the profits

of the business of proctors, even in unlitigated cases, is to set their interest against

their duty. It is a part of their office to tax proctors‘ bills, and how can it be

expected that this duty will be performed fairly, if they themselves can act? in any

cases, and lawfully claim the fees and emoluments of proctors for so doing? If

there is no implied [@2] exception independently of usage, it i g clear that usage,

however long, can never support an exception to an Act of Parliament. I ani of

opinion, thesefore5 that your Ltrrdships’ questions ghould be thus answered : -

First, that in an action a t law brought against the registrar of an ecclesiastical

court in Ireland to recover a penalty claimed by the declaration to have been for-

feited by the doing of certain acts alleged to app~r ta in to the office, function, or

practice of a proctor, it would not be competent ta the defendant to give evidence

that for several ymrs it had been the practice of registrars of different ecclesiastical

courts to do such acts as those referred to in ctEmmon with proctors,

for the purpose of exempting registrars from liabiIity, on the ground

of an usage for registrars to do proctors’ duty. But with respect to those acts which

did not fall within the description of obtaining probates of wills, letters of adminis-

tration, and marriage licenses, such evidence would be a d m i s ~ b ~ ~ to show that they

did notc appertain to the office, function, or pract.ice of s proctor.

Secondly, such a declaration would be sustained by proof that the defendant was

not a proctur, and that he had prepared the documents and done the m t ~ necessary for

and connected with the obtaining and procuring letters testamentary and probates

of wills, and extracting probata of wills, and drawing and preparing inventories

of goods of deceased testators, schedules of such goods and &davits of verification,

270

S T ~ P ~ ~ ~ S O N V. ~ ~ ~ G ~ N S O N [18 5 1-5 21 III H.L.C., 683

and certificates thereb annexed, and renunciations of exmutors, in the absence of

any evidence that the acts done and i n ~ r u m e n t ~ and documents so prepared ap-

pertained and belonged to the office, function, and practice of a proctor, for they all

appear to be acts for obtaining probates or letters of administration, as also preparing

the fiat for a com~ission to swear executors. The completing the fiat I suppose k

be U curial act.

[W] The Lord Chancellor (Lord Trurt.r).-Xy h r d s , I have to express the

obligations we are under to the learned Judges for the attentive consideration they

have given to this cam, and for the valuable assistance they have rendered to your

Lordships by the opinions which you have now heard ; from which it appears that

the learned Judges are equally divided upon the questions which have been submitted

to them; and I will now move your Lordships that the further co~sideratio1~ of this

case be adjourned to- a futare day.

Lord Brougham.-My Lmds, I entirely agree with my noble and learned friend

that we must adjourn tsls further consideration of this quest,ion. In the mean

time we shall have the opinions of the learned Judgtss printed. We are extremely

indebted to them for the great pains which they have bestowed upon the subject,

and we shall of course take their opinions into the most deliberate! consideration.

I should like also to have a further opportunity of considering the very learned

and able opinions of the learned Judges in Ireland in the Court below, one of which

I confws,-that of the very learned Chief Justice, deeply impressed my mind.

Under the present circumstanoee of this case, with an equal division of the learned

Judges upon the questions which have been propounded to them, I think it would not

be possible for us to dispose of this question during the1 preaent session.

~

Further consideration adjourned sine die.

(June 16, 1852.) Lord Truro, after stating the nature of the action, the statute on

which it was founded, the plea put on the record, and the trial, and the evidence there

offered, said : The object of this evidence was professedly intended to show that the

acts alleged to have been performed by the [m4] defendant were not aots which,

within the meaning of the statute, appertained to the office, function@, and practice

of a proctor. The evidence was objected to oa the part of the plaintiff, who insisted

that, by the 9th section af the statute, the acts done by the defendant,-by the doing

of which it, was insisted that he had incurred the penalties now sought to be recovered,

-were, by the very statu* itself, declared to be acts, appertaining to the office of a

proctor ; and therefo-re that no evidence adduced to show a practice in an ~ ~ ~ e s i a ~ t i c a l

Court was admissible to ccluntervail %he effect and a;utilority of the statute, and

consequently that this evidence) was irrelevant, and ought not to be received. The

learned Judge was of opinion that the evidence was admissible in order to prove

what, in point of fact and practice, did appertain to the office of a proctor. The

evidence was accordingly received, upon which the pIain~ff’s counsel excepted against

its admissibility. Several witnesses were called, all of whom gave evidence to the

same effeet. An exception was tendered against the reception of the evidence of

each. One of them proved that in some diooeses, particularly in the diocese of

Elphin, there was no proctar, and in that diocese the business was done by the

registrar, or by his deputy; and that there, if any matter occurred in which the

interference of a. proctor was necessary, he was sent for from Dublin, or elsewhere.

The declara~cln having averred that &0 several acfis imputed ta the defendant all

appertained to the &ce of a proctor, and the plaintiff not having given any evidence

an the subject, the learned Judge told the jury that, in his opinion, the ~ l a ~ i ~ t i f f had

no$ made out a ease, and that the verdict czught to be for the defendant upon the

evidence so given; and accordin& a verdict was given for the defendant. But

previously, and correctly, a bill of excep-[685]-tions wag tenderea to the direction

of the learned Judge, md judgment followed upon that bill of oxceptions.

(His ~ r d ~ h i p detailed the further progrw of the cause, up to the time of the

questions put to the Judgee in this House.)

My Lords, three of the learned Judges expressed their opinion that &e: evidence

to wlzich the first question put to them wag directed wm not receivable, and also that

the evidence which is stated in the second question did support the declaration.

Mr. Baron Martin, who had attended during a great part of the argument, but had

27 I

X I S BL.C., 686 STEPHEMON v. HICGINSON [ I8 5 1-52]

not attended during the whole of it, gave no opinion (Mr. Baron Alderson has favoured

the reporter with a note stating that, for the same reason, he gave no opinion). The

other Judges gave their opinion that the judgment ought to be affimed, that the

evidence was receivable, and that the evidence given on the part of the plaintiff did

not support the declaration, and therefore that the ruling of the learned Judge a%

the trial was r ight

Upon these circumstances the ca&, presenting these difficulties, comes before

your Lordships for decision, with this difference of opinion existing among the

Judges, both in Ireland and here. The case turns upon the construction of the t w o

sections of the statute of the 54 Geo. 3, c. 68. The particular section imposing the

forfeiture, which is sought to be recovered in this action, icp the loth, aad that says--

[His Lordship read the saction.] The queation turns upon the canstructicm of that

section ; but inasmuch as it would appear that its construction is said to be in fact

governed by the contents of the previous section, I should alm beg your Lordships'

attention to the contents of the 9th section. [His Lordship read it to the words, " such,

proctor so offending shall be struck off the roll of proctors."] There are, then, certain

cases of exception, with which it is not material to trouble your Lordships.

[c;S6] The penalty sought to be recovered in this case is the penalty imposed by

the 10th section. That section is very extensive in its terms, and imposes the penalty

for doing " any act, matter, or thing whetfaoever in any way appertaining or belong-

ing to the office, functions, or practice of a proctor." In construing an Act of

Parliament, I apprehend every word must be understood according to the legal

meaning, unless it shall appear from the context that the Legislature has used it in

a popular or more enlarged mnse; that is the general rule; but in a penal enactment,

where you depart from the ordinary meaning of the words used, the intention of

the Legislature that those words should be understood in a more large or popular

sense, must plainly appear. The application of that remwk will be found of

importance in this cam

It becomes necessary here to consider the nature of the office of a proctor. A

proctor is described in several instances in Domat's Civil Law (Vol. i. bk. i. tit. 15 ;

and vol. ii. bk. ii. tit. 5, s. 2), which is referred to in Bum's Ecclesiastical Law (Vol.

iii., edit. by PhiIlimore, tit. Proctor) ; and some other books are there cited, and it

is stated that " proctors are officers establi8hed to mprsent in judgment the parties

who empower them (by warrant under their haad, called a proxy) to appear for

them, to explain their righta and in&ruct their cause, and to demand judgment ; "

and the office is recognised as a legal office in variouB statutes. By the 3 James I,

c. 5 , s. 8, no recusant convict is to be allowd to practise1 in the civil law as proctor,

By the 5 Ceo. 2, c. 18, s. 2, it is enacted that proctors in any court are incapable

during the time they shall continue in the business and practice of a proctor from

being justices of the peace. By the 55 Geo, 3, c. 184, a stamp i s imposed upon the

admission to the office of a proctor, and every practising proctor i s required to take

out an annual certificate. The general character and nature [a71 of the office seems

to be, that the proctor is to represent pasties in judicial proceedings in the courts

in which he has been admitted as a proctor; but independently of the particular

duties strictly incident to the office of proctor, persons holding that office (as is also

the case with attorneys and solicitors) perfcmn various mrvices more or less con-

nected with the courts of which they are &cers; but many of those services and

emplo;yn?ents are whully unconnected with any court-such as preparing letters of

attorney, conveyances, settlements, and numerous other instruments.

The statute in queation is entitled, " An Act for the better regulation of Ecclesias-

tical Courts in Ireland." The 10th section says that, if any person not being n

proctor shall, for profit or with a view to participate in the benefit to be derived froin

the office, functions, or practice of a proctor, either in his own name or in the name

of any other person, do any act, matter, or thing whatsoever appertaining or be-

longing to the office, functions, or practice of a proctor, he shall forfeit 2250.

Now, in construing t;kis clause, it is necessary to consider whether the Legislature

means to prohibit persons not being proctors from doing any acts which proctors

might be in the habit of doing, but which are not incident to, nor form part of,

the duties of the office of proctor, and which, prior to the) statute, others as welt

as proctors might lawfully do ; or whether the prohibitio~i extended only to those

272

~ T ~ ~ H ~ N S O N ‘U. HIGGINSON [185l-!?z] IIK H.L.C., 688

ac-b and that business which properly was incidental to the oEce of proctor, The

expression used is, ‘ I appertaining or belonging to the office, functions, or practice

d a proctor.” What i s the correct meaning of these words, “ appertaining or be-

longing”$ I understand them to mean, “legally incident to the office; ” not any-

thing which proctors may think fit to do, but thaf. which of legal right belongs to,

or attaches to, their office. I am not aware that the word ‘‘ appertaining ” is to be

found in any dictionary professing to give legal definitions, or that it has

acquired any peculiar meaning in the law; and I apprehend that i t is used in the

law, and must be so understood in statutes, i n its ordinary and prvper sense, where

there is nothing in the context of the statute to extend er control it. In Johnson’s

Dictionary, the explanations given are, ‘‘ to belong to as of right-to belong to by

nature o r app~~ntment-that which belonp to any rank or dignity.” And in every

example given of its use it i s connected with the matter to which it refers in the sense

of right. There are several instances given of this application of it. It is, I

conceive, used in this section, therefore, s y n o n ~ o u s l y with the words which follow,

“ belonging to.” Now, acts which before the statute were lawfully done by others,

in common with proctors, could in no correct sense be said to belong to the efiice,

functions, or practice of a proctor, the word “ belong ” implying that it belonged

as of right and in an exclusive sense. The practice incidmt to the. office or func-

tions of a proctor seems to’ me to mean the practice of the Court of which 6he proctor

is an ofEmr, in the conduct of matters in which the proctor is officially concerned,

and which Court i t waa the object of the statute to regulate. Such practice may,

therefore, be ascertained ; but the practice of proctors in m y &her sense will admit

of considerable diversity; i t will be found te vary in different localities, and net

to be uniform in the same localities, and would, in fact, be. very difficult of attain-

ment, and i s by far too undefined to be expected to be found in a penal statute, It

appears by the evidence set out on the rscord in this case, that in some dioceses there

are ao proctors, and tha& when business occurs in which a proetor is required, it

proctor is sent fox from a distance. In suck a locality, where there is no practice of

a proctor because there i s no such person within the diocew, the practice is to be

learnt; from another E6891 locality. The act which may be in q u ~ t ~ o n may in some

1ocaIitiea be done by proctors, in common with ethers who are not proctors, and in

other places not done by proctors a t all. In the diocese of Elpliin, as 1 before men-

tioned, there are no proctors, and various acts. are necessary to be done in that

dimme in which no proctor, ~ndependent~y eE what is said to be the constructio~~ of

this statute, i s required, and all such business is to be done by the registrar or his

deputies. appertaining or belonging,”

are words used in their proper sense and mmning,-that ig, in the sense of rightly

and exclusively belonging to the office of proctor. Besides the Fords ‘ I ~ p p ~ r t a i i i i n g

and belonging,” the meaning of which I have just observed on, it must be noticed

that the 10th section includes in the prohibition also the words “ function or practice

of a, proctor,” the meaning of which it becomes necessary likewise to consider. The

qi.est.ion is, whether the words ‘ I function and practice ” should be understood in the

sense of the functions and prLEcGce legally incident to the discharge of the duties

connected with the &ice of ppoctm, or whether they are used as intending to embrace

the funct~ons and practice not necessarily incident to the ofice, but such ack as those

who filled the oEce were in the habit of exercising.

l%e observations I ham made, in stating what I conceive tn be the true conssSuc-

tion of the words “ a p p e ~ , ~ i n i n g o r belonging to the oEce of a proctor,” are applicable

to &is part of the case, fknd induce me to conclude that the words “ functions or

practice” are used i n the restricted Benkm of functions and practice incident to the

office, and that the statute professing to be an Act for the better regulation of the

~ c l e s i a s t i c a ~ Courts, well justifies the conclusion that the s u b ~ ~ u e n t r ~ l a t i o n ~

relate to the duties of the officers of the Court, as such, rakher then tu the i n c ~ d e ~ t a l

employment and [690] business which SnT such officers may think fit to undertake for

reward, in addition to their official duties, except where the tarms of the statute

impark a more extended meaning. If the constraction which I have suggested is

correct, then, as f a r as this section is to be considered, no information whatever is

afforded by tahe Legislature as to what acta, niattars, or things dtt. appertain or belang

to the o&e, functions, or prtbctice of a proctor; and in any action brought LQ recover

213

It s m s t o 8 me, therefore, that &he words

1x2 E*L.G*, 69Z

8 penalty which is dleged to have been incurred by a breach of this swtion, it would

be by evidence alone that the Court and jury could be i n f o ~ ~ d whether the act by

which the forfeiture was said to be incurred, did or did not fall within the brm3 of

the prohibition j and such evidence would not only be receivable, but would constitute

an essantial part of tile plaintiff~s case; and if the p ~ ~ n t ~ f f gave no such evidence,

it would be the duty of the judge 4x1 direct the jury thiat, by the Iaw, &e verdict oughk

to be for the defendant. S u p ~ ~ i n ~ , therefore, that the t rue ccFnstruction of the 10&

section is to be collacted from the te rns of that section only, and khat* such c o ~ i ~ ~ u c t ~ ~ n

is not aEecCtBd by any other part of the statute, then the lertlned judge was cwrect ia

law in receiving the evidence which was excepted to, and the Court was right in

affirming the judgment pronounced upon the verdict for the defendant, which was.

in pursuance of the judge’s direction ; w d in that c a m the judgment of the

Court below ought to be a%rmBd.

But the main a r p m ~ t in the Court b l o w %‘as, and h w been a t your ~ o ~ s h ~ p ’ s

bar, that the true c o ~ ~ t ~ c t ~ o n of the 10th swtion i s not- to be collected fmm the terms

of that section only, but &Et the 10th section mu& be construed in connection with the

9th section; and the objection to the admis~ib~Iity of the evidence of t,he usage and

practice of t,he registrars, as well before as since- the statute, to [692] do the several

acts set forth in the different counts of the d ~ ~ ~ r ’ I b t i o n , a r i a s out of the 9th sectian ;

and it is said that the 9th section declare6 that ‘ I the o b t a i ~ i ~ g probatm of wiIls,

letters of ~ d ~ ~ i n ~ ~ t r a t i o n ~ or marriage lieensa,” are act8 which appertain or belong

to the ofFce of a proctor, and therefore t h d the evidence of usage by the r ~ ~ s t r a r s

to do those acts wag hefeyant, because no usage could m d e r that lawful which the

statute prohibited. It therefore becomes neewsary to refer tu the i m p a g e of the

9th section.

The 9th section p r o ~ ~ ~ b ~ ~ proctors from using or suffering their names. ta be used

for the profit of others, in any suit, the p ~ o s ~ u t ~ # n o r defence whereof a p ~ e ~ i n ~ to

the office of ‘~b proctor, or in o ~ t ~ i ~ i n g probates of wills, letters of a d ~ i n ~ s t ~ ~ a ~ ~ o n , or

marriage licenses. The q u ~ t , ~ ~ n which ig raised upon this smtion is, %hether the

words, ’‘ appertain to the office of a proctor,’’ apply as well to the wntence which

follows them, viz. ‘‘ or in obtaining probates of mills, letters of administration, or

marriage licenses," or apply only to the proseoution and defence of the suits previousIy

~ e n t ~ o n e d 2

Ia c o n ~ i ~ e r ~ n ~ t h i ~ u ~ t i ~ ~ , it must be cks-emad b% &e word ‘ I ~ p ~ ~ ~ ~ ~ n ~ a8

umd in this section, is bere connected only with the words ‘‘ office of proctor ;” and it

i s proved by the evidence that, prior to the statute, the probates of wills, Iekters of

admjn~stration, or marriage licenses, were acts done by &er p e m n s than proctors)

and that, in truth, &me acts do not appertain to the office of proctor, rsccording to

what X understand to be the meming of that word. ~ u p p o s i n ~ , therefore, the Legis-

lature to have declared and enacted, as is contended 0x1 the part of the ~ l a i n t i ~ , that&

t h q did sa appertain ; ~ ~ ~ o u ~ h the sttatub might be binding for &e future, yet the

en~ct~nent , according to the evi-[692]-deoce3 would haue added new incidents tn, the

oEee of proctor, which is more than it ~ r o f ~ to do.

It is material to obsen-e, however, the position of the words that are under con-

sideration. The words am vel1 satisfied, by being applied tu the suits which are

mentioned ~ ~ ~ e d i ~ t e l y before; and it swms to me that the poJtion of the words

tends to shorn caution in the ~ e g ~ ~ ~ ~ ~ ~ to exclude the coiistruction contended for,

rather khan to warraBt it. If the word ‘‘ a p p e r ~ i n ‘’ wm intended to apply to the

obtaining of probates of a7ills 1 *rs of ~ ~ i n ~ ~ ~ ~ t i o n , and ~ a r r i a g e licenses, the

natural position of the .n-nrd: ~ ~ a p p e r ~ i n ta the office ” mould have bwn after the

e n i i ~ n e ~ ~ t ~ o n of all the matters intended to be c o ~ p r ~ s ~ within it, and not in the

middle of the enumeration, where it i s placed ; and, except for the high authority

wh.i& has taken a contrary view, 1 should have thought it plain that$ the structure of

the section ~ a n i f ~ e d , that although proctors were p r o h i b i ~ from using or lending

their nsmes for the benefit of others in obtaining probates of wills, letters of adminisl

tration, and marriage licenses, yet th.at t h w acts were not understood by the

~ ~ g ~ $ l ~ t u r e , still le@ intended to be declard by it> BS ~ p p ~ ~ ~ a ~ n i ~ i ~ to the oBce of a

proctor.

That the prohibition in the 10th sectinn upon peraons acting m proctors was not

intended to be coextensive with the prohibition in the 9th section against the proctor

214

S ~ ~ ~ ~ ~ ~ S ~ ~ 2). ~ ~ ~ ~ 1 ~ s ~ ~ p135 1-52]

S T E ~ H ~ ~ S O ~ 9. H r G G I ~ S ~ ~ [1851-52] I11 H.L.C., 693

lending his name for the benefit of others in matters relating to suits, the prosecution

and defence whereof appertain to the oBce of proctor, or in obtaining probates of

wills, letters of admin~stratjon, or marriage licenses, may w i l y be understood.

There might be good reason why We Legislature should prohibit proctors fr+m lend-

ing their namea for the benefit of others, in certain acts or business done by them,

beyond, and independentl~ of, their office of proctor, such E6931 as. obtaining probates

of wills, letters of administration, aad marriage licensw. There are many mat3brs

connected with the proof of wills, and obtaining letters; of administration and

marriage licenm, requiring circumspection in the oflicars connected with the depart.

men& in which those proceedings are conducted, and which circumsp~tion might be

exercised with much less care when the proceedings were conducted by, or at all events

in the name of, a known practitioner in the courts, and having the mur i ty of his

position and character, than when they came and were sought to be transacted in the

names of unknown persons. And i t is a notorious fact h t , in England, individuals

of very low statioa were in the habit of looking out in the neighbourhood of public

offices, where the business of proving wills and obtaining administrations and

marriage licenses i s transacted, for persons inquiring for such offices, or from whose

appearance it was suspected that wley had occasion for such businem to be done;

and, under pretence of taking them to such public offiw~, they were often really taken

to the offices of persons using the names of prwtors, who made the men who brought

them thither certain allowknces. About one year before bhis &atlute for Ireland

passed, a statute was passed regulating the ecclesiastical offices in England, contain-

ing very much the same clauses, and it is highly probable that in the Irish statute the

same forms were adopted as in the English Act. The same evil had probably given

rise to the same remedial legislation in both counixies.

Believing fmm the evidence, that the acts did not?, before the statute, in any

correct sense appertain to the oftice of proctor, and also attending to the form and

language of the Bection itself, I entertain a very strong opinion that there is no SUE-

cient ground to warrant the Construction that the 9th section was intended a8 a

legislative declaration [e941 that the acts referred to did, before the statute, a-ppertain

to the office of proctor, or that they should be deemed to apperbain tol it after the

passing of the statute.

It should, however, be remarked, that an important observation may be made

against what appears to me to be the true construction of the statate. It is said, if

the obtaining of probatm, letters of a d m i n i ~ a t i o n , and marriage licenses, was not

declared to appertain or belong to the office, function, o r practice of a proctor, and

that the statute did not intend to prohibit others than prccturs from doing that

business, either in the names of others or in their own names, why did the statute

prohibit prochrs from using or lending their names in such businesses? And it is

said that the effect of the construction I have suggested leaves it open to persons ta

use the name of a proctor in the doing of the business referred *to, without being

subject to a penalty under the statute, when proctors are prohibited from using or

lending thelir names in the same business for the benefit of others. In reference to this

remark, the statute may not unreasonably have prohibited persons, not proctors, from

doing any acts which by law ought to be done by proctors, and have left the fact of

doing in another person's name what they might lawfully do in their own names to

the existing ~ R W , under the impreasion that, where a proctor was not only deprived

of all motive for sanctioning such conduct, but would have esery motive for prevenc

ing it, the practice would not be sufxiciently extensive to require speGia1 penal enaet-

ments. It is consistent with the title of the statute to confirics its penal enactmelnt to

the business of the courta, and such other special matters, without going further in a

general penal enactment against men obtaining money by pretending to be what

they are not, or to be acting for others in doing business where they have no derivative

authority. Admitting, however, the force of this l6951 remark, I still think &hat, in

construing this penal m t i o n by itself, the acta complained of are not within ita

prohibition, and that t h true construction of the 9th section shows that it, w m not

intended as a legislative declaration that the acts complained of did appertain to the

office of a proctor, and therefore that the 9th doas not control and gowrn the con-

struction of the 10th section.

The Judges seem ta have differed in opinion with regard to the meaning of the

a75

I11 R.L.C., 696 STEPHENSON v. HIGGINSON [ 18 5 1 - 5 21

section, although they came, in the proportionate number I have mentioned, to the

opposite conclusion. Mr. Justice Maule seems to be of opinion that the obtaining

these instrumenti+-probates and marriage licenses,-would be considered as doing

acts appertaining to the office, functions, or practice of a proctor, provided they were

done in a fictitious name. By fictitious, I mean other than the name of the person

who really did the act, but that they might be lawfully done where the party did them

in his own name. His conclusion, therefore, although upon a ground rather peculiar

to his own view, is, that the judgment ought to be affirmed. The other Judges took a

somewhat different view of the subject ; but the result of their opinion is what I have

stated.

It may be observed that the practice of proctors may hereafter embrace other

descriptions of business than what they now perform, and if the word “ practice ”

does not mean practice properly and legally incident to the office of proctor, but means

all that proctors are or may be in the habit of doing, the monopoly may be extended

very widely, including conveyancing, marriage settlements, partnership deeds,

charter-parties, awards, and numerous other documents, some of which many proctor8

are already accustomed to prepare.

I therefore submit to your Lordships that the evidence acepted against was-

properly received, and that the direc-[696]-tion of the learned Judge to the jury,

which is also matter of exception, was correct, and therefore that the judgment ought

to be affirmed.

I should mention that it is a matter of great satisfaction to me that the noble and

learned Lord, now present, attended during the argument, and gave me the benefit

of his assistance in the consideration of this case; and I have, as far a8 poasible,

endeavoured to embody in what I have said his view as well as my own, which I have

no reason to suppom at all differs from mine.

Lord Brougham.-My Lords, I entirely agree with my noble and learned friend

in the conclusion at which he has arrived, and also in the argument by which he has

supported that opinion. When the case came before your Lordships laRt swion, I

stated that I was very much moved by the opinion of the very learned person, now

Lord Chancellor of Ireland, but then Chief Justice Blackburne. I have since recon-

sidered that opinion, as well as the opinion of the two learned Judges, his brethren,

who concurred with him in it, and, on the whole, I ham come to a very clear con-

clusion, agreeing with my noble and learned friend, and with those learned Judges.

Although Mr. Baron Martin did not give his opinion to the House, yet he attended and

joined in the opinion of Mr. Justice Maule, Mr. Justice Talfourd, Mr. Justice Williams,

and Mr. Justice Erle. Those learned Judges came to the same conclusion, although

not exactly by the same means, nor exactly by the same rules; but, upon the whole,

they entirely agree in answering the two questions put to them by your Lordships,

one in the affirmative, and the other in the negative. I have alsoo with my noble and

learned friend, well considered the arguments of the learned Judgas on the other side ;

and, after [697] giving the utmost attention in my power to their arguments, I am

still of opinion that the judgment below ought to be afirmed.

I do not know whether it is worth setting right an error which I find has crept into

the copy of your Lordships’ paper containing the learned Judges’ opinions (see Lord

Brougham’s observations printed from this paper, ante, p. 666), as t~ what passed

when one of the Judges (Mr. Baron Alderson) was allowed by special permission to

read the opinion of Mr. Justice Coleridge. It is there said, referring to the Bethnal

Green case, that I used these words: “ in which there was great difference of opinion

in the Exchequer Chamber, and in which case we had the, benefit of having the

manuscript judgments of those learned persons, which were not used in moving the

judgment of your Lordships.” It was I that moved that judgment, and I have a very

distinct recollection of having very great difficulty and embarrassment from the

conflicting opinions of those learned Judges. But I am quite confident, instead of

saying they were not used in moving the judgments of your Lordships, i t ought to

have been distinctly, that they were used, and great reliance was placed on the

arguments of Eome of those learned Judges. I am quite certain that those judgments

were used in the course of that argument.

Judgment of the Court below affirmed with costs (Lords’ Journals, 16th June, 1852,

p. 263).

276