The Gazette 1914-15

MAY, 1914]

The Gazette of the Incorporated Law Society of Ireland.

well-known case of Wintle v. Freeman (11 A. & E. 539) as an authority for that pro- ' position. I also decide that a return of milla bona may be made when there >has been in fact no seizure of anything. In this case, on the facts before me, I have no evidence at all of there being either any " execution " or any withdrawal at the instance of the execution creditor. I have no proof before me that the sheriff was directed to withdraw. Indeed in the carefully prepared return to the writ he says that he " abandoned said seizure." This decision is not in any way in conflict with Pirie v. Stewart ([1899] 2 I. R. 54'6), in which it was decided by Mr. Justice Kenny that the writ had been in fact executed in that case. In his judgment he pointed out that a sheriff who returns milla bona to a writ of fi. fi. does prima facie preclude himself from alleging that a seizure took place. I quite agree. The whole of the facts here go to show that the bailiffs, finding that there was nothing to seize, nude no attempt at a seizure, and returned to their employer. This case does not, in my opinion, decide any question of law. I must reverse the decree of the learned Recorder, but I do so entirely upon the questions of fact which were involved in this case. (Reported I. L. T. Reports, Vol. XLVIL, p. 261.) THE Irish Times of 18th April states that at Londonderry Quarter Sessions upon the 17th April the Recorder made an important statement in reference to the preparation of conditions of sale by auctioneers. The matter had been brought under the notice of the Judge by Mr. Joseph Loughrey, solicitor, during the hearing of a case, when an auctioneer stated that the draft conditions of a sale of land had been made in his office by his managing clerk. On behalf of the legal profession Mr. Loughrey raised an objection to auctioneers preparing draft conditions of sale. It was an abnegation of the rights of solicitors. He handed in a decision on the Preparation of Conditions of Sale by Auctioneers.

point, and asked for an expression of opinion from the Recorder, mentioning that in this particular instance he did not ask for any condign punishment. The Recorder said that he thoroughly agreed with the decision of County Court Judge Moore of Tipperary on the point. It was given in a case where an auctioneer had acted absolutely as a solicitor and con veyancer by preparing abstracts of title, con ditions of sale, and conveyances. This auctioneer was sued before His Honor Judge Moore for a penalty under the third section 27th and 28th Victoria, chap. 8. That section provided that except a man was registered as a conveyancer, or got a special qualification as such, or was a barrister, solicitor, or attorney—people who were entitled to draft conveyances—he was liable to a penalty not exceeding £20 or less than £5 in a suit brought against him by a common informer, or anybody, for doing so. For any act done by such a man as conveyancer any person could sue him before the Court, and if it be proved a penalty could be recovered against him. There was before His Honor at these Sessions a case where an auctioneer in that and the neighbouring county had been acting as a conveyancer by drafting con ditions of sale and doing various acts that should be done by solicitors or other properly qualified conveyancers. The matter did not come before him in a way that he could deal with it: but the solicitors asked him to make some mention of it, and he did so, not only in the interests of the solicitors, but auctioneers throughout the country. He informed the auctioneers that if they pro ceeded in the way he knew from personal experience they had been doing, in drafting these documents and acting as conveyancers, any member of the public could sue them before him, and recover £20 or not less than £5. It was only right that they should be warned and know what the law was. He now gave that warning, and he would undoubtedly follow Judge Moore's decision in any case that came before him. NOTE.—The decision of His Honor Judge Moore referred to above is that in the case of Wakely v. Toppin, reported in GAZETTE of February, 1914, page 86.