The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1842-04-12 00:00:00

LANCASHIRE MIMS

COURT—FaiD

fore M r

Baron PARKE.)

The COURT

mor I) a

3 preve

Tete it!,

Pb At wilsbt have boon ex.
Mr, Knowlug) wielled to
.

on the same pro-
Mr. Duncan, who
lorant of the first mortgage, assigned the attendant
and though second, that mortgage was entitled to
.rst, and as the property would barely cover the second
,gage, his clients, as Mr. Statham said, were entirely
at out." Another charge of negligence be founded on
As. Even though Mr. Duncan bad not executed the convey-
.ace, it was a common mode of doing business in Liverpool,
to give what was equivalent to a notice of the first to the se-
_.gagee; so that, if the first did not get a legal es-
tate, he got one in equity. He would show them that -was
the invariable practice of solicitors in Liverpool, and he
would call before them some of the most eminent of the pro-
fession. In the usual course of business the purchasers and
the mortgagee got the title deeds, and then there was no
difficulty at all, for that made it impossible to execute a se-
cond mortgage. But this was often impossible, for land
being sold in small parcels, only one person could retain the
original title, which, in his conveyances of the parcels, he
covenanted to produce, and have notices of incumbrances, if
any, endorsed on the principal deed. The effect of this was,
that in this case had the attorney for the second mortgage
looked to Gladstone's conveyance to Lowe, and found the
incumbrance endorsed, he would have known the fact; and
even had defendants done nothing else, it was their duty to
have made a note on the deed of Gladstone to Lowe, and
thus prevented the second mortgage. Neither of these were
done by the defendants. They suffered plaintiffs to lend
money without a title, and they had no mode of getting the
money back but through the verdict of the jury—that, then,

merely hoped

went and raised mone

y a second mort

was negligence on the part of the defendants. Could any
one, looking at the circumstances, say that they were not
guilty of negligence? It was of great importance, when neg-
ligence was clearly proved against attorneys, that juries
should give ample damages. No profession was of more
importance to society—none exercised a'wider influence.
Every man's property was at their mercy, and on their skill
and integrity every one relied. He had made no imputation
on the defendants beyond that of carelessness. Messrs.
Currie and Statham were doubtless highly respectable men,
and he was certain that the jury would not, because they
were respectable men, be less inclined to do justice to his
(Mr. K.'s) clients.
Mr. 'William Parr was called.—ls a proprietor in the so-
ciety.

Mr. WORTLEY objected.
Mr. KNOWLES read the act relating to building societies,
making members competent witnesses in any trial relating to
the " property" of the society.
Mr. WORTLEY contended this did not relate to the " pro-
perty" of the society. It was an action arising out of a con-
tract and personal relation.
Mr. CowLING followed on the same side. The witness
was a partner, not in form but in fact, and was incompetent
if this clause did not make him competent. The learned
gentleman contended that the object of the clause was quite
different. It did not say " every action," but it said all ac-
tions relating to property. If the intention had been what
Mr. Knowles contended for, the language would have been

quite different. The intention clearly was to apply to crimi-
nal proceedings and actions of tort.
Mr. WATSON followed on the same side. The witness
was clearly a plaintiff, and it never could be the intention of
the legislature to couch so strong a provision in such ambi-
guous words, when the full meaning might have been so much
more briefly and fully expressed.
The COURT thought the form of action was quite immate-
rial, the real object being to recover money for the society.
Mr. WORTLEY requested a note to be taken of the objec-
tion.

Mr. Parr was president of the society in May 1839. Mr.
Lowe applied for money on mortgage ; he was a member of
the society ; he was an attorney, of the firm of Radcliff,
Duncan, and Lowe, solicitors, of great respectability ; they
were. our ordinary solicitors. [Witness produced a written
application from Mr. Lowe.] There was a discussion upon
it. It was agreed that Currie and Statham should be applied
to. They are a well-known respectable firm, and it was agreed
they should prepare the mortgage.
Cross-examined by Mr. WORTLEY.—The society is carried
on under rules. Every member has a copy. There are some
copies in court. 1 have heard the mortgage deed was pre-
pared by Lowe, but I cannot say positively. I heard some-
thing of the sort. lam president yet. Ido not know when
the second £BOO was paid. The secretary is here. Duncan
and Lowe had been our solicitors from the first. The soci-
ety was established in 1837. Cannot say what fee was given
to Messrs. Currie and Statham. Never heard it was one
guinea. 'The mortgagee always pays the expenses. It would
not appear in the accounts of the society. By a rule, I sup-
pose. _

—lt is always a rule for the mortgagee to pay

expenses.
Cannot say that it was usual to take mortgages by demise ,
that was the business of the trustees. My duty as president
is to state the amount of cash received, and to sell shares.
The general body does not know to whom money is lent ;
only the committee, until the annual report.
By Mr. CROMPTON. —I am not a conveyancer. Ido not
understand legal points. 1 think I heard that Lowe pre-
pared the draft.
Mr. Capes Ashlin (the same objection was made to this
witness as the last, but was overruled) was a member and a
trustee in 1839. Was present when Mr. Lowe's proposal
was made, and heard the discussion. It was agreed to lend
him the shares. After that met Mr. Lowe at the office of
Currie and Statham. Mr. Evans, another trustee, was with
me. We met by appointment with Lowe. Saw Mr. Sta-
tham. It was on Friday, May 24, 1839. Mr. Lowe was
there. On walking into the office I said Mr. Lowe requested
them to act on behalf of the society, as the mortgage was, to
himself. Mr. Statham said that he was aware of it. My
co-trustee inquired of Mr. S. if the deeds were all right. He
said they were, and had prepared a certificate accordingly.
I cannot say that the word security was used. The deed
was lying on the desk, with a book of the rules of the so-
ciety. It was executed whilst we were there after the con-
versation. I handed a check for £BlO to Mr.i Lowe. Did
not take away the conveyance. Mr. Statham said he should
have to prepare a certificate in reference to the conveyance.
I then went away. On the following day went with Mr.
Evans, by appointment,-to the office. Then received the
mortgage-deed and certificate, and copy of conveyance and
abstract of title. Went away. Mr. Evans took the docu-
ments. 'Mr. Statham gave no further directions about them,
nor gave any further advice. I recollect Mr. Lowe's bank.
ruptcy. I think it was about May, 1841. Up to that time
the interest on the mortgage had been paid. In consequence
of information I and Mr. Neilson, another trustee, went to
Currie-and statham's office. Found Mr. Currie there, and
subsequently Mr. Statham came in. Mr. Currie is the se-
--tner. Mr. Neilson inquired of Mr. Currie why
Lowe had placed the society amongst the list of general cre-
ditors ? He replied, that he had acted as solicitor on the
part of Mr. Low -, and that Lowe informed him that a se-
cond mortgage had been effected on the same property, but
he would send for Mr. Pritt, of the firm of Avison and Pritt,
as they held the second mortgage, as he was anxious that an
arrangement should be come to between them and us, other-
wise he should advise Lowe to quit the country. Mr. Pritt
came. An explanation was entered into with reference to
their claim having the priority to ours. He contended be
had the priority to the property, and explained that they
were solicitors for Hind's executors, and had taken the mort-
gage from Ralph Peter's executors. I said ours must have
been the first, as we had made an advance during the build-
ing of the premises, and we held the certificate of Currie and
Statham that the conveyance was good. Mr. Currie asked
how was that ? He appeared angry, and asked Mr. Statham
if that were so. Mr. Statham said it was, but it was a good
conveyance at the time. Mr. 'Currie replied, he should not
have done so without consulting him. I asked, who acted
as solicitors for Ralph Peter's executors ? Mr. Statham re-
plied they had. Then, I said, you are actually taking a se-
cond mortgage on the same property for which we hold your
certificate. He said, " There must be something wrong
somewhere, otherwise there would be no difficulty in transac-
tions of this kind." When he said it was a good one of the
kind, he went on to say how, in consequence of Hind's exe-
cutors having taken a mortgage from Peter's executors, the
society was cut out. Mr. Currie said he wished an arrange-
ment could be come to with Avison and Pritt on the part of
Hind's executors and the society, and suggested that, the
society being a wealthy body, should pay off Hind's mort-
gages, and b possessed of the property. The amount was
asked by Mr. Neilson, and the reply was somewhere about
£7OOO. I said, we had no authority to make any arrange-
ment, but we would refer the matter to the committee. We
have never been able to get any thing back.
By Mr. WORTLET.—This is a wealthy society. I heard
of the second advance when the buildings were completed. 1
have seen the property. It is at Seaforth, six miles out of
Liverpool. There was one house, and the ground attached
to one house. There were other houses, one of which he
occupied. I found Lowe at Statham's, and the deed ready
prepared. The certificate was ready prepared. It was not
said that the certificate had been dictated by Lowe. In our
society the trustees remain in office as long as the society
think fit. I was removed last December. 1 was not aware
they had any reason to complain of me. I was removed for
the purpose of being a witness. Mr. Evans was also removed
for the same reason. I did not peruse the mortgage deed. I
do not know that it is different from the usual form. I am not
aware that the mortgages were always taken by demise of
the term, and not of freehold. Mr. Priest is secretary : he
is not a lawyer. I never saw the draft of the deed : these
were never sent to the society ;it is not usual to do so. On
the second day we took away the deeds and the certificate.
Mr. Evans took them to his office, and we afterwards depo-
sited them in the society's box at the bank. We were bound
to deposit them by the rules of the society. I dO not know
that any fee was paid by Mr. Lowe. The name of Rector
Brookes is mentioned as connected with Ralph Peters's exe-
cutors, the person who had the second mortgage. It was
proposed we should purchase up all the mortgages and get
good title to the estate, as we were " cut out."
The COURT.—The proper legal expression is more ex-
pressive than "cut uut." In the books it is called "squeesed

Cross-examination resumed.—l have ascertained' since
that the mortgage deed bears the signature of Radcliffe,
Duncan and Lowe:

By Mr. KNOWLES.—It is usual for the attorney who pre-
pares
a deed to indorse his name upon it. It was usual for
the mortgagor to send his draft to the solicitor of the society.'
On this occasion Mr. Lowe sent his to Curry and Statham.
John Evans was the acting trustee with Mr. Ashlin in
May, 1838. Went with him to Curry and Statham's.—
Witness confirmed the testimony of the last witness in its
leading particulars.—He had inquired of Statham if all was
right, if they were justified in paying the money, and being
answered in the affirmative, handed over the money. Wit-
ness produced the different deeds and other documents, and
identified them. Mr. Statham gave no further advice about
anything to be done in the matter. The difference between
the sum actually paid in money and £2,400 was made up in
account on the shares—there might be arrears.
By Mr. WORTLEY.—I am quite sure the question was put
to Statham after the deed was signed. It don't recollect
Mr. Ashlin putting it before. I am quite certain I asked
before I paid the money over. I did not see Lowe afterwards
that day. A further sum was advanced to Lowe. Do not
know of any other solicitor being consulted in that transac-
tion. There are four trustees. I do not know the actual
balance due from Lowe at his bankruptcy. I did not hear
that the fee paid to Mr. Statham was one guinea.
By Mr. KNOWLES.—AII was lost.
Mr. William Pritt.—ls an attorney in Liverpool. Was
solicitor to Mr. Hind's executors. The security was taken
was advised by counsel by Mr. Hind in his life time, and we were his attorneys.—
title, as his client n
He appeared with the deeds under his subpoena, but said he
suggestion of ont
steorypeTwluicthe tnhnemtic,eanbdy etxhpeobsueillidi-s
ing society that the hadelbene
be obtained under a bill
secondle mortgage would be disputed, but,
on the
Court, that they could at any time
them.—He produced an in equity,. he consented to produce
a trustee for Mr. Hind assignment of an attendant term to
I.;e also thei original The
amount
i conveyancex7ooo,f from
other mortgages on the same
Gladstone to Lowe.
it is property,
doubtfuland
thatare in possession.
wi 1 realise
Had a conversation with
ss hot offinc etin
mfo for
.toNCeudrsrni en and
andS tmat tri.aniA:
their presence. Did not
pay much attention to the conversation, except as far as re-
lated to my own business. When l asserted
Neil-
son and Ashton said they had a certificatenr priority,
nla
mortgage, Currie and
or
Statham, stating that the mortgage was a g
something to that effect. Mr. Currie was not aware n
and asked Mr. Statham if it were so. Mr. Stathamsaifd lie
had given one, but did not recollect the terms. Did not hear
any thing said who was the solicitor to the second mortgage
—ours is the transfer of that mortgage. It was assigned to
Hind from Brooks and Statham. The attendant terms were
assigned also. I told them I had got the terms as a reason
why I bad the better title. The terms are vested in Mr.
Statham, as trustee for Brooks and Statham.
By Mr. WoRTLEY.--"Was about six weeks after, at a