Exch. Cham. v. H. T. 1847. the 54 G. 3 in these cases, and that where no proctor was employed, the engrossing of the will, the preparing fiat for securing the parties, STEPHENSON and attending with them before the Judge, and filling up the scheHIGGINSON. dules, probate, certifying under the Stamp Act, and renunciation of executors, were all done by the deputy registrar; also, the affidavit to verify schedule and inventory; also, that in cases of intestacy he filled oaths, papers, affidavits, and schedules, and measured stamps, duty, renunciation, or consent, and issued marriage licenses. The witness also stated that he was not a proctor, and that he did all the foregoing with the privity of the Judge of the Court; and that if there was a contest he did not interfere; but that a proctor must be employed, and that he was obliged to exhibit his proxy before he could act or be recognised as a proctor; but that in the foregoing acts, as being sometimes done by the registrar, he is not called on to exhibit a proxy; and that in taking out marriage licenses, a proctor seldom or ever acted or interfered; and that witness was paid for doing all these acts independent of his official fees as a registrar, and that the bills in this Court were moderate compared with Dublin charges; and that in Kildare diocese he never knew a proctor employed; and that the Dublin proctors might practice in any other diocese. On cross-examination this witness stated, that the registrar would not be entitled to charge for inventory, affidavit, and schedule, if a proctor were employed, nor to the same amount, for engrossing or copying of will, &c.; and that if there was a proctor employed, neither the registrar's or Judges' fee on administration or renunciation would be so high; that proctors were employed in the majority of cases, and that no person but a proctor, unless it were the registrar or some one in his office, would be permitted to do or perform these acts, and that the practice had been for one or the other to do them. On re-examination, it appeared, that if a proctor were employed, the combined charges would be higher than if the registrar were employed. The defendant also examined the registrar of the diocese of Chester, to show that a similar practice prevailed in England; and the Vicar-General of the diocese of Down and Connor, and the registrars of the respective dioceses of Ardagh and Elphin proved that the practice in those dioceses was similar to those deposed to by the first witness. Exceptions were taken to the admissibility of their evidence. The defendants having closed their case, the Counsel for the plaintiff called on the learned Judge to direct a verdict for the plaintiff, on some one count of the declaration; but his Lordship refused so to do, and on the contrary, directed them, that if they believed the evidence, they should find a verdict for the defendant Exch. Cham. on all the counts, inasmuch as the evidence, though believed, did not H. T. 1847. in law sustain any one count of the declaration-and therefore, the Counsel for the plaintiff excepted to the said charge, as well STEPHENSON because the Judge refused to direct a verdict for the plaintiff, as because he directed a verdict for the defendant. The jury found a verdict for the defendant. The Court of Exchequer overruled the exceptions, and entered up judgment for the defendant; and the case now came before this Court on a writ of error. Stearne B. Miller. The question to be decided by the Court depends upon the construction of the* 54 G. 3, c. 68, ss. 9, 10; but it will be necessary, in the first place, to advert to the inconvenience felt from the practice for which the defendant contends, and the efforts made to check it. The Ecclesiastical Courts, during their earlier period, were, for the most part, under the guidance and regulation of the Church, and not so immediately controlled by the statute law; and by the Irish canons, safeguards were established for securing the impartiality of the registrars of those Courts, and also against their taking their regular fees. The 81st canon prohibits the registrar, in any cause of instance, "to be of Counsel directly or indirectly with either of the parties in the suit;" the 82nd canon prohibits him from taking or receiving any other or greater fee, than such as shall be allowed by the lawful authority of this kingdom; and the 83rd v. HIGGINSON. * 54 G. 3, c. 68, s. 9, enacts "That from and after the passing of this Act, if any proctor of his Majesty's Court of Prerogative in Ireland, or of the Consistorial and Metropolitical Courts of Armagh and Dublin, or of any other Ecclesiastical Court in Ireland, in which he shall be entitled to act as proctor, shall act as such, or permit and suffer his name to be in any manner used 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 administration, or marriage licenses, to, or for, or 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 in 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 roll of proctors, and be for ever after disabled from practising as a proctor, or be suspended from the office, function, and practice of a proctor, in all and every the said Court or Courts, for so long a period as the Judge or Judges of the said Court or Courts may deem fit; save and except as to any allowance or allowances, sum or sums of money, that are, or shall be agreed to be made to the widows or children of any deceased proctor or proctors, by any surviving partner or partners v. H. T. 1847. canon enjoins them to exhibit tables of fees to the public view. In Exch. Cham. like manner, regulations for the conduct of the proctors were proSTEPHENSON vided. For instance, the 79th canon charged and enjoined the proctor HIGGINSON. that he should take care to have the acts faithfully entered, and set down by the registrar, according to the advice and direction of the advocate thus keeping distinct the offices of proctor and registrar. These canons were for a long period the only regulations of these offices; but in latter times, a code of statutable regulations in the first instance, for attornies, and afterwards for proctors. The first statute on the subject was the English Act, 37 G. 3, c. 90, the 30th section of which provided a penalty against any person in his own name, or in the name of any other person, suing out a writ or process, or commencing, prosecuting, carrying on, or defending an action or suit, in any proceeding in any of the Ecclesiastical Courts, for fee or reward, without obtaining a certificate of having been admitted a proctor; and on that enactment, the case of Bernard v. Gosling (a) decided that the extraction of a will or codicil, without a certificate, was a proceeding in the Ecclesiastical Court under that statute. The next Act was the Irish statute of the 38 G. 3, c. 39, providing for the taxation of proctors' bills of costs by the registrar, and making proof of his handwriting sufficient evidence; which . (a) 1 B. & P. 245. of such deceased proctor or proctors; and also, save and except as to any agree ment made, or understood to have been made, between proctors and articled clerks, whose articles have been executed prior to the passing of this Act." Section 10 enacts, "That from and after the passing of this Act, in case any person or persons shall, in his or their own name, or in the name of any other person or persons, 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 or in consideration of any gain, fee, or reward, or with a view to participate in the benefit to be derived from the office, functions, or practice of a proctor, without being admitted and enrolled, every such person, for every such offence, shall forfeit and pay the sum of fifty pounds, to be sued for and recovered in manner hereinafter mentioned." Section 11 enacts, "That nothing herein contained shall extend, or be construed to extend, to any salary which shall be agreed to be paid by a proctor, his partner or successor, to a clerk really and boná fide serving in his office, at the time of the passing of this Act; and who shall have been bonâ fide serving in the office of any proctor or proctors, for seven years next before the passing of the same." Section 12 provides, that all forfeitures and penalties for offences committed against the Act, may be recovered in any of his Majesty's Four Courts in Dublin, by action of debt, bill, plaint, or information. Exch. Cham. v. HIGGINSON. shows the inconsistency of the duties of the two offices of proctor H. T. 1847. and registrar: and that the costs of obtaining probate in the common form, or as it is termed, by the voluntary jurisdiction, are taxable, STEPHENSON has been decided in the case of Lady Hatton Finch (a), where the bill of the proctor was referred to the registrar, and the Court suspended the proctor for overcharge. At that time, therefore, the duties of registrar and proctor were kept distinct. Then came the Irish Act, 54 G. 3, c. 68, for the regulation of proctors in this country, and on which this action is founded. The 9th section of this Act prohibits a proctor to "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 proctor, or in "obtaining probates of wills, letters of administration, or marriage ❝licenses, to, or for, or on account of the profit and benefit of any "person or persons not entitled to act as a proctor," under the penalty of being struck off the roll of proctors, or being suspended from acting as such. This section shows that the obtaining probate of a will is a proctorial act; for the expression, "act as proctor," must be extended to the whole section, the disjunctive "or" being merely inserted to distinguish the voluntary from the contentious proceedings. The 10th section then provides, that "In case any 'person should in his own name, or in the name of any other "person, do any act, matter, or thing whatsoever, in any way "appertaining or belonging to the office, function, or practice of a "proctor, for, or in consideration of any gain, fee, or reward, or "with a view to participate in the benefit to be derived from the "office, functions, or practice of a proctor, without being admitted "and enrolled," such person shall be liable to a penalty of £50 for every such offence. There is then a special exception in the 11th section, but no exception of the registrar. The terms of the 10th section, in excluding "any person," are sufficiently comprehensive to exclude every person, including, of course, the registrar: Earl of Spencer v. Swannell (b); and we contend, moreover, that it was the general policy of the Act to exclude the registrar above all other persons, by reason of the anomalies which must otherwise occur in practice, inasmuch as it is the office of the proctor to do, and of the registrar to record, the act; besides which, the registrar has also to tax the costs, which invests him with a controlling and regulating power over the proctor. The offices are, therefore, incompatible and inconsistent: Bac. Ab. Offices, K.; The King v. Pateman (c); Hughes v. Slathan (d). The construction of statutes (a) 3 Hog. 255. (b) 3 M. & W. 164. (d) 4 B. & C. 193. Exch. Cham. STEPHENSON v. H. T. 1847. are the same, whether penal or otherwise: Attorney-General v. Lockwood (a); and are to be construed according to the strict literal meaning and natural import of the words: The King v. The HIGGINSON. Inhabitants of Ramsgate (b); Sussex Peerage case (c); Farran v. Beresford (d). We, therefore, contend that the Judge was wrong in directing the jury to find a verdict for the defendant; at all events, on the facts of this case, the verdict ought to have been directed for the plaintiff, reserving liberty for the defendant to move in arrest of judgment: Lumby v. Allday (e). In the next place, the evidence of John Samuels, and the other witnesses, produced on the part of the defendants, was inadmissible first, because the practice of the Ecclesiastical Court of Dublin, or any other particular place, was not relevant to the issue: The King v. Hogg (f). Secondly, because the practice of the Court should not be admitted to construe, or control the meaning of the statute: Dock Company of Kingston-upon-Hull v. Browne (g); The King v. Miller (h); Sheppard v. Gosnald (i); Com. Dig. Parliament, R. 29, a. Even upon the evidence of these witnesses, it appears that the acts complained of, were all of them acts which a proctor could do, and therefore, in the words of the statute, they "appertain to the office, function, or practice, of a proctor;" and as such, we are entitled to succeed in this action, even on the evidence of the witnesses for the defendant. Holmes and Tomb. If the Court is satisfied that the acts complained of are not proctorial acts, the direction of the learned Judge was right, and the exception on that point must be overruled; and the plaintiff gave no evidence of those acts being acts appertaining to the office of a proctor; on the contrary, it appeared by the evidence, that these were not acts which required the defendant to be a proctor to do. The witnesses examined on behalf of the plaintiff were not examined for the purpose of controlling the Act of Parliament by their testimony, but to show the meaning of the words of the Act, which is perfectly legal: Phillips on Evid. 706 (8th ed.). The object of the 9th section of the Act was to preserve purity of conduct in the proctors themselves; and that of the 10th section was to prevent other persons |