It was found as a fact at the trial that in April, in consideration of Cochrane giving a chattel mortgage on his loose property to plaintiffs, they agreed to allow him to remain in possession and take the year's crop.

On the 11th July defendant obtained judgment by default against Cochrane, and on the 17th July the fi. fa. was given to the sheriff. The plaintiffs commenced ejectment proceedings on the 15th June. Cochrane appears rather to have taken part with them against defendant, and the ejectment was brought possibly in consequence of defendant's threatening or taking proceedings. Judgment in ejectment was signed on the 30th September.

The sheriff seems to have seized the growing crops about the 17th July, and sold them in August. It would seem that they must have been harvested and removed before judgment in ejectment.

As between Cochrane and the Company, he was to have the year's crops, and they could not have treated him as a trespasser (apart from the ejectment proceedings), as he was there and harvested them by their license or demise for the year or season. Therefore the execution creditor had the right to seize them as Cochrane's property. All this was done before the recovery in ejectment, and, therefore, the plaintiffs' argument seems to fail, as it would be only by the legal effect of the recovery that the plaintiffs' title could relate back to the day of demise, or commencement of action.

Hodgson v. Gascoigne, 5 B. & Ald. 88, is no authority for the plaintiffs. There the fi. fa. was placed in the sheriff's hands, and judgment was recovered in ejectment the same day, and on the following day the goods of the tenant were seized. The Court held that the property in the growing corn was not at the time of seizure vested in the tenant, for he was to be considered a trespasser after the judgment was obtained, from the day of the demise laid in the declaration.

Several authorities are referred to to that effect in the judgment appealed from.

I do not see how we can properly interfere either with the findings on the facts or on the law of the case.

BURTON, PATTERSON, and OSLER, JJ. A., concurred.

Appeal dismissed, with costs.

WILSON V. BEATTY-RE DONOVAN AND MORPHY.

Solicitor-Summary jurisdiction--Enforcing undertaking-Private or professional character.

The Court will not summarily compel a solicitor to perform an agreement or undertaking, merely because he is a solicitor; if it was not given by him in his professional connection with the suit or matter, the party to whom it is given will be left to his action.

Where M., a solicitor, unsuccessfully prosecuted a petition against the applicant at his own expense, in the name of one H., agreeing to indemnify H. against costs, M.'s interest being merely as surety on a bond for H., a summary application to make M. pay the costs of the petition was refused.

THIS was an appeal from the judgment of Mr. Justice Proudfoot, dismissing the petition of Mr. J. A. Donovan, for an order directing Mr. George Morphy, a solicitor, to pay the costs of certain proceedings.

The case was this: John Haldan was formerly administrator pendente lite of the estate of one Wilson, deceased, and Donovan, the petitioner and appellant, under his instructions, brought, on behalf of the estate, several actions, the costs of which were taxed by the proper officer, and paid to him by Haldan.

Wilson's executors subsequently filed their bill against Haldan for an account of his administration, and re-taxation of the costs paid by him to Donovan. An order for re-taxation was made, and a large portion of the costs in question disallowed. Haldan was ordered to pay the amount so disallowed into Court, and failing to do so, proceedings were taken against the sureties in his administration bond.

One of the sureties, Mr. George Morphy, the now respondent, thereupon, with the consent of Haldan, procured a petition to be presented to the Court, and prosecuted in Haldan's name, against Mr. Donovan, praying that the latter might be ordered to pay into Court the amount so ordered to be paid by Haldan, and on default of his so doing that his name might be struck off the roll of solicitors.

The petition was prosecuted at Morphy's expense, and he agreed with Haldan to indemnify him against the costs thereof.

An order was made on the petition, as prayed, which was, however, reversed on appeal, and the petition dismissed, with costs, to be paid by Haldan. Donovan, alleging that he was unable to obtain payment of these costs from Haldan, and that Morphy was, in the circumstances, the proper person to pay them, presented the petition now in question, which, after argument, was dismissed by Mr. Justice Proudfoot.

The appeal was heard on the 20th of March, 1885.*

Donovan, the appellant, in person.

Hoyles, for the respondent.

April 17, 1885. OSLER, J. A.—This is an attempt to extend the summary jurisdiction which the Court exercises. over solicitors, further than any reported case has yet

gone.

The Court will not summarily compel a solicitor to perform an agreement or undertaking, merely because he is a solicitor.

If it was not given by him in his professional character, or in relation to or in consequence of his professional connection with the suit or matter, the party to whom it is given will be left to his action, as the following cases shew:

Ex parte Clifton, 5 Dowl. 218: An attorney, in consideration of a party allowing his name to be used as plain

* Present.-HAGARTY, C.J.O., BURTON, PATTERSON, and OSLER, JJ.A.

tiff in an action, though he had no interest in the matter in dispute, undertook to indemnify him against the costs of the action. The Court refused to compel him to pay summarily pursuant to his undertaking. Littledale, J., said, "You must bring an action against him on his contract of indemnity. This is a very different case from those in which the Court has been in the habit of interfering summarily against attorneys. The utmost extension of that power was in the case of The matter of Aitkin, 4 B. & A. 47. There, the Court interfered because the employment of the attorney was so connected with his professional character as to afford a presumption that his employment was in consequence of that character; and there he was compelled in a summary way to execute the trust reposed in him."

In Re Hilliard, 2 D. & L. 919, Coleridge, J., said, "The Court does not interfere merely with a view of enforcing contracts, on which actions might be brought, in a more speedy and less expensive mode; but with a view to securing honesty in the conduct of its officers, in all such matters as they undertake to perform or see performed, when employed as such,or because they are such officers." In Re Gee, 2 D. & W. 997, the same learned Judge said, "The question is, has the undertaking * been given by the attorney in his character of attorney in the transaction in dispute?"

Re Fairthorne, 3 D. & L. 548. "There is no doubt that if a man give an undertaking, the mere fact of his being an attorney does not make it an undertaking as attorney, so as to render him amenable to the summary jurisdiction of this Court."

See also Re Kearnes, 11 Jur. 521; Northfield v. Orton, 1 Dowl. 415.

In our case there is nothing to lead us to suppose that the undertaking had any relation to the professional character of the person against whom it is sought to be enforced.

It is one that might have been given by any surety who desired his principal to take proceedings which might be beneficial to both of them, but the risk of which the principal was unwilling to incur.

If, therefore, as is clear, Haldan himself could not have successfully invoked the summary jurisdiction of the Court, a fortiori, the appellant, who is not in privity with him, cannot do so either. And even if there was an equity in him to have the benefit of the undertaking (Touche v. Met. R. W. Warehousing Co., L. R. 6 Ch. 677; Gale v. Gale, 6 Ch. D. 144; Joyce v. Hutton, 12 Ir. Ch. R. 71; Mulholland v. Merriam, 19 Gr. 288; Ex parte Piercy, L. R. 9 Ch., at p. 43) he could not obtain it on a proceeding of this kind.

Cases like Nurse v. Durnford, 13 Ch. D. 764, and Reynolds v. Howell, L. R. 8 Q. B. 398, where the solicitor was shewn to have been guilty of misconduct in using the name of a party in the cause without his knowledge consent, or authority, and was therefore ordered to pay the costs of all parties, have no application here.

The petitioner relied chiefly on the case of Re Jones, L. R. 6 Ch. 497, better reported in 40 L. J. Ch. 113, but which the learned Judge below, I think, rightly distinguished.

In that case a solicitor, who had given the plaintiff in a suit an undertaking to indemnify him against the costs of the suit, was ordered to pay the defendants their costs of the suit when dismissed. It appeared that the plaintiff was unwilling to proceed with the suit, that the solicitor had no interest in the subject of the litigation, and had given the undertaking so that he might carry on the suit for the purpose of obtaining his costs from the defendants. The Chancellor, Lord Hatherley, said, 40 L. J. Ch. 117: "The solicitor has placed himself in a position in which the Court must say that the persons harassed by a litigation of that description must be indemnified by the person who has so harassed them The defendants might have come to the Court to stay the suit

*