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CT. OF APP.]
THOMAS v. SUTTERS.
as to this piece of land forming part of the highway, it is amply rebutted by the evidence before the court. But I wish to add one word with regard to the applicability of the presumption to a case where a road goes across the uninclosed waste of a manor. The presumption is that primâ facie, if there is nothing to the contrary, the public right of way extends over the whole space of ground between the fences on either side of the road; that is to say, that the fences may prima facie be taken to have been originally put up for the purpose of separating land dedicated as a highway from land not so dedicated. But in the case of the waste of a manor there is another obvious reason for which fences may be put up, namely, to separate the adjoining closes from the waste. I therefore doubt if any presumption can be said to arise in the case of a road going across the uninclosed waste of a Appeal dismissed.
Solicitors for the plaintiff, Preston, Snow, and Preston, for Keary, Stokes, and White, Chippenham.
Solicitor for the district council, Ernest Bevir,
Wednesday, Nov. 1, 1899.
(Before LINDLEY, M.R., Sir FRANCIS JEUNE, and ROMER, L.J.)
THOMAS v. SUTTERS. (a)
APPEAL FROM THE CHANCERY DIVISION.
Local authority-Bye-law- Validity-Betting in streets-Statutory enactment-Repugnancy— Metropolitan Streets Act 1867 (30 & 31 Vict. c. 134) s. 23—Municipal Corporations Act 1882 (45 & 46 Vict. c. 50), s. 23-Local Government Act 1888 (51 & 52 Vict. c. 41), s. 16. Under sect. 23 of the Municipal Corporations Act 1882, which enables a council to make bye-laws for the "good rule and government" of their district, the London County Council made a byelaw prohibiting under a penalty any person from frequenting or using a street or other public place for the purpose of bookmaking or betting, or wagering or agreeing to bet or wager, with any person, or paying, or receiving, or settling bets. Sect. 23 of the Metropolitan Streets Act 1867 enacts that any three or more persons assembled together in a street within the metropolis for the purpose of betting shall be deemed to be obstructing the street," and shall be liable to a penalty.
Held, that the bye-law was one which could be properly made for the good rule and government of the district; that it was not too wide and was not repugnant to sect. 23 of the Metropolitan Streets Act 1867; and it was therefore valid. White v. Morley (80 L. T. Rep. 761; (1899) 2 Q. B. 34) approved.
Decision of Kekewich, J. affirmed.
THIS was an appeal from a decision of Kekewich, J., the question being whether a bye-law made by the London County Council was valid.
The bye-law in question came into force on the 1st Oct. 1898, and provided that
No person shall frequent and use any street or other public place, on behalf either of himself or of any other
(a) Reported by W. C. Biss, Esq., Barrister-at-Law
[CT. OF APP. person, for the purpose of bookmaking or betting, or wagering, or agreeing to bet or wager, with any person, or paying, or receiving, or settling bets.
Another bye-law provided that any person offending against this bye-law should be liable to a fine not exceeding 51. for each offence.
The action was commenced by the plaintiff claiming the dissolution of a partnership between himself and the defendant, and the taking of the usual accounts. The statement of defence alleged that the principal business of the partnership, and for the carrying on of which it was formed, consisted of betting transactions in streets and public places within the county of London, and that in the course of that business both the plaintiff and the defendant necessarily frequented and used the said streets and public places for the purpose of betting and of paying and receiving payments of bets. The bye-law was then set out, and the defendant submitted that by reason of the bye-law the partnership was illegal, and that the plaintiff was not entitled to maintain the
By the reply the plaintiff contended that the bye-law was invalid.
The bye-law purported to be made under sect. 23 of the Municipal Corporations Act 1882, which, by sect. 16 of the Local Government Act 1888, applies to county councils.
The section provides that "the council may from time to time make such bye-laws as to them seem meet for the good rule and government of the borough."
The preliminary point of law as to the validity of the bye-law was set down for argument before Kekewich, J., who, following White v. Morley (80 L. T. Rep. 761; (1899) 2 Q. B. 34), held that it was valid.
From this decision the plaintiff appealed.
Stuffield (Joseph Walton, Q.C. with him) for the appellant. The bye-law is invalid, as it is so wide as to be unreasonable. It would cover the case of a man going two or three times a day into a particular street to make a bet with a professional bookmaker. It is not limited to cases of obstruction, or nuisance, or annoyance. It is not necessary for the "good rule and government of London." and the council have no power under the section to make bye-laws to enforce morality:
Heap v. The Rural Sanitary Authority of the Burn-
Johnson v. The Mayor, &c, of Croydon, 54 L. T.
Strickland v. Hayes, 74 L. T. Rep. 137; (1896)
The Calder and Hebble Navigation Company v.
Macdonald v. Lochrane, 51 J. P. 629.
Obstruction in the streets caused by betting has been dealt with by sect. 23 of the Metropolitan Streets Act 1867 (30 & 31 Vict. c. 124) which provides that " any three or more persons assembled together in any part of a street within the metropolis for the purpose of betting shall be deemed to be obstructing the street, and each of such persons shall be liable to a penalty not exceeding 51." This bye-law is repugnant to that enactment of the Legislature, and is therefore invalid. This point was considered by Lindley, M.R. in
Strickland v. Hayes (ubi sup.).
In Burnett v. Berry (74 L. T. Rep. 494; (1896) 1 Q. B. 641) the bye-law was not so wide as this one. Kruse v. Johnson (78 L. T. Rep. 647; (1898) 2 Q. B. 91) does not overrule any of the authorities cited. White v. Morley (ubi sup.) was wrongly decided.
A. T. Lawrence, Q.C. and Cautley for the respondent, were not called on.
LINDLEY, M.R.-I do not think this case presents any difficulty. I agree with Mr. Stutfield that, in considering the validity of any byelaw, we must look to the power which exists to make it, and the power here to make the bye-law in question is conferred by the 23rd section of the Municipal Corporations Act 1882. [His Lordship read the section.] Now, the power which is conferred on the borough council is conferred upon the county council by the Local Government Act 1888, s. 16, and gives them the same power in their district that the borough council has in theirs. Therefore, I come back to the law giving the power which is to be traced to, and depends upon the true construction of sect. 23 of the Municipal Corporations Act 1882. Now I cannot conceive any reason why we should limit that language, why we should not give it full effect, and if authority is wanted for so construing that section and similar sections, we have it in the case of Kruse v. Johnson (ubi sup.). What is there in this bye-law which can be said to be unreasonable or objectionable having regard to the very wide power of making bye-laws which is conferred by sect. 23 of the Act of 1882 ? It is one of a set of bye-laws made by the London County Council for the good rule and government of the county of London. Under that section they may make any such bye-laws as to them may seem meet for that purpose. They see meet to make this bye-law with reference to street betting. [His Lordship then read it, and continued:] Now, the governing and important words there are "frequent and use and "for the purpose." That does not prevent two people walking down the street from either making a bet or paying one. If they choose to amuse themselves in that way they can do it so far as I can see. But they must not frequent or use the street for the purpose. That is the byelaw. Now, it is said there is something unreasonable in that. As regards the authorities, the cases of Burnett v. Berry (ubi sup.) and White v. Morley (ubi sup.) are in favour of this bye-law, and we are asked to overrule them. Why should we? There is no reason to my mind that can be urged. Mr. Stutfield has done the best he could, but when his reasons are examined they are reduced to this. He contends that the decision which I took part in of Strickland v. Hayes (ubi sup.) goes the whole length of his argument. He very ingeniously puts it in this way: He says there is an Act of Parliament, viz., the Metropolitan Streets Act 1867, which deals with betting in streets, and as Parliament has directed its attention to betting in streets and regulated it in the mode in which Parliament thought best, there ought to be no further bye-law upon it, except one possibly to better carry out the Act.
There is something in that argument, and I thought in the case of Strickland v. Hayes (ubi sup.) a good deal turned upon it. Although I have not the slightest doubt now, as I had not then, that the bye-law there in question
[CT. OF APP.
was hopelessly bad, it struck me it was necessary to consider whether it might not be amended, and if amended, whether it would be good, and the reason I came to the conclusion that if amended it would be bad was that there it did deal precisely with a matter with which Parlia ment had dealt in an Act of Parliament addressed to the very same thing, and I gave my decision for that reason so far as the amended bye-law went. But the difference between that case and this one is obvious enough to my mind. In dealing with the Metropolitan Streets Act 1867, s. 23, you see what Parliament was considering. They were not considering betting at all. They were considering street traffic. The whole object and purpose of the Act is to regulate the traffic in the metropolis. It is very true that sect. 23 was inserted, and, with reference to the traffic, they have said that three people assembling for betting shall be deemed to be obstructing the street. I decline to stretch or extend the case of Strickland v. Hayes (ubi sup.), which I think was perfectly right, to the length of holding that, because there is a regulation of that kind in a traffic Act, therefore the county council have no power to regulate the streets with reference to another matter, viz., betting without obstruction. It strikes me there is nothing in that argument, and, taking the whole case, it appears to me that it would be going a great deal too far to say that this is not and cannot reasonably be construed as a bye-law for the good rule and government of the borough. The county council have ample power to say that in their opinion it is, and, unless there is some good reason to the contrary, unless there is some clear excess of the jurisdiction, we ought rather to uphold than to invalidate the bye-law. I think the bye-law is perfectly good, and the appeal must be dismissed with costs.
Sir FRANCIS JEUNE.-I agree, though I confess I thought this matter was entirely governed by several decisions of late years, and that the ghost of these objections to bye-laws was by this time fairly laid. We have had to-day put very forcibly, not for the first time, an objection of the kind which has been dealt with over and over again. In the first place, it is said that this bye-law is too wide, or, rather, deals with matters outside the powers of the county council, because their powers are limited to making bye-laws for the good rule and government of the borough, and that this is a matter which goes outside the good rule and government of the borough, and deals with the morals of the community rather than the actual management and government of the borough. I do not feel certain that even in the narrower sense this bye-law is not perfectly justifiable (quite apart from any question of the morality of the inhabitants or the respectability of the place) on the ground that it deals with matters which may cause annoyance or obstruction, but I confess I should not shrink from saying that I cannot take any such limited view of the power of the council. A case like that of The Calder and Hebble Navigation Company v. Pilling (ubi sup.) appears to me to be wholly different. I quite agree a navigation company has powers given it to make bye-laws for the good management of their canal; that is, matters which relate to the supply of water and so forth, and which do not relate to the question of the morality or good behaviour of the
persons who use it. That is outside their functions. That is a matter of the general law, and not a matter for the canal company, whose business it is to keep their canal going, and not to provide for the good behaviour or morals of the persons who use it, or matters of that kind. In the case of a municipality dealing with the good order of their streets, it appears to me to go far beyond that. I should hesitate long before I said that a municipality had not a perfect right, and indeed a duty, to deal with matters which affect the respectability and moral conduct of the persons in their streets, of course, in so far as they are matters of public interest, and affecting persons who use the streets. Then it is said that Parliament has already dealt with this matter, and dealt with it in such a way that the bye-laws ought not to deal with it again. I quite agree if you had a case of difference between the bye-laws and the Act, I mean, if a bye-law decided something to be legal which the public law declared to be illegal, or vice versa, you might well say that that bye-law had no right to set itself up against an Act of Parliament, but there is nothing of that kind in this instance. It is an Act of Parliament, as the Master of the Rolls has just pointed out, dealing with the regulation of the traffic, and provides that no more than three persons shall assemble together for betting in a street so as to cause obstruction. That is a provision intended solely for the purpose of keeping the streets clear, and nothing else. It may be that the bye-law goes beyond that, but I cannot see myself any objection to the bye-law, even if it does go somewhat beyond an Act of Parliament. An Act of Parliament speaking for the whole country renders certain things illegal. It does not at all follow that a bye-law speaking for a particular locality may not make some more stringent regulations with the same object. That appears to me to be perfectly within the competency of the borough. On the contrary, where you find an Act of Parliament has made provisions forbidding certain Acts to be done in certain places, it seems to me to be perfectly consistent with that, that a municipality with regard to their particular locality should go somewhat beyond the Act of Parliament, not affecting the spirit, but carrying out its spirit and providing regulations somewhat wider than those found in the Act of Parliament. That is what has happened in this case, because the Act of Parliament has forbidden the assembling together of people in the streets for the purposes of betting, and the municipality, acting in the same spirit as that regulation, but no doubt going somewhat further, have provided that persons shall not frequent or use the public streets for the purposes of betting or matters connected with betting. That is a matter which has been dealt with by more than one authority, but I refer especially on this point to the decision of Darling, J. in White v. Morley (ubi sup.), and I desire only to express my acquiescence in his opinion on this point without occupying time by reading it. Now, Mr. Stutfield has fallen back on an objection which I think also has been disposed of by previous decisions. He has said the bye-law is too wide unless it provides for a particular case, unless there are some words in effect saying that nuisance or annoyance is caused by the particular act. Now that was
[CT. OF APP.
exactly the matter which had to be dealt with in the case of Kruse v. Johnson (ubi sup.). That was a case of music, and the whole objection in that case was that there were no such limiting words as Mr. Stutfield insisted there must be. It was said that you could not by a bye-law prohibit music altogether, you could not prohibit it even if persons took objection to it, therefore you must have some such words as "if a nuisance or annoyance is caused thereby." For my own part it seemed to me sufficient in that case to say that the fact that it was required that persons should complain was evidence that to that person at any rate annoyance would be caused; but I might have gone further, and I am not sure I did not go further, for I find I said: "It is not necessary that a requirement of evidence of actual annoyance should be prescribed in terms; it is enough if the circumstances render annoyance certain or even probable." Now, I desire to repeat that language; I will not quote the authorities which I cited then which appear to me to bear out that rule. But dealing with this case, it appears to me sufficient to say that it is a reasonable view to take that if persons assemble in a street for betting it is probable or even certain that annoyance will be caused, and it is not unreasonable for a municipality to pass a bye-law forbidding public betting in the streets without any provision that actual annoyance shall be caused, for this reason that the thing in itself is such that if it is done it is highly probable, nay almost certain, that annoyance will be caused. That is sufficient to justify a bye-law which prohibits a thing from which annoyance is almost certain, and is very probable to follow. For these reasons I am of opinion the previous authorities of Burnett v. Berry (ubi sup.) and White v. Morley (ubi sup.) were cases which were quite rightly decided, and decided for the right reasons. I think, therefore, Kekewich, J. was perfectly right in not only following those cases, but in expressing approval of them.
ROMER, L.J.-Under sect. 23 of the Municipal Corporations Act 1882 I think that a local authority may make a bye-law to prevent its public streets or places from being habitually used not in the ordinary way for the purpose of passing to and fro, but for the purpose of carrying out transactions which, though they may not be illegal in themselves, tend against the morality of the locality and the welfare of its inhabitants; and on this ground alone I think the London County Council was entitled to make a reasonable bye-law preventing the public streets or places under its control from being frequented or used for the purpose of carrying on or carry. ing out betting transactions. And, further, I think that the particular bye-law in question was not too wide or unreasonable in its terms, and certainly not repugnant to sect. 23 of the Metropolitan Streets Act 1867. I therefore agree in thinking that this appeal should be dismissed.
Solicitors: Lewis and Lewis; C. B. Peachey.
CT. OF APP.]
THOMAS v. CORPORATION OF DEVONport.
There is no implied duty on a municipal corporation to remunerate an elective auditor for his work in auditing the accounts of the borough fund.
In auditing the accounts of the receipts and expenditure of a municipal corporation as the urban sanitary authority of the borough under the Public Health Act 1875, it is the duty of a borough auditor by fair and reasonable examination of the vouchers to see whether any of the payments made are unauthorised or in any other way illegal or improper.
THIS WAS an appeal from the judgment of Phillimore, J. at the trial of the action without a jury.
The plaintiff was elective auditor of the municipal corporation of Devonport, which was an urban sanitary authority under the Public Health Act 1875.
The action was brought to recover 4051. 38., which the plaintiff claimed as remuneration for work done by him during several years in auditing the borough accounts of the defendant corporation, and also the accounts of the corporation as urban sanitary authority.
There was no express agreement between him and the corporation with regard to any remuneration for his work as auditor.
The corporation denied that the plaintiff was entitled to be paid anything for auditing the borough accounts, but in respect to the auditing of their accounts as urban sanitary authority they paid into court the sum of 341., which was calculated at the rate of two guineas a day, allowing four days for each half-yearly audit.
At the trial of the action Phillimore, J. held that the plaintiff had no claim to be paid anything for auditing the borough accounts of the corporation, and that, as to the audit of the accounts of the corporation as urban sanitary authority, the amount paid into court was sufficient, and he therefore gave judgment for the corporation. In delivering judgment the learned judge stated that in his opinion the audit conducted by a borough auditor under sect. 246 of the Public Health Act 1875 was nothing more than an audit of the accounts of the receipts and expenditure of the treasurer of the corporation as an accounting officer, and that it was not the duty of the auditor to consider whether any of the expenditure had been illegally or improperly made by the corporation.
The case is reported in 79 L. T. Rep. 418.
By the Municipal Corporations Act 1882 (45 & 46 Vict. c. 50) it is provided as follows:
Sect. 12.-(1) A person shall be disqualified for being elected and for being a councillor if and while he (a) is
(a) Reported by E. MANLEY SMITH, Esq., Barrister-at-Law.
[CT. OF APP.
an elective auditor or a revising assessor or holds any office or place of profit other than that of mayor or sheriff in the gift or disposal of the council.
Sect. 25.-(1) There shall be three borough auditors, two elected by the burgesses, called elective auditors, and one appointed by the mayor, called mayor's auditor. (2) An elective auditor must be qualified to be a councillor, but may not be a member of the council or the town clerk or the treasurer.
Sect. 26. The treasurer shall make up his accounts half yearly to such dates as the council with the approval of the Local Government Board from time to time appoint.
Sect. 27.-(1) The treasurer shall within one month from the date to which he is required to make up his accounts in each half year, submit them, with the necessary vouchers and papers, to the borough auditors, and they shall audit them. (2) After the audit of the accounts for the second half of each financial year, the treasurer shall print a full abstract of his accounts for that year.
Sect. 141.-(1) An order of the council for payment of money out of the borough fund shall be signed by three members of the council and countersigned by the town clerk. (2) Any such order may be removed into the Queen's Bench Division of the High Court by writ of certiorari and may be wholly or partly disallowed or confirmed.
Sect. 142.-(1) All payments to and out of the borough fund shall be made to and by the treasurer. (2) All payments to the treasurer shall go to the borough fund.
By the Public Health Act 1875 (38 & 39 Vict. c. 55) it is provided as follows:
Sect. 246. Where an urban authority are the council of a borough the accounts of the receipts and expenditure under this Act of such authority shall be audited and examined by the auditors of the borough and shall be published in like manner and at the same time as the municipal accounts, and the auditors shall proceed in the audit after like notice and in like manner, shall have like powers and authorities and perform like duties, as in the case of auditing municipal accounts. Each of such auditors shall, in respect of each audit, be paid such reasonable remuneration, not being less than two guineas for every day in which they are employed in such audit, as such authority from time to time appoint. Any order of such authority for the payment of any money may be removed by certiorari, and like proceedings may be had thereon as under section 44 of the Act of the first year of Her Majesty, chapter 78, with respect to orders of the council of a borough for payments out of the borough fund.
Sect. 247 provides that where an urban authority are not the council of a borough, the regulations which are set out in the section shall be observed with respect to audit.
Macaskie for the plaintiff.-The plaintiff is entitled to be paid for work done as elective auditor of the corporation accounts, and he ought to be paid out of the borough fund. His remuneration, I admit, is nowhere expressly directed by statute, but neither is it prohibited. There is no express statutory provision at all with regard to it. But by the Public Health Act 1875, s. 246, he is clearly entitled to be paid two guineas a day for auditing the accounts of the urban sanitary authority. I therefore submit that he is also impliedly entitled to be paid for similar work done by him under the subsequent Act, the Municipal Corporations Act 1882. The other question raised by the appeal is as to the number of days for which the plaintiff is entitled to the daily fee of two guineas for auditing the accounts of the urban sanitary authority under the Public Health
CT. OF APP.]
ATTORNEY-GENERAL v. HANWELL URBAN DISTRICT COUNCIL.
Act 1875. Phillimore, J. assessed the plaintiff's remuneration on a wrong basis. He took a very narrow view of the duties of the plaintiff, and for carrying out those duties he thought that four days each half year would be sufficient. But the duties of an auditor are much wider than the learned judge held them to be, and therefore four days half yearly would not be sufficient time for the auditor to perform his duties properly. I submit that the auditor's duty is not merely to satisfy himself that there is a voucher for each item of expenditure, but also to see whether each item of expenditure was legal and proper. Sect. 246 only says that the auditors shall proceed in the same way as when they are auditing municipal accounts, but in sect. 247 Parliament has given an indication of what the duties of an auditor are. Under the Municipal Corporations Act 1882 the auditor is to audit and certify the accounts of the municipal authority. He ought not to be prevented from considering whether that authority has made any illegal payments merely because the treasurer of the borough is able to prove to the auditor that the payment has in fact been made. If the auditor can do nothing but see that there are vouchers for the payments that have been made, the audit will be a farce.
Duke, Q.C. (J. A Hawke with him) for the corporation.
Lord RUSSELL, C.J.-This is an appeal from the judgment of Phillimore, J. at the trial of the action without a jury. The claim made by the plaintiff against the corporation of Devonport is twofold; he claims remuneration in regard to work done by him in his character of elective auditor of the corporation, and he also claims remuneration for work done as auditor of the accounts of the urban sanitary authority of Devonport. This is one of those cases in which the corporation is also the urban sanitary authority. As it seems to me, the case really would not bear any argument on the part of the plaintiff, if it were not for some observations made by Phillimore, J. in the course of his judgment. As regards the claim in respect of the auditing of the accounts of the corporation as such, it is quite clear that there is no shadow of ground for saying that the plaintiff had any legal claim at all. All money received by the corporation as such is paid into and forms the borough fund, and all payments of whatever kind legally made by the corporation must be paid out of the borough fund. The appropriations which may be made out of that fund have been regulated in clear and distinct terms by Act of Parliament. If the plaintiff had been the servant of the corporation, there was ample power in the corporation to pay him out of the borough fund for any services which he might have rendered. But he was not a servant of the corporation. He was elected auditor by the burgesses of the borough under the statutory powers given to them. Therefore he has no claim at all for payment in respect of his services as such auditor. For his services as auditor of the urban sanitary authority he was entitled to remuneration, and he was entitled to be remunerated at the rate of not less than two guineas a day in respect of the days properly occupied in the work which he did. As I have already said, if the matter had simply rested there and the learned judge at the trial, having
heard the witnesses, had simply decided that four days in each half year-that is to say, eight days in each year-were ample for the work the plaintiff had to do, the court would not have to consider the judgment of the learned judge. But unfortunately Phillimore, J seems to me to have taken too narrow a view of what are the proper duties of a borough auditor. I do not subscribe to the doctrine laid down by him that a borough auditor's sole duty is to see whether there are vouchers, apparently formal and regular, justifying each item in respect of which the authority seeks to get credit upon the accounts put before the auditor for audit. I think that that is an incomplete and imperfect view of the duties of an auditor. I think he is not only entitled but justified and bound to go further than that, and by fair and reasonable examination of the vouchers to see whether there may not be amongst the payments so made payments which are not authorised by the duty of the authority, or contrary to the duty of the authority, or in any other way illegal or improper. If he so discovers that any such improper or illegal payments appear to have been made, his duty will be to make it public, to report to the authority itself, and to the burgesses who create that authority. But, granting all that, one must bear in mind what the nature of the proceedings of these local bodies is, and, above all, the publicity that from day to day, or week to week, or month to month, attends those proceedings; and, even granting that it would be the auditor's duty to exercise his rights of audit in the way I have pointed outthat is to say, more widely than the manner pointed out by Phillimore, J.-yet I see no reason for supposing that eight days a year would not be ample time for performing these duties. For these reasons I think that the judgment of Phillimore, J. must not be disturbed.
SMITH, L.J.-I am entirely of the same opinion.
WILLIAMS, L.J.-I concur.
Appeal dismissed. Solicitor for the plaintiff, W. Lenn Walter. Solicitors for the corporation, Cunliffes and Davenport, for A. B. Pilling, Town Clerk, Devonport.
HIGH COURT OF JUSTICE.
ATTORNEY-GENERAL v. HANWELL URBAN DIS-
Public Health Act 1875 (38 & 39 Vict. c. 55), s. 175 -Land-Compulsory purchase-Sewage-Use for infectious hospital-Ultra vires.
The Local Government Board have no power to direct land to be retained by an urban district council for purposes permanently inconsistent with the purposes for which the land was originally acquired; such an order is ultra vires and is not binding and conclusive under sect. 295 of the Public Health Act 1875.
(a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law.