Page images
PDF
EPUB

of the judges of the King's Bench-only Yates, J., dissenting upon any living principle. "I shall ever," said WILLES, J., -took the latter view. FEARNE and HARGRAVE took the former. “discountenance as much as I can anything which savours of The decision of the King's Bench was reversed in the Exchequer ancient strictness and policy, and where I can possibly depart Chamber by a majority of six to two. An appeal was brought with justice from an old maxim, the policy of which has now to the House of Lords, but was not proceeded with. The result ceased, I certainly will." But in the opinion of the real thus left the matter doubtful, and the ordinary reporters did not property lawyers of the time this liberal policy was calculated think it worth while to report conflicting judgments which were to bring the law into uncertainty and to confound the titles to of great length. Those in the King's Bench occupied five hours property. The rule in Shelloy's case, whether based upon the in delivery (4 Burr., p. 2582). But HARGRAVE was unwilling requirements of feudal policy or upon other considerations, had, that the arguments which he had undertaken to refute should indeed, lost its original meaning, but as long as it remain inaccessible to the profession, and he published a report accepted as an inflexible rule it at least allowed an ascertainable of the case in the King's Bench (1 Coll. Jur. 283), and also the construction to be placed upon limitations. “Unless," said judgment of BLACKSTONE, J., in the Exchequer Chamber (Har- HARGRAVE, “an effort shall be speedily made to disembarrass grave's Law Tracts, 489). The last-named judge, although the rule from the perplexities with which it has been latterly he concurred with the majority in_reversing the decision overrun, it will degenerate from a plain direction for disbelow, did so in terms which, in HARGRAVE's opinion, left criminating titles to property into a downright enigma for his orthodoxy as to the rule open to doubt.

disturbing them.” Perrin v. Blake was a case which strongly invited attack upon Other decisions beside that of the King's Bench in Perrin v. the rule in Shelley's case at the hands of judges who were anxious Blake showed a disposition to depart from the strict application to break with antiquity and to subordinate everything to the of the rule. In Doe v. Goff (11 East 668) there was a devise to testator's intention, for in the will which there came in question the testator's daughter for life, with remainder to the heirs of the intention to confor only a life estate on the first taker was her body as tenants in common, and it was held that these latter indicated in the most unmistakeable manner. The will may for words were sufficient to show that “heirs of the body" wore the present purpose be stated with sufficient accuracy by saying intended to be words of purchase. This, in effect, was following that the testator declared it to be his intent that his son JOHN the argument in the judgment of BLACKSTONE, J., quoted above, should not sell or dispose of the estate for a longer time than and the case was treated as an authority by SUGDEN, L.C., in his own life, and to that intent he devised his real estate to his Montgomery v. Mongomery (3 Jo. & Lat. p. 54). But in fact it son for life with remainder to the heirs of his body. Lord had been then overruled by Jesson v. Wright (2 Bli. 1), and any MANSFIELD held that the rule in Shelley's case, which was prima further laxity in the application of the rule was checked both by facie applicable so as to vost an estate tail in the son, was this latter case and by Roddy v. Fitzgerald (6 H. L. C. 823). In subject to the general intention of the will, and that the son Jesson v. Wright the limitations of the devise were to W. for life accordingly took only an estate for life. But this did not and after his death to the heirs of his body as he should appoint, represent the full extent of Lord MANSFIELD's offending in default of appointment to the heirs of his body as tenants "There is,” he is reported to have said, “no sound distinction in common. These latter words were now rejected as being between the devise of a legal estate and of a trust, and between inconsistent with the limitation to the heirs of the body, and, notan executory trust and one executed; all trusts are executory, withstanding their insertion, the rule in Shelloy's case was applied and in every shape that a will appears the intention must 80 as to vest an estate tail in W. It is possible for a testator govern.” “And if,he said further on, courts of law will so to explain words of inheritance which he has used as to show adhere to the mere letter of law, the great men who preside that he did not intend them to have their ordinary legal effect, in Chancery will over devise new ways to creep out of but it is for him to show this clearly. “ The rule is,” said Lord the lines of law, and temper with equity.” In fact, however, REDESDALE, “ that technical words shall have their legal effect, this eminent judge, in his desire to bring law into a line with unless, from subsequent inconsistent words, it is very clear that equity, went beyond the doctrines of the Court of Chancery, for the testator meant otherwise." In Roddy v. Fitzgerald this was there the distinction between trusts executed and trusts execu- carried by Lord WENSLEYDALE a step further : “To deprive the tory was well established, and only in trusts of the latter class technical words of their appropriate sense there must be suffidid the court hold itself at liberty to depart from the regular ciont to satisfy a judicial mind that they were meant by the legal effect of the limitations.

testator to be used in some other sense, and to shew what that BLACKSTONE, J., did not go as far as Lord MANSFIELD in sense is.” In that case the limitations were to W. for life and allowing the declared intention of the testator to override after his death to his lawful issue in such shares as he should altogether the rule in Shelley': case. He saw clearly enough appoint, and in default of appointment to the issue equally, that the intention of the testator was always contrary to the with a gift over on failure of issue. It was held that “issue rule. "I believe," he said, “there never was an instance, was used as “heirs of the body," and that W. took an estate when an estate for life was expressly devised to the first taker, tail. that the devisor intended he should have anything more. If Lord MacNAGHTEN intimates that perhaps BLACKSTONE, J., did to this estate there is added a limitation with words of inherit- not, in his judgment in Perrin v. Blake, really go beyond the ance, the estate of the first taker is thereupon necessarily correct view, and that, in speaking of the rule in Shelley's case enlarged notwithstanding the contrary intention of the devisor. as a flexible rule, and as one yielding to the testator's intention But Sir W. BLACKSTONE loft himself open to misconstruction in the manner above described, he simply meant that the testator when he brought the question of intention to bear upon the could himself explain the sense in which he had used words of estate taken by the heirs of the first taker. “The true question inheritance. But however this may be, it is clear that no of intent will turn,” he said, “not upon the quantity of esta:e declaration of the testator's intention will do unless the words intended to be given to John, the ancestor; but upon the nature used are so defined as to designate specific persons, and not to of the estate intended to be given to the heirs of his body. That extend to all persons filling the character of heir. So long as the ancestor was intended to take an estate for life is certain ; the words used are thus extensive, it is impossible for the that his heirs were intended to take after him is equally certain; testator, by any expression of intention, or by the addition but how those heirs were intended to take, whether as descendants of any inconsistent provisions, to deprive them of their proper or as purchasers is the question.” He thought, therefore, that legal effect, and to qualify the estate of inheritance which vests the testator, although using words of inheritance, might attach in the first taker. Lord THURLOW, O., was as sound on this as such an explanation to them as to deprive them of their effect as any subsequent judge. "I take," said he, in Jones v. Morgan words of descent and make them available as words of (1 Bro. C. O. 205), " the rule in Shelley's case never to have been purchase.

shaken at all. I take that rule to be that, where the heir takes It is unnecessary to enter into the arguments by which in the character of heir, he must take in the quality of heir. FEARNE and HARGRAVE attacked Lord MANSFIELD's position, for

All possible heirs must take as heirs and not as purthese arguments have long been admitted to be victorious. The chasors." The testator may himself put a narrower meaning object of the King's Bench was to get rid of a rule, the origin on the word, but, short of this, he cannot prevent the operation of which was lost in antiquity and which had coased to be based of the rule. The aberration of the King's Bench in Porrin

v. Blake is interesting for the controversy it aroused, but it left no permanent mark upon the law. Lord Davey in Van

NEW ORDERS, &c. Grutten v. Foxwell lays down as clearly as HARGRAVE could have

LAND REGISTRY. desired the principle for which that learned lawyer contended. “The rule in Shelley's case is a rule of law and not a mero rule

LAND TRANSFER ACTS, 1875 AND 1897. of construction—that is, one laid down for the purpose of giving

NOTICE. effect to the testator's expressed or presumed intention." In Attention is directed to the Land Transfer Act, 1897, and the Van Grutten v. Foxwell the limitations were somewhat elaborate Provisional Land Transfer Rules, 1897, which come into operation and it is needless to reproduce them here, but in effect they gave

on the 1st of January, 1898. The following are the most important estates for life to the cbildren of the testator who survived him provisions of the Act and Rules as regards the practice of the Land -only one answered this requirement-followed by estates to Registry. the heirs of the bodies of the children. In the various pro 1.-AS TO PRODUCTION OF LAND AND CHARGE CERTIFICATES. visions annexed to these limitations the House of Lords saw no indication that the testator had placed any meaning on produced and endorsed on every registration affecting registered land

Section 8 requires the Land Certificate or Charge Certificate to be "heirs of the body" to rob the expression of its ordinary force, or a charge. This applies to every transfer of a portion of a registered and consequently the child who survived the testator took an estate, or part release of a charge, as well as to dealings with the estate tail. The decisions of the House of Lords in the present whole. The Registrar has no power to waive this regulation, and it century have amply atoned for the slight put upon the venerable applies to certificates issued before as well as after the commencement rule in question in the last.

of the Act. The Registrar has power to compel production of a certificate. On a sale by a mortgagee, under a power of sale contained in a registered charge, the Charge Certificate only need be produced.

2.--AS TO JOINT PROPRIETORS. REVIEWS.

Schedule I. of the Act, amendment of Section 83 (3), requires an BOOKS RECEIVED.

entry to be made (subject to general rules) on every registration of The Yearly County Court Practice, 1898, founded on Archbold's two or more joint proprietors, that when their number is reduced County Court Practice" and Pitt-Lewis's “ County Court Practice." below a specified number, no disposition is to be made without a By G. PITT-LEWIS, Q.C., Recorder of Poole, and C. ARNOLD WHITE, special order. This entry can be omitted on production of satisfactory B.A., Barrister-at-Law. The chapter on Costs and the Precedents evidence that the proprietors are entitled for their own benefit, or of Costs, by Mr. MORTEN TURNER, Registrar of the Watford that the survivor has power to dispose of the land or charge affected. County Court. In Two Volumes. Butterworth & Co.; Shaw & See Rules 34 to 37; also paragraph 9 below. Sons.

3.-AS TO TRANSMISSIONS OF FREEHOLD LAND ON DEATH, Hayes & Jarman's Concise Forms of Wills, with Practical Notes. Eleventh Edition. By J. B. MATTHEWS, Barrister-at-Law. Sweet and Rules 14 to 22, should be carefully studied before making any

The provisions of Part I. of the Act, and of Section 6 (4) and (5), & Maxwell (Limited).

application to register on a death occurring on or after 1st January, Before Trial : How to Prepare your Case. By RICHARD HARRIS, 1898. Q.C. Fourth Edition. Waterlow Bros. & Layton (Limited).

4.-VENDORS AND PURCHASERS. Employers' Liability under the Workmen's Compensation Act, Section 16 prescribes the evidence which a purcbaser of registered 1897, and the Employers' Liability Act, 1880. By ARTHUR land may require, and regulates the incidence of certain costs, and ROBINSON, B.A., Barrister-at-Law. Stevens & Sons (Limited). the obligation to enter into covenants for title on sales of registered Price 6s.

land. The Law Quarterly Review. Edited by Sir FREDERICK POLLOCK,

5.-SUCCESSION DUTY AND ESTATE DUTY. Bart., M.A., LL.D. January, 1898. Stevens & Sons (Limited).

Certain doubts having been expressed as to the incidence of Succession Duty and Estate Daty under Section 18 of the Land Transfer Act, 1875, Section 13 of the new Act provides for the registration of notices of claims for these duties in all proper cases,

and for the complete exoneration of purchasers where such notices CORRESPONDENCE.

are not registered. See also Rules 30 to 33. THE LAND TRANSFER ACT, 1897.

6.-CHARGES-LIENS BY DEPOSIT. [To the Editor of the Solicitors' Journal.]

Section 9 enables annuities and mortgages in Building Society Sir,-Mr. Lake, in his letter to the SOLICITORS' JOURNAL of the forms to be registered, and applies the provisions of Sections 19 to 25th ult., expresses the view that the selected area for the experi- 24 of the Conveyancing Act to registered charges. See also Rules 12 mental trial of compulsory registration should be limited to so much and 13. of the county of London as lies within the county of Middlesex, so Section 8, last paragraph, and Rules 38 to 40, specially provide that the experiment should, “in the event of failure, be as little for liens by deposit of Land or Charge Certificates ; Section 81 of the permanently injurious as possible.”

Land Transfer Act, 1875, being repealed. In the discussion that took place at the meeting of the United

7.-SETTLED LAND. Law Society on the 15th of November, when Mr. Lake and I were the principal speakers, I objected to the experiment being tried at Section 6, and Rules 2 to 11 and 16 to 22, should be studied before all in any part of the county of London, and I asked Mr. Lake to making applications or drawing instruments relating to settled land. say how the experiment was to be brought to an end if it should turn out a failure, and how in that event he would deal with the large

8.-BOUNDARIES AND DESCRIPTIONS OF LAND. staff of officials that compulsory registration in London would call Section 83 (5) and (6) of the Land Transfer Act, 1875, declariog into existence. Mr. Lake did not answer my question then that registration is not to be conclusive as to boundaries, is repealed, Perhaps he will do so now.

J. S. RUBINSTEIN. and replaced by Section 14 (2) of the new Act. 5, Raymond-buildings, Gray’s-inn, London, Jan. 5.

9.-NUMBER OF PROPRIETORS-TENANTS IN COMMON. Section 83 (2) of the Land Transfer Act, 1875, limiting the possible

number of joint registered proprietors, and probibiting the registraThe Publishers' Circular says that the number of new books on law, tion of undivided shares, is repealed by Section 14 (1) of the new Act, jurisprudence, &c., issued during 1897 was 93, and of new editions, 47. The numbers for 1896 were 132 and 50.

10.--INDEMNITY FOR ERRORS. The retirement of Mr. Justice Bewley, says the Westminster Gazette, from fraud or error in a registered transaction.

Sections 7 and 21 provide indemnity for any loss that may result was accompanied with incidents of a somewhat dramatic character. His resignation and the appointment of his successor were “officially"

11.-MINES AND MINERALS. announced in the papers on Wednesday morning. Till late in the afternoon of Tuesday the learned judge presided in the Land Commission

Certain doubts that have been expressed as to the effect of regisCourt, when he delivered an elaborate judgment dissenting from the views tered transfers under Sections 30-33 and 35-38 of the Land Transfer HOM... Justice Ross, the Land Judge, and using the significant expres- Act, 1875, in regard to mines and minerals, are dealt with by exsion," I, too, am a judge of the Supreme Court."

planatory amendments in the first schedule of the new Act.

[ocr errors]

12.-REMOVAL OF LAND FROM THE REGISTER.

resolution duly passed on the 24th of February, 1896 (before the making

of this rate), that the Royal College of Music shall not make any Power is given by section 17 to remove land from the register.

dividend, gift, division, or bonus in money unto or between any of its December, 1897.

members. The ground upon which it was contended by the respondents

that the college is not entitled to this exemption is very similar to that THE LAND TRANSFER ACT, 1897.

upon which the exemption from rateability was resisted when claimed by

the Institution of Civil Engineers under the 6 & 7 Vict. c. 36, and on another Additional Rule and Order for the Registrars of the Principal and occasion, when exemption from liability to the duty imposed under section District Probate Registries.

11 of the Customs and Inland Revenue Act, 1885, was claimed. The first All rules, orders, and instructions, and the existing practice of of these cases, Reg. v. Institution of Civil Engineers (5 Q. B. D. 48), in which the court with respect to non-contentious business shall, so far as the the defendants claimed exemption from parochial rates, was determined circumstances of each case will allow, be applicable to Grants of by Wild and Manisty, JJ., against the institution substantially upon the Probate and Administration made under the authority of the Land ground that as a matter of fact the primary object of the institution was Transfer Act, 1897."

not the promotion of science exclusively, but the acquisition of scientific The number of this Rule for the Principal Registry is 109; and for knowledge for the purposes and in the interests of the members of the

institution. In the next case, Re Duty on Estate of Institution of Civil Engineers the District Registries 103.

(19 Q. B. D. 610), a claim for exemption from duty imposed by the Customs and Inland Revenue Act, 1885, s. 11, sub-section (3), was decided by Lord Coleridge, C.J., and Field, J., against the institution

upon substantially the same ground as in the case I have already cited. CASES OF LAST SITTINGS,

That decision was, however, reversed on appeal (20 Q. B. D. 621) upon

the ground that upon the true construction of the charter its object was High Court-Queen's Bench Division. the promotion of mechanical science by the activity of the body of civil

engineers. This decision of the Court of Appeal was affirmed by the ROYAL COLLEGE OF MUSIC (Appellants) v. THE VESTRY OF THE House of Lords in Commissioners of Inland Revenue v. Forrest (15 App. Cas.

UNITED PARISHES OF ST. MARGARET AND ST. JOHN THE 334). [His lordship then referred to the judgments in the House of Lords, EVANGELIST, WESTMINSTER (Respondents). Div. Court. 14th and continued :] The effect of this judgment is virtually to overrule Dec.

Reg. v. Institution of Civil Engineers. Assuming the objects of the society

as defined by the charter to be fully and faithfully carried out, could it RATE-RATEABILITY-EXEMPTION-SOCIETY INSTITUTED FOR PURPOSES OF THE FINE ARTs-SCIENTIFIC SOCIETIES Act, 1843 (6 & 7 Vict. c 36), the fine art of music exclusively ? The building was, and is, absolutely

be seriously doubted that the society was instituted for the purposes of

necessary for the transaction of the business of the institution and for the Special case stated by order of a judge. The facts appear from the accommodation of the teachers and pupils. Without such tuition as is judgment of the court. The following cases were cited during the argu- provided for in the charter it would be impossible to accomplish the ment before Hawkins and Channell, JJ., on the 6th of December : object. The fees received from pupils and candidates are reasonably Overseers of the Savoy v. Art Union of London (1896, A. C. 296), Mayor of received from those who can afford to pay them, but they are all applied Manchester v. Macadam (1896, A. C. 500), Reg. v. Institution of Civil exclusively to the declared purposes of the college. For those who are Engineers (5 Q. B. D. 48), Commissioners of Inland Revenue v. Forrest (15 poor and unable to pay necessary maintenance is provided; the larger App. Cas. 334), Reg. v. Jones (8 Q. B. 719), and Reg. v. Overseers of the number of apt pupils, whether rich or poor, receiving tuition at the Manchester (16 Q. B. 449). Judgment was reserved.

college, the more will musical art be disseminated throughout the empire, THE COURT (HAWKINS and CHANNELL, JJ.) allowed the appeal.

the more encouragement to those who strive to acquire distinction in HAWKINS, J., in the course of a written judgment, said: The question such art, the greater the prospect of the advancement of it. The buildraised for our opinion is whether the Royal College of Music is exempting and the funds, whether derived partly or entirely from voluntary contrifrom being assessed or rated to the parochial rate of the respondent butions, are entirely and wholly applied to the objects of the charter parishes, within which the buildings of the Royal College are situated, by without any surplus profit to the corporation, and no member of the reason of the exemption contained in the statute 6 & 7 Vict. c. 36, s. 1. college derives any benefit from such funds. It may be that many of the That section enacts that " from and after the 1st of October, 1843, no pupils and scholars may by means of the instruction afforded them become person or persons shall be assessed or rated, or liable to be assessed or rated so proficient in the art of music that they may be eminently fitted for and to, or liable to pay any county, borough, parochial, or other local rates, or devote themselves to the profession of teachers of music as the means of cesses in respect of any land, houses, or buildings belonging to any society competent livelihood; the more who do so the more extensively and instituted for purposes of science, literature, or the fine arts exclusively, effectively will the art of music be promoted. This, however, is only a and occupied by it for the transaction of its business and for carrying into fortunate result of the goodness of the tuition afforded, but not a result effect its purposes; provided that such society shall be supported wholly which it was the purpose of the society or part of its business to bring or in part by annual voluntary contributions and shall not, and by its about; it would only be an incidental advantage to both the pupils and laws may not, make any dividend, gift, division, or bonus in money unto the institution. There will be judgment for the appellants with or between any of its members." The college was constituted a body costs. corporate by letters patent on the 23rd of May, 1884, with power to hold CHANNELL, J., concurred. Judgment for the appellants.-COUNSEL, lands for the purposes of the corporation, which were described to be: Danckwerts; R. C. Glen. SOLICITORS, H. T. Boodle ; Cates. First, the advancement of the art of music by means of a central teach

[Reported by T. R. C. DILL, Barrister-at-Law.] ing and examining body charged with the duty of providing musical instruction of the highest class and of rewarding with academical CITY OF LONDON BREWERIES Co. (LIM.) AND THE COMMISdegrees and certificates of proficiency and otherwise persons whether SIONERS OF INLAND REVENUE. Div. Court. 14th Dec, educated or not at the college, who, examination, may prove themselves worthy of such distinctions and evidences of REVENUE---STAMP-INSTRUMENT To Secure PAYMENT--MORTGAGE "TOTAL attainment ; and secondly, the promotion and supervision of

AMOUNT OF SECURITY TO BE ULTIMATELY RECOVERABLE"-AMOUNT such musical instruction in schools and elsewhere as may be thought

LIMITED—STAMP Act, 1891 (54 & 55 VICT. C. 39), ss. 86 (1.) 88 (1.). most conducive to the cultivation and dissemination of the art of music Case stated by Commissioners of Inland Revenue. On the 21st of in the United Kingdom; and lastly, generally the encouragement and May, 1897, an instrument was presented on behalf of the brewery compromotion of the cultivation of music as an art throughout our dominions." pany to the commissioners for their opinion as to what stamp duty the It is difficult to imagine an institution more exclusively devoted to any of instrument in question was chargeable under sections 86 and 88 of the the fine arts than is the Royal College of Music. [His lordship then Stamp Act, 1891. By section 88 it is provided that any security for referred to the acquisition by the Royal College of the buildings sought to the payment or repayment of money to be lent, advanced, or paid, or be rated upon a long lease, which contained a stipulation that they should which may become due upon an account current either with or without be used for the purposes of the charter only,], The case expressly finds money previously due, shall be charged, where the total amount secured that the building has been occupied exclusively by the Royal College of or to be ultimately recoverable is in any way limited, with the same duty Music for the transaction of its business, and for carrying into effect the as a security for the amount so limited. The instrument purported to be aforesaid purposes of the college, and that the college has carried out no a trust deed for securing debenture stock, and was dated the 6th of May: purpose other than the purposes of the corporation as defined in the 1897, and after reciting that there was outstanding at that time £500,000 charter. What more is required to entitle the building to the exemption debenture stock of the company constituted and secured by a trust deed given by the statute ? I am at a loss to understand upon what ground it dated the 20th of February, 1892, recited the intention of the appellants can be contended that the first requirement of the proviso-namely, that to issue further irredeemable debentures, bearing interest at 31 per cent , the corporate society shall be supported wholly or partly by annual ranking after the former stock and to be issued only in the place of the voluntary contributions has not been fulfilled. The case expressly finds former debentures. By clause 7 of the instrument in question it was that it has. It is true that of the revenue for the year ending April, provided that in the first instance the stock was limited to £300,000, but 1896, a small proportion only, £1,632, was derived from annual contribu- that the company should be at liberty to issue further irredeemable 34 per tions of a purely voluntary character; but that is a substantial sum, and, cent. debenture stock, entitled pari passu to the benefit thereof, subject to in my opinion, quite sufficient to satisfy the requirement of the proviso the following provisions : (a) That this 3) per cent. stock should not that the support shall be partly by voluntary contributions.

It can

exceed £540,000 in amount, making with the £300,000 a total charge of hardly be said that the interest and dividends, amounting to £4,639, were £840,000; (6) that such further stock should only be issued for the purpose annual voluntary contributions, for they were interest and dividends of of redeeming or paying off the 4 per cent. debenture stock of £500,000; (0) money and securities already belonging to the society. The second that the company must give notice in writing to the trustees of the amount requirement of the proviso seems to have been overlooked when the of the proposed further issue, and providing for the value at which the old original charter was prepared ; this defect was remedied by a special stock was to be assessed for the purpose of substituting for it the new deben

on

turestock; (d) that the company must, before any such further debenture stock allowed, and had not realized how the expenses of printing had run up; was issued or offered for subscription, execute and deliver to the trustees [GRANTHAM, J.-Has this application been opposed in any way ?-No. Al an acknowledgment of indebtedness for the amount of the further pro- the papers and receipts are in order and in court.] posed issue, and until such acknowledgment was executed, no part of The Court (GRANTHAM and CHANNELL, JJ.) granted the application.such further stock was to be entitled to the benefit thereof. No such COUNSEL, Lewis Coward. SOLICITORS, Rowcliffes, Rawle, & Co. for Needham acknowledgment of indebtedness had been executed. The Commissioners & Co., Manchester. were of opinion that the sum of $840,000 mentioned was the limit of the

[Reported by ERSKINE REID, Barrister-at-Law.1 total amount secured by, or to be ultimately recoverable under, the trust deed within the meaning of section 88 (i.) of the Stamp Act, 1891. They accordingly gave it as their opinion that the instrument was chargeable with duty under the head of Mortgage, Bond, Debenture Covenant, &c.,

Judge's Chambers. under the first schedule of the Act, and they assessed such duty at £1,050

HALL V. LAUNSPACH. Ridley, J. 29th December. being 28. 6d. for every £100 of the amount secured as "being the only cr principal or primary security (other than an equitable mortgage) for the

LORD MAYOR's COURT-PROHIBITION-LIBEL-Costs. payment or repayment of money." The questions for the consideration of

This was an application for a writ of prohibition to prohibit the Lord the court were first, whether the instrument was chargeable with the duty Mayor's Court and the Judge and Registrar thereof from taxing the plainof £1,050; and secondly, if not, with what duty was it chargeable ? For tiff's costs in an action for libel, and from allowing any proceeding to be the appellants, counsel contended that the deed was only liable to be taxed taken in such court for enforcing payment of such costs, on the ground that as a security for the £300,000 already issued, and they admitted that to the Mayor's Court had no jurisdiction to tax costs in an action for libel where that amount the duty to be charged was at the rate of 2s. 6d. for every less than £10 damages are recovered. It was stated that this was a novel $100.

If in any sense any tax could be charged on the balance of point which had never been decided nor even raised before. The circum£540,000 either now or hereafter it should only be at the lesser rate of 6d. stances were as follows:- The plaintiff brought an action in the Mayor's in the place of 2s. 6d. as the commissioners had decided. For the Com-Court for damages for libel, and recovered £2 10s. damages. The action missioners of Inland Revenue, it was submitted that their decision was was tried before the Common Serjeant, who certified for counsel, and the right, because this was a trust deed to secure an amount limited---namely, postea directed judgment to be signed, together with costs to be taxed.” £840,000. The acknowledgment of indebtedness proposed would not be The plaintiff carried in his costs for taxation, which were taxed upon the in any sense a mortgage whenever executed, and when the further amount scale applicable to actions where under £20 is recovered. The plaintif then of £540,000 was raised it would be raised on the security of this deed. applied for a writ of prohibition, on the ground that there was no scale The Act contemplated such a case, and provided for it by the words in of costs in 1he Mayor's Court applicable to actions for libel where less than section 88 (i.) referring to any security for payment to be hereafter lent or £10 is recovered, and therefore the Registrar had no power to tax them. paid.

On the hearing of the application, THE COURT decided in favour of the company.

Swepstone (Swepstone & Stone) argued: Rule 1 of the Mayor's Court GRANTHAM, J., said they were of opinion that with respect to the further Rules, 1890, directed that “all” costs in actions and matters in the Mayor's advance of £540,000, that was but a substituted security to be given by the Court were directed to be taxed according to the scales and fees in the company at some future date, and in respect of that amount the duty of schedules annexed. The first part of Schedule B related to actions where the 6d. instead of 2s. 6d. was alone chargeable. The Crown, therefore, must amount recovered exceeded $5 and was under £10 and the action could have repay the difference to the appellants. That being the substantial dispute been brought in a County Court, and was not applicable. The second part of between the appellants and the Crown, the appeal would be allowed with the schedule bore the headnoté tbat “the following costs only shall be costs.

allowed where the amount recovered is £10, and upwards.” There was no CHANNELL, J., concurred, but on somewhat different grounds. He other ecale, and inasmuch as the plaintiff had not recovered £10 and no thought that a security was none the less a security for money because scale of costs was provided for actions which could not be brought in a something else had to be done before the money could be raised. He County Court, it was a casus omissus, and there was no power for the court to agreed that under the deed in question the sum of £540,000 was in fact a frame another scale of costs applicable to this case. Garnett v. Bradley, substituted security, and before it became perfected an acknowledgment 3 App. Cas. 944, 26 W. R. 698, decided that a plaintiff was entitled to costs of indebtedness was a condition precedent, which so far the company had in the High Court where only a farthing damages was recovered in an not executed. The lower rate of duty, therefore, alone ought to be action of slander unless the judge certified to deprive him of them, and such charged. It was never disputed that 28. 6d. for every £100 was the proper costs were taxed on the High Court scale, because there was only one scale rate of duty to be paid on the sum of £300,000. Appeal accordingly of costs applicable to actions of whatever amount, but in the Mayor's Court allowed.-COUNSEL, Bosanquet, Q.O., and M. M. Macnaghten ; Finlay, S.G., the scale was limited to actions in which £10 and upwards was recovered, and Danckwerts. SOLICITORS, Western & Sons ; The Solicitor for Inland and the scale under £10 only referred to actions which could have been Revenue.

brought in the County Court. There was, therefore, no scale of costs [Reported by ERSKINE REID, Barrister-at-Law.]

applicable to this case, and the court could not frame one. The anomaly

existed that in the High Court a verdict of one farthing damages in an Ex parte WILLIAM MORRIS. Div. Court. 14th Dec.

action for libel would carry costs; but no verdict in an action for libel where MUNICIPAL ELECTIONS-LEAVE To_PAY BILLS INADVERTENTLY OMITTED under £10 was recovered in the Mayor's Court could carry costs.

FROM CANDIDATES' RETURN OF EXPENSES-MUNICIPAL ELECTIONS Act, Joel Emanuel (Emanuel, Round, f Nathan), for the plaintiff, contended : 1884, s. 21 (7).

1st, that the scale in Schedule B applied; 2nd, that if it did not apply In this case counsel moved on behalf of Mr. William Morris, a candi- the old scale of costs prior to the rules of 1890 applied ; 3rd, if the old date at the election of councillors for the Morriston Ward of the county schedule under ord. 8 7 4th, that this was not a matter for pro

scale of costs did not apply, the court had power to grant costs outside the borough of Swansea, for exemption for not having made a complete hibition. 1st, that Schedule B applied; he argued that the headnote to the return of his expenses of the election. Mr. Morris had unsuccessfully contested the election, and shortly afterwards his agent, to whom the scale did not form part of the scale itself, and might have been better placed expenses in question had been sent for the purpose of being checked, had at the end of the schedule. The schedule was not governed by the headbecome seriously ill and had not been able to look into the matter. note. It was true the headnote stated that the costs were only to be allowod During his illness the return had been made and the amount accidentally where the amount recovered was £10 and upwards. That applied the scale to omitted from the account rendered. All Mr. Morris now asked for was

those instances, but it did not exclude its operation to other matters. That leave to be allowed to pay the bills which were for expenses he was

appeared clear from items in the schedule, such as drawing pleadings in entitled legally to incur, and would not when added to the return made equity, which might be for rectification of a deed, dissolution of bring the costs incurred up to the maximum allowed by the statute.

partnership, or other matter where no money at all was claimed or recovered, The Court (GRANTHAM and CHANNELL, JJ.) granted the relief sought.- instructions for petition, which might be for appointment of new trustees COUNSEL, C. Willoughby Williams. SOLICITOR, Richard White, for 8. W.

or for a charging order; instruction for brief on an interim, injunction Paton, Swansea.

where no money at all was in dispute. If, therefore, the scale applied to [Reported by ERSKINE REID, Barrister-at-Law.]

matters outside the headnote it was clearly applicable to the outside matter

of an action for libel where the costs had not otherwise been provided for. Ex parte HUGHES. Div. Court. 14th Dec.

2nd, if the scale did not apply, then the old scale of costs prior to the rules MUNICIPAL ELECTIONS-- LEAVE TO PAY EXPENSES INCURRED IN Excess or should be in the discretion of the court, and ord. 10, rule 5, directed that

of 1890 applied. Ord. 8, rule 1, directed that the costs of all proceedings STATUTORY MAXIMUM-INCOMPLETE RETURN BY ELECTION AGENT

so far as those orders and rules were inconsistent therewith, the practice and MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRACTICES) Act, 1884 (47 & procedure then in use in the court should be in force. Those orders were 48 Vict. c. 70) s. 21 (1.).

passed in 1892, and if rule 8 directing costs to be in the discretion of the Counsel moved cx parle on behalf of Mr. Hughes, a candidate at the court introduced a new practice as to costs not provided by the rules of 1890, recent municipal election for the Exchange Ward of the City of Man- the old schedule of costs became applicable. 3rd, if the old scale of costs chester, for leave to pay the sum of £8 11s. 6d., which had been incurred did not apply, the court under ord. 8, rule 1, or under its inherent jurisby him over and above the maximum of £33 14g. 9d. allowed under the diction, had power to deal with costs as it pleased, either by awarding statute to such a candidate for election expenses. The facts stated were a lump sum or otherwise. If the defendant's contention were correct, in a these: Mr. Hughes had consulted Mr. Cooper, the secretary of the local motion to commit a person for publishing comments on judicial proceedings Conservative Association, and on bis advice had employed a Mr. Hang- sub judice, the judge could not order the costs of a motion to be paid or borne lander as bis agent, who had negligently incurred the extra costs for by any party, because there was nothing in the schedules providing for the which leave to pay was now applied for. The agent in his affidavit stated costs of such a motion, and a solicitor could not sue his own client for that he was a person experienced in election law and that the excess arose the costs of an action for libel if less than £10 were recovered, because from the fact that he had forgotten to include the sum paid by one of the the same objection would arise as to the scale of costs upon which a solicitor committee men for the use of the committee rooms, and that he had been was entitled to be paid. When he sued for his bill, directly it was referred in the habit of acting at elections where there was a larger maximum | to taxation, the question would arise, Where was the scale upon which the

.

1

costs could be taxed ? 4th, this was not a matter for prohibition; the parts Mr. Justice Byrne will preside at the third of the series of law lectures of the costs relating to fees of the court and allowances to witnesses were inaugurated by the Solicitors' Managing Clerks' Association, which will contained in separate schedules to which the head note to the second part of take place in the Old-hall, Lincoln's-inu, on Tuesday, the 18th irst., Schedule B did not apply. A prohibition would not lie in regard to par- when Mr. Astbury, QC., will deliver a lecture (in place of Mr. A. ticular items in a bill of costs. The court could not restrain the taxation Hopkinson, Q.O., M.P., who has been appointed Principal of Owens where certain costs were clearly within its jurisdiction, and if other items College, Manchester) on the subject of “Privileged Communications." in the bill were in excess of its jurisdiction, that might be matter for appeal, A correspondent writes to the Times : “In to-day's issue of the Times but not for prohibition.

you note the ninety-sixth birthday of the Right Hon. 0. P. Villiers, Ridley, J.-I have carefully considered this case and the arguments designating him the Father of the Bar,' as having been called in 1827. addressed to me. In my opinion, the headpote to the second part of In the last Law List Mr. William Parrott Carter is given as having been Schedule B must be taken to be part of the schedule itself, and the whole been called in 1821. If that gentleman is still alive, and I have seen no schedule being subject to such headnote, it cannot apply to any actions in notice of his death, should not he, and not Mr. Villiers, be considered as which less than £10 is recovered. Such being the case, I look 'in vain for the Father of the Bar'?" any schedule applicable to an action for libel in which less than £10 is The Estates Gazette says that in the aggregate the dealings in land and recovered. There being none, I cannot see upon what scale these costs can property during the year just closed have been of a very satisfactory be laxed. If taxed upon a scale which does not exist, I think the court character. The total amount of the sales which have taken place at the is exceeding its jurisdiction, and ought to be prohibited. With regard to London Auction Mart, £5,257,723, is considerably in advance of the total ibe court fees and allowances to witnesses, these seem to be included in of £4,476,801 for 1896. In addition, considerable transactions have been scales to which the headnote is not applicable, and must therefore be effected in the provinces, whilst numerous important sales have been conallowed. The prohibition will therefore be granted as to all costs, except cluded by private treaty. The most notable feature in the year's business the costs of witnesses and court fees.

has been the facility with which brewing concerns and licensed properties, [We are favoured with the above report.]

both in London and the provinces, have been sold at remarkably high prices. Ground-rents have again been eagerly sought after, principally by societies and trustees with funds to invest. The general price has

averaged about thirty-two years' purchase, but now and again a much LAW SOCIETIES.

higher value has been obtained. The year has seen a considerable

increase in the demand for small freehold properties; building sites, both LAW ASSOCIATION.

in the metropolis and chief provincial centres, have been readily sold at At a meeting of the directors held at the hall of the Incorporated Law good prices. Farms and agricultural land have not sold very readily, but Society on Thursday, the 6th inst., the following being present-viz., Mr. in many cases prices have been secured which, as things now are, may be R. J. Peid (chairman), Messrs. C. Burt, T. D. Bolton, M.P., A. C. Cronin, considered fairly good. 8. J. Daw, L. Desborough, H. C. Nisbet, R. H. Peacock, Sidney Smith, Arthur Toovey, J. Vallance, and Arthur Carpenter (secretary), a grant of £50 was made to a non-member. A further investment in Consols was

THE LAND TRANSFER ACT, 1897. directed to be made. Thirty new members were admitted to the associa- The following letter has been addressed by Mr. Sydney Gedge to the tion, and other general business was transacted.

Times :

The compulsory provisions of the Land Transfer Act, 1897, are to

be applied to one connty as an experiment and cannot be applied to LEGAL NEWS.

any other county for three years. The Privy Council are to select the

county by sending to the county council a draft of the proposed order to APPOINTMENTS.

come into force at the end of six months unless the county council shall, Mr. GEORGE WILLIAM Burton, Chief Justice of the Province of Ontario, whole number of the members are present, resolve, and communicate to

within three months, at a special meeting at which two-thirds of the Canada, has received the honour of Knighthood.

the Privy Council the resolution that in their opinion compulsory regisMr. WILLIAM BRANDFORD GRIFFITH, Chief Justice of the Gold Coast tration of title would not be desirable in their county. Colony, has received the honour of Knighthood.

On the 4th of August, when the Bill was being hurried through the Mr. EDWARD JAMES Ackroyd, late Puisne Judge of the Supreme Court, House of Commons at the fag end of the Session, it was first stated that Hong-Kong, has received the honour of Knighthood.

compulsory registration was to be first tried as an experiment in the Mr. Arthur Wilson, barrister, Legal Adviser and Solicitor, India Office, the evening it was stated that it was to be tried first in the county of

county of Middlesex, which has its own registration office; but later in has been appointed a Knight Commander of the Order of the Indian London, and I thereupon moved an amendment to prevent this for various Empire.

reasons, with only one of which will I trouble you now. I urged that CHANGES IN PARTNERSHIPS.

there was nothing in the Bill to prevent the Privy Council from Mr. ROLAND ELLIS De Vesian, solicitor, has made arrangements to join issuing an order immediately after the Act passed, bringing its Mr. Richard Cattarns in partnership as from the 1st of January, 1898, and

provisions into operation in the county, unless within three

months from that will after that date practise at 104, Leadenhall-street, E.C. The style of

time it held such a meeting and passed

such the new firm will be Cattarns & De Vesian.

a resolution, and that the power of objecting ought to

be given not to the moribund county council, but to the new council, In consequence of the death of Mr. Charles Harrison, Mr. William which would be elected next March. The Attorney-General, who was Sidney Harrison is the only surviving partner in the firm of C. & S. then in charge of the Bill, declared on behalf of the Government that Harrison & Co., of 19, Bedford-row, W.C., and he has admitted into "the provisions of the Bill were not to come into operation until the 1st partnership Mr. ARTHUR Casson Lewis and Mr. CHARLES FREDERICK of January, 1898, before which time no steps whatever could be taken POLLOCK. "The style of the firm will be as hitherto, O. & S. Harrison & towards putting these provisions into force.” This statement was equivaOo.

lent to an undertaking on the part of the Government that no notice of a Messrs. Clapham, Fitch, & Co., of 15, Devonshire-square, Bishopsgate, draft order should be issued by the Privy Council until the 1st of January, City, solicitors, have taken Mr. PERCIVAL ALFRED Clapham, 'the eldest son and, this being so, the London County Council would have until the 1st of the late senior partner, and Mr. NATHANIEL BARRETT WARNER BROMLEY of April to hold its meeting and object, and this could be done either by into partnership. The style of the firm remains unaltered.

the dying council or by the newly-elected council. Having this under. DISSOLUTIONS.

taking, I allowed my amendment to be negatived without a division, and John CHARLES HARDY, LEWIS JOHN OATway, and ALFRED PERCY Doulton,

a few minutes afterwards, on its being pointed out that the Bill contained solicitors, 23, Bash-lane, London (Vandercom, Hardy, Oatway, & Doul- the Royal Assent, it was struck out by the Government as being incon

a clanse enabling such a notice to be issued as soon as the Act received ton). Dec. 31.

sistent with the Attorney-General's statement. HERBERT JOHN WAKEMAN and CHARLES ALBERT BLEECK, solicitors, Notwithstanding this distinct pledge, the London Gazette of the 26th of Warminster (Wakeman & Bleeck). Dec. 31.

[Gazette, Jan. 4. November contains an official announcement of a draft order sent to the

London County Council to the effect that on and after the 1st of July INFORMATION WANTED.

registration of title to land is to be compulsory in sales in that county: The Rev. John Brown BRUNESSON, deceased.—The Rev. John Brown The effect is that the time for objecting will expire on the 26th of Brunesson, deceased, made a will on the 24th of February, 1897, the con February, and the new council will be deprived of any voice in the matter. tents of which are known, but the original will cannot be found. Any I find that this is done by virtue of the 37th section of the Interpretation person who can give information as to its whereabouts is requested to Act, 1889, which provides that “where an Act is not to come into operacommunicate with Messrs. Mear & Fowler, solicitors, No. 2, Old tion immediately on its passing, and confers power to make, grant, or Serjeants’-inn, Chancery-lane, London.

issue any order in council, &c., that power may, unless the contrary

intention appears, be exercised at any time after the passing of the Act, GENERAL.

so far as may be expedient for the purpose of bringing the Act into Mr. F. K. Munton takes the chair at the Law Students' Debating operation at the day of the commencement thereof." Both the Attorney: Society's annual smoking concert next Monday, at St. James's Hall. He General and I were members of the House of Commons when this Act is one of the surviving members who took an active part in the early was passed, but he clearly, as well as I, had forgotten this section, other: sixties.

wise I am sure that he would not have allowed the House to believe that The Lord Chief Justice has requested the attendance of the judges of by striking out this clause the course objected to was rendered the Queen's Bench Division at a meeting to be held in his lordship's impossible. private room at the Law Courts on Tuesday next at 3 o'clock, when the Î'hat course, for which I believe the Lord Chancellor is responsible, is a summer circuits will be chosen and other business transacted.

direct violation of the undertaking given by the Government, and though,

« PreviousContinue »