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of a penalty. The provision, however, does not apply to the Legislature, by 20 & 21 Vict. c. 77, s. 79, and 21 & 22 Vict. sale of newspapers; the Act only applies to the distribution of c. 95, s. 16, aimed at stopping this inconvenience; but it was prints if they are of the nature of advertisements, and it may contended that those enactments were not meant to prevent retracwell be doubted whether in this case the alderman was correct tation, on sufficient grounds, of a renunciation, oven when it had in holding that the document in question was an advertisement. been filed. In Re Morant (L. R. 3 P. & D. 151) it was held It
appears to have been a reprint from a financial journal of a that a person may retract a renunciation at any time before it is certain telegram from South Africa, and it does not seem to filed in the registry, and that a renunciation did not exist as an havo been distributed by the journal as an advertisement of the effective instrument until it had been recorded; but there paper, but in order to draw the attention of stockbrokers to the seemed to be no decision to show whether'a renunciation could be matter of the telegram. The alderman, however, thought that retracted after it had been filed. There is, however, a dictum of if a newspaper, or even a reprint bearing the name of a news- Lord PENZANCE in In the Goods of Badenach (3 Sw. & Tr. 465), repaper, is given away, it must of necessity be an advertisement ferring to section 79 of 20 & 21 Vict. c. 77, to the effect that there of that paper. It is not improbable that the matter may be was nothing in that section to prevent the court from allowing a taken to the High Court.
retractation according to the old practice in a case fit for it. And in In the Goods of Gill (L. R. 3 P. & D. 113) HANNEN, P., without
deciding the question, said: "I should not hastily decide that The Court of Appeal have reversed the judgment of the the court is powerless to permit an executor who has renounced Divisional Court (WRIGHT and KENNEDY, JJ.) in Ex parte Page, on good grounds to retract his renunciation.” Guided by these and have granted a rule nisi for a prerogative writ of mandamus dicta, and acting on the principle that to allow the retractation to compel the lord of a manor to admit the devisees of a deceased was for the benefit of the estate, Sir F. Jeune decided the questenant. It appears that, according to the custom of the manor tion in favour of the applicant, and allowed him to retract his of Kingsland, in Herefordshire, the lord of the manor is entitled renunciation. to a heriot on the death of a tenant, and such heriot may be either the best beast, or the best jewel, or the best suit of clothes of the deceased tenant. In the present case the deceased IN View of the magnitude and importance of the cases now tenant had neither beast nor jewel, and the lord of the manor determined in the county courts, it is not easy to understand rejected the proffered suit of clothes, claiming a fee of twenty why those courts do not yet possess any original jurisdiction guineas instead. In such a case the old-fashioned remedy is by over actions of breach of promise, libel, slander, or seducprerogative writ of mandamus to compel the lord to admit the tion, especially
tion, especially as they retain derivative jurisdiction over them, new tenant (R. V. Coggan, 6 East 431); but some doubt has by virtue of section 66 of the County Courts Act, 1888 (51 & 52 been caused as to this remedy being now available by the Vict. c. 43). Certainly such actions do not, as a rule, give rise decision in Reg. v. Lambourne Valley Railway Co. (22 Q. B. D. to difficult questions at law, though, equally with actions for 463). It is a general rule that the prerogative writ of mandamus malicious prosecution (which are no longer excepted from the will not be granted where the applicant has another effective jurisdiction of the county courts), they often involve grave remedy for enforcing his right; and, since a mandamus can be issues affecting the character and position of the parties. claimed in an action (Judicature Act, 1873, s. 25 (6); R. S. O., Possibly one reason for the exception referred to is, that the 1883, ord. 53), it is possible to argue that the proper procedure cases comprised in it are eminently fit to be determined by is now by action of mandamus, and not by prerogative writ. juries rather than by a judge alone, and should, therefore, be Accordingly, in Reg. v. Lambourne Valley Railway Co. it was held tried in the High Court, where a common or special jury of that the writ would not lie against a company to compel the twelve persons is obtainable, rather than in a county court registration of a transfer of shares, since the relief could be where litigants have to be content with a jury of five, and trial given in an action of mandamus. The notion, however, that by special jury is not available under any circumstances. the action had displaced the prerogative writ was dis- While, however, there certainly seems to be no adequate carded by Day, J., in Baxter v. London County Council (63 reason why the number of a county court jury should not be L. J. 767), and in his view the action for a mandamus was increased to the magic figure twelve, where either the parties simply an attempt to engraft upon the conmon law remedy a desire it, or the judge recommends it, we venture to think that, right in the nature of specific performance; in other words, it at all events so far as actions for breach of promise, slander, was available only where an action would lie between the and libel are concerned, they could adequately be disposed of parties, the mandamus being ancillary to the action. In Ex by the county courts with their existing machinery. Unparte Page the Divisional Court refused the prerogative writ of doubtedly, such an increase of county court jurisdiction would mandamus, apparently on the authority of Reg. v. Lambourne afford considerable relief to the High Court, and diminish the Valley Railway Co., and held that the proper remedy for the necessity for the appointment of an additional judge, if it did devisees of the deceased tenant was by action of mandamus. not altogether remove it. On the other hand, however, it would But the case is not one in which the deviseos are asking for impose a fresh burden, of no light weight, upon the county mandamus—in the words of Day, J. in Baxter v. London County court judges; to enable them to bear which it would be Council—" for the purpose of enforcing a private right in respect necessary, either to increase their number, or else enlarge conof which private litigation has arisen," and the Court of Appeal siderably the contentious jurisdiction of the registrars of the have decided in favour of the prerogative writ. It is, perhaps, county courts. of no great moment whether the right is enforced in one form of procedure or the other, but if the two forms are allowed to exist it should be laid down clearly to what cases each is
On the 18th inst., say the Times reporter, on the hearing before Kekeapplicable.
wich, J., of a case upon the construction of a will, an office copy of the probate was, as usual, handed up to his lordship, a copy being obviously
more conveniently handled and read in such cases than the large skins of FROM THE case of In the Goods of Maria Stiles (Deceased), heard parchment upon which the probate is, according to the common practice, before Sir F. JEUNE on the 22nd inst., seems that the question engrossed. Mr. Justice Kekewich said : When solicitors learn to engross has never been decided whether, since the Probate Act, 1857, their probates bookwise we shall read them comfortably. an executor who has renounced probate, and whose renunciation Mr. Ernest Baggallay, the magistrate at West Ham Police-court, has, has been filed, can afterwards retract such renunciation. The for a long past experienced great difficulty in dealing with lads of ages first question seemed to be how far section 79 of the Probate ranging between fifteen and trenty charged with sleeping out” and Act, 1857, had interfered with the old practice of the ecclesi- experience has shewn that work is easily found for boys even though they
other minor offences. In the huge manufacturing district of West Ham, astical courts. From the authorities referred to, this practice have been in trouble, but the lads soon lose their situations unless they seems to have been that a renunciation was not treated as a have the advantages of decent and respectable homes. Mr. Baggallay, final act, and that whenever a new representation was required to having long been confronted with this dificulty, has decided to start a the estate of a deceased person, it was necessary to cite all the work and contribute sɔmething towards their support ; and it has been parties having a prior claim to the applicant, although such arranged that the house shall be under the direct supervision of the parties had on previous occasions renounced their rights. The Imagistrate, who will be assisted by a local committee.
of executors selling leaseholds, so, under this sub-section, a THE REAL REPRESENTATIVE.
purchaser in good faith of "real estate" will not be concerned II.
to inquire whether a sale is necessary for the purposes of
administration or not; nor, it would seem, is there any limit of In our article of last week we endeavoured to point out what time during which a sale can be made, provided the personal appear to be the principal defects of section i of the Land
representatives have not extinguished their paramount power, Transfer Act, 1897, and we confined our attention, for the most for instance, by assenting to the devise : Re Venn and Furze's part, to the working of that section in connection with the Contract (1894, 2 Ch. 101). general law.
Express charge for payment of debts.-A charge of debts is We now propose to deal with section 2; in passing to set out briefly the effect of sub-section 2 of that section, and to make a effected on real estate whether devised specifically or not (808 few suggestions with regard to the practice to be adopted until sub-section 3), and a sale may be made for the purpose of the law is rendered legs obscure.
paying them where necessary, notwithstanding the testator For convenience we here set out sub-section 1 :
created no express charge. This reform is unnecessary, having
regard to the paramount power of sale and to the existing 2.- (1): Subject to the powers, rights, duties, and liabilities herein; liability of real estate. after mentioned, the personal representatives of a deceased person shall hold the real estate as trustees for the persons by law beneficially entitled
Powers of personal representatives as regards their beneficiaries.thereto, and those persons shall have the same power of requiring a As between the personal representatives and their beneficiaries, transfer of real estate as persons beneficially entitled to personal estate the powers must be exercised with due regard to their rights. bave of requiring a transfer of such personal estate.
Thus the personal representatives ought not to sell real estate It was no doubt intended by this sub-section only to make for payment of debts unless the property primarily liable is the representative a trustee after he had fully administered the insufficient to meet them. estate; but if any effect is to be given to this enactment, some Effect of constitution of real representative as regards unregistered of his powers as executor or administrator of the real estate land. The actual benefits as regards unregistered land obtained must be destroyed by making him a trustee.
by the constitution of a real representative appear to be confined Again, why is it necessary to confer any express power on to the case where title is made by the personal representative the beneficiaries to require a transfer of the real estate ? If (presumably for purposes of administration), thus ousting, ag a real representative is placed on the same footing with regard regards a purchaser in good faith, the rights of the heir or to real estate as an executor with regard to chattels real, the devisee. beneficiaries would have the right as of course ; there is, how
Succession duty on sale by personal representatives.- Personal ever, no ground for objecting to this power, except that it is representatives can sell chattels real free from succession duty, superfluous. It follows, then, if our contention is correct, that the Act the beneficial interest of the successor (Succession Duty Act,
as the duty is a charge, not upon the property itself, but upon would have been none the worse, and perhaps better, if the subsection had been omitted.
1853, ss. 1 and 19). This ought now to be the case as regards
all real estate, but, having regard to section 5 (which provides In passing, it may be well to note that the sub-section does that nothing in Part I. shall affect any duty), a purchaser cannot not expressly preserve the right of testators to dispose of the be safely advised to accept this view. beneficial interest in their land nor the rights of the heir on an intestacy. It is, in fact, left to be inferred from sub-section 4, under the finance Act, 1894, s. 9 (1), a rateable part of tho
Estate duty.-Estate duty stands on a different footing, since which directs that the court in granting letters of administration shall have regard to the rights of porsons interested in the duty is made a first charge on property in respect of which duty real estate, and gives to the heir (if not also one of the next-of- is leviable, which does not pass to the executor as such, though kin) an equal right with the next-of-kin to the grant, and from real estate under section 1 suprà now passes to the executor as
A section 3 (1). When we know that one of the incidents" of such, the charge for estate duty is saved by section 5 infra. personal estate (see sub-section 3, set out infra) is that it sale cannot be made, therefore, free from the duty, unless the passes to the statutory next-of-kin on an intestacy, we may
sale is for the purpose of raising the duty (Finance Act, 1895, perhaps be pardoned for expecting to find an express saving of s. 9 (5)); nor can a purchaser assume that the sale is for this the rights of the heir, including the right to take proceedings purpose. against a third party for recovery of possession of the land.
Power of sale how extinguished. The power of sale given by Next to consider sub-section 2, which is as follows:
this sub-section will be extinguished, where the land is specifi
cally devised in settlement by a conveyance, or assent (the Act (2) All enactments and rules of law relating to the effect of probate ought to have made a written assent necessary) by the personal
respects the dealing with chattels real before probate or'adminis- representatives to the uses declared by the will; or if they are tration, and as respects the payment of costs of administration themselves the trustees of the settlement, by a conveyance to and other matters in relation to the administration of personal uses or by a declaration that they will hold upon the trusts estate, and the powers, rights, duties, and liabilities of personal declared by the will, according as the limitations are legal or representatives in respect of personal estate, shall apply to real equitable, in the case of intestacy by a conveyance to the heir, a chattel real resting in them or him, save that it shall not be and in the case of a specific devise in fee simple by an assent lawful for some or one only of several joint personal representa- under section 3 (1), or (as is preferable) by a conveyance. It is tives, without the authority of the court, to sell or transfer real conceived, however, that the power conferred by section 3 (1) to
assent to any devise is no more applicable to a residuary devise No express jurisdiction is conferred on the court with regard than the common law assent is applicable to a residuary gift of to probate, &c., in respect of real estate, this, again, being left leaseholds. to be inferred from sub-section 4.
Dealings before probate.—An executor derives his title from the Though we think that greater simplicity would have been will, not from probate; and may do all acts incident to his secured bad chattels real, together with real estate, been made office before he proves the will (Goodeve's Personal Property, to devolve on the real representative, still this sub-section will, 2nd ed., p. 385; Williams' Executors, 9th ed., p. 249). Thus it appears, give fairly satisfactory results ; these are so im- he may sell under the paramount power conferred by this subportent that, at the cost of appearing tedious, we propose to section, or execute a conveyance or declaration of trust in favour give a short summary of them so far as they relate to the of the beneficiaries under the will, or assent to a specific devise ; general law.
but, if his acts are relied on as matters of title, a subsequent Paramount power of sale.—This sub-section enables the personal probate must be shown (ib. 251). representatives of a deceased person to sell his real estate for the An executor can maintain and carry through actions founded purposes of administration by a power paramount to the title of on his actual possession of the subject matter of the action all persons beneficially claiming under the will or on the in- before probate (ib. 253); and persons deriving title under him testacy of the deceased.
are in the same position (ib. 254); he may also commence an Purchaser need not inquire into necessity of sale.--As in the case' action and continuo proceedings until production of probate is
required, and it is sufficient if he obtains the probate in time powers with respect to property passing by virtue of the will as (ib. 255).
they have under the Act. An administrator has, of course, no title until the grant. Further, any disability to which the executors are made
Effect of order for administration. The powers of a personal subject during administration by reason of their being created representative under this sub-section will be taken away by an trustees under section 2 (1) may be set aside by a testator, and order for administration which has been registered as a lis pecuniary legacies may be made contingent on the personal pendens, whether an injunction or a receiver has been obtained estate being sufficient to meet them as well as the debts. or not (Wigram v. Buckley, 1894, 3 Ch. 483, 493).
The above precautions would, however, be of no avail in the Will of real estate must be proved.—Where a testator dies after case of an administration de bonis non. But it is not now con. 1897 the title of his devises will now depend to a great extent tended that the difficulties, which would be avoided by means on the probate, for although the executor may assent to the of these slight changes in practice, are sufficiently serious to devise before probate, nevertheless the right to give the assent afford good reason for a testator to make a new will in conse. must be evidenced by the probate, hence a purchaser will in all quence only of the passing of the Act. We, however, feel cases insist on probate being taken out.
confident that the more these provisions of the Act are studied Power to lease real estate. —Personal representatives may sub- the less they will be appreciated; and we cannot refrain from demise their testator's chattels real, but the under-lessee takes expressing the opinion that the chance of a successful winding subject to the question whether an underlease is is the best up, without the assistance of the court, of the estate of any mode of administering the assets (Wms. Exors., 9th ed., p. landowner who is so inconsiderate to his successors as to die 808). It may be questioned, however, whether this sub-section after the 31st of December next, and before the Act has been confers any power to lease real estate.
amended, has been rendered somewhat remote.
commencement of this Act, his real estate shall be administered
REAL PROPERTY LAW. affect the order in which real and personal assets respectively are now applicable in or towards the payment of funeral and testa- THE MODERN LAW OF REAL PROPERTY, WITH AN APPENDIX Conmentary expenses, debts or legacies, or the liability of real estate
TAINING THE VENDOR AND PURCHASER ACT, 1874; THE Conto be charged with the payment of legacies.
VEYANCING ACTS, 1881 to 1892 ; THE SETTLED LAND ACTS, 1882
TO 1890; THE MARRIED WOMEN'S PROFERTY ACTS, 1882 AND 1893 ; The first part of this sub-section is copied from clause 74 of AND THE TRUSTEE ACT, 1893, ss. 10-12. By the late L. A. the Bill of 1888, under which Bill, as we pointed out in our GOODEVE. FOURTH EDITION. By Sir HOWARD WARBURTON previous article, the devolution of the beneficial interest in real ELPHINSTONE, Bart., M.A., one of the Conveyancing Counsel of estate on intestacy was to be assimilated to that of personal
the Court; JAMES W. CLARK, M.A., and ARTHUR DICKSON, LL.B., estate. Now that this object is no longer in view, the sub-section
Barristers-at-Law. Sweet & Maxwell (Limited). is hardly what is required, inasmuch as it throws some doubt on In the hands of its present editors, Goodeve's Law of Real Property, the position of the heir; moreover, the proviso nearly reduces while retaining to a large extent its original characteristics, has the first part to nothing.
become a good deal more than a student's text-book, and it is Under sub-section 2 all the liabilities of personal represen- entitled to rank as a sound exposition of the present law of real
more historical matter than is necessary to tatives in respect of personal estate apply to real estate, so far explain the existing law, and with references by which inquiry on as the same are applicable, as if that real estate were a chattel any particular point can be successfully pursued. The new law real.
which has had to be incorporated in this edition is not, so far as it This would seem to render residuary real estate liable to the depends on statutes, extensive. The Conveyancing Act, 1892, the payment of legacies, notwithstanding that there is no charge in Married Women's Property Act, 1893, and the sections of the the will, since chattels real not specifically bequeathed are so Trustee Act, 1893, relating to the appointment of new trustees, have liable. Nor do the words “so far as the same are applicable" been included in the appendix, and the Voluntary Conveyances
Act, 1893, is referred to in the text. But whatever may appear to alter this construction. By sub-section 3 real estate is directed to be administered of case law to deal with, and the law of real property is continually
be the output of the Legislature, editors have an ever-flowing stream " with the same incidents as if it were personal estate," one of receiving accessions in this way. Among recent decisions which are those incidents of course being a liability for payment of legacies, referred to in this edition one of special practical importance is Re and it is only the order of administration which is preserved by Carter & Kenderdine's Contract (45 W. R. 284), while the doctrine of the proviso; the last clause seems merely to express the right of consolidation of mortgages has been explained in Pledge. White a testator to exonerate his personal estate.
(1896, A. C. 187), the duties of a mortgagee in exercising his power The general result, then, appears to be the same as if the of sale considered in Kennedy v. De Trafford (45 W. R. 671), and the deceased had by his will charged his residuary real estate with protection afforded to a mortgagee by getting in the legal estate the payment of legacies, in aid of, but without prejudice to the examined in Bailey y Barnes (42 W.R. 66). Again, Liquidation Estates
Co. v. Willoughby (1896, 1 Ch. D. 726) shews that the questionable primary liability of, his personal estate.
doctrine of Poulmin v. Steere (3 Mer. 210), that the purchaser of an This view is confirmed by section 4, under which personal equity of redemption who pays off a mortgage does so for the benef representatives may appropriate residuary real estate in pay- of the subsequent incumbrancers, is hardly a reliable authority; mont of legacies. Otherwise, under that section, they might, These are only a few of the recent cases referred to in the present subject to appeal, alter the rights of the residuary deviseos by edition, and the notes bear in other ways ample evidence of the desire means of an appropriation. We apprehend, however, that this of the editors to give their readers control, either actual or potential, reform was not contemplated by the Legislature, since it may of the entire law of real property. work considerable injustice to persons claiming under a will, executed before 1898, of a testator who died after 1897, and is wholly unnecessary for the purposes of the Act.
ARBITRATIONS. Lastly, we will venture to make a few suggestions with regard A CONCISE TREATISE ON THE LAW OF ARBITRATIONS AND AWARDS, to the changes in conveyancing practice which may be rendered
WITH AN APPENDIX OF PRECEDENTS AND STATUTES. By JOSEPH advisable by reason of the defects in these sections.
HAWORTH REDMAN, Barrister-at-Law. THIRD EDITION. ButterNothing, clearly, can be done to avoid some questions arising
worth & Co. -for instance, as to whether the fee simple does or does not pass
The Arbitration Act, 1889, has been passed since the last edition of on the death of a tenant for life or in tail-nor can anything be Mr. Redman's useful volume on the Law of Arbitration and Awards, done with respect to real estate passing on an intestacy.
and a new edition incorporating the Act and bringing the references Testators may, however, by devising all their real estate to to afford a portable work which the practitioner can without incon:
to the authorities up to date is welcome. The object of the book is their executors, insure that, unless they renounce probate and venience have at hand in the actual course of an arbitration; but it disclaim the devise, it will pass either under section 1 or by does more than satisfy the requirements of a mere handy volume, virtue of the will, and may confer on the executors the like and the law is stated with sufficient fulness, and with sufficient
references, either to give or to afford the necessary clue to all the information that will ordinarily be wanted. Upon one important
CORRESPONDENCE. question connected with awards there seems to exist at present a good deal of uncertainty. Under the Act of 1889, as under the
FEE OF PROFESSIONAL WITNESS. previous law, it is possible to get rid of an invalid award by moving
[To the Editor of the Solicitors' Journal.] the High Court to set it aside, and before the Judicature Acts it was held at common law that this was the only way of impeaching it, so Sir, -With regard to“ Mark Lane's” query as to what further fee & that in an action to enforce the award its invalidity could not be professional witness is entitled to where such witness has been in pleaded by way of defence (Thorburn v. Barnes, L. Ř. 2 C. P. 384). attendance, waiting for a case to come on in which he has been subThe award might, however, be got rid of by bill in equity. Since popaed (and fee'd with £1 18.), and where the case has gone over to the Judicature Acts it has been thought that any defence is another sittings. There is no direct authority on this, but I think that available which would formerly have been the ground for relief the case of Martin v. Andrews (26 L. J. Q. B. 39) and Chitty's Archin equity, and Mr. Redman (p. 297) adopts this view except bold's Practice of the Q. B., 12th ed., vol. 1, p. 351), may assist for cases where the award is impeachable on account of your correspondent in coming to the conclusion that his professional misconduct in the arbitrators. Some countenance is given witness will be entitled to any reasonable cost he may have already to the exception by a passage from the judgment of Lopes, L.J., incurred, though he may not actually have given evidence nor unay in Bache v. Billingham (1894, 1 Q. B., p. 112); but it seems diffi- the case have come on. And this logically leads to the increase of his cult to support it on principle. If an equitable defence avails in fee of £1 1s. by such sum as will meet such reasonable cost. one case, it should apparently avail in all. The grounds on which an Two years ago I hud experience of a case where a defendant bal award can be set aside are very clearly stated by Mr. Redman, and been sued for the return of a sum paid him by way of conduct money due prominence is given to the somewhat illogical distinction that an and for giving evidence at a trial. He was not a professional witness, award cannot be set aside for mistake of the arbitrator either in law but of the nature of an expert, and while living in London he was or fact, unless the mistake appears either on the face of the award or required under his subpona to attend at Birmingbam on the trial of in some paper accompanying and forming part of it. The reason for an action and to prepare himself to give certain evidence thereat. refusing to interfere with an award on the ground of mistake is The action was settled without coming to trial and the defendant doubtless a good one. The parties choose the arbitrator to be their final never actually made the journey to Birmingham. He claimed, howjudge. But it is difficult to see how the fact that he has placed his ever, to be entitled to retain the money paid bim, on tbe ground that mistake on the face of the award can make any difference. Mr. he had been put to trouble and had lost time in preparing himself to Redman's book has been carefully edited, and its utility is con- give evidence. The learned judge was of opinion (assisted by the siderably increased by the extensive collection of precedents and authorities referred to) that he was entitled to reasonable remuneraforms given in the appendix.
tion for trouble and loss of time incurred, though he had never
ACTIONS IN THE HIGH COURT OF JUSTICE. By W. BLAKE ODGERS,
[To the Editor of the Solicitors' Journal.] In these days of lax pleading it is satisfactory to know that the Sir,-I think the following facts may interest your readers : rising generation of pleaders can have at their side a book so full of In a recent divorce suit, in which I represented the respondent instruction, both as to the groundwork upon which the rules of the wife), the husband's petition was dismissed and a decree nisi for pleading rest and as to the practical application of those rules, as divorce with costs granted my client on her answer. that of Dr. Odgers. His work proceeds upon the right lines ; every Among the witnesses subpænaed on behalf of the respondent was rule is copiously illustrated by instances drawn sometimes from her husband's brother-in-law, formerly a solicitor in practice but reported cases, sometimes from the experience of the author. The who has not since 1884 taken out a certificate. This witness was book is primarily intended for the use of students, and cannot be not called. The case lasted six days. Under the circumstances, and regarded as a substitute for the “ White Book” or such standard taking into consideration the relationship of the witness, who lived works as "Chitty's Archbold”; but it contains much that should be in London, I considered £2 25. and 108. 6d. conduct money sufficient of use to the more mature practitioner, and if its instructions were remuneration. On taxation the registrar refused to allow this £2 28. always borne in mind there would be less of the modern slipshod The witness brought an action in the county court for £12 128., pleading and less necessity to have recourse to the power of amend- and the county court judge gave judgment in full. ment so often exercised by indulgent judges. The remarks as to Who is right, the registrar or the county court judge ? and when evasive denials and interrogatories are particularly good.
such authorities disagree how are solicitors to advise their clients ?
DECLARATIONS. by the Most Eminent Legal Authorities, under the General Editorship
[To the Editor of the Solicitors' Journal.] of A. WOOD RENTON, M.A., LL.B., Barrister-at-Law. Volume 4: County District to Employers and Workmen. Sweet & Maxwell Sir,—The correspondence on this subject appearing in your issue of (Limited).
last week has been under the consideration of the Council of the
Law Society, and I have been favoured with the following reply: A General View of the Law of Property. By J. ANDREW STRAHAN, “The Council have had under consideration your letter of the M.A., LL.B., assisted by J. SINCLAIR BAXTER, B.A., LL.B. (Lond.), Barristers-at-Law.
15th inst., together with the copy of your correspondence Second Edition. Stevens & Sons (Limited).
with Mr. Chamberlain. Price 12s. 6d.
"The Council must assume that the Canadian authorities are The Law of Master and Servant, with a Chapter on Apprenticeship.
within their rights in prescribing that a Declaration of By ERNEST ALBERT PARKYN, M. A., Barrister-at-Law. Butterworth
Crigin may be made before persons not being commissioners, & Co.; Shaw & Sons.
&c., and they think that it would be undesirable to attempt
to interfere with their regulations." I should have thought it was within the province of the law society
to have ascertained whether the Canadian authorities were within The newly-appointed judges, Justices Bigham, Darling, and Channell, their rights in prescribing that certain declarations might be made were to proceed to Windsor Castle on Thursday in order to receive the and taken in this country before “any person, &c.,' and I should honour of knighthood at the hands of her Majesty.
have assumed the contrary,
GEO. L. WINGATE. Canon Knox Little writes to the Times with reference to the late Baron 8}, Angel-court, E.C., Nov. 24. Pollock: "I had the happiness and honour of welcoming him as a guest at my table when he was in Worcester, and of being welcomed at his. What struck me was thig-on one occasion, noticing that he looked pale
THE LAND TRANSFER ACT, 1897. and tired, I remarked that his work must be exhausting. He answered in words like these : * I have had to be up almost all night; for to sentence
[To the Editor of the Solicitors' Journal.] come, especially the young-young men and boys-is such an awful responsibility. You must think carefully what is right, what is best for
Sir,- Notice of intention to apply this Act to the county of London their souls. You need'-there are his exact words — 80 much thought has been given to the London County Council, and the matter is now and prayer.' He was that great-nay, greater-thing, a good man." under the consideration of a sub-committee of that body and also
of a sub-committee of the Common Council of the City of Acting on the advice given in the foregoing letters, I, on behalf of
some clients who are laying out a large building-estate, had all the I trust that steps will be taken to inform the members of these grants stamped with an extra 6d. only, but on the sale of one of the sub-committees of the objections to making the interests of the houses the solicitor acting for the purchasers objected, and declined property-owners of this county the subject of experiment. Much to complete until the stamp-duty on the grant had been adjudicated. can be done by the profession individually, but probably it would be I accordingly had this done, but to my surprise the Commissioners advisable to form a committee of London solicitors who would co adjudicated 95. 6d. extra, noth withstanding the letter to Messrs. J. L. operate with owners of property, building societies, bankers, and and E. T. Daniell of the 21st of December last. Failing to see that others who are affected by the Act.
the adjudication was correct, I had some further correspondence with The fact that the interests of the profession are recognized by the the Solicitor of Inland Revenue, and by the following letters the Act does not, it appears to me, relieve us from the obligation of profession will observe the point has now been definitely settled : trying to save our clients from the dire results wbich its application
Somerset House, 12th August, 1897. will entail upon them.
A SOLICITOR. London, Nov. 24.
ADJUDICATION No. 5842 OF 1897.
Gentlemen,-In reply to your letter of the 11th inst. in this matter, STAMPS ON GRANTS RESERVING GROUND-RENTS
I beg to say that I am unable to refer to the abstract in the other case
mentioned by you without some further information to enable me to
trace it. As respects the present instrument, the mortgage is for [To the Editor of the Solicitors' Journal.]
£6,000, and although the rent-charge which is substituted as a Sir,—There having been considerable misapprehension in Bristol security is only to be a security to the amount of £60, there is no and elsewhere as to the correct stamping of grants in which the provision that it should be a security for the first £60, so as to cease ground-rents are reserved to mortgagees, Ï have taken the trouble, to be a security if the mortgage is reduced to £5,940; and it is clear as far as possible, to set the matter at rest. With the consent of that it can be applied in satisfaction of any part of the £6,000. Messrs. J. L. and E. T. Daniell, I have therefore much pleasure in
In these circumstances the duty of 103. appears to be properly sending you particulars of the correspondence which has taken place payable. I am, gentlemen, your obedient servant, between their firm and myself and the Solicitor to the Luland
N. J. HIGHMORE, Assistant-Solicitor of Inland Revenue. Revenue, Stamp Department, as follows:
Messrs. Waterlow & Sons, Lew Agency Department, London Whitson Chambers, 36, Nicholas-street, Bristol,
Bristol, 28th September, 1897. 9th December, 1896. To the Solicitor of Inland Revenue.
ADJUDICATION 5842, 1897. Dear Sir, -A client of ours has purchased a building-estate which Dear Sir,-In further reference to your assistant's letter of the 18th he has mortgaged for £3,500. The estate will be divided into at ult., and my reply of the 31st, I beg to say I have now had brought least 1.20 building-plots, and a separate grant in fee farm of each to my notice your letter of the 21st December, 1896, to Messrs. plot will be made in duplicate, reserving ground-rents mostly of £2 10s. ( J. L. and E. T. Daniell, wherein you state that if certain words are or £2 128. 6d. These rents will be reserved to the mortgagee as such, i inserted similar to a clause set out in Messrs. J. L. and E. T. and subject to the equity of redemption.
Daniell's letter, the substituted-security-duty would only be payable Below you will find copy of a clause which we propose to insert on £57 10s. The grant, the subject matter of the above adjudicain each grant.
tion, contained an exactly similar clause to that set out in Messrs. A question arises as to the amount of stamp-duty upon each grant, Daniell's letter, with the exception that it was to be a security for and we wish to refer you to p. 158 of Alpe's Stamp-Duties (3rd only £60. I shall be glad therefore if you will kindly favour me edition), in which Mr. Alpe expresses the opinion that such grants with a letter as to which is correct, or whether since your letter of are chargeable with 6d. per £100 as substituted security, the the 21st December, 1896, you have had cause to alter your opinion, additional duty not exceeding 10s. in administration. It appears to or if in the above adjudication some material fact escaped your us that if the words underlined by us are inserted in the grant, the notice. additional duty will be only 6d. Will you please inform us whether you consider our view to be correct.-We are, yours truly,
My reason for troubling you is in order to get the point finally
settled, not for my clients' benefit only, but in the interests of the
J. L. and E. T. DANIELL. profession in Bristol, and to save further question hereafter. And it is declared that the rent hereinbefore reserved to the said I might add that numerous local grants have been stamped with (mortgagee] and the benefit of the grantees covenants herein con an extra 6d. only in accordance with your letter of the 21st Decemtained shall be subject to such and the like right or equity of ber, 1896, and on a sale or purchase the question is raised, thereby redemption as the hereditaments hereby conveyed were subject to causing delay. under or by virtue of the said indenture of mortgage immediately I shall be glad if you will kindly give the matter your considerbefore the execution of these presents but shall be deemed to be security ation, and awaiting your reply,– I remain, yours faithfully, for only £57 10s.* of the whole mortgage-debt.
ERNEST J. PILLERS. · Whitson Chambers, 36, Nicholas-street, Bristol,
The Solicitor, Inland Revenue, Somerset House, London. 19th December, 1896.
Somerset House, 19th October, 1897. To the Solicitor of Inland Revenue. Dear Sir,-We shall be much obliged if you can give us an
ADJUDICATION No. 5842, 1897. early answer to our letter of the 9th inst.
Sir, -I regret that this matter has stood over longer than I We find the question of stamp-duty on grants in which mortgagees intended, owing to my absence from the office. join is much discussed locally, and the claim which we understand I agree with you in thinking that the two rulings to which you the Government are making for additional duty at the rate of 6d. refer are not consistent. Mr. Highmore's letter (of the 12th August) for each £100 of the whole mortgage-debt will in many cases be was written in my absence, and he was not aware of the previous prohibitive.
ruling given by me. The question is one on which different minds It appears to us that with the clause which we propose to insert in might well differ. On the whole, however, upon consideration, it the grants the amount of additional duty cannot exceed 6d. for a has been decided to adhere to the original ruling given by me, and rent or rents not exceeding £100 in value.
you may take it that if an instrument such as those you refer to were We think that the whole question may well receive the serious tendered for adjudication, duty would be charged in accordance with attention of the Commissioners, so that if even such a clause is not my letter of the 21st December last. inserted, the amount of additional duty may be made to correspond
You will of course understand that if in the absence of adjudication with the value of the rents reserved by each grant, say 20 years the question arose in a court of justice, the court would decide it purchase. We Te are, yours truly, J. L. and E. T. DANIELL. according to their own view, without reference to the opinion held Somerset House, 21st December, 1896.
bere as to the liability of the instrument to duty.-I am, sir, your Gentlemen,-I have to acknowledge receipt of your letters of the
F. C. GORE.
obedient servant, 9th and 19th December.
Ernest J. Pillers, Esq., Solicitor, Bristol. If a clause were inserted similar to that set out in your letter of
Bristol, Nov. 19, 1897.
ERNEST J. PILLERS. the 9th, I am of opinion that substituted-security-duty would only be payable on £57 108.
I have further to state that in administration the substitutedsecurity-duty on this particular class of substituted security is It is understood that Mr. Justice Grantham will be selected to succeed limited to 10s. as a maximum.-I am, gentlemen, your obedient Lord Justice Williams as one of the Election Petition Judges for the servant,
F. C. GORE, Solicitor of Inland Revenue. ensuing year. Messrs. J. L. and E. T. Daniell, Solicitors, Bristol.
The treasurer and benchers of the Inner Temple will be at home " to
the members of that inp on Monday evening next at nine o'clock. There • This will be twints-thrce years' purchase of ea' rat.
will be music in the hall and library.