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of a penalty. The provision, however, does not apply to the sale of newspapers; the Act only applies to the distribution of prints if they are of the nature of advertisements, and it may well be doubted whether in this case the alderman was correct in holding that the document in question was an advertisement. It appears to have been a reprint from a financial journal of a certain telegram from South Africa, and it does not seem to have been distributed by the journal as an advertisement of the paper, but in order to draw the attention of stockbrokers to the matter of the telegram. The alderman, however, thought that if a newspaper, or even a reprint bearing the name of a newspaper, is given away, it must of necessity be an advertisement of that paper. It is not improbable that the matter may be taken to the High Court.
Tun Counr of Appeal have reversed the judgment of the Divisional Court (\VnIenT and KENNEDY, J J .) in Ext‘ parts Page, and have granted a rule nisi for a prerogative writ of mandamus to compel the lord of a manor to admit the devisees of a deceased tenant. It appears that, according to the custom of the manor of Kingsland, in Herefordshire, the lord of the manor is entitled 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 tenant had neither beast nor jewel, and the lord of the manor rejected the proffered suit of clothes, claiming a fee of twenty guineas instead. In such a case the old-fashioned remedy is by prerogative writ of mandamus to compel the lord to admit the new tenant (R. v. Coggan, 6 East 431); but some doubt has been caused as to this remedy being now available by the decision in Reg. v. Lambourna Valley Railway Co. (22 Q. B. D. 463). It is a general rule that the prerogative writ of mandamus will not be granted where the applicant has another effective remedy for enforcing his right; and, since a mandamus can be claimed in an action (Judicature Act, 1873, s. 25 (6); R. S. C., 1883, ord. 53), it is possible to argue that the proper procedure is now by action of mandamus, and not by prerogative writ. Accordingly, in Reg. v. Lambour-no Valley Railway Co. it was held that the writ would not lie against a company to compel the registration of a transfer of shares, since the relief could be given in an action of mandamus. The notion, however, that the action had displaced the prerogative writ was discarded by DAY, .T., in Ifaxter v. London County Council (63 -L. J. 767), and in his view the action for a mandamus was simply an attempt to engraft upon the common law remedy a right in the nature of specific performance; in other words, it was available only where an action would lie between the parties, the mandamus being ancillary to the action. In Ea: parts Page the Divisional Court refused the prerogative writ of mandamus, apparently on the authority of Rog. v. Lambourna Valley Rail-wag Co., and held that the proper remedy for the devisees of the deceased tenant was by action of mandamus. But the case is not one in which the devisees are asking for mandamus—-in the words of DAY, J. in Baxter v. London County Council—“ for the purpose of enforcinga private right in respect of which private litigation has arisen,” and the Court of Appeal have decided in favour of the prerogative writ. It is, perhaps, 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 applicable.
Fnom run case of In the Goods ofllaria Stiles (Deceased), heard before Sir F. Janna on the 22nd inst, it seems that the question has never been decided whether, since the Probate Act, 1857, an executor who has renounced probate, and whose renunciation has been filed, can afterwards retract such renunciation. The first question seemed to be how far section 79 of the Probate Act, 1857, had interfered with the old practice of the ecclesiastical courts. From the authorities referred to, this practice seems to have been that a renunciation was not treated as a final act, and that whenever a new representation was required to the estate of a deceased person, it was necessary to cite all the parties having a prior claim to the applicant, although such parties had on previous occasions renounced their rights. The
Legislature, by 20 & 21 Vict. c. 77, s. 79, and 21 & ‘22 Vict. c. 95, s. 16, aimed at stopping this inconvenience ; but it was contended that these enactments were not meant to prevent retractation, on suflicient grounds, of a renunciation, even when it had been filed. In Ra Moranl (L. R. 3 P. & D. 151) it was held that a person may retract a renunciation at any time before it is filed in the registry, and that a renunciation did not exist as an effective instrument until it had been recorded; but there seemed to be no decision to shew whether'a renunciation could be retracted after it had been filed. There is, however, a dictum of Lord Pnnzanor: in In the Goods of Badenaoh (3 Sw. & Tr. 465), referring to section 79 of 20 & 21 Vict. c. 77, to the effect that there was nothing in that section to prevent the court from allowing a retractation according to the old practice in a case fit for it. And in In tho Goods of G-ill (L. R. 3 P. & D. 113) HANNEN, P., without deciding the question, said: “I should not hastily decide that the court is powerless to permit an executor who has renounced on good grounds to retract his renunciation.” Guided by these dicla, and acting on the principle that to allow the retractation was for the benefit of the estate, Sir F. Jntmn decided the question in favour of the applicant, and allowed him to retract his renunciation.
In vnzw of the magnitude and importance of the cases now determined in the county courts, it is not easy to understand why those courts do not yet possess any original jurisdiction over actions of breach of promise, libel, slander, or seduction, especially as they retain derivative jurisdiction over them, by virtue of section 66 of the County Courts Act, 1888 (51 & 52 Vict. c. 43). Certainly such actions do not, as a rule, give rise to dificult questions at law, though, equally with actions for malicious prosecution (which are no longer excepted from the jurisdiction of the county courts), they often involve grave issues afiecting the character and position of the parties. Possibly one reason for the exception referred to is, that the cases comprised in it are eminently fit to be determined by juries rather than by a judge alone, and should, therefore, be tried in the High Court, where a common or special jury of twelve persons is obtainable, rather than in a county court where litigants have to be content with a jury of five, and trial by special jury is not available under any circumstances. While, however, there certainly seems to be no adequate reason why the number of a county court jury should not be increased to the magic figure twelve, where either the parties desire it, or the judge recommends it, we venture to think that, at all events so far as actions for breach of promise, slander, and libel are concerned, they could adequately be disposed of by the county courts with their existing machinery. Undoubtedly, such an increase of county court jurisdiction would afiord considerable relief to the High Court, and diminish the necessity for the appointment of an additional judge, if it did not altogether remove it. On the other hand, however, it would impose a fresh burden, of no light weight, upon the county court ljudges; to enable them to bear which it would be necessary, either to increase their number, or else enlarge considerably the contentious jurisdiction of the registrars of the county courts.
On the 18th inst., say the Times reporter, on the hearing before Kekewich, J ., of a case upon the construction of a will, an office copy of the probate was, as usua , handed up to his lordship, a copy being obviously more conveniently handled and read in such cases than the large skins of parchment upon which the probate is, according to the common practice, engrossed. Mr. Justice Kekewich said: When solicitors learn to engross their probates bookwise we shall read them comfortably.
Mr. Ernest Baggallay, the nnglsirfllifl at West Ham Police-court, has, for a long pest experienced great difficulty in dealing with lads of ages ranging between fifteen and twenty charged with “sleeping out” and other minor ofiences. In the huge manufacturing district of West Ham, experience has shewn that work is easily found for boys even though they have been in trouble, but the lads soon lose their situations unless they have the advantages of decent and respectable homes. Mr. Baggallay, having long been confronted with this difliculty, has decided to starts house (or home) where such lads can find lodgings provided they go to work and contribute something towards their support; and it has been arranged that the house shall be under the direct supervision of the magistrate, who will be assisted by a local committee.
THE REAL REPRESENTATIVE. II.
IN our article of last week we endeavoured to point out what appear to be the principal defects of section 1 of the Land Transfer Act, 1897, and we confined our attention, for the most part, to the working of that section in connection with the general law.
We now propose to deal with section 2 ; in passing to set out briefly the efiect of sub-section 2 of that section, and to make a few suggestions with regard to the practice to he adopted until the law is rendered less obscure.
For convenience we here set out sub-section 1 :
2.— (1). Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representatives of a deceased person shall hold the real estate as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a
transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate.
It was no doubt intended by this sub-section only to make the representative a trustee after he had fully administered the estate ; but if any efiect is to be given to this enactment, some of his powers as executor or administrator of the real estate must be destroyed by making him a trustee.
Again, why is it necessary to confer any express power on the beneficiaries to require a transfer of the real estate? If a real representative is placed on the same footing with regard toreal estate as an executor with regard to chattels real, the beneficiaries would have the right as of course; there is, however, no ground for objecting to this power, except that it is superfluous.
It follows, then, if our contention is correct, that the Act would have been none the worse, and perhaps better, if the subsection had been omitted.
In passing, it may be well to note that the sub-section does not expressly preserve the right of testators to dispose of the 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, which directs that the court in granting letters of administration shall have regard to the rights of persons interested in the real estate, and gives to the heir (if not also one of the next-ofkin) an equal right with the next-of-kin to the grant, and from section 3 (1). \Vhen we know that one of the “incidents” of personal estate (sec sub-section 3, set out infra) is that it passes to the statutory next-of-kin on an intestacy, we may perhaps be pardoned for expecting to find an express saving of the rights of the heir, including the right to take proceedings against a third party for recovery of possession of the land.
Next to consider sub-section 2, which is as follows:
(2) All enactments and rules of law relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs ot administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal representatives in respect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in them or him, save that it shall not be lawful for some or one only of several joint personal representatives, without the nuthority of the court, to sell or transfer real estate.
No express jurisdiction is conferred on the court with regard to probate, &c., in respect of real estate, this, again, being left to he inferred from sub-section 4.
Though we think that greater simplicity would have been secured had chattels real, together with real estate, been made to devolve on the real representative, still this sub-section will, it appears, give fairly satisfactory results; these are so importsnt that, at the cost of appearing tedious, we propose to give a short summary of them so far as they relate to the general law.
Paramount power Q/'saIz’.—This sub-section enables the personal representatives of a deceased person to sell his real estate for the purposes of administration by a power paramount to the title of
all persons beneficially claiming under the will or on the intsstacy of the deceased.
of executors selling leaseholds, so, under this sub-section, a purchaser in good faith of “real estate ” will not he concerned to inquire whether a sale is necessary for the purposes of administration or not; nor, it would seem, is there any limit of time during whicha sale can be made, provided the personal representatives have not extinguished their paramount power, for instance, by assenting to the devise: Ra Venn and Furs:/a Contract (1894, 2 Ch. 101).
Express charge for payment of zlabts.—A charge of debts is efiected on real estate whether devised specifically or not (see sub-section 3), and a sale may be made for the purpose of paying them where necessary, notwithstanding the testator created no express charge. This reform is unnecessary, having regard to the paramount power of sale and to the existing liability of real estate.
Powers of personal representatives as regards their beneficiaries.—As between the personal representatives and their beneficiaries, the powers must be exercised with due regard to their rights. Thus the personal representatives ought not to sell real estate for payment of debts unless the property primarily liable is insufficient to meet them.
Effect of conste'tuiz'on of real rep;-osmlatzre as regards unregistered laml.—The actual benefits as regards unregistered land obtained by the constitution of a real representative appear to be confined to the case where title is made by the personal representative (presumably for purposes of administration), thus ousting, as regards a purchaser in good faith, the rights of the heir or devisee.
Szwcassion duty on sale by personal rapresentatz'vae.—Personal representatives can sell chattels real free from succession duty, as the duty is a charge, not upon the property itself, but upon the beneficial interest of the successor (Succession Duty Act, 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 that nothing in Part I. shall affect any duty), a purchaser cannot be safely advised to accept this view.
Esiale (lulg/.—Estate duty stands on a different footing, since under the Finance Act, 1894, s. 9 (1), a rateable part of the duty is made a first charge on property in respect of which duty is leviable, which docs not pass to the executor as such, though real estate under section 1 suprd now passes to the executor as such, the charge for estate duty is saved by section 5 infra. A sale cannot be made, therefore, free from the duty, unless the sale is for the purpose of raising the duty (Finance Act, 1895, s. 9 (5) ); nor can a purchaser assume that the sale is for this purpose.
Power of sale lzow e.vtz'1zgu:'eherl.—-The ower of sale given by this sub-section will be extinguished, where the land is specifically devised in settlement by a conveyance, or assent (the Act ought to have made a written assent necessary) by the personal representatives to the uses declared by the will; or if they are themselves the trustees of the settlement, by a conveyance to uses or by a declaration that they will hold upon the trusts declared by the will, according as the limitations are legal or equitable, in the case of intestacy by a conveyance to the heir, and in the case of a. specific devise in fee simple by an assent under section 3 (1), or (as is preferable) by a conveyance. It is conceived, however, that the power conferred by section 3 (1) to assent to any devise is no more applicable to a residuary devise than the common law assent is applicable to a residuary gift of leaseholds.
Dealings before probata.—An executor derives his title from the will, not from probate; and may do all acts incident to his office before he proves the will (Goodeve’s Personal Property, 2nd ed., p. 385; Williams’ Executors, 9th ed., p. 249). Thus he may sell under the paramount power conferred by this subsection, or execute a conveyance or declaration of trust in favour of the beneficiaries under the will, or assent to a specific devise; but, if his acts are relied on as matters of title, a subsequent probate must be shewn (ib. 251).
An executor can maintain and carry through actions founded on his actual possession of the subject-matter of the action before probate (ib. 253); and persons deriving title under him are in the same position (ib. 254); he may also commence an action and continue proceedings until production of probate is
Eelquired, and it is sutficient if he obtains the probate in time .' . 255).
An administrator has, of course, no title until the grant.
Eject of order for adnu'm'etralion.—The powers of a personal representative under this sub-section will be taken away by an order for administration which has been registered as a lis pdmlrml, whether an injunction or a receiver has been obtained or not (Wflqram v. Buckley, 1894, 3 Ch. 483, 493).
Will of real eatale must be provad.—Where a testator dies after 1897 the title of his devises will now depend to a great extent on the probate, for although the executor may assent to the devise before probate, nevertheless the right to give the assent must be evidenced by the probate, hence a purchaser will in all cases insist on probate being taken out.
Power to lease real eatate.—Personal representatives may subdemise their testator’s chattels real, but the under-lessee takes subject to the question whether an underlease is is the best mode of administering the assets (Wms. Exors., 9th ed., p. 808). It may be questioned, however, whether this sub-section confers any power to lease real estate.
We may now consider sub-section 3:
(3) In the administration of the assets of a person dying after the commencement of this Act, his real estate shall be administered in the same manner, subject to the same liabilities for debt, costs, and expenses, and with the same incidents, as if it were personal estate ; provided that nothing herein contained shall alter or afiect the order in which real and personal assets respectively are now applicable in or towards the payment of funeral and testamentary expenses, debts or legacies, or the liability of real estate to be charged with the payment of legacies.
The first part of this sub-section is copied from clause 74 of the Bill of 1888, under which Bill, as we pointed out in our previous article, the devolution of the beneficial interest in real estate on intestacy was to be assimilated to that of personal estate. Now that this obj ect is no longer in view, the sub-section is hardly what is required, inasmuch as it throws some doubt on the position of the heir; moreover, the proviso nearly reduces the first part to nothing.
Under sub-section 2 all the liabilities of personal representatives in respect of personal estate apply to real estate, so far as the same are applicable, as it that real estate were a chattel real.
This would seem to render residuary real estate liable to the payment of legacies, notwithstanding that there is no charge in the will, since chattels real not specifically bequeathed are so liable. Nor do the words “ so far as the same are applicable” appear to alter this construction.
By sub-section 3 real estate is directed to be administered “ with the same incidents as if it were personal estate,” one of those incidents of course being a liability for payment of legacies, and it is only the on/or of administration which is preserved by the proviso; the last clause seems merely to express the right of a testator to exonerate his personal estate.
The general result, then, appears to be the same as if the deceased had by his will charged his residuary real estate with the payment of legacies, in aid of, but without prejudice to the primary liability of, his personal estate.
This view is confirmed by section 4, under which personal representatives may appropriate residuary real estate in payment of legacies. Ot erwise, under that section, they might, subject to appeal, alter the rights of the residuary devisees by means of an appropriation. We apprehend, however, that this reform was not contemplated by the Legislature, since it may work considerable injustice to persons claimin under a will, executed before 1898, of a testator who died ager 1897, and is wholly unnecessary for the purposes of the Act.
Lastly, we will venture to make a few suggestions with regard to the changes in conveyancing practice which may be rendered advisable by reason of the defects in these sections.
Nothing, clearly, can be done to avoid some questions arising —for instance, as to whether the fee simple does or does not pass on the death of a tenant for life or in tail—nor can anything be done with respect to real estate passing on an intestacy.
Testators may, however, by devising all their real estate to their executors, insure that, unless they renounce probate and disclaim the devise, it will pass either under section 1 or by
virtue of the will, and may confer on the executors the like ,
powers with respect to property passing by virtue of the will as they have under the Act. t
Further, any disability to which the executors are made subject during administration by reason of their being created trustees under section 2 (1) may be set aside by a testator, and pecuniary legacies may be made contingent on the personal estate being sutficient to meet them as well as the debts.
The above precautions would, however, be of no avail in the case of an administration ds bomb non. But it is not now contended that the ditficulties, which would be avoided by means of these slight changes in practice, are sufiiciently serious to afford good reason for a testator to make a new will in consequence only of the passing of the Act. We, however, feel confident that the more these provisions of the Act are studied the less they will be appreciated; and we cannot refrain from expressing the opinion that the chance of a successful winding up, without the assistance of the court, of the estate of any landowner who is so inconsiderate to his successors as to die after the 31st of December next, and before the Act has been amended, has been rendered somewhat remote.
In the hands of its present editors, Goodeve’s Law of Real Property, while retaining to a large extent its original characteristics, has become a good deal more than a student's text-book, and it is entitled to rank as a sound exposition of the present law of real property, with no more historical matter than is necessary to explain the existing law, and with references by which inquiry on any particular point can be successfully pursued. The new law which has had to be incorporated in this edition is not, so far as it depends on statutes, extensive. The Conveyancing Act, 1892, the Married Women’s Property Act, 1893, and the sections of the Trustee Act, 1893, relating to the appointment of new trustees, have been included in the appendix, and the Voluntary Conveyances Act, 1893, is referred to in the text. But whatever may be the output of the Legislature, editors have an ever-flowing stream of case law to deal with, and the law of real property is continually receiving accessions in this way. Amogg recent decisions which are referred to inthis edition one of s ec' practical importance is [Ia Carter dc Kenderdine’e Contract (45 €V. R. 484), while the doctrine of consolidation of mortgages has been explained in Pledge v. White (1896, A. O. 187), the duties of a mortgagee in exercising his power of sale considered in Kennedy v. De Trafiord (45 W. R. 671), and the protection afforded to a mortgagee by getting in the legal estate examined in Bailey v. Barnes (42 W. R. 66). Again, Liquidation Estates Co. v. Willoughby (1896, 1 Ch. D. 726) shews that the questionable doctrine of Toulmin v. Steers (3 Mer. 210), that the purchaser of a_n equity of redemption who ays ofi‘ a mortgage does so for the benefit of the subsequent incumbrancers, is hardlfy a reliable authority. These are only a few of the recent cases re erred to in the present edition, and the notes bear in other ways ample evidence of the desire of the editors to give their readers control, either actual or potential, of the entire law of real property.
references, either to give or to afford the necessary clue to all the information that will ordinarily be wanted. Upon one important question connected with awards there seems to exist at present a good deal of uncertainty. Under the Act of 1889, as under the previous law, it is possible to get rid of an invalid award by moving 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 that in an action to enforce the award its invalidity could not be pleaded by way of defence (Thorburn v. Barnes, L. R. 2 C. P. 384). The award might, however, be got rid of by bill in equity. Since the Judicature Acts it has een thought that any defence is available which would formerly have been the ground for relief in equity, and Mr. Redman (p. 297) adopts this view except for cases where the award is impeachable on account of misconduct in the arbitrators. Some countenance is given to the exception by a passage from the judgment of Lopes, L.J., in Bachc v. Billingham (1894, l Q. B., p. 112); but it seems diflicult to support it on principle. If an equitable defence avails in one case, it should apparently avail in all. The grolmds on which an award can be set aside are very clearly stated by Mr. Redman, and due prominence is given to the somewhat illogical distinction that an award cannot be set aside for mistake of the arbitrator either in law or fact, unless the mistake appears either on the face of the award or in some paper accompanying and forming part of it. The reason for refusing to interfere with an award on the ground of mistake is doubtless a good one. The parties choose the arbitrator to be their final judge. But it is difficult to see how the fact that he has placed his mistake on the face of the award can make any difference. Mr. Redman’s book has been carefully edited, and its utility is considerably increased by the extensive collection of precedents and forms given in the appendix.
PRINCIPLES OF PLEADING.
Tnn PRINCIPLES or PLEADING, PRACTICE, AND Pnocnnnnn rs Crvrr. Acnoivs IN THE HIGH Gonnr or Jnsrrcs. By W. BLAKE Ononns, M.A., LL.D., Q.C. Third Edition. Stevens & Sons (Limited).
In these days of lax pleading it is satisfactory to know that the rising generation of pleaders can have at their side a book so full of instruction, both as to the groundwork upon which the rules of pleading rest and as to the practical application of those rules, as that of Dr. Odgers. His work proceeds upon the right lilies ; every rule is copiously illustrated by instances drawn sometimes from reported cases, sometimes from the experience of the author. The book is primarily intended for the use of students, and cannot be regarded as asubstitute for the “White Book” or such standard works as “ Chitl.y’s Archbcld " ; but it contains much that should be of use to the more mature practitioner, and if its instructions were always borne in mind there would be less of the modern slipshod pleading and less necessity to have recourse to the power of amendment so often exercised by indulgent judges. The remarks as to evasive denials and interrogatories are particularly good.
Canon Knox Little writes to the Times with reference to the late Baron 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 this—on one occasion, noticing that he looked pale 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 come, especially the young—young men and boys—is such an awful responsibility. You must think carefully what is right, what is best for their souls. You need ’-these are his exact words—‘ so much thought
FEE OF PROFESSIONAL \VITNESS. [To the Editor of the Solicitors’ Journal.]
Sir,—With regard to “ Mark Lane’s ” query as to what further fee a professional witness is entitled to where such witness has been in attendance, waiting for a case to come on in which he has been subpoenaed (and fee’d with £1 1s.), and where the case has gone over to another sittings. Thereis no direct authority on this, but I think that the case of Martin v. Andrews (26 L. J . Q. B. 39) and Chitty’s Archbold’s Practice of the Q. B., 12th ed., vol. 1, p. 351), may assist your correspondent in coming to the conclusion that his professional witness will be entitled to any reasonable cost he may have already incurred, though he may not actually have given evidence nor may the case have come on. And this logically leads to the increase of his fee of £1 ls. by such sum as will meet such reasonable cost.
Two years ago I had experience of a case where a defendant had been sued for the return of a. sum paid him by way of conduct money and for giving evidence at a trial. He was not a professional witness, but of the nature of an expert, and while living in London he was required under his subpoena to attend at Birmingham on the trial of an action and to prepare himself to give certain evidence thereat. The action was settled without coming to trial and the defendant never actually made the journey to Birmingham. He claimed, however, to be entitled to retain the money paid him, on the ground that he had been put to trouble and had lost time in preparing himself to give evidence. The learned judge was of opinion (assisted by the authorities referred to) that he was entitled to reasonable remuneration for trouble and loss of time incurred, though he had never actually given, or gone to the place where he was required to give, his evidence, and judgment was given accordingly.
I trust this may assist “ Mark Lane.” Lnx.
[To the Editor of the Solicitors’ Journal.)
Sir,-I think the following facts may interest your readers :
In a recent divorce suit, in which I represented the respondent (the wife), the husband’s petition was dismissed and a decree nisi for divorce with costs granted my client on her answer.
Among the witnesses subpoenaed on behalf of the respondent was her husband's brother-in-law, formerly a solicitor in practice but who has not since 1884 taken out a certificate. This witness was not called. The case lasted six days. Under the circumstances, and taking into consideration the relationship of the witness, who lived in London, I considered £2 2s. and 10s. 6d. conduct money sufficient remuneration. On taxation the registrar refused to allow this £2 2s.
The witness brought an action in the county court for £12 12s., and the county court judge gave judgment in full.
Who is right, the registrar or the county court judge? and when such authorities disagree how are solicitors to advise their clients P
DECLAR.ATIONS. [To the Editor of the Solicitors’ Journal]
Sir,—The correspondence on this subject appearing in your issue of last week has been under the consideration of the Council of the Law Society, and I have been favoured with the following reply :
“ The Council have had under consideration your letter of the 15th inst., together with the copy of your correspondence with Mr. Chamberlain.
“The Council must assume that the Canadian authorities are within their rights in prescribing that a Declaration of Origin may be made before persons not being commissioners, &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 their rights in prescribing that certain declarations might be made and taken in this country before “any person, &c.,” and I shou'd have assumed the contrary. G30. L. WINGATE.
8}, Angel-court, E.C., Nov. 24.
THE LAND TRANSFER ACT, I897. [To the Editor of the Solicitors’ Journal]
Sir,—Noticc of intention to apply this Act to the county of London has been given to the London County Council, and the matter is now
and prayer.’ He was that great—nay, greater-thing, agood 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 London. '
I trust that steps will be taken to inform the members of these sub-committees of the objections to making the interests of the property-owners of this county the subject of experiment. Much can be done by the profession individually, but probably it would be advisable to form a committee of London solicitors who would cooperate with owners of property, building societies, bankers, and others who are affected by the Act.
The fact that the interests of the profession are recognized by the Act does not, it appears to mo, relieve us from the obligation of trying to save our clients from the dire results which its application will entail upon the m. A SOLICITOR.
London, Nov. 24.
STAMPS ON GRANTS RESERVING GROUND-RENTS TO - MORTGAGEES.
[To the Editor of the Solicitors’ JournaZ.]
Sir,—There having been considerable misapprehension in Bristol and elsewhere as to the correct stamping of grants in which the ground-rents are reserved to mortgagees, I have taken the trouble, as far as possible, to set the matter at rest. With the consent of Messrs. J . L. and E. T. Daniell, I have therefore much pleasure in sending youparticulars of the correspondence which has taken place between their firm and myself and the Solicitor to the Inland Revenue, Stamp Department, as follows:
Whitson Chambers, 36, Nicholas-street, Bristol, 9th December, 1896.
To the Solicitor of Inland Revenue.
Dear Sir,—-A client of ours has purchased a building-estate which he has mortgaged for £3,500. The estate will be divided into at least 1_20 building-plots, and a separate grant in fee farm of each plot will be made in duplicate, reserving ground-rents mostly of £2 10s. or £2 12s. 6d. These rents will be reserved to the mortgagee as such, and subject to the equity of redemption.
_ Below you will find copy of a clause which we propose to insert m each g-rant.
A question arises as to the amount of stamp-duty upon each grant, and we wish refer you to p. 158 of Alpe’s Stamp-Duties (3rd edition), in which Mr. Alpe expresses the opinion that such grants are _nhargeable with 6d. per £100 as substituted security, the additional duty not exceeding 10s. in administration. It appears to us that if the words underlined by us are inserted in the grant, the additional duty wi_ll be only 6d. Will you please inform us whether you consider our view to be correct.—We are, yours truly,
_ _ J. L. and E. T. DANIELL.
And it is declared that the rent hereinbefore reserved to the said [mortgagee] and the benefit of the grantees covenants herein contained shall be subject to such and the like right or equity of redemption as the hereditaments hereby conveyed were subject to under or by virtue of the said indenture of mortgage immediately before thz execution of these presents but shall be deemed to be security for only 57 10s.‘ of the whole mortgage-debt.
. Whitson Chambers, 36, Nicholas—street, Bristol, _ _ ' 19th December, 1896. To the Solicitor of Inland Revenue.
Dear Sir,—Wc shall be much obliged if you can give us an
early answer to our letter of the 9th inst. _ _We find the question of stamp-duty on grants in which mortgagees ]01H is much discussed locally, and the claim which we understand the Government are making for additional duty at the rate of 6d. for each £100 of the whole mortgage-debt will in many cases be prohibitive.
It appears to us that with theclause which we propose to insert in the grants the amount of additional duty cannot exceed 6d. for a rent or rents not exceeding £100 in value.
We _think that the whole question may well receive the serious attention of the Commissioners, so that if even such a clause is not inserted, the amount of additional duty may be made to correspond with the value of the rents reserved by each grant, say 20 years’ purchase.-—We are, yours truly, J . L. and E. T. DANIELL.
Somerset House, 21st December, 1896.
Gentlemen,-—-I have to acknowledge receipt of your letters of the 9th and 19th December.
If a clause were inserted similar to that set out in your letter of the 9th, I am of opinion that substituted-security-duty would only be payable on £57 10s.
I have further to_ state that in administration the substitutedsecurity-duty on this particular class of substituted security is limited to 10s. as a maximum.—I am, gentlemen, your obedient iefvflnt. F. C. Gem-1, Solicitor of Inland Revenue.
Messrs. J . L. and E. T. Daniell, Solicitors, Bristol.
' This will be twenty-tlme years‘ purchase of each rent.
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 grants stamped with an extra 6d. only, but on the sale of one of the houses the solicitor acting for the purchasers objected, and declined to complete until the stamp-duty on the grant had been adjudicated. I accordingly had this done, but to my surprise the Commissioners adjudicated 9s. 6d. extra, nothwithstanding the letter to Messrs. J . L. and E. T. Daniell of the 21st of December last. Failing to see that the adjudication was correct, I had some further correspondence with the Solicitor of Inland Revenue, and by the following letters the profession will observe the point has now been definitely settled 2
Somerset House, 12th August, 1897. ADJUDICATION No. 5842 or 1897.
Gentlemen,—In reply to your letter of the 11th inst. in this matter, 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 £6,000, and although the rent-charge which is substituted as a security is only to be a security to the amount of £60, there is no provision that it should be a security for the first £60, so as to cease to be a security if the mortgage is reduced to £5,940; and it is clear that it can be applied in satisfaction of any part of the £6,000.
In these circumstances the duty of 10s. appears to be properly payable.—I am, gentlemen, your obedient servant,
N. J . HIGHMORE, Assistant-Solicitor of Inland Revenue.
Messrs. Waterlow & Sons, Law Agency Department, London
ADJUDIOATION 5842, 1897.
Dear Sir,-In further reference to your assistant’s letter of the 18th ult., and my reply of the 31st, I beg to say I have now had brought to my notice your letter of the 21st December, 1896, to Messrs. J . L. and E. T. Daniell, wherein you state that if certain words are inserted similar to a clause set out in Messrs. J. L. and E. T. Daniell's letter. the substituted-security-duty would only be payable on £57 10s. The grant, the subject-matter of the above adjudication, contained an exactly similar clause to that set out in Messrs. Daniell’s letter, with the exception that it was to be a security for only £60. I shall be glad therefore if you will kindly favour me with a letter as to which is correct, or whether since your letter of the 21st December, 1896, you have had cause to alter your opinion, or if in the above adjudication some material fact escaped your notice.
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 profession in Bristol, and to save further question hereafter.
I might add that numerous local grants have been stamped with an extra 6d. only in accordance with your letter of the 21st December, 1896, and on asale or purchase the question is raised, thereby causing delay.
I shall be glad if you will kindly give the matter your consideration, and awaiting your reply,-I remain, yours faithfully,
ERNEST J . PILLERS.
The Solicitor, Inland Revenue, Somerset House, London.
Somerset House, 19th October, 1897. ADJUDICATION No. .5842, 1897.
Sir,—I regret that this matter has stood over longer than I intended, owing to my absence from the ofilce.
I agree with you in thinking that the two rulings to which you refer are not consistent. Mr. Highmore’s letter (of the 12th August) was written in my absence, and he was not aware of the previous ruling given by me. The question is one on which different minds might well differ. On the whole, however, upon consideration, it has been decidedto adhere to the original ruling given by me, and you may take it that if an instrument such as those you refer to were tendered for adjudication, duty would be charged in accordance with my letter of the 21st December last.
You will of course understand that if in the absence of adjudication the question arose in a court of justice, the court would decide it according to their own view, without reference to the opinion held here as to the liability of the instrument to duty.—I am. sir, your
obedient servant, F. C. Gone. Ernest J . Pillers, Esq., Solicitor, Bristol. Bristol, Nov. 19, 1897. ERNEST J.Pi1.i.i-ms.
It is understood that Mr. Justice Grantham will be selected to succeed Lord Justice Williams as one of the Election Petition Judges for the ensuing year.
The treasurer and benchers of the Inner Temple will be “ at home " to the members of that inn on Monday cvening next at nine o’clock. There will be music in the hall and library.