« PreviousContinue »
shall also be entered on the register and on the charge certificate (rule 203) ; this renders the rule more complete. We are glad to see that our views (ante, p. 447) with regard to transfers to the uses of a settlement have been adopted, and the forms altered (Forms 16 and 18). Power is now given to issue a new certificate upon foreclosure (rule 207): we drew attention to this omission (ante, p. 486). The rule also has regard to section 8 (4) of the Act of 1897 : this also had been overlooked (ante, p. 684). No rule has, however, been made with respect to a valuation under section 4 of the Act of 1897 (ante, p. 486), this, however, will, we apprehend, be provided for by a general rule of court. In the interests of landowners and of the general working of the register, it is to be regretted that more of our suggested amendments (ante, p. 701) have not been adopted, but as the rules bear date the 2nd of August, some of our suggestions were pprhaps too late to be considered, though it is hoped they may e of service when further rules are from time to time issued.
Tan Coviir of Appeal have settled the vexed question as to the application to different classes of legal proceedings of the provision of the Public Authorities Protection Act, 1893, that where judgment is obtained by the defendant authority it shall carry costs to be taxed as between solicitor and client. As pointed out ante, p. 587, it has been thought by some that this right was restricted to actions for damages and did not extend to proceedings in the Chancery Division for an injunction and similar remedies, this view being founded on such cases as Flower v._ Low Layton Local Board (5 Ch. D. 847) decided upon the somewhat different language of the now repealed section 264 of the Public Health Act, 1875. The Court of Appeal have now delivered their considered judgment on this point in Ffeldcn v. 17ie Mayor, §~c., of Morley, and have come to the conclusion that the Act applies to actions for injunctions as well as to actions for damages, and that the dismissal of an action against a public authority is equivalent to judgment for the defendant. The decisions to this effect of ROMER, J ., in Harrcp v. 17w Mayor of Oeaett (1898, 1 Ch. 525) and Toma v. Clacton Urban District Council (ante, p. 593), and of Sriamiso, J ., in Holfo-rd v. Acton Urban District Council (Times L. R. 476), are therefore upheld. It is difficult to see how the contrary view could have been supported ; the Act in terms applies to “any action, prosecution, or other proceeding . . . against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such act, duty, or authority.” “ Person,” of course, includes any corporation, and although the cases above referred to were actions against local authorities, the application of the Act cannot be restricted to those bodies. The Court of Appeal (in the same case of Fielden v. Morley) also held that the Act does not apply to appeals or to motions, but only to the general costs of the proceedings. And in the case of The North Jlletropolitan Tramways Co. v. The London County Council (1898, 2 Ch. 145) Roman, J ., pointed out that as the right to solicitor and client costs is given by the Act itself, it is not necessary that the judgment should direct that the costs should be taxed on this footing.
THE FUGITIVE Offenders Act, 1881, does for the various parts of the British Empire what the Extradition Acts, supplemented by treaties, do for foreign countries. The Act has not often come before the High Court for construction; but two cases have recently been considered by that tribunal which raised points of importance. In each case the question was considered whether the court had power to order a person to be released on bail, when that person has been committed toprison in order to be returned to another part of her Maj esty’s dominions for trial there by -the courts of that part. It was contended on behalf of the Crown that the court has no such power, and that the fugitive must be kept in custody till the time comes for his i-etui-n—that is, during the period of at least fifteen days which must elapse between the committal and the return.
Now, there can be no doubt that the court has power to admit to bail in all cases unless forbidden by statute. Thus it is stated by BLACKSTONE that the Court of King’s Bench may admit to bail even in cases of treason. It is not easy to imagine the court surrendering this important power except in cmsequence of express statutory provision, nor is it easy to suppose that Parliament would interfere with this ancient power merely by implication. The court was therefore clearly_ justified,_in the absence of anything in the Act expressly taking away_ its discretion, in maintaining its right to admit tp bail. Bail, however, as a matter of fact, was not granted in either of the two cases, and it is quite obvious that it would very seldom indeed be wise to release a fugitive. It was stated by one member of the court that this decision must not be taken to apply equally to the Extradition Acts. In cases under those Acts the defendant is probably a foreigner, and his crime certainly is not one “against the peace of our Lady the Queen.” In _fact the handing of him over to the foreign State is regulated in every case by some treaty. The Extradition Acts give powers to our courts to carry out such treaties, but in every case the treaty in question must itself be considered, as each treaty has the force of law by virtue of an Order in Council made under the Extradition Act, 1870. By such treaty this State probably binds herself, under certain circumstances, to hand over a fugitive to the foreign State, and it would hardly be consistent with such an obligation to allow the fugitive his hberty when once those circumstances have arisen.
Two POINTS of considerable importance with respect to_ the stamp duty payable on an agreement for-_the sale of a business have been decided by the Court of Appeal in West London Syndicate (Limited) v. C'ormm'ssz'oners of Inland Re-venue. The syndicate were the purchasers under an agreement under‘ seal of (1) the goodwill of a hotel, (2) the lease of the hotel, (3) furniture and fittings, and (4) stock-in-trade and book debts. The consideration was the undertaking of the debts of the vendor, amounting to- £1,335, and the payment of £4,250, of which £1,468 was for furniture and stock-in-trade. For the assignment of the leaseholds the licence of the lessor was necessary, and the agreement provided that, in the event of the licence not being obtained, the vendor should, at the option of the syndicate, execute R declaration of trust in its favour. Such declaration was subsequently executed. The agreement did not apportion the consideration payable in respect of the leaseholds and the goodwill» and on behalf of the syndicate it was contended (1) that the agreement was for the sale of the legal interest in the leaseholds, so as not to require ad calorem duty on the agreement, and (2) that the goodwill was inseparably attached the premises and was not separately chargeable. The Divisional (l0111‘l (GRAINTHAM and OHANNELL, JJ.) decided both points in favour of the syndicate, so that the only property which remsmfld chargeable with ad valorem duty on the agreement was the book debts. The Court of Appeal have taken the same view on ll1° first point, but have reversed (A. L. SMITH and RIGBY, hill-i VAUGHAN WILUAM8, L.J., dies.) the Divisional Court on tlw second. The contention for the commissioners was that ll1° option to take a declaration of trust made the agreement one l0! the sale of an equitable interest in_1and so as to attract of calorem duty, but, as has been pointed out in the Court 0 Appeal, there was no agreement except f_or the purchase of 8legal interest. As to the substituted equitable interest there was no more than an option, which at the time when the ag_1‘°°' ment was executed—that being the date which deterimlled the liability to stamp duty-—did not m any way ‘bind ill? syndicate. But under the circumstances the more 1l11I_)Ql'l33nf point was the second, relating to the separate chargeability 0 the consideration for the goodwill. In Ev pa;-to Pmmett (16 Ch. D., p. 233) Jnsssn, ll/I.R., treated it as perfectly clear thsg the goodwill of a public-house was not personal, but _pBB8° with it. “It is quite plain,” he said, “that the goodwill 0:18 public-house passes with the house. In such _a case the g0 5 will is the mere habit of the customers resorting to the hell"-I In spite of this, however, the majority in the Court of APPS,“ have held that it is a separate matter of sale, and is sepllrll Y chargeable with duty. Hence, since there had been no apP°l"
tionment between the leaseholds and the goodwill, the assessment of the commissioners of ad valorem duty on the entire consideration for the two was upheld.
A NOVEL point arising under the Betting Act, 1853, is a rarity ; such a point was decided by the Court for the Consideration of Crown Cases Reserved in Reg. v. Hobbs (reported in another column), a case reserved by HAWKINS, J., from the Lewes Summer Assizes. The defendant, a licensed victualler, promoted an ordinary “ Derby sweepstake ” among his customers; it was to consist of a thousand subscriptions of 2s. 6d. each, 10 per cent. of the amount subscribed was to be deducted by the defendant for “expenses,” and the balance to be divided amongst the drawers of horses in prizes of amounts varying from £45 to the drawer of the winning horse to 5s. to the drawer of a “ non-starter.” Books of tickets were provided by the defendant, a ticket being handed in the public-house to each subscriber and his name and address being entered on the counterfoil. The defendant received the subscriptions with the intention (had not a visit of the police put a stop to the whole transaction) of conducting the drawing of horses and distributing the prizes amongst the successful drawers, as he had actually done in previous years. The second branch of section 1 of the Act forbids the use of a house for the purpose of any money being received by or on behalf of the occupier as the consideration for a promise or agreement to pay money “on any event or contingency of or relating to a horse-race." It was under this enactment that the defendant was charged. Hawxnvs, J ., evidently felt considerable doubt as to whether the facts above stated disclosed a sufiicient case to be left to the jury; but having regard to the general importance of the case, he took the course of directing the jury to find a verdict of guilty, with a view to bringing the conviction before the appellate tribunal. The court (which included HAWKINS, J.) had no difficulty in coming to a decision in favour of the ‘defendant. The main grounds of their decision were two: first, that the enactment under which the defendant was charged pointed to circumstances establishing a contractual relation between the parties, a promise to pay on a certain event, while in the present case the defendant made no such promise, but merely acted as a stakeholder intending to distribute the common fund created by the subscribers (to which he had not himself contributed) in accordance with the arrangement or understanding upon which they had contributed it. Secondly, the “ event or contingency ” upon which the fund was to be distributed was not, in the opinion of the court, an event or contingency relating to a horse-race ; the event which entitled a particular subscriber to receive a certain prize was the event of his drawing a particular horse. The court were careful to avoid saying that the defendant had not brought himself within the meshes of the law; in fact they expressed the opinion that the transaction was a lottery, and having regard to the cases of Allpart v. Null (1 C. B. 974) and llcaring v. Hillinga (14 M. & W. 711) it would be difficult to contend the contrary. But the defendant was not charged with an offence under the Lottery Acts, and looking at the words of the section and the whole scope and intention of the Act under which he was charged, it is tolerably clear that the court were right in qusshing the conviction.
Acnons for pound-breach are comparatively rare, but when such an action is brought the plaintiff is entitled, under 2 Will. & M., sess. 1, c. 5, to recover treble damages. Does he, however, debar himself from this remedy if before the action he has recovered damages from another source? This question has arisen in the case of Kemp v. Clzristmas, in which the Court of Appeal recently directed a new trial. The plaintiff was the landlord of stables at Watford, and, rent being in arrear to the extent of £40, he put in a distress, and impounded on the premises two horses and some carriages. The chattels impounded, which were over £40 in value, were removed by the defendants. The removal appears to have been rendered possible by the negligence of the bailills, and the landlord
recovered £40 against them as damages in an action in the Mayor’s Court. He then brought an action against the defendants upon the statute. By this it is provided (section 4) that “upon any pound-breach or rescue of goods or chattels distrained for rent the person or persons grieved thereby shall, in a special action on the case . . . recover his and their treble damages and costs of suit against the offender or offenders.” So far as costs are concerned, the plaintiff is now only entitled, instead of treble costs, to recover “a full and reasonable indemnity as to all costs and charges in and about the action” (5 & 6 Vict. c. 97, s. 2), but otherwise the section remains in force. At the trial before RIDLEY, J., the defendants set up as a defence the plaintiff's recovery of damages against the bailifis, and the learned judge, being of opinion that no damage had been sufiered, and that consequently there was nothing to treble, gave judgment for the defendants. This view is by no means unreasonable, but the Court of Appeal have held it to be incorrect, and have ordered a new trial. Partly this is upon the ground that the sum of £40 recovered against the bailiffs does not necessarily represent the total damage incurred in respect of the pound-breach, and evidence of this damage should have been admitted. But it was also suggested that the pound-breach gave a vested cause of action for treble damages which could not be taken away by the recovery of damages from a third party, though the amount so recovered might go in mitigation of the damages for the pound-breach. Thus the plaintiff would at least be entitled to the treble of a nominal sum for damages and to costs. It will be interesting to spe how the questions thus left open are settled at the new tria .
Hrrnnaro, perhaps, the amiable persons who delight in cat shows have not had their pursuit taken with sufficient seriousness. Thanks, however, to the happy differences of two ladies of Lee, puss has received a. new importancefand in the person of “ ltoy ” has occasioned a decision which, it is to be hoped, will rank as a leading case in the law of partnership. The case is Harris v. Slater, and the decision was given by Mr. Justice Srmuno. In form it was a decision of a court of first instance, but in substance it was an appeal from the committee of the National Cat Club. The plaintifi and defendant may be called for the sake of brevity Miss A. and Miss B. Miss B. called upon Miss A. and proposed that the two should become partners in a really good Persian cat. Miss B. was to provide the purchase-money, and Miss A. was to provide board and lodging. The bargain was struck and the really good Persian cat was bought for 30s. A suitable house and grounds were procured at the expense of 25s. Puss lived happily at Miss A.’s expense for eighteen weeks and then his merits were put to the proof. Apparently the ladies had got a good thing. Roy was entered in their joint names for the National Cat Club Show at the Crystal Palace and won several prizes, including a championship medal. But success bred disputes. Miss B. now alleged that the oat was all her own, and of course the prizes too. Miss A. rested upon the true meaning of the partnership arrangement. The National Cat Club committee very wisely confined themselves to the form of entry. The entry was joint and the cat and the prizes were joint likewise. But Miss B. carried Roy off to a Brighton show where the National Cat Club was unknown, and this time the entry was made in her name alone. Prizes were again won, and were secured by Miss B. for her sole and separate use. But they have not been free from the claim of Miss A. The law has been invoked, and Mr. Justice Srmrmo has held the scales of justice with unbiassed hand. He has decreed in favour of a partnership both in the cat and in
‘the prizes. Only one element apparently was wanting to the
solemnity of the trial ; we do not gather that Roy himself was produced. His present value is variously estimated at £20 and £100. In future shows he will certainly deserve some extra marks for his contribution to the science of law.
well-meaning, but ill-advised, efforts of some county court judges to mitigate the severity of the law by what may be termed judicial legislation. In the case under consideration a bankrupt who had been convicted of frauds under sections 14 and 15 of the Debtors Act, 1869 (82 & 33 Vict. c. 6'2) and had undergone a. sentence of six months’ imprisonment in respect thereof, and whose assets were under 10s. in the £, obtained his discharge in the county court, without any “special reasons ” for such leniency being alleged in the judgment or order of discharge, though it is provided by the Bankruptcy Act, 1890, that, under such circumstances as those above mentioned, the court shall refuse the discharge “unless for special reasons the court otherwise detmnz'nes” (section 8 (2)). This decision has now been reversed, the Divisional Court holding that the facts relied upon by the county court judge as warranting his exercise of clemency-—namely, that the jury who had convicted the bankrupt of frauds had recommended him to mercy, and that he (the bankrupt) was a young man and had suffered for his misdemeanours by imprisonment—did not constitute “special reasons” within the above enactment, which, moreover, it was held, required in all such cases as that under consideration that the facts constituting the “ special reasons ” should be definitely set forth in the judgment and also in the order of discharge. In this connection, we would respectfully protest against the mode of administering the Debtors Act, 1869, adopted by some county court judges, who, it seems, on principle, invariably refuse to commit the debtor in respect of a. judgment debt, however ample his means of payment may be. Fortunately, however, the majority of the county court judges do not act in this way, but regard the Debtors Act, 1569, asastatute to be firmly, though benevolently, administered, recognizing, no doubt, that, should its penal provisions, through a mistaken philanthropy, ever be reduced to a dead letter, the working classes will be the first to suffer, as they will no longer readily obtain credit, but be required to make cash payments even for the necessaries of life.
Tm; CASE of Re Pz'ero_1/, W/zitwham v. Piercy (reported elsewhere) has resulted in a curious conflict between English and Italian law. Mr. Justice Noaru has found as a fact what the Italian law on the subject is. An Italian court has had the temerity to disagree with him. The unfortunate heir-at-law, however, although resident in Italy, is directed by Mr. Justice Nonrn to consent to the judgment of the Court of Appeal of Cagliari being reversed. If he does not comply, it will be curious to see if an English court can force its interpretation of Italian law upon a resident in Italy. Will the Italian court carry the matter further by committing the receiver appointed by the English court?
THE MERGER OF CHARGES.
The recent case of 1Jz‘qzu'datz'on Estates Co. v. Wi'Zlou_qlzby (46 W. R. 589) in the House of Lords has an important bearing upon the doctrine of the merger of charges, and though the olten-criticized rule enunciated in T oulmin v. Sivrre (3 Mer. 210) did not directly come in question, it seems safe to assume that it cannot now be treated as correct. In general the question whether a merger is effected whena charge upon property vests in the owner of the property does not depend upon any technical considerations. Technically the charge should be kept alive by having it assigned to a trustee for the owner of the property, but this is by no means necessary. \Vhatever might formerly be the result at law, equity decided according to the intention of the parties, whether expressed or presumed, and in this matter the rule of equity now prevails for all purposes.
Prirnrlfacie, when a charge vests in the owner of the property subject to the charge, it is merged, either upon the ground that the owner has no use for a charge upon his estate (Forbes v. Jlofutt, 18 Ves. 390), or for the purpose of simplifying the title (])om'st/zoiyae v. Porter, 2 Eden 162). But this result does not follow where the owner of the property has a limited interest in it_ other than an estate tail. Where, for instance, the tenant for life of land pays ofi a charge upon the land the presumption
is that he intends to keep it alive for his own benefit, and not to merge it in the fee for the benefit of the remainderman: Burrell v. Earl of Eyramont (7 Beav., p. 232). And even where the person paying off the charge is absolute owner of the property, the presumption in favour of merger gives place to an actual or implied expression of intention. Where there is an actual expression of intention, no difliculty arises, and even though an intention has not been directly expressed, it may be possible to deduce it from the surrounding circumstances. But the law goes further than this in favour of the owner of the property, and, even though no specific intention is apparent, it will impute to the owner of the property an intention to do what was most for his benefit. “ Where,” it was said in Forbes v. Jlqflhtt (supra), “ no intention is expressed, or the party is incapable of expressing any, the court considers what is most advantageous to him.”
Upon the law as thus stated an exception seemed to be grafted by the case of Toul-min v. Steere. Where an estate is subject to successive charges, and the equity of redemption and the first charge become vested in the same person, it is obviously for the advantage of such person that the first charge should be kept alive. If, however, it is the original mortgagor who pays ofi the first charge, it would be unjust to allow him to keep it alive against his own creditors. “ The general principle,” said Lord Caarrwoarn, L.C , in Otter v. Vaux (6 D. M. & G., p. 642), “ that a mortgagor cannot set up against his own incumbrancer any other incumbrance created by himself is a proposition that, I think, has never been controverted.” But Toulmin v. Steers carried the principle farther than this, and extended it to a purchaser of the equity of redemption from the mortgagor. One purchasing an equity of redemption, it was said, cannot set up a prior mortgage of his own, nor consequently a mortgage which he has got in, against subsequent incumbrancers of which he had notice.
Taking this proposition literally, it implies that the purchaser of an equity of redemption cannot, even by an actual expression of intention, keep alive a charge which he gets in, but to this extent the case has not been accepted as correct, and it is well settled that the purchaser of an equity of redemption can keep alive a charge by an expression of an intention to that efiect, and that Toulmfn v. Steere, if it applies at all, applies only where such expression is not to be found. “The intention,” said Jsssan, M.R., in Adams V. Angeli (5 Ch. D., p. 646), “if expressed, governs the case, but if no intention is expressed, then T oulmin v. Steers says that the incumbrance which is paid off is merged, and the subsequent incumbrancers let in.” The same case shews that the intention to keep alive the charge need not be expressed in so many words ; it is suflicient if it can be collected from the circumstances attending the transaction.
The case of Adams v. Angel! having qualified the rule in Toulmin v. Steers to this extent, it remains to consider whether a specific intention, either expressed or evidenced by circumstances, is necessary in order to keep alive the charge, or whether, as in other cases, the court will not impute to the person paying ofi the charge an intention to do what is most advantageous to him. The judgment of Lord Macxaouran in Thorns v. Cann (1895, A. C., p. 18), without expressly pm-. porting to overrule Toulmin v. S!sere, appears to carry the law as far as this. “Nothing,” said the learned lord, “is better settled than this, that when the owner of an estate pays charges which he is not personally liable to pay, the question whether those charges are to be considered as extinguished, or as kept alive for his benefit, is simply a question of intention. You may find the intention in the deed, or you may find it in the circumstances attending the transaction, or you may presume an intention from considering whether it is or is not for his benefit that the charge should be kept on foot.” There is nothing in this statement to distinguish whether the owner of the estate is or is not the purchaser of the equity of redemption, and, indeed, its most obvious application is to the case where he is such a purchaser. It is admitted that the original mortgagor cannot set up against subsequent incumbrancers a charge which he himself pays oif, and the mortgagor being thus excluded, the passage points at a purchaser from the mortgagor.
Accordingly, when Liquidatiorz Esfates Co. v. Wz'Zlou_g7z6_;/ was before the Court of Appeal (44 W. R. 612) Lmnnsx, L.J.,
i8 8 THE SOLICITORS’ JOURNAL [Vol 42]
stated the law in a form which virtually overruled Toulmin v. Steera. “ Having regard,” he said, “ to T/iorne v. Cami, it is perhaps now safe to go a little further than Adams v. Angall, and to say that where a purchaser of a property pays_ofi acharge pn , it without showing an intention to keep it alive, still, if its continuance as an existing charge is beneficial _to him, it will be treated in equity as subsisting, unless an intention to the t contrary can be inferred from the terms of the purchase deed, or from other legitimate evidence.” Thus the necessity for any specific intention to keep the charge_alive is clearly set _aside, and the general rule is applied that, in the absence of_evidence of intention, the court will impute to the party such intention as is most for his advantage.
The facts in Liquidation Estates 00'. v. Wi'llou_ghby were complicated, and in the result the House of Lords held that the purchasers took only a transfer of charges, and not the equity of redemption in the property together with the charges. Hence there could be no question of merger. But had the _quest_ion arisen it seems that no difficulty would have been felt in fixi_ng the rights of the purchasers of the charges in accordance with what would be most for their advantage. “ I can understand,” said Lord MACNAGHTEN, “the owner of an estate preferring to have it discharged from an incumbrance though the incumbrance be his own propcrtyybut I cannot understand a person entitled to several charges in a money fund, which must rank in priority according to the date of notice, sweeping _away the earlier charges and trusting to the last, though it might seem large enough to exhaust the fund and though _there might be apparently nothing behind it.” Stripped of its references to the particular circumstances of the case, this passage means that where, ina questionof merger, one course will be obviously to the advantage of a person getting in a charge, an intention to adopt that course will be attributed to him, , and such intention will, if necessary, prevent any merger of the charge. Similarly Lord HERSCHELL observed that, if it was necessary to hold that the charge was kept alive under the conveyance, the fact that it would be obviously for the benefit of the purchaser to keep it alive would be ample reason for so holding. Although the rule laid down in Toulmin v. Stee-re has not been formally overruled, it would seem that there is very little of it left.
The Law of Agricultural Holdings; comprising the Agricultural Holdings Act, 1893, and County Court Rules, the Law of Distress Amendment Acts, 1888 and 1895, the Tenants’ Compensation Act, 1890, and the Market Gardeners’ Compensation Act, 1895. All fully Annotated, together with Two Chapters on the Principles of the Agricultural Holdings Act, 1883, and the Procedure for the Recovery of Compensation; also an Appendix of Forms and Precedents of Agreements and Notices (being in part a Third Edition and Extension of -Ieudwine’s A ‘cultural Holdings Act, 1883). By SYLVAIN MAYER, B.A. (Lond.§,-nPh.D., Barrister-at-Law. Waterlow & Sons (Limited).
The Law of Arbitration and Awards. With Appendix containing Statutes relating to Arbitration, and a Collection of Forms and Index. Third Edition. By JOSHUA SLATER, Esq., Barrister-at-Law. Stevens & Haynes.
Death Duty Tables; comprising in an Expanded Form Tables I., II., III. appended to the Succession Duty Act (16 & 17 Vict. c. 51) for Valuing Successions and Annuities. With examples Illustrating their Use and Application. By A. W. NORMAN, B.A., B.Sc. (Lond.), of the Legacy and Succession Duty Oflice. William Clowes & Sons (Limited).
American Law Review (J uly—August, 1898). Editors: SEYMOUR D. THOMPSON (St. Louis) and LEONARD A. J ONES (Boston). Reeves & Turner.
largest and most convenient room at the Royal Courts of J usticc.
CORRESPQNDENCE. “PRACTISING” IN LONDON. [To the Editor of the Solicitors’ J0urnal.]
Sir,~I enclose you copy of a correspondence which I have had with the Secretary to the Incorporated Law Society relative to the rights of a country solicitor to transact certain business in London without having a town certificate. ~
You will observe that the Council express the opinion that a country solicitor is not at liberty to instruct counsel direct from the country to, say, oppose an appeal from the county court, and to attend in conference, and at the trial, and to charge for such services, unless he employs a London agent.
I have always been under the impression that it is a solicitor’s duty to conduct litigation with as little expense as possible to his client, and in the case I have put forward it seems to me that instructing agents to deliver the brief to counsel, and to be present at the conference and to attend at court, is an expense from which the client derives no benefit whatever.
I quite agree with the Council that the relative rights of town and country solicitors should be preserved, and that the entry of the appeal, filing of aifidavits, and similar steps, which require a constant attendance at the courts, should be done through agents, but I fail to see that the transmission of the brief direct to counsel is any more practising than sending instructions direct to a conveyancing counsel to settle a deed.
The whole point, to my mind, depends on the interpretation of the word “practising,” and in the case of the subpoena which gave rise to the enclosed correspondence I am still of opinion that I was legally entitled to issue it.
If you can find room in your paper, and you think the matter is of suficient importance to the profession, I should be glad if you would publish the correspondence so that the question can be ventilated.
13, Queen-street, Great Yarmouth, WALTER Josnrrr.
[The following is the correspondence referred to.]
Incorporated Law Society, '
Dear Sir,—I am desired to inform you that the Council's attention has been drawn to a Crown Oflice subpoena, dated 11th June last, upon which your name appears as the solicitor for the defendant in the case of The Queen v. J. TV. Bristam.
The Council observe that your practising certificate docs not entitle you to practise in London, and they feel before considering the matter it is due to you as a member of the society to afford you an opportunity of explaining, if you wish it, the circumstances under which you came to issue the subpoena in question.
An early answer will oblige.—Yours faithfully,
S. P. B. Bucnmnn, Assistant Secretary.
H. Ohambeilin, Esq., Solicitor, Great Yarmouth.
13, Queen-street, Great Yarmouth, 7th July, 1898.
Dear Sir,—~~Mr. Chamberlin has shewn me your letter to him of the 5th inst., and as I am responsible for the issue of the subpoena referred to by you, and Mr. Chamberlin has no personal knowledge of the circumstances under which it was issued, you will doubtless agree that it will be better for me to reply to your letter.
I would first explain my position in the matter. For the pist two years I have acted as managing clerk to Mr. Chamberlin and during that time I have taken out a country certificate, before then I held a town certificate, and I have been a member of the society since my admission.
I had the sole conduct of Mr. Briston’s defence, and it being necessary to have the evidence of London witnesses, I was instructed by Mr. Briston to accompany him to London for the purpose of obtaining such evidence. I went to town by the morning train on Saturday, the llth of June, arriving at Liverpool-street at 11.35. The courts c using early in consequence of it being Saturday, I went there first to issue a subpoena, as I feared there might not be time after seeing the witnesses and taking the evidence to get to the courts before they closed. I may say the witnesses were to be seen at Smithfield. I duly filled up the subpun.-i. indorsing it with Mr. Chnmberlin’s name, when the clerk in the Crown Ofllce to whom I presented it for sealing raised the point as to my right to issue it in the name only of a country solicitor, hc contending, as I gather from your letter the Council also does, that issuing a subprnna is “practising” in London. I replied that “ practising ” meant a general practising and did not apply to an isolated instance. I put to him what seemed to me the parallel case of my journey to town and taking the evidence of witnesscs, for which I should undoubtedlv charge my client, and I asked, if his contention were correct_ was not that equally practising P I also put to him the instance of my attending a trial in London, conference with counsel, &c., all of which would be duly charged against the client, and which I have never yet heard require the solicitor to hold a town certifi cate. The clerk said that if I liked to add the name of Mr. Chamberlin’s agent on the writ he would issue it, but I declined to do so because his objection did not seem to mo to be a valid one. He then said that if I insisted on its being issued he would issue it but should feel it his duty to
represent the facts to the society, to_which_I told him I should he only too willing, as I thought it would be in the interests of country solicitors to obtain a ruling on the point. I explained that I was not ltlr. Loamberlin, and I fumished my name and address and offered to inform the society myself of the facts if the clerk wished. You will thus see that I made no secret about my certificate, and till the clerk raised the point I must confess it had never occurred to me that I was not entitled to issue the subpoena. _ _
I believe the question was raised not very long back _when a_ solicitor from Essex appeared before one of the metropolitan police inagistrat/es,_I think it was at North London, and lllr. D. A. Romain obyectcd to his being heard as he did not hold a London certificate. If my recollection be correct the magistrate, after consideration, ruled the solicitor was entitled, notwithstanding his country certificate, to be heard, and I have an idea that some comment on the case was made in the Law Tim?-9, but I am unable to come across it. _
I should be very sorry to do anything that may offend against the etiquette of our profession; but in this instance, with all deference to the Council, I cannot see that I have done anything to call for censure.
I can only assume from your letter that the society entertains the opposite view. If so, may I suggest that advantage be taken of the opportunity now afforded to obtain, by means of a friendly case, a legal decision on the point, affecting as it does the whole body of country solicitors.—I am, dear sir, yours faithfully, \VAi.rss. J ossrii.
S. P. B. Bucknill, Esq., Assistant Secretary, Incorporated Law Society.
P.S.—Since writing this I have come across the comment on the policecourt case. It is to be found in the Law Tim: for the 20th of November, 1897, at p. 65, and it is further commented on in the same paper for the 27th of Novembrr, at p. 78.
Incorporated Law Society,
Dear Sir,—I beg to acknowledge the receipt of your letter of the 7th inst., which will be brought before the Council.—Yours faithfully, E. \V. \Vii.i.isiisox, Secretary. \Valter Joseph, Esq., 13, Queen-street, Great Yarmouth.
Incorporated Law Society, Chancery-lano, London, W.C., 15th July, 1898.
Dear Sir,—The Council have considered your letter of the 7th inst.
I am to slate in reply that, in the opinion of the Council, a country solicitor who has not paid the higher rate of duty on his practising certificate has no right to issue a Crown Oflice subpoena without employing a London agent, and in acting as you did they think you were clearly mistaken in the view you took.
The Council hope that upon this expression of their opinion you will discontinue the adoption of a lire course in future.-1 am, dear sir, yours faithfully, E. W. Wii.i.i.nrsox, Secretary.
Walter Joseph, Esq., 13, Queen-street, Great Yarmouth.
13, Queen-street, Great Yarmouth,
Dear Sir,—I have your letter of yesterday, and note the Council's opinion. I am sorry I am not told the grounds on which it is based, as without knowing them I have no reason to alter my views on the matter, and, moreover, it leaves me in a state of uncertainty as to what is and what is not “practising ” iii London.
Am I precluded from travelling to London and receiving instructions from a client there and charging for my visit to town and advice? Am I also precluded from instructing counsel direct from the country without the intervention of London agent, say, on an appeal from the county court, and from attending him in conference, and on the hearing of the appeal, and charging my client for such services?
I think you will agree that it is desirable that country solicitors should have some opinion from the Council on such an important point, and I should esteem it a favour if you would kindly bring this letter before the Council, and ask them if they will consider my question. and let me have a further answer.—I am, dear sir, yours faithfully, \V1li.'rsu J osiirir.
E. IV. Williamson, Esq., Secretary, Incorporated Law Society,
Incorporated Law Society,
Dear Sir,—With reference to your further letter, dated the 16th inst., I am directed to state that the ground upon which the Council’s opinion is based is that the work was transacted in the High Court in London. In this opinion the Master of the Crown Office concurs.
The Council do not desire, under the circumstances, to attach any blame to you for acting as you did; but it is important to preserve the relative rights of town and country solicitors.
There are of course, many matters which a country solicitor may transact in liondon, including non-contentious business; but, speaking generally, and without intending to do so exhaustively, business in the High Court (including the appeal to which your letter refers) should be transacted through a London agent.—I am, yours faithfully,
S. P. B. Bocxrzrnn, Assistant Secretary.
Walter Joseph, Esq., 13, Queen-street, Great Yarmouth.
13, Queen-street, Great Yarmouth,
Dear_ Sir,—I am obliged for your _letter of yesterday.
I qiute agree that the relative rights of town and country solicitors should be preserved, but I venture to think that in the views expressed by the Council they have rather overlooked the rights of country solicitors who are undoubtedly entitled to as much consideration as towii solicitors.
As the matter is of general interest to tho profession, I propose sending a copy of the correspondence to the legal journals, so that if they thinkit of suflicient importance it can be published with aview of obtainings general opinion of the profession on the point.—I am, yours faithfully,
' _ W’/lrxrsa Jossra.
S. P. B. Bucknill, E-‘q.. Assistant Secretary, Incorporated Law Society,
Appeal from Grantham and Channell, J J . (see 42 Sor.rciroas' Jorasrt, 133). Case stated by the Commissioners of Inland Revenue pursuantto 54 Sc 55 Vict. c. 39, s. 13. An instrument was presented to the Gommissioners on behalf of the West London Syndicate under the provisions of section 12 of the Stamp Act, 1891, for their opinion as to the stamp duty with which the instrument was chargeable. This instrument was an agreement under seal for the sale by Percy Thome (thereinafter called “the vendor ") to the syndicate of, first, the goodwill of the business of a hotel proprietor and licensed victualler carried on by the vendor at Fischer's Hotel, Clifford-street, New Bond-street, and the full benefit of the victualler’s and other licences, and of all contracts, engagements, and privileges to which the vendor was entitled in relation thereto; secondly, the lease of the hotel and premises, and his right, title, and interest therein, subject to the yearly rent of £964, together with the policy of insurance against fire then su sisting upon the premises ; thirdly, all the household furniture, fixtures, fittings, and other effects (other than stockin-trade) in and upon the premises belonging to the vendor, and the benefit of the policy of insurance against fire then subsisting therein; fourthly, the stock-in-trade to which the vendor was on the 17th of November then last part entitled; flfthly, all cash in hand and at the bank to which the vendor was entitled at the aforesaid date; sixthly, all the book and other debts due to him, the vendor, in connection with the business. By clause 2 of the agreement it was provided that the consideration for the sale should be the discharge by the syndicate of the debts and liabilities of the vendor due and owing by him at the aforesaid date in relation to the business, and the sum of £4,250, of which £1,462 16s. 3d. was the apportioned consideration for the furniture, stock-in-trade, and cash. By clause 3 it was provided that the vendor should shew a good title to the leasehold premises and assign to the syndicate or their assigns the lease thereof and the goodwill of the business. By clause 6 it was provided that in the event of the consent of the landlords to the assignment of the leasehold premises not being obtained the vendor should, at the option of the syndicate, execute a declaration of trust of the premises in their favour. The consent of the landlord I101 having been obtained, a declaration of trust was executed in favour of tilt purchasers. The commissioners were informed that the amount of debt-B and liabilities forming part of the consideration under clause 2 wasflw sum of £1,335 8s. 4d., and that the purchase consideration was themfore that amount plm £4,250—namely, £5,585 8s. 4d., and that this total sum was arrived at as follows: For lease and goodwill, £4,085 8s. 4d-1 household furniture, &c., £1,260; stock-in-trade, £100; cash at bank, £102 16s. 3d. ; book debts, £37 3s. 9d. ; total, £5,585 8s. 4d. They Wm also informed that it was impossible to sever the goodwill from the 16556 because the goodwill was of no value, as it could not exist apart from the lease, but that without a covenant restricting the vendor from cai'l71l18 on business the lease would be of less value by £400 to £500. The commissioners called for the production of any assignment of the leasehold premises which might have been executed, and the aforesaid dsclar_flt1°11 of trust bearing date the 21st of March, 1895, by which the equitable interest in the leasehold premises became vested in the syndicate, YB! produced. No part of the consideration was expressed by the declaration of trust as being apportioned to the leasehold premises, and that deed W“ not stamped with ad valorem duty on £4,085 8s. 4d., but was stamped only with the fixed duty of 10s. '1‘he commissioners were of opinion that
inasmuch as neither the sum of £4,085 8s. 4d. nor any other part of thfl