Page images
PDF
EPUB

:

shall also be entered on the register and on the charge certi- Now, there can be no doubt that the court has power to admit to ficate (rule 203); this renders the rule more complete. We are bail in all cases unless forbidden by statute. Thus it is stated glad to see that our views (ante, p. 447) with regard to transfers by BLACKSTONE that the Court of King's Bench may admit to to the uses of a settlement have been adopted, and the forms bail oven in cases of treason. It is not easy to imagine the altered (Forms 16 and 18). Power is now given to issue a now court surrendering this important power except in consequence certificate upon foreclosure (rule 207): we drew attention to of express statutory provißion, nor is it easy to suppose that this omission (ante, p. 486). The rule also has regard to section Parliament would interfere with this ancient power merely by 8 (4) of the Act of 1897: this also had been overlooked (ante, p. implication. The court was therefore clearly justified, in the 684). No rule has, however, been made with respect to a absence of anything in the Act expressly taking away its disvaluation under section 4 of the Act of 1897 (ante, p. 486), this, cretion, in maintaining its right to admit to bail. Bail, howhowever, will, we apprehend, be provided for by a general ever, as a matter of fact, was not granted in either of the two rule of court. In the interests of landowners and of the cases, and it is quite obvious that it would very seldom indeed general working of the register, it is to be regretted that be wise to release a fugitive. It was stated by one member of more of our suggested amendments (ante, p. 701) have not been the court that this decision must not be taken to apply equally adopted, but as the rules bear date the 2nd of August, some of to the Extradition Acts. In cases under those Acts the defenour suggestions were perhaps too late to be considered, though. dant is probably a foreigner, and his crime certainly is not one it is hoped they may be of service when further rules are from " against the peace of our Lady the Queen.". In fact the time to time issued.

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 overy case the The Court of Appeal have settled the vexed question as to the force of law by virtue of an order in Council made under the

treaty in question must itself be considered, as each treaty has the application to different classes of legal proceedings of the Extradition Act, 1870. By such treaty this state probably provision of the Public Authorities Protection Act, 1893, that binds herself, under certain circumstances, to hand over a fugi: where judgment is obtained by the defendant authority it shall tive to the foreign State, and it would hardly be consistent with pointed out ante, p. 587, it has been thought by some that this such an obligation to allow the fugitive his liberty when once right was restricted to actions for damages and did not extend

those circumstances have arisen. to proceedings in the Chancery Division for an injunction and similar remedies, this view being founded on such cases as Flower v. Low Leyton Local Boară (5 Ch. D. 347) decided upon

TWO POINTS of considerable importance with respect to the the somewhat different language of the now repealed section stamp duty payable on an agreement for the sele of a business 264 of the Public Health Act, 1875: The Court of Appeal have been decided by the Court of Appeal in West London Syndihave now delivered their considered judgment on this point in cate (Limited) y. Commissioners of Inland Revenue. The syndicate Fielden v. The Mayor, fc., of Morley, and bave come to the con

were the purchasers under an agreement under' seal of (1) the clusion that the Act applies to actions for injunctions as well goodwill of a hotel, (2) the lease of the hotel, (3) furniture and as to actions for damages, and that the dismissal of an action fittings, and (4) stock-in-trade and book debts. The consideraagainst a public authority is equivalent to judgment for the tion was the undertaking of the debts of the vendor, amounting defendant. The decisions to this effect of ROMER, J., in to £1,335, and the payment of £4,250, of which £1,468 was for Harrop_v. The Mayor of Ossett (1898, i Ch. 525) and furniture and stock-in-trade. For the assignment of the leaseToms v. Clacton Urban District Council (ante,

holds the licence of the lessor was necessary, and the agreement

p. 593), and of STIRLING, J., in Holford v. Acton Urban District Councit provided that, in the event of the licence not being obtained, (Times L. R. 476), are therefore upheld. It is difficult to see

the vendor should, at the option of the syndicate, execute a how the contrary view could have been supported; the Act in declaration of trust in its favour. Such declaration was subseterms applies to "any action, prosecution, or other proceeding quently executed. The agreement did not apportion the con

: against any person for any act done in pursuance of sideration payable in respect of the leaseholds and the goodwill, execution or intended execution of any Act of Parliament, or of and on behalf of the syndicate it was contended (1) that the any public duty or anthority or in respect of any alleged neglect agreement was for the sale of the legal interest in the leaseor default in the execution of any such act, duty, or authority" holds, so as not to require ad valorem duty on the agreement, and "Person," of course, includes any corporation, and although the (2) that the good will was inseparably attached to the premises cases above referred to were actions against local authorities, and was not separately chargeable. The Divisional Court the application of the Act cannot be restricted to those bodies. (GRANTHAM and ÕHANNELL, JJ.) decided both points in favour The Court of Appeal (in the same case of Fielden v. Morley) also of the syndicate, so that the only property which remained held that the Act dces not apply to appeals or to motions, but chargeable with ad valorem duty on the agreement was the book only to the general costs of the proceedings. And in the case of debts. The Court of Appeal have taken the same view on the The North Metropolitan Tramways Co. v. The London County first point, but have reversed (A. L. SMITH and RIGBY, L.JJ.; Council (1898, 2 Ch. 145) Romer, J., pointed out that as the VAUGHAN WILLIAMS, L.J., diss.) the Divisional Court on the right to solicitor and client costs is given by the Act itself, it is second. The contention for the commissioners was that the not necessary that the judgment should direct that the costs option to take a declaration of trust made the agreement should be taxed on this footing.

the sale of an equitable interest in land so as to attract ad valorem duty, but, as has been pointed out in the Court of Appeal, there was no agreement except for the purchase of &

legal interest. As to the substituted equitable interest there THE FUGITIVE Offenders Act, 1881, does for the various parts was no more than an option, which at the time when the agree of the British Empire what the Extradition Acts, supplemented ment was executed-that being the date which determined by treaties, do for foreign countries. The Act has not often the liability to stamp duty-did not in any way bind the come before the High Court for construction; but two cases syndicate. But under the circumstances the moro important have recently been considered by that tribunal which raised point was the second, relating to the separate chargeability of points of importance. In each case the question was considered the consideration for the goodwill. In Ex parte Punnett (16 whether the court had power to order a person to be released Ch. D., p. 233) JESSEL, M.Ř., treated it as perfectly clear that on bail, when that person has been committed to prison in order the goodwill of a public-house was not personal, but passed to be returned to another part of her Majesty's dominions for with it. “It is quite plain,” he said, " that the good will of a trial there by the courts of that part. It was contended on public-house passes with the house. In such a case the good; behalf of the Crown that the court has no such power, and will is the mere habit of the customers resortivg to the house." that the fugitive must be kopt in custody till the time comes for In spite of this, however, the majority in the Court of Appeal his return—that is, during the period of at least fifteen days have held that it is a separate matter of sale, and is separately which must elapse between the committal and the return. chargeable with duty. Hence, since there had been no appor.

one for

that «

of any

on

tionment between the leaseholds and the goodwill, the assess- recovered £40 against them as damages in an action in the ment of the commissioners of ad valorem duty on the entire Mayor's Court. He then brought an action against the consideration for the two was upheld.

defendants upon the statute. By this it is provided (section 4)

upon any pound-breach or rescue of goods or chattels

distrained for rent the person or persons grieved thereby shall, A NOVEL point arising under the Betting Act, 1853, is a rarity;

in a special action on the case

recover his and their such a point was decided by the Court for the Consideration of treble damages and costs of suit against the offender or Crown Cases Reserved in Reg. v. Hobbs (reported in another offenders.”. So far as costs are concerned, the plaintiff is now column), a case reserved by HAWKINS, J., from the Lowes only entitled, instead of treble costs, to recover “a full and Summer Assizes. The defendant, a licensed victualler, promoted reasonable indemnity as to all costs and charges in and about an ordinary “ Derby sweepstake among his customers; it was to consist of a thousand subscriptions of 28. 6d. each, 10 per remains in force. At the trial before Ridley, J., the defendants cent. of the amount subscribed was to be deducted by the set up as a defence the plaintiff's recovery of damages against defendant for "expensos," and the balance to be divided the bailiffs, and the learned judge, being of opinion that no amongst the drawers of horses in prizes of amounts varying damage had been suffered, and that consequently there was from £45 to the drawer of the winning horse to 59. to the nothing to treble, gave judgment for the defendants. This drawer of a “non-starter.” Books of tickets were provided by view is by no means unreasonable, but the Court of Appeal have the defendant, a ticket being handed in the public-house to held it to be incorrect, and have ordered a new trial. Partly each subscriber and his name and address being entered on the this is upon the ground that the sum of £40 recovered against counterfoil. The defendant received the subscriptions with the the bailiffs does not necessarily represent the total damage intention (had not a visit of the police put a stop to the whole incurred in respect of the pound-breach, and evidence of this transaction of conducting the drawing of horses and dis- damage should have been admitted. But it was also suggested tributing the prizes amongst the successful drawers, as he had that the pound-breach gave a vested cause of action for treble actually done in previous years. The second branch of section damages which could not be taken away by the recovery of 1 of the Act forbids the use of a house for the

damages from a third party, though the amount so recovered

purpose money being received by or on behalf of the occupier as the might go in mitigation of the damages for the pound-breach. consideration for a promise or agreement to pay money,

Thus the plaintiff would at least be entitled to the treble of a any ovent or contingency of or relating to a horse-race." It nominal sum for damages and to costs. It will be interesting was under this enactment that the defendant was charged. to see how the questions thus left open are settled at the now

trial. HAWKINS, J., evidently felt considerable doubt as to whether the facts above stated disclosed a sufficient case to be left to the jury; but having regard to the general importance

HITHERTO, perhaps, the amiable persons who delight in cat of the case, he took the course of directing the jury to find verdict of guilty, with a view to bringing the conviction ness. Thanks, however, to the happy differences of two ladies of

shows have not had their pursuit taken with sufficient seriousbefore the appellate tribunal. The court (which includəd Lee, puss has received a new importance, and in the person of HAWKINS, J.) had no difficulty in coming to a decision in “Roy" has occasioned a decision which, it is to be hoped, will favour of the defendant. The main grounds of their de- rank as a leading case in the law of partnership. The case cision were two: first, that the enactment under which the is Harris v. Slater, and the decision was given bỹ Mr. Justice defendant was charged pointed to circumstances establish- STIRLING. In form it was a decision of a court of first ing a contractual relation between the parties, a promise to instance, but in substance it was an appeal from the pay on a certain event, while in the present case the de

committee of the National Cat Club. fendant made no such promise, but merely acted as a stake- defendant may be called for the sake of brevity Miss A.

The plaintiff and holder intending to distribute the common fund created by and Miss B. Miss B. called upon Miss A. and proposed that the subscribers to which he had not himself contributed) in the two should become partners in a really good Persian accordance with the arrangement or understanding upon which cat. Miss B. was to provide the purchase-money, and Miss they had contributed it. Secondly, the event or contingency”

A. was to provide board and lodging. The bargain was struck upon which the fund was to be distributed was not, in the opinion and the really good Persian cat was bought for 30s. A suitof the court, an event or contingency relating to a horse-race; the able house and grounds were procured at the expense of 258, event which entitled a particular subscriber to receive a certain Puss lived happily at Miss A.'s expense for eighteen weeks and prize was the event of his drawing a particular horse. The then his merits were put to the proof. Apparently the ladies had court were careful to avoid saying that the defendant had not got a good thing. Roy was entered in their joint names for the brought himself within the meshes of the law; in fact they National Cat Club Show at the Crystal Palace and won several expressed the opinion that the transaction was a lottery, and prizes, including a championship medal. But success bred having regard to the cases of Allport v. Nutt (1. C. B. 974), and disputes. Miss B. now alleged that the cat was all her own, and Mearing v. Hillings (14 M. & W. 711) it would be difficult to of course the prizes too. Miss A. rested upon the true contend the contrary. But the defendant was not charged with meaning of the partnership arrangement.

The National Cat an offence under the Lottery Acts, and looking at the words of Club committee very wisely confined themselves to the the section and the whole scope and intention of the Act under form of entry. The entry was joint and the cat and which he was charged, it is tolerably clear that the court were the prizes were joint likewise. But Miss B. carried Roy right in quashing the conviction.

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 Actions for pound-breach are comparatively rare, but when claim of Miss A. The law has been invoked, and Mr. Justice

separate use. But they have not been free from the such an action is brought the plaintiff is entitled, under 2 STIRLING has held the scales of justice with unbiassed hand. He Will. & M., sess. 1, c. 5, to recover treble damages. Does he, however, debar himself from this remedy it before the action he has decreed in favour of a partnership both in the cat and in has recovered damages from another source? This question

the prizes. Only one element apparently was wanting to the has arisen in the case of Kemp v. Christmas, in which the Court solemnity of the trial; we do not gather that Roy himself was of Appeal recently directed a new trial. The plaintiff was the £100. In future shows he will certainly deserve some extra

produced. His present value is variously estimated at £20 and landlord of stables at Watford, and, rent being in arrear to the marks for his contribution to the science of law. extent of £40, he put in a distress, and impounded on the premises two horses and some carriages. The chattels im. pounded, which were over £40 in value, were removed by the defendants. The removal appears to have been rendered THE DECISION of the Queen's Bench Division in Re Stecens, possible by the negligence of the bailiffs, and the landlord | Ex parte The Board of Trade (ante, p. 703) should check the

well-meaning, but ill-advised, efforts of some county court is that he intends to keep it alive for his own benefit, and not judges to mitigate the severity of the law by what may be to merge it in the fee for the benefit of the remainderman : termed judicial legislation. In the case under consideration a Burrell v. Earl of Egremont ( 7 Beav., p. 232). And even where the bankrupt who had been convicted of frauds under sections 14 person paying off the charge is absolute owner of the property, and 15 of the Debtors Act, 1869 (32 & 33 Vict. c. 62) and had the presumption in favour of merger gives place to an actual undergone a sentence of six months' imprisonment in respect or implied expression of intention. Where there is an actual thereof, and whose assets were under 109. in the £, obtained expression of intention, no difficulty arises, and even though an his discharge in the county court, without any “special intention has not been directly expressed, it may be possible to reasons" for such leniency being alleged in the judgment or deduce it from the surrounding circumstances. But the law order of discharge, though it is provided by the Bankruptcy goes further than this in favour of the owner of the property, Act, 1890, that, under such circumstances as those above and, even though no specific intention is apparent, it will impute mentioned, the court shall refuse the discharge unless for to the owner of the property an intention to do what was most special reasons the court otherwise determines (section 8 (2)). for his benefit. s Where," it was said in Forbes v. Moffatt This decision has now been reversed, the Divisional Court (supra), “no intention is expressed, or the party is incapable of holding that the facts relied upon by the county court judge as expressing any, the court considers what is most advantageous warranting bis exercise of clemency-namely, that the jury who to him.” bad convicted the bankrupt of frauds had recommended him to Upon the law as thus stated an exception seemed to be mercy, and that he (the bankrupt) was a young man and had grafted by the case of Toulmin v. Steere. Where an estate is suffered for his misdemeanours by imprisonment-did not subject to successive charges, and the equity of redemption and constitute "special reasons" within the above enactment, the first charge become vested in the same person, it is obviously which, moreover, it was held, required in all such cases for the advantage of such person that the first charge should be as that under consideration that the facts constituting the kept alive. If, however, it is the original mortgagor who pays "special reasons” should be definitely set forth in the judgment of the first charge, it would be unjust to allow him to keep it and also in the order of discharge. In this connection, we alive against his own creditors. "The general principle,” said would respectfully protest against the mode of administering Lord CRANWORTH, L.C, in Otter v. Vaux (6 D. M. & G., p. 642), the Debtors Act, 1869, adopted by some county court judges, " that & mortgagor cannot set up against his own incumbrancer who, it seems, on principle, invariably refuse to commit the any other incumbrance created by himself is a proposition that, debtor in respect of a judgment debt, however ample his means I think, has nover been controverted.” But Toulmin v. Steere of payment may be. Fortunately, however, the majority of the carried the principle farther than this, and extended it to a county court judges do not act in this way, but regard the purchaser of the equity of redemption from the mortgagor. Debtors Act, 1869, as a statute to be firmly, though benevo. One purchasing an equity of redemption, it was said, cannot set lently, administered, recognizing, no doubt, that, should its penal up a prior mortgage of his own, nor consequently a mortgage provisions, through a mistaken philanthropy, ever be reduced which he has got in, against subsequent incumbrancers of which to a dead letter, the working classes will be the first to suffer, he had notice. as they will no longer readily obtain credit, but be required to

Taking this proposition literally, it implies that the purchaser make cash payments even for the necessaries of life.

of an equity of redemption cannot, even by an'actual expression of intention, keep alive a charge which he gets id, but to this

extent the case has not been accepted as correct, and it is well THE CASE of Re Piercy, Whitwham v. Piercy (reported else- settled that the purchaser of an equity of redemption can keep where) has resulted in a curious conflict between English and alive a charge by an expression of an intention to that effect, Italian law. Mr. Justice North has found as a fact what the and that Toulmin v. Steere, if it applies at all, applies only where Italian law on the subject is. An Italian court has had the such expression is not to be found. "The intention," said temerity to disagree with him. The unfortunate heir-at-law, JESSEL, M.R., in Adams v, Angell (5. Ch. D., p. 646), "if exhowever, although resident in Italy, is directed by Mr. Justice pressad, governs the case, but if no intention is expressed, then North to consent to the judgment of the Court of Appeal of Toulmin v. Steere says that the incumbrance which is paid off is Cagliari being reversed. If he does not comply, it will be merged, and the subsequent incumbrancers let in.”

The same curious to see if an English court can force its interpretation of case shows that the intention to keep alive the charge need not Italian law upon a resident in Italy. Will the Italian court be expressed in so many words ; it is sufficient if it can be carry the matter further by committing the receiver appointed collected from the circumstances attending the transaction. by the English court?

The case of Adams V. Angell having qualified the rule in Toulmin v. Steere to this extent, it remains to consider whether a specific intention, either expressed or evidenced by circum

stances, is necessary in order to keep alive the charge, or THE MERGER OF CHARGES.

whether, as in other cases, the court will not impute to the The recent case of Liquidation Estates Co. v. Willoughby (46 person paying off the charge an intention to do what is most W. R. 589) in the House of Lords has an important bearing advantageous to him. The judgment of Lord MacNAGHTEN in upon the doctrine of the merger of charges, and though the Thorne v. Cann (1895, A. O., p. 18), without expressly purolten-criticized rule enunciated in Toulmin v. Steere (3 Mer. 210) porting to overrule Toulmin v. Steere, appears to carry the law as did not directly come in question, it seems safe to assume that it far as this. "Nothing,” said the learned lord, “is better cannot now be treated as correct. In general the question settled than this, that when the owner of an estate pays charges whether a merger is effected when a charge upon property vests which he is not personally liable to pay, the question whether in the owner of the property does not depend upon any technical those charges are to be considered as extinguished, or as kept considerations. Technically the charge should be kept alive by alive for his benefit, is simply a question of intention. having it assigned to a trustee for the owner of the property, may find the intention in the deed, or you may find it in the but this is by no means necessary. Whatever might formerly circumstances attending the transaction, or you may presume an be the result at law, equity decided according to the intention intention from considering whether it is or is not for his benefit of the parties, whether expressed or presumed, and in this that the charge should be kept on foot." There is nothing in matter the rule of equity now prevails for all purposes.

this statement to distinguish whether the owner of the estate is Prima facie, when a charge vests in the owner of the property or is not the purchaser of the equity of redemption, and, indeed, subject to the charge, it is merged, either upon the ground that its most obvious application is to the case where he is such a the owner has no use for a charge upon his estate (Forbes v. purchaser. It is admitted that the original mortgagor cannot Moffatt, 18 Ves. 390), or for the purpose of simplifying the title set up against subsequent incumbrancers a charge which he (Donisthorpe v. Porter, 2 Eden 162). But this result does not himself pays off, and the mortgagor being thus excluded, the follow where the owner of the property has a limited interest passage points at a purchaser from the mortgagor. in it other than an estate tail. Where, for instance, the tenant Accordingly, when Liquidation Estates Co. v. Willoughby was for life of land pays off a charge upon the land the presumption | before the Court of Appeal (44 W. R. 612) LINDLEY, L.J.,

stated the law in a form which virtually overruled Toulmin v. Steere. “Having regard,” he said, " to Thorne v. Cann, it is

CORRESPONDENCE. perhaps now safe to go a little further than Adams v. Angell, and

" PRACTISING" IN LONDON. to say that where a purchaser of a property pays off a charge on it without shewing an intention to keep it alive, still, if its

[To the Editor of the Solicitors' Journal.] continuance as an existing charge is beneficial to him, it will be Sir, -I enclose you copy of a correspondence which I have had treated in equity as subsisting, unless an intention to the with the Secretary to the Incorporated Law Society relative to the contrary can be inferred from the terms of the purchase deed, rights of a country solicitor to transact certain business in London

without having a town certificate. or from other legitimate evidence." Thus the necessity for any

You will observe that the Council express the opinion that a specific intention to keep the charge alive is clearly set aside, country solicitor is not at liberty to instruct counsel direct from the and the general rule is applied that, in the absence of evidence country to, say, oppose an appeal from the county court, and to of intention, the court will impute to the party such intention attend in conference, and at the trial, and to charge for such services, as is most for his advantage.

unless he employs a London agent. The facts in Liquidation Estates Co. v. Willoughby were com

I have always been under the impression that it is a solicitor's duty plicated, and in the result the House of Lords held that the to conduct litigation with as little expense as possible to his client, purchasers took only a transfer of chargos, and not the equity agents to deliver the brief to counsel, and to be present at the of redemption in the property together with the charges. Hence conference and to attend at court, is an expense from which the client there could be no question of merger. But had the question derives no benefit whatever. arisen it seems that no difficulty would have been felt in fixing I quite agree with the Council that the relative rights of town and the rights of the purchasers of the charges in accordance with country solicitors should be preserved, and that the entry of the what would be most for their advantage. “I can understand,'

"I can understand," appeal, filing of affidavits, and similar steps, which require a constant said Lord MACNAGHTEN, “the owner of an estate preferring to attendance at the courts, should be done through agents, but I fail to have it discharged from an incumbrance though the incum- see that the transmission of the brief direct to counsel is any more brance be his own property;: but I cannot understand a person practising than sending instructions direct to a conveyancing counsel

to settle a deed. entitled to several charges in a money fund, which must rank in

The whole point, to my mind, depends on the interpretation of the priority according to the date of notice, sweeping away the word "practising,” and in the case of the subpoena which gave rise earlier charges and trusting to the last, though it might seem to the enclosed correspondence I am still of opinion that I was large enough to exhaust the fuod and though there might be legally entitled to issue it. apparently nothing behind it." Stripped of its references to If you can find room in your paper, and you think the matter is of the particular circumstances of the case, this passage means that sufficient importance to the profession, I should be glad if you would where, in a question of merger, one course will be obviously to publish the correspondence so that the question can be ventilated.

13, Queen-street, Great Yarmouth,

WALTER JOSEPH. the advantage of a person getting in a charge, an intention to

Aug. 6. adopt that course will be attributed to him, and such intention will, if necessary, prevent any merger of the charge. Similarly

[The following is the correspondence referred to.] Lord HERSCHELL observed that, if it was necessary to hold that

Incorporated Law Society, the charge was kept alive under the conveyance, the fact that it

Chancery-lane, London, W.C., would be obviously for the benefit of the purchaser to keep it

5th July, 1898.

Dear Sir,- I am desired to inform yon that the Council's attention bas alive would be ample reason for so holding. Although the rule been drawn to a Crown Office subpæna, dated 11th June last, upon which laid down in Toulmin v. Steere has not been formally overruled, your name appears as the solicitor for the defendart in the case of The it would seem that there is very little of it left.

Queen v. J. W. Briston.

The Council observe that your practising certificate does 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 REVIEWS.

issue the subfona in questiou.

An early answer will oblige.-Yours faithfully,
BOOKS RECEIVED.

S. P. B. BUCKNILL, Assistant Secretary. The Law of Agricultural Holdings; comprising the Agricultural

H. Chamberlin, Esq., Solicitor, Great Yarmouth. Holdings Act, 1893, and County Court Rules, the Law of Distress

13, Queen-street, Great Yarmouth, Amendment Acts, 1888 and 1895, the Tenants’ Compensation Act,

7th July, 1898. 1890, and the Market Gardeners' Compensation Act, 1895. All fully Dear Sir,--Mr. Chamberlin has shewn me your letter to bim of the Annotated, together with Two Chapters on the Principles of the 5th inst., and as I am responsible for the issue of the subpona referred to Agricultural Holdings Act, 1883, and the Procedure for the Recovery by you, and Mr. Chamberlin has no personal knowledge of the circumof Compensation ; also an Appendix of Forms and Precedents of stances under wbich it was issued, you will doubtless agree that it will be Agreements and Notices (being in part a Third Edition and Exten- better for me to reply to your letter. sion of Jeud wine's Agricultural Holdings Act, 1883). By SYLVAIN

I would first explain my position in the matter. For the past two years MAYER, B.A. (Lond.), Ph.D., Barrister-at-Law. Waterlow & Sons I have acted as managing clerk to Mr. Chamberlin and during that time (Limited).

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. The Law of Arbitration and Awards. With Appendix containing I had the sole conduct of Mr. Briston's defence, and it being necessary Statutes relating to Arbitration, and a Collection of Forins and Index. to have the evidence of London witnesses, I was instructed by Mr. Briston Third Edition. By Joshua SLATER, Esq., Barrister-at-Law. Stevens to accompany him to London for the purpose of obtaining such evidence. & Haynes.

I went to town by the mornirg train on Saturday, the 11th of June,

arriving at Liverpool-street at 11.35. The courts closing early in conseDeath Duty Tables ; comprising in an Expanded Form Tables I., quence of it being Saturday, I went there first to issue a subpæna, as I II., III. appended to the Succession Duty Act (16 & 17 Vict. c. 51) feared there might not be time after seeing the witnesses and taking the for Valuing Successions and Annuities. With examples Illustrating evidence to get to the courts before they closed. I may say the witnesses their Use and Application. By A. W. NORMAN, B.A., B.Sc. (Lond.), were to be seen at Smithfield. I duly filled up the subpæna, indorsing it of the Legacy and Succession Duty Office. William Clowes & Sons with Mr. Chamberlin's name, when the clerk in the Crown Ofice to whom (Limited).

I presented it for sealing raised the point as to my right to issue it in the

name only of a country solicitor, he contending, as I gather from your American Law Review (July-August, 1898). Editors : SEYMOUR letter the Council also does, that issuing a subpoena is “ practising” in D. THOMPSON (St. Louis) and LEONARD A. JONES (Boston). Reeves London. I replied that practising” meant a general practising and & Turner.

did not apply to an isolated instance. I put to him what seemed to me A Treatise on the Workmen's New Compensation Act, 1897, with the parallel case of my journey to town and taking the evidence of witNotes. By HUBERT FODEN PATTINSON, Solicitor of the Supreme his contention were correct, was not that equally practising? I also put

nesses, for which I should undoubtedly charge my client, and I asked, if Court. Robert Browning. Price 1s.

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 eaid that if I liked to add the name of Mr. Chamberlin's The Lord Chief Justice has given permission for his court to be used for agent on the writ he would issue it, but I declined to do so because his the weekly sittings in opeu court during the long vacation, it being the objection did not seem to me to be a valid one. He then said that if I largest and most convenient room at the Royal Courts of Justice.

insisted on its being issued he would issue it but should fe-l it his duty to

FOR

represent the facts to the society, to which I told him I should be only

13, Queen-street, Great Yarmouth, too willing, as I thought it would be in the interests of country solicitors

28th July, 1898) to obtain a ruling on the point. I explained that I was not Mr. Cham

Re Briston. berlin, and I furnished my name and address and offered to inform the Dear Sir,-I am obliged for your letter of yesterday. society myeelf of the facts if the clerk wished. You will thus see that I I quite agree that the relative rights of town and country solicitors made no secret about my certificate, and till the clerk raised the point I should be preserved, but I venture to think that in the views expressed must confess it had never occurred to me that I was not entitled to issue by the Council they have rather overlooked the rights of country solicitors, the subpæna.

who are undoubtedly entitled to as much consideration as town I believe the question was raised not very long back when a solicitor solicitors. from Essex appeared before one of the metropolitan police magistrates, I As the matter is of general interest to the profession, I propose sending think it was at North London, and Mr. D. A. Romain objected to bis a copy of the correspondence to the legal journals, so that if they think it being heard as he did not hold a London certificate. If my recollection of sufficient importance it can be published with a view of obtaining a be correct the magistrate, after consideration, ruled the solicitor was general opinion of the profession on the point.-I am, yours faithfully, entitled, notwithstanding his country certificate, to be heard, and I have

WALTER JOSEPH an idea that some comment on the case was made in the Law Times, but I S. P. B. Bucknill, Esq., Assistant Secretary, Incorporated Law Society, am unable to come across it.

Chancery-lane, London. 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

Incorporated Law Society, Council, I cannot see that I have done anything to call for censure.

Chancery-lane, London, W.C., I can only assume from your letter that the society entertains the

29th July, 1898. opposite view. If so, may I suggest that advantage be taken of the

Briston. opportunity now afforded to obtain, by means of a friendly case, a legal Dear Sir,-I beg to acknowledge recei of your letter of the 28th decision on the point, affecting as it does the whole body of country inst.-Yours faithfully,

E. W. WILLIAMSON, Secretary. solicitors.- I am, dear sir, yours faithfully,

WALTER JOSEPH. Walter Joseph, E q., 13, Q'reen-street, Great Yarmouth. 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 Times for the 20th of November, 1897, at p. 65, and it is further commented on in the same paper for

CASES OF THE WEEK. the 27th of November, at p. 78.

Court of Appeal.
Incorporated Law Society,
Chancery-lane, London, W.C., THE WEST LONDON SYNDICATE (LIM.) v. THE COMMISSIONERS OF

8th July, 1898. INLAND REVENUE. No. 1, 14th and 15th July and 5th August. Be Briston.

REVENUE-STAMP-CONVEYANCE ON SALE-AGREEMENT SALE-AD Dear Sir,-I beg to acknowledge the receipt of your letter of the 7th VALOREM DUTY-LEASEHOLD INTEREST IN LICENSED HOUSE-GOODWILLinst., which will be brought before the Council.-Yours faithfully,

“LEGAL OR EQUITABLE TRANSFER "-STAMP Act, 1891 (54 & 55 Vict. C.

E. W. WILLIAMSON, Secretary. 39), s 59, SUB-SECTION 1. Walter Joseph, Esq., 13, Queen-street, Great Yarmouth.

Appeal from Grantham and Channell, JJ. (see 42 SOLICITORS' JOURNAL, Incorporated Law Society,

133). Case stated by the Commissioners of Inland Revenue pursuant to Chancery-lano, London, W.C.,

54 & 55 Vict. c. 39, s. 13. An instrument was presented to the Com. 15th July, 1898.

missioners 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 Dear Sir,—The Council bave considered your letter of the 7th inst.

duty with which the instrument was chargeable. This instrument was an I am to state in reply that, in the opinion of the Council, a country agreement under seal for the sale by Percy Thorne (thereinafter called solicitor who has not paid the higher rate of duty on his practising " the vendor") to the syndicate of, first, the good will of the business of certificate_bas no right to issue a Crown Office subpæna without employing a London agent, and in acting as you did they think you were Fischer's Hotel, Clifford-street, New Bond-street, and the full benefit of

a hotel proprietor and licensed victualler carried on by the vendor at Clearly mistaken in the view you took.

the victualler's and other licences, and of all contracts, engagements, and The Council hope that upon this expression of their opinion you will privileges to which the vendor was entitled in relation thereto ; secondly, discontinue the adoption of a like course in future.--I am, dear sir, yours the lease of the hotel and premises, and his right, title, and interest faithfully,

E. W. WILLIAMSON, Secretary.

therein, subject to the yearly rent of £964, together with the policy of Walter Joseph, Esq., 13, Queen-street, Great Yarmouth.

insurance against fire then subsisting upon the premises ; thirdly, all the 13, Queen-street, Great Yarmouth,

household furniture, fixtures, fittings, and other effects (other than stock16th July, 1898.

in-trade) in and upon the premises belonging to the vendor, and the

benefit of the policy of insurance against fire then subsisting therein ; Dear Sir,- I have your letter of yesterday, and note the Council's fourthly, the stock-in-trade to which the vendor was on the 17th of opinion. I am sorry I am not told the grounds on which it is based, as

November then last part entitled ; fifthly, all cash in hand and at the without knowing them I have no reason to alter my views on the matter, bank to which the vendor was entitled at the aforesaid date; sixthly, all and, moreover, it leaves me in a state of uncertainty as to what is and the book and other debts due to him, the vendor, in connection with the what is not “practising" in London.

business. By clause 2 of the agreement it was provided that the con. Am I precluded from travelling to London aad receiving, instructions sideration for the sale should be the discharge by the syndicate of the from a client there and charging for my visit to town and advice ? Am I debts and liabilities of the vendor due and owing by him at the aforesaid also precluded from instructing counsel direct from the country without date in relation to the business, and the sum of £4,250, of which the intervention of London agent, say, on an appeal from the county £1,462 169. 3d. was the apportioned consideration for the furniture, court, and from attending bim in conference, and on the hearing of the stock-in-trade, and cash. By clause 3 it was provided that the vendor appeal, and charging my client for such services ?

should shew a good title to the leasehold premises and assign to the I think you will agree that it is desirable that country solicitors should syndicate or their assigns the lease thereof and the goodwill of the busihave 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 landlords to the assignment of the leasehold premises not being obtained

ness. By clause 6 it was provided that in the event of the consent of the Council, and ask them if they will consider my question, and let me have

the vendor should, at the option of the syndicate, execute a declaration a further answer.-I am, dear sir, yours faithfully, WALTER JOSEPH.

of trust of the premises in their favour. The consent of the landlord not E. W. Williams Esq., Secretary, Incorporated Law Society,

having been obtained, a declaration of trust was executed in favour of the Chancery-lane, London.

purchasers. The commissioners were informed that the amount of debts

and liabilities forming part of the consideration under clause 2 was the Incorporated Law Society, Chancery-lane, London, W.C.,

sum of £1,335 8s. 4d., and that the purchase consideration was there

fore that amount plus £4,250-namely, £5,585 88. 4d., and that this total 27th July, 1898.

sum was arrived at as follows: For lease and goodwill, £4,085 8s. 4d,; Re Briston.

household furniture, &c., £1,260; stock-in-trade, £100; cash at bank, Dear Sir,- With reference to your further letter, dated the 16th inst., I £102 16s. 3d. ; book debts, £37 38. 9d. ; total, £5,585 88. 4d.

They were am directed to state that the ground upon which the Council's opinion is also informed that it was impossible to sever the goodwill from the lease based is that the work was transacted in the High Court in London. In because the goodwill was of no value, as it could not exist apart from the this opinion the Master of the Crown Office concurs.

lease, but that without a covenant restricting the vendor from carrying The Council do not desire, under the circumstances, to attach any on business the lease would be of less value by £400 to £500. The com, blame to you for acting as you did ; but it is important to preserve the missioners called for the production of any assignment of the leasehold relative rights of town and country solicitors.

premises which might have been executed, and the aforesaid declaration There are, of course, many matters which a country solicitor may of trust bearing date the 21st of March, 1895, by which the equitable transact in London, including non-contentious business ; but, speaking interest in the leasehold premises became vested in the syndicate, was generally, and without intending to do so exhaustively, business in the produced. No part of the consideration was expressed by the declaration High Court (including the appeal to which your letter refers) should be of trust as being apportioned to the leasehold premises, and that deed was transacted through a London ageut.-I am, yours faithfully,

not stamped with ad valorem duty on £4,085 88. 4d., but was stamped S. P. B. BUCKNILL, Assistant Secretary. only with the fixed duty of 10g. The commissioners were of opinion that, Walter Josepb, Esq., 13, Queen-street, Great Yarmouth.

inasmuch as neither the sum of £4,085 88. 4d. nor any other part of the

« PreviousContinue »