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an option of appealing either under that procedure or under would be very inconvenient if the amount of the costs was to be
STAMP DUTY ADJUDICATIONS.
fetched contentions that an instrument which, in fact and in sub-
stance, plainly falls under one head of duty may, by a warping of
higher duty. We do not undertake to say whether the impression
In Thames Conservators v. Commissioners of Inland Revenue (35 but it is expressly provided that such conventions, so far as they W. R. 274, 18 Q. B. D. 278) the facts were these. The Conserconfer on authors more extended powers than those secured by the vators, by agreement in writing, signed by their secretary, agreed u ion and are not contrary to the new convention, shall be main to grant permission, during their pleasure, to a company to contained. The general effect of the new convention is to give to struct a new jetty at Northfleet, in consideration of an annual every author in all the countries ratifying the convention the same payment of £77. The company on their part agreed to accept copyright which he has in his own country. As it is expressed in such permissive grant on the terms and conditions thereof; to pay article 2, “ Authors of any of the countries of the union, or their £77 yearly so long as the jetty was allowed to remain, and to remove lawful representatives, shall enjoy in the other countries for their the jetty at any time on receiving notice in writing from the Conworks, whether published in one of those countries or unpublished, servators requiring them to do so. The instrument was stamped the rights which the respective laws do now or may hereafter grant with a 6d. agreement stamp, and was submitted for adjudication. to natives.” And under the definitions of article 4 the protection The Commissioners, taking perhaps a loftier flight of imagination thus given is extended to " every production whatsoever in the than is their wont, converted this licence into "an instrument of literary, scieptific, or artistic domain which can be published conveyance on sale." It was chargeable, they held, with ad valorem by any mode of impression or reproduction.” Provision is duty of £7 15s., calculated on the amount of £77, payable yearly made for the accession to the convention of other countries on for an indefinite period, in accordance with section 72, sub-section request to that effect. But the most novel feature of the conven-2, of the Stamp Act, 1870. tion is the establishment of an international office under the name of
Their reasons for this decision may, we suppose, be gathered “The office of the International Union for the Protection of Literary from the arguments urged by their counsel on the appeal to the and Artistic Works." This office, the expenses of which are to be High Court. Section 70 of the Stamp Act, 1870, defines "conborne by the administrations of all the countries of the union, is veyance or sale "as including "every instrument whereby any placed under the authority of the Swiss Confederation, and is to property upon the sale thereof is legally or equitably transferred work under its direction. The organization of the office is to be to, or vested in, the purchaser.” Here, said the learned counsel, fixed by a regulation to be drawn up by the Government of the there was a transfer of a right for money: a right is property; Swiss Confederation; and it appears that its functions are to be to hence there was a transfer of property to a purchaser. We really collect, arrange, and publish all kinds of information relative to think that if the counsel who were retained to urge this so-called the protection of the rights of authors in their literary and argument had any sense of humour they must have argued with artistic works, to study general questions of utility likely to be their tongues in their cheeks. How on earth can a simple licence of interest to the union, and to edit a periodical publication. to do something on the property of another, which licence cannot Interesting questions are likely to arise with regard to this inter- be assigned, be called a transfer of property ? How can such a national publication. Who will be responsible for the occasional licence, grinted in consideration of a yearly payment, be called a libels which it may contain, and will it be written in the extra- sale of property? The court, at all events, had no doubt on the ordinary language in which the English version of the convention point, and held that the instrument was only chargeable as an is couched ?
agreement with a 6d. stamp. We are not concerned to discuss the
alternative contentions raised by the Commissioners, evidently in THE DECISION of Mr. Justice North in Easton v. London Joint the case merely as an instance of the extraordinary nature of the
the anticipation that their adjudication could not stand. We cite Stock Bank, that refresher fees to counsel may be allowed on adjudications which may nowadays proceed from the Commisappeals from the Chancery Division, appears to us to be reasonable, sioners. though we are not quite clear that it is a correct interpretation of We venture to submit that section 18 of the Stamp Act, 1870, the rules of court. In Svendsen v. Wallace (34 W. R. 151, 16 Q. B. D. 27) it was held that the power of a taxing master their advisers to exercise their ingenuity in straining the provisions
was not intended as a means of enabling the Commissioners or to allow refreshers is not limited to the cases specified in ord. of the Stamp Act in order to obtain a few extra pounds for the 65, r. 27, sub-rule 48, and that such refreshers might, therefore, revenue. be allowel on the hearing of an appeal from the Queen's Bench doubtful about the proper stamp to be placed upon an instrument
It was intended as a means of enabling people who are Division, although no oral evidence was taken. doubt,” Mr. Justice Day said, " that an argument in the Court of the Act. The object which the adjudication stamp was originally
"I have no to obtain a fair, semi-judicial interpretation of the provisions of Appeal, comes under the general term [of sub-rule 30] 'work and intended to fulfil is well stated by Mr. Dowell (who as assistantlabour.'” That sub-rule, however, is limited to " work and labour solicitor of Inland Revenue was one of the best authorities on the in respect of which fees have heretofore been allowed," and although subject) as follows : — The stamp was introduced in 1850. The refreshers were allowed in the old Exchequer Chamber they were complicated state of the stamp laws at that time rendered it in not allowed in the Chancery Appeal Court. But as Mr. Justice many cases a matter of difficulty to determine the proper amount Nortu pointed out, the Court of Appeal is now ope court, enter- of duty payable ; the best intentions could not prevent occasional taining appeals from all the divisions of the High Court, and it mistakes ; and no solicitor was ever secure that, on an investigation
of title or on production in court, an instrument might not prove to So far from the present landowner being unwilling to spend money be defective in stamp. To meet these cases of doubt power was, by for the benefit of future generations, there is probably no class in special enactment, given to the Commissioners” to adjudicate the the community so uniformly addicted to the practice. So far from duty (History of the Stamp Duties, p. 112). Since 1870 the person the present purchaser being careless about making provision for who submits an instrument for adjudication is bound to have it future sales and mortgages, he is, in reality, only too ready to stamped in accordance with the Commissioners' assessment, and spend money and to take trouble in improving his selling titlehis only remedy for an eccentric adjudication is the expensive one witness all those expensive and tedious pilgrimages which are of an appeal to the High Court. In common fairness the Com- taken by purchasers to obtain evidence of titles which they are missioners or their advisers should consider that they are in the themselves perfectly satisfied with, solely with an eye to satisfying position, as regards adjudication, of a semi-judicial authority, and possible future purchasers and mortgagees. not of officers whose duty it is to screw out of the applicant as We have dwelt on this topic because it appears to us that those much stamp duty as they possibly can. And we think that they who use the argument in question do not quite see what force it should not forget that, in the majority of cases, there is no practical has as a weapon against themselves. To the mind of any person appeal from their assessment, the amount at stake not being suffi- not originally favourable to registration it simply suggests the cient to warrant the cost.
question, Is it not the benefit itself (present or future) that is The result of the distrust occasioned by such interpretations as doubtful rather than the landowners' due appreciation of it? If that to which we have referred is likely to be to put a stop to the benefit were clear its futurity would not prevent landowners applications for adjudication. Whether this will be advantageous from availing themselves of it; if it be not clear compulsion is to the revenue or not we will not venture to say, but it will less than justifiable. certainly be felt as a hardship by solicitors.
Thus the two most popular arguments for compulsion are greatly invalidated by inspection. Let us pass on to consider the
third. It is said that to shrink from insisting upon the immediate IS COMPULSION REALLY NECESSARY FOR THE to shrink from getting into the water before learning to swim; to
universality which compulsion would produce is much the same as ESTABLISHMENT OF REGISTRATION OF TITLE ?
ask that compulsion be deferred until the system has been tried III.
and has been proved to be successful is to prevent the possibility of Our last article brought us to the consideration of the more such proof ever arising; in short, that registration to be successful refined reason for demanding compulsion which has latterly recom- must be universal. As long as the system is optional (it is said) it mended itself to the authorities-namely, that registration is no is never worth while for professional men to make a serious study benefit to the present generation of landowners.
of the Act; the result of this is that when the few registered As to this view of the matter, we cannot help hazarding the titles that exist are dealt with, the parties experience all kinds of surmise that if compulsion had not been previously determined upon inconvenience, expense, and delay owing to their own and their for some other reason, we should have heard little or nothing about legal advisers want of familiarity with the system. it; for it appears to us, in the mouth of an advocate of registra In reply it may be urged that the Torrens Acts in Australia tion, to be nothing less than a most damaging misrepresentation of were successful from the first. In South Australia, a very small the system, arising solely from defective apprehension of its colony in 1857—its population being under 100,000—over 1,000 claims and characteristics. If registration be introduced with voluntary applications (proportionally equal to somewhere about care and economy in the arrangement of its details (without which 200,000 for England) were made in the first eighteen months. It it will be useless alike to the present and the future landowner), it is perfectly true that in England hitherto registration has been, if is just as likely to prove beneficial to this generation as to any not opposed, still substantially ignored by English landowners and other. For instance, if possessory titles are (as they may be) their advisers. While the eager and irresponsible have been beadmitted to the register without any preliminary evidence at all, coming more and more enthusiastic about it as a theory, the learned the whole process will amount to no more than the furnishing of and experienced have, at any rate till a very short while ago, been a description of the property, sufficiently clear for index purposes, more and more persistently neglecting it in practice. The reason and the name of the proprietor (with a schedule of incumbrances, of this we believe (with Lord Thring) to have been that no effort perhaps, where any exist). Every purchaser might thus register was made in 1875 to counteract the blighting effect of the failure his estate immediately on completion of the purchase at a very of 1862, or to make the system sufficiently known, or to smooth small
expense, with the result that in about twenty years' time the way through the office of Land Registry. Is it reasonable to (and many a present purchaser expects to live twenty years) he conclude that a new voluntary system, free from these disadvantages, would have a practically absolute title, ready for sale or mortgage would meet with a similar fate? It seems to us, on a survey of at greatly reduced rates. Even if the only sale contemplated were all the arguments in favour of compulsion, that the Committee of the ordinary sale by trustees after the present proprietor's own death, the Incorporated Law Society were justified in saying that if a surely the saving of £50 or £100 to his children's estate would system of registration cannot be worked except by pressure of seldom be regarded as "no benefit." Thus far with possessory compulsion, it will be because it has not been made suitable to the title only, but it has also been pointed out in recent works that, requirements of the country, and will hamper, instead of facilitate, under the system proposed by the Bill of merely guaranteeing the dealings with real estate. titles rather than declaring them indefeasible, an absolute title It remains, however, to consider the practical position of matters need cost no more in money and time than a sale costs now, and as regards the Bill of last session. We may all be convinced that so absolute titles might be obtained on the occasion of sales, and compulsion is equally unnecessary and undesirable, but we must perhaps of mortgages too, at very little (if any) increased cost. look at the probable course of events. There can be no doubt that This result has been observed in actual practice on the registration it is intended to re-introduce the Bill next session, and there is no of many complicated titles under the Torrens Acts. Here, then, is use in shutting our eyes to the probability that, when re-introanother obvious benefit to the present landowner if registration is duced, it will be found to contain the compulsion clause. We what it professes to be. Or, lastly, if the system of confirmations must take into account the fact that a large proportion of our does what is expected of it, a property will be ready for sale or legislators are apparently at present in favour of compulsion. What
There are one or mortgage with absolute title in five years' time at an expense course should be taken by the profession ? hardly greater than that of a mere possessory title. Is this no two considerations which should be borne in mind on this subject. benefit to the present landowner ?
WE are aware that some First, it should be remembered that the species of compulsion conbelieve that the confirmation system will prove difficult and tained in last session's Bill is by no means the most stringent that has expensive ; but these are not among the supporters of the Bill, been devised. It may be well for the profession to consider it with whom alone we are now arguing. In fact, to give this argu- respectfully, lest a worse thing happen to them. Let us pause for ment its full foroe, landowners must appear to be among the most a moment to explain exactly what we mean. The compulsion con ignorant and improvident persons in the whole community; templated by the Bill was of a potential rather than an actual whereas it is well known that the exact reverse is the truth character ; it left the matter practically in the hands of the Lord witness the elaborate developing of estates for building, the drain-Chancellor himself; it might never be applied; when applied, it age, the plantation, the reclamation that we see going on daily. admitted of gradual and partial application. It provided that
absolute titles should not be granted without much circumspection. The comments of the extremists on these features of the Bill are
LEGISLATION OF THE YEAR. well exemplified by Mr. Arthur Arnold's article in the Fortnightly
RESIGNATION OF INCUMBENTS. Review of July. If politicians of this type had their way, compul- 50 & 51 Vict. c. 23.-AN ACT TO AMEND THE INCUMBENTS Resigsion would be unconditional, immediate, and universal, and absolute
NATION ACT, 1871. titles would be granted on the lapse of some undetermined period
More than a dozen Bills affecting the clergy were introduced into whose outside limit they propose, apparently, to fix at about six
Of these only three passed, and the months from receipt of the applicant's statement that he is in Parliament last session.
present Act is tbe only one worth notice amongst them. The Act of rightful possession as owner in fee.
1871 (34 & 35 Vict. c. 44), by s. 8, allows retiring incumbents to Secondly, should the Bill pass into law substantially in the form receive such sum by way of pension as shall be fixed by commissioners promulgated last session, it is impossible to repress the conjecture up to one-third of the annual value of the benefice resigned. The that the nearness or remoteness of the incidence of compulsion may present Act contains amendments of the Act of 1871, providing largely be determined by the progress of voluntary registration (1) that the pension, if the income of the benefice is derived from tithe during the preparatory interval that will elapse after the defining rent-charge or glebe, is to vary and be regulated by the tithe averages; of a district. Further, it is scarcely necessary to add that the (2) that the salary of any curate who is compulsorily em
also annual payments in respect of terminable rate of this progress will be largely determined by the attitude ployed, and assumed by the profession, and the advice given by them to their left to the incoming incumbent, and (3) that if the retiring
to be provided for out of the income to be clients. If the will of the Legislature is to confer on the Lord incumbent has not settled with his successor for dilapidations, Chancellor any compulsory powers, it stands to reason that if the the successor may deduct the amount due for dilapidations from the solicitors permit their clients to continue to ignore the system, pension. The result of all which amendments will be that pensions those powers will be exercised ; and, if exercised, the profession in a large majority of cases will be very small indeed. If the Church will have itself to thank for whatever evils compulsion may bring Patronage Bill which passed the House of Lords last session should in its train. But if by any means the landowners can be induced come before the House of Commons next year, an opportunity will to adopt registration voluntarily in sufficient numbers to give it arise for better providing for resigning incumbents. obviously the fair trial it is supposed to want, we should suppose that the authorities and the public will probably be satisfied, and
TRUCK AMENDMENT. disinclined to court the obvious risks which compulsory enforcement of the Act seems likely to bring.
50 & 51 VICT. C. 46.- AN ACT TO AMEND AND EXTEND THE LAW
RELATING TO TRUCK. There are two or three principal ways in which the almost in. dispensable assistance of solicitors in giving voluntary registration law 11 of truck," or payment of wages otherwise than in coin. The
This compact little statute effects many important changes in the a fair trial of this kind can be supplied quite consistently with due old Truck Act of 1831 (1 & 2 Will. 4, c. 37), which was itself a conregard to the interest of their clients. (1) Purchases of land intended to be held separately, or in con- repealing all the many prior enactments on the subject, has long
solidating statute, being preceded by an Act 1 & 2 Will. 4, c. 36, junction with land likely to be sold or mortgaged, might be regis- been unsuitable to modern law from the mere fact of having been tered by the purchaser with possessory title, provided the cost be passed prior to the Summary Jurisdiction Acts. The present Act trifling
opens by widely extending the operation of truck law. The Act of (2) If ordinary good holding titles are accepted and guaranteed 1831 merely applied to workmen in certain specified trades. The by the registry at a reasonable price, some scheme for conducting present Act extends the law of truck to all workmen to whom ordinary sales through the registry to result (at the joint expense speaking generally, to every person, except a domestic or monial of vendor and purchaser) in an absolute title for the purchaser, servant, employed' under a contract with an employer personally might be arranged without serious difficulty. The class of prop- to execute work by manual labour, and also charges (section 13, erty that seems especially suitable for registration is, doubtless, sub-section 2) inspectors of factories and mines with the duty of estates (of every kind) which are intended to be held separately, enforcing the law (which no doubt is in many places u dead letter) and which will be likely to be separately mortgaged or sold in the within their districts so far as respects factories, workshops and
or less immediate future. Most town holdings, and a very mines ; so that, excepting agricultural labourers, the great majority considerable proportion of the smaller country holdings, are of this of servants in England will have a public prosecutor to protect class.
them, Section 4 provides that nothing in the two Acts shall render Another class of property, at first sight most suitable for abso- illegal a contract with a servant in husbandry for giving him food, lute title, has not unfrequently disappointed its proprietors and drink, not being intoxicating, a cottage, or other allowances or persons dealing with it when registered—namely, estates about to privileges in addition to money wages as a remuneration for his be laid out for building purposes. The difficulties, however, beneath general words, must now arise sooner or later whether the appear to have lain in the somewhat inadequate preparation made usual allowances of beer and cider to agricultural labourers are by the enactments for the practical process of cutting up regis- illegal or not, and, upon the whole, we incline to think that such tered estates. If this defect is removed, and a convenient process allowances would generally be held illegal. The question would (like that actually in use under the Torrens Acts) for dividing depend upon whether the workman would have entered into the afford a sufficiently promising field for the operations of the Land inconsistent with gratuities, we cannot but think that this question estates on the register be devised, this class of lands, too, will service had he expected that the drink would not be given, and, Transfer Board. The cases where we should hesitate to recommend registration a very difficult one.
would, in most cases, be decided against masters, though the point offhand woull be those where the land purchased is to be brought where wages are paid by custom in advance, and deductions for
Other sections prohibit deduction of discount into settlement or is to form part of other estates not registered or sharpening tools except by special agreement, and provide for an not intended for the market.
audit of the deductions allowed by the Act of 1831 for medicine, The practical bearing of these observations will be seen to be education, and tools, and apply the law to persons making up linen shortly this, that if the profession see their way to advising their and woollen, &c., articles, under the value of £6, at their own homes clients to register voluntarily, still more if they could give the
for sale to trade buyers. authorities any trustworthy guarantee to that effect, it is possible tion of the procedure under the Summary Jurisdiction Acts for the
The repeals are mostly formal, and consequent upon the substituthat actual compulsion may be deferred or dropped, although the power of putting it in force may be retained. It must, however, legal procedure generally, it may be noticed that the 4th section of
pow obsolete procedure contained in the Act of 1831. With regard to be clearly understood that we do not speak with any authority on the Summary Jurisdiction Act, 1879, has the effect of allowing the this point; we merely venture to give form to ideas which have minimum penalty of five pounds to be mitigated to any amount, that presented themselves to us of late in connection with the matter. certiorari is excluded by the Act of 1831; and that there will be no
Our readers have now the materials for judging whether their appeal from the imposition of the fines, the Act of 1831 providing nonton forces will be most advantageously devoted to the endeavour and the Summary Jurisdiction Act of 1879 only allowing an appeal in to oppose the Bill or the compulsory clauses of it, or to rendering this lep rappear to authorize, the Act of 1831 expressly restricting unnecessary the enforcement of those clauses, the mere passage the punishment even for a third offence to a fine only. of which may possibly suffice to ward off a far greater danger. The only other enactment to which attention need be called is the
12th, whereby, following the precedent of the Factory and Workshop words are “ to hold.”. This form has passed into such common usage Act, 8. 87, and other modern Acts, it is provided that an employer, that it is now impossible to change it, and we cannot object to the whose agent is the guilty person, may exempt himself from the editor using it; but it contains à double inaccuracy: the old form, penalties of the Acts upon laying such information as will lead “ to have and to hold,” contained the habendum and tenendum in an to the conviction of the actual offender.
abbreviated form; the tenendum became useless in conveyances of freeholds after the Statute of Quia Emptores, and might properly have been
omitted, instead of which the modern form omits the words which BOUNDARIES.
represent the habendum, and retains the words “to hold,” which 50 & 51 Vict. c. 61.-AN ACT FOR APPOINTING COMMISSIONERS TO represent the tenendum ; add to which, that, as has been pointed out
INQUIRE AND REPORT AS THE BOUNDARIES OF CERTAIN by an eminent conveyancer in a sbeet privately circulated, the Latin AREAS OF LOCAL GOVERNMENT IN ENGLAND.
"habendum” is not properly translated by “to hold"; it ought rather This Act is, of course, less important in itself than what it is to have been translated to be held.” expected to lead to. A new and symmetrical systera of local
But, lastly, we would ask, Why does the editor follow the bad who have studied the subject are agreed that a thorough rearrange- feel convinced that if the editor knew how much the phrase annoys government has long been the object of both political parties, and all example of Lord St. Leonards, and sometimes connect the cases by
the words “and so"? This criticism may appear captious, but we ment of boundaries must first be accomplished. The present Act constitutes a Boundary Commission composed of Earl Brownlow, some readers he would avoid it for the future. Parliamentary Secretary of the Local Government Board, Lord Edmond Fitzmaurice, the author of a Boundaries Bill under
MERCHANDISE MARKS ACT. another Government, Lord Basing, Sir H. Selwin-Ibbetson, and Mr. THE MERCHANDISE MARKS Act, 1887, WITH NOTES AND AN INHibbert, who are at once by themselves, or by assistant commissioners appointed by them,” to inquire as to the best mode of (1) so
By ALBERT GRAY, Barrister-at-Law. W. Clowes adjusting the boundaries of each county, and other areas of local
& Sons (Limited). government, as to arrange that no union, borough, sanitary
This is a useful little edition of an important new Act, preceded by district, or parish, shall be situate in more than one county”; (2) of a well-written introduction of some thirty pages, and followed by dealing with detached parts of counties; and (3) of dealing with appendices containing abstracts of statutory enactments relating to the cases where a borough is not an urban sanitary district and the marking of particular classes of goods, foreign and colonial laws is wholly or partly comprised in an urban sanitary district; also on the subject, and the Convention of Paris for the Protection of (4) “as to any alteration of boundaries, combination of areas, or
Industrial Property, with an index. The Act is printed in a conadministrative arrangements incidental to or consequential on any venient form, and the notes contain many suggestions and hints with alteration which they may recommend in the boundaries of any regard to the interpretation of the Act. "The variations from the old the Commissioners are to cease at the end of 1888, and do not county, union, borough, sanitary district, or parish.” The powers of Act of 1862 are generally noted, and the provisions of the new Act
are freely illustrated by appropriate examples, especially with regard extend to the Metropolis. It will be observed that nothing is said as to the use on goods of names of places, the improper use of which is to Parliamentary electoral divisions, petty sessional divisions, or
now made a criminal offence. Mr. Gray appears to consider that any coroner's districts, and it seems that it would be technically outside trade-mark may now be infringed with impunity so long as it is not the scope of the Commission to inquire into the boundaries of those registered. We cannot take this view, at all events in cases in which
The report of the Commission will, we hope, be followed by any reputation has been acquired by the unregistered mark, having an “ Areas Act,” with a schedule mapping out the whole of England regard to the provisions of section 3, sub-section (2), which clearly into areas, and distinguishing the purposes for which the areas are to points to misrepresentations made by the improper use of unregisbe used.
tered marks and treats them as false trade descriptions. Again, having regard to section 5, sub-section (1) (d.), we think it very questionable whether the use of “false trade descriptions” in advertisements will be free from liabilities. With these exceptions Mr.
Gray seems to be a reasonably safe guide to the intricacies of an
Act which is not by any means easy to interpret.
CASES OF THE WEEK.
BOSWELL v. COAKS-0.A. No. 2, 26th October.
INTEREST RUNS--ACTION Dismissed BEFORE THE 24TH OF OCTOBER, 1883
"THEN PROCEEDING '--R. S. C., 1883, XLII., 14, 16– This volume, which contains the headings “Mortmain,” “Notices,” APPENDIX H., Form No. 1, Note-PREFACE TO Rules. “Partition,” " Partnership and Companies,'
“Patent and Copyright,” and “ Powers of Attorney,” will form a very useful addition with costs before the 24th of October, 1883, interest on the taxed corte;
The question in this case was whether, in an action which was dismiss-d to the conveyancer's library. The dissertations contained in it are of payable by the plaintiffs, was to run from the date of the judgment or Very great value. We cannot, perhaps, give higher praise to i hem from the date of the taxing master's certificate. The certificate was not than by saying that they are not unworthy of their predecessors in made till more than four years after the date of the judgment. On the
The Court former editions of this work, a remark which those of our readers 19ch of March, 1883, Fry, J., dismissed the action with costs. who are old enough to have studied the former editions will know to of Appeal reversed this decision, but the House of Lords subsequently Thean very high praise. We are not aware of any work that treats restored it. The taxing master's certificate, as to the costs of one of the the subjects of Partition” and “ Powers of Attorney" so fully and defendants, was made on the 30th of July, 1887. By the old practice of accurately as the present volume.
the Court of Chancery, differing in this reepect from the practice of the The size of the bock renders it somewhat difficult to give an
Common Law Courts, interest on costs ran only from the date of the very extract which will be a fair specimen of the editor's method of treat
certificate. The Rules of the Supreme Court of 1875 adopted the
Chancery practice in this respect, but an alteration was made by the ing his subject; perhaps the discussion at p. 15 shewing that rules of 1883. In the Note to Form No. 1 (writ of fi. fa.) in Appendix a licence in mortmain which enables a charity to which it refers to
H. to the rules of 1883, it is stated that the interest on the costs is to run take property does not enable an intending donor to give property from the day of the judgment or order, or day on which money is directed which, by reason of 9 Geo. 3, c. 36, he could not otherwise give ; at to be paid, or day from which interest' is directed by the order to run, as p. 861, as to what powers of attorney can be given by a married the case may be.” Those rules came into operation on the 24th of
roman; at p. 277, as to each partner's lien on the partnership prop- October, 1883. The preface to the rules provides that they shall come erty–will enable the reader to form a fair idea of the editor's style. into operation on that day, and "shall also apply, so far as may be
The collection of precedents in " Patent and Copyright," and in practicable (unless otherwise expressly provided), to all proceedings taken p.
497, being a deed executed on the dissolution of partnership on (ante, p. 703), that the rules of 1883 applied, and that interest must run assignment is dispensed with to avoid stamp duty, is a good specimen action, having been dismissed in March, 1883, was at an end before It may usefully be compared with a somewhat similar precedent at 2 the decision." Corton, 2. J., said that though, when an action was disof the editor's power of dealing with the most idiouit ord specimen. October, 1883, and that the old rules applied. Key & Elphinstone Comp. 339.
missed, it was at an end for some purposes-as regarded, for instance, the We observe that the editor adopts the form of habendum intro- determination of the rights of the parties-yet it was still pending for duced, we believe, by Mr. Wolstenholme, in which the only operative che purpose of working out and enforcing the judgment of the court.
Therefore this action was "ponding" on the 24th of October, 1883, and which fees have heretofore been allowed, the same or similar fees are to be the new rules applied. North, J., was also right in holding that, though allowed for such work and labour as have heretofore been allowed." And, rule 14 of order 12 said that “the forms in Appendix H. shall be used, by sub-rule 37, “The rules, orders, and practice of any court whose with such variations as circumstances may require,” the forms must be jurisdiction is transferred to the High Court of Justice or Court of Appeal followed in the absence of a special direction of the judge to the contrary. relating to costs, and the allowance of the fees of solicitors and attorneys, If an action was dismissed without costs, of course the provisions as to en. and the taxation of costs, existing prior to the commencement of the forcing payment of costs and interest on them would be omitted from the principal Act, shall, in so far as they are not inconsistent with the prinwrit. Though the rights of the parties depended on the judgment, there cipal Act and these rules, remain in force and be applicable to the costs of was no vested right as regarded practice at the moment of the judgment, the same or analogous proceedings, and to the allowance of the fees of but the judgment must be worked out according to the rules and practice solicitors of the Supreme Court, and the taxation of costs in the High of the court at the time when it had to be worked out. LINDLEY and Court of Justice and Court of Appeal.” In Svendsen v. Wallace (34 W. R. Lopes, L.JJ., concurred.-COUNSEL, Cookson, Q.O., and A. G. Langley ; 151, 16 Q. B. D. 27), decided since 1883, it was held by a Divisional Cozens - Hardy, Q.C., and Methold. SOLICITORS, Whites, Renærd, ģCo.; Court of the Queen's Bench Division that refreshers could be allowed on Johnson & Master,
the hearing of an appeal from that division, though the taxing master had
been of a contrary opinion. In the present case the appeal was from the BEST v. APPLEGATE.-North, J., 25th October.
Chancery Division, and the hearing of the appeal had occupied four days. MORTGAGB-FORECLOSURE-ORDER FOR Delivery of Possession-ORIGIN claimed refresher fees paid to their counsel for three days, relying on
The action was dismissed with costs, and on the taxation the defendants ATING SUMMONS—R. S. O., 1883, XVIII. 2; LV. 54. (December, 1885).
Svendsen v. Wallace. The taxing master (Mr. Wainwright) held that that The question in this case was whether, in a foreclosure action, com. case did not apply to appeals from the Chaucery Division, and disallowed menced by originating summons under rule 5a. (December, 1885) of order 55 the refreshers, without exercising any discretion, on the ground that he of the R. S. O., 1883, the defendants having made default in redeeming the had no power to allow them. He said :-“In the Court of Chancery, mortgaged premises at the time appointed by the foreclosure, an order for before the oral examination of witnesses in that court, daily refreshers the delivery of possession to the plaintiff by some of the defendants of were not allowed nor paid. In Harrison v. Wearing the decision and part of the mortgaged premises, of which those defendants were in posses- reasoning of Jessel, M.R., are quite opposed to the allowance of daily sion, could be made upon motion by the plaintiff in the absence of those refreshers on appeals.” defendants, the summons not having asked for delivery of possession. NORTH, J., held that Svendsen v. Wallace applied, and that there was The notice of motion asked that the order for foreclosure might be made jurisdiction to allow refreshers, if the taxing master, in the exercise of his absolute, and that the defendants who were in possession might be ordered discretion, should think fit to allow them. The learned judge said that to deliver possession to the plaintiff. The defendants had been served the Court of Appeal is one court, entertaining appeals from all the with notice of the motion, but they did not appear. The defendants in divisions of the High Court, the Bankruptcy, the Palatine Court, possession were some of the mortgagors. North, J., felt some difficulty and other jurisdictions, and in nearly all cases there was no vivå voce in ordering delivery of possession in the absence of the defendants, as the evidence on the hearing of an appeal. It would be very inconvenient if summons had not asked for it. The plaintiff's counsel cited Salter v. the amount of the costs was to be regulated, not by the work done, but Edgar (30 SOLICITORS' JOURNAL, 322, W. N., 1886, p. 47) and Lacon v. by the circumstance from which court the appeal came. The Rules of Tyrrell (W. N., 1887, p. 71) as precedents for making the order under such
1883 were a code regulating the practice in the High Court and the Court circumstances. Each of the cases was cited from the Weekly Notes. In of Appeal generally. He thought the line which the taxing master had the former case the action was commenced by writ, but neither the writ drawn could not be maintained. The rule ought to be the same from nor the statement of claim asked for delivery of possession. In that case whatever court the appeal might come. In other cases the Court of Chitty, J., is reported to have held that, on making the foreclosure Appeal had held that when the practice had been different in courts whose absolute, an order for delivery of possession could be made against the jurisdiction was transferred to the High Court, the more convenient mortgagor, though it could not have been made against a third party. In practice ought to be adopted by the High Court after the transfer. He the second case a similar order was made by Stirling, J., in an action thought the rules made no distinction between the different divisions.commenced by summons.
COUNSEL, W. D. Rawlins ; Grosvenor Woods. SOLICITORS, Clarke, Rawlins, NORTH, J., said that he could hardly understand how there was juris- $ Co.; West, King, Adams, & Co. diction to order delivery of possession when the summons did not ask for it. But he would follow the cases cited, if the registrar should find, on looking at the actual orders made, that they were precedents for what was asked.-COUNSEL, Jason Smith. SOLICITORS, Morten, Cutler, f. Co.
CASES AFFECTING SOLICITORS.
Re ELEY-C. A. No.2, 25th October.
SOLICITOR-Costs—SCALE Fees FOR “INVESTIGATING TITLE
GOTIATING LOAN”-SOLICITORS' REMUNERATION ORDER OF August, 1882, VENDOR AND PURCHASER-NOTICE TO RESCIND CONTRACT– JURISDICTION SCHEDULE I., Part I.
TO DETERMINE VALIDITY ON SUMMONS-VENDOR AND PURCHASER ACT, 1874, s. 9.
This was an appeal from a decision of North, J. (ante, p 662). When
the appeal was called on, no one appeared in support of it, and it was This was a summons by a purchaser of real estate, under the Vendor dismissed. and Purchaser Act, 1874, asking for a declaration that the vendor was not entitled to rescind the contract for sale. The vendor had given notice to
Re PEACE AND ELLIS.-North, J., 26th October. rescind, proposing to do so under a power reserved to him in the contract. SOLICITOR-Costs—SALE BY AUCTION—"CONDUCTING Fer"—COMMISSION TO The preliminary question was raised whether there was jurisdiction to
AUCTIONEER PAID BY CLIENT—Right of SOLICITOR TO CHARGE FOR WORK determine the validity of the notice of rescission upon a summons under the
DONE BEFORE SALE-SOLICITORS' RemunerATION Act, 1881 (44 & 45 Vict. Act. Section 9 excepts from the power given to raise questions between
44) --- REMUNERATION Order, August, 1882, CLAUSE 2; SCHEDULE I., a vendor and purchaser by summons "questions affecting the existence
Part I. ; RULE 11; SCHEDULE II. or validity of the contract. NORTH, J., held that those words of exception refer to the existence or property sold by auction were entitled to charge for work done by them
The question in this case was whether the solicitors of the vendor of validity of the contract in its inception, and that there was jurisdiction prior to the sale, an auctioneer having been employed at the expenses to determine the validity of the notice of rescission. The summons had been adjourned into court from chambers without claimed the conducting fee” prescribed by Part I. of Schedule I. to the
the client to conduct the sale, the solicitors having in their bill of costs any discussion before the chief clerk, and under these circumstances
NORTH, J., held that the objection as to jurisdiction, which was taken conducting a sale by auction shall apply only in cases where no commission
is paid by the client to an auctioneer.” In the present case the property Co.; Indermaur g Brown
following items: “Fee on preparing advertisement for sale of property of
which you are mortgagee, inserting advertisement in papers, preparing EASTON v. THE LONDON JOINT STOCK BANK – North, J.,
conditions of sale, deducing title thereto, and completing conveyance 25th October.
thereof, as follows: Costs-Taxation-ReFRESHER FBE8-APPEAL FROM CHANCERY DIVISION
Lot 1, purchase-money,
Lot 2, purchase-money,
Lot 3, purchase-money, £535 The question in this case was whether, on the hearing of an appeal from The bill also contained some items for disbursements, one of which was for the Chancery Division, refresher fees to counsel can be allowed when the “auctioneer's charges £10 18.” hearing of the appeal occupies more than one day. In the Court of the auctioneer for each lot, and a sum of 129. for expenses out of pockets
This sum was made up of a fee of £3 3s. to Chancery refreshers were originally unknown, but such fees were formerly The taxing master disallowed in respect of the three lots respectively the allowed on the trials of common law actions and on the hearing of appeals sums of £5, £5, and £5 10s. to the Exchequer Chamber. After oral evidence was introduced into the he said, " an auctioneer was employed who conducted the sale, and was
In the taxing master's answers to objections Court of Chancery refreshers were also introduced, the reason for allowing paid (by the client) his usual commission. The solicitors are, therefore, them being explained by Jessel, M.R , in Harrison v. Wearing (11 Ch. D. 206).
not entitled to charge 'conducting fees,' but only the fees for contract, ance of refreshers when any cause or matter is to be tried or heard Solicitors: Act, I have no power to amend the bill, which, otherwise,
This being a taxation under the upon viva voce evidence in open court,” but makes no rcfurence to the should have done, by allowing the solicitors three guineas for their trouble hearing of an appeal. But sub-rule 30 provides that " As to any work and in instructing the auctioneer, and any other labour not covered by the scale labour properly performed and not herein provided for, and in respect of fees allowed.