« ZurückWeiter »
COUNTY COURT ACT.
200 Equitable Defences to Actions at Law-Law of Costs.-Points in Equity Practice.
Upon the same principle equity will give what is termed, an equitable interest in prorelief against proceedings at law, upon instru- perty. Where, for instance, a tenant has conments obtained by undue influence, from per- tracted to purchase from his landlord the prosons standing in some fiduciary relation to the perty of which he is in the occupation, if the holder, as that of trustee and cestui que trust, landlord take proceedings in ejectment, the guardian and ward, or any other relation in tenant must still resort to the Court of Chanwhich dominion may be exercised by one per- cery, for his injunction to stay proceedings.”
over another. (Huguenin v. Basely, i Tudor's L. C. and note Cooke v. Joamotte, 15 Bea. 234, Espe v. Lake, 10 Hare, 860). It is
LAW OF COSTS. presumed that such relation, and the consequences which follow from it, may be urged in WHERE CONCURRENT JURISDICTION UNDER a Court of Law on proceedings being now instituted upon such instruments.
The plaintiff in an action of trespass ob“ With regard to relief against forfeitures, tained a verdict with 5l. damages, and a when a forfeiture is sought, a plea may now be put in, which formerly was only available in Judge's order was made under the 15 & 16 equity, as a ground for staying proceedings at Vict. c. 54, s. 4, to give him his costs of the law. Thus where a lessee convenants to do or trial. On a rule being obtained to rescind not to do certain acts, with a clause of re-entry this order, upon the ground that the case was for breach of the convenant, and then commits such breach, equity will, under some circum- not within the 9 & 10 Vict. c. 95, s. 128, stances, relieve against the strict legal conse- Maule, J., said, “The plaintiff having sued quences of breach of the obligation by the the defendant in the Superior Court, seeks to party bound. So, in some cases, when the recover costs, on the ground that the case is thing to be done, the not doing of which has worked the forfeiture at law, can be specifically
one in which there is concurrent jurisdiction, done, so as to put the party bona fide and en because the defendant does not reside or carry tirely in statu quo-or the injury can be com- on business within the district assigned to the pensated by a sum certain, or by damages ca- Southwark County Court. To make out that pable of being estimated by some certain rule of the Court—then equity will relieve, and proposition, the plaintiff states in his affidavit there the facts may now be pleaded. (Drewry so much, I think, as he could reasonably be on Injunctions, p. 88.) The jurisdiction, which expected to say upon the subject. I think the Courts of Equity assumed, to relieve a tenant defendant was called upon clearly to show, if from a forfeiture incurred by non-payment of the fact were so, that he really did carry on rent, upon a bill filed after an indefinite period, by payment of the rent due interest and costs, business at the place indicated. This might was limited by the Legislature (4 Geo. 2, c. 28) have been done by some clerk or foreman. to cases where payment was made, on the bill But nothing of the kind is done. There is, it being filed, within six months after judgment is true, an affidavit by his bailiff, which is had and recovered in ejeetment and execution executed thereon. Courts of Law were, how- evidently intended to give a sort of colour that ever, in the habit of relieving the lessee, by business of some sort is carried on by the destaying proceedings in ejectment, at any time fendant at the place referred to. But I think before execution executed, on payment of ar- there was amply sufficient to call upon the rears and costs, and in some cases giving security for future payments. (2 Platt on Leases, defendant clearly and distinctly to show where 475.)
he carried on his business; and this he has "With regard to the relation of principal not done.” The rule was discharged, but, under and surety, Courts of Equity frequently give the circumstances, without costs. Stokes 6. relief against proceedings at law. Where, for Grissell
, 14. Com. B.: 678. instance, parties appear on the face of an instrument to be bound jointly and severally, as upon a bond, if one of them only in fact joined POINTS IN EQUITY PRACTICE. as surety, he can in equity plead that he was only a surety; so that if the principal creditor had given time to the debtor, he would be dis
SETTING OUT DOCUMENTS IN ANSWER. charged in equity, although held bound at Held, that a defendant is not bound to set law. °(Craythorne v. Swinburne, 4 Ves. 160, forth in his answer a list of documents in his 170; Clinton v. Hooper, 1 Ves. jun. 173, 3 Bro. C. C. 201.) It is presumed, that now
possession relating to his own title. Suthersuch person may, in an action against him by land v. Sutherland, 17 Beav. 209. the creditor, plead that he was only a surety, and that time was given to the principal debtor.
REFERENCE TO WIND UP COMPANY ATI «The Courts of Law have no power of interference in those cases, where a person has, On a petition by a contributory to have a
Statistics of the Profession.- Proposed Consolidation of the Stamp Laws. 201 banking company wound up, the Master of were effected by the Act of 1850, and that the Rolls considered that it was not imperative whilst the Public was thereby relieved of on the Court, under the 15 & 16 Vict. c. 80, s. many vexatious burdens, the revenue has 10, to make such reference to the Master, and not ultimately suffered. said he would refer the matter to his own
Our attention has lately been called to a Chambers, when it would be more immedia pamphlet on this important subject by
Mr. Chamberlain, a Solicitor at Portsea, ately under his own control. In re Newcastle, containing many valuable suggestions for Shields, and Sunderland Union Bank, 17 Beav. the amendment of the Stamp Acts, pre470.
ceded by an
which we extract, in substance, the followSTATISTICS OF THE PROFESSION. ing statement down to the 55 Geo. 3, c.
184:NUMBER OF CANDIDATES EXAMINED, The first Act of Parliament imposing stamp 1836-1854.
duties, was the 5 & 6 William and Mary, The following statement will show that up- Majesties several duties upon vellum, parch
c. 21, entitled 'An Act for granting to their wards of two-thirds in number of the Attorneys ment, and paper, for four years, towards carand Solicitors in England and Wales, have un- rying on the war against France.' dergone the examination at the Incorporated The next Statute passed was the 9 & 10 Law Society during the last 18 years :--
Wm. and Mary, c. 28. Its title is, 'An Act
for explaining and regulating several doubts,
duties, and penalties in the late Act for grant81
ing several duties upon vellum, parchment, Easter
and paper, and for ascertaining the admeasure116
ment of the tonnage of ships ! This jumbling 132 1851.-Hilary
of one thing into another was a favourite usage 96
with the fabricators of Acts of Parliament, Easter 100
with which every one conversant with the Sta72
tute Law is familiar. Numerous instances Michaelmas 109 1852.-Hilary
could be furnished. Many of the Statutes re91 Easter
lating to attorneys contained enactments as to 80
bread, coals, cattle, salmon, turnips, seamen, 80
the excise, &c. Michaelmas 108
By the 9 & 10 Wm. 3, c. 25, stamp 49
duties were imposed upon deeds, leases, and 88 Trinity
other documents, and also on legal proceed
ings. The 10th year of the reign of Wm. 3, 109
was rather past the time at which the stamp 62
duties, imposed for four years, should have 102
ceased to be levied; but then came an Act Trinity
perpetuating and increasing their number. Michaelmas 115
With respect to the duties on law proceedings,
the public have been relieved from these by 1817
5 Geo. 4, c. 41. From Trinity Term 1836
Various Acts followed in the reign of to Michaelmas Term 1842 (see 25 Leg.
Queen Anne for regulating, and also for 2742
increasing, the various stamp duties, until From Hilary Term 1843
the reign of Geo. 1, by which time stamps to Michaelmas Term
were required to be affixed to a great variety 1849 (see 40 Leg.
of documents, besides those charged with
stamp duties by the earlier Acts. The 1 Geo. 2569
1, c. 12, constituted the stamp duties a part
of the aggregate fund; and in that reign, and 7128
also in the beginning of that of Geo. 3, several
other Acts were passed, down to the 23 Geo. 3, PROPOSED CONSOLIDATION OF C. 49, which would appear to be what may be THE STAMP LAWS.
correctly termed the first modern Act upon the
subject of the stamp duties, if an unimport AMONGST the various branches of the ant provision of 1 Anne, c. 22, be excepted, as, Statute Law which are proposed to be though for the most part repealed, a portion
of it is understood to be still in force. consolidated and amended, there is none so
This is the first Act charging bills of expractically important to the Public as well change and deeds with stamp duty, of which as the Profession as the Stamp Laws. It any portion is now law; but it was a repealed must be admitted that great improvements Act," framed one year before or in 1782, by
Proposed Consolidation of the Slamp Laws. which bills of exchange and notes were first portant transactions between merchants resid. charged with stamp duty; and it may be ing at a distance from each other would be mentioned, the amount of duty at that time rendered absolutely nugatory for want of a was very moderate, being for all bills under stamp. It is easy to see how this might be 50l., threepence ; and for all such documents the case now, and more easy to see how it given for larger amounts, sixpence. But it might have been the case upwards of 50 years should be remembered that the increase in this ago, when the 23 Geo. 3 was passed. The item of the stamp duties will bear no com- exemption provided by the 32 Geo. 3 does not parison to that in many others. The 23 Geo. 3, extend to parties not residing at the time of c. 49, had the effect of increasing most of the writing the letters at the distance of 50 miles stamp duties, and was the first Statute which from each other. With regard to corresponcharged them upon agreements. With regard dence constituting agreements requiring to be to agreements, they afford the example of stamped, it may be observed, that where practical and important relief to the community divers’ letters shall be offered in evidence to being afforded by recent legislation on the prove any agreement, the stamp required is Stamp Laws. By the Act just mentioned a 11. 15s. The Act states, ' Where several letstamp duty of 16s. was charged upon every ters constitute an agreement, it shall be suffi. agreement the matter whereof should exceed cient if any one of such letters be stamped the value of 201., with one or two trifling ex. with a stamp of ll. 15s.' Here, however, in ceptions. By the 44 Geo. 3, such agreements, steps the Common Law, and, besides innumerwith the alteration that the matter of them need able other decisions on the subject, determines not exceed but only amount to the value of 201., that if one instrument (that is, one letter) be were charged with a duty of 168.; and by the distinct, and does not refer to the others, 48 Geo. 3, the same duty of 16s. was con- though they may constitute one transaction, tinued.
several stamps are necessary. From this se. The duty on the same instruments, how. vere law there is no relief, for the very acceptable ever, was subsequently augmented to 11., and Statute, 7 Vict. c. 21, only applies to agreecontinued to be of that amount until the great ments charged by the Stamp Act with a duty boon conferred on the public by the passing of one pound; therefore, by the rules of construcof the Act, 7 Vict. c. 21, by which the tion of Statutes known to lawyers, all agree. duty on agreements, previously charged with ments charged with a duty other than one pound 11., was reduced to two shillings and sixpence. are excluded from the operation of the Act.' By this Statute immense relief is afforded to all The 30 Geo. 3, c. 55, was an Act relating to the industrious classes. To use an expression receipts, and there are many others on various which, were it not unfortunately so seldom re- matters connected with the stamp duties, on quired, might be stereotyped, the measure is policies of insurance, probates of wills, newsa step in the right direction.'
papers, appraisements, and appraisers' licences. The 31 Geo. 3, c. 21, imposes penalties on Next came the 48 Geo. 3, c. 149—an imaccepting or paying unstamped bills; and portant Act repealing duties, but retaining the declares that such bills shall be inadmissible regulations of the prior Acts. in evidence.
We come next to the 55 Geo. 3, c. 184, enThe 32 Geo. 3, c. 51, is entitled 'An Act titled an • Act for repealing the stamp duties to exempt certain letters passing between mer- on deeds, law proceedings, and other written chants or persons carrying on trade or com- or printed instruments, and the duties on merce in the kingdom containing agreements fire insurances, and on legacies, and succeswith respect to merchandise, notes, or bills of sions to personal estate upon intestacies now exchange, from the stamp duty now imposed payable in Great Britain ; and for granting on written agreements. This statute is de- other duties in lieu thereof.' serving of a few passing remarks, as it affords an example of the widespread injury occa. berlain proceeded in his publication to state
After this historical review, Mr. Chamsioned by the injudicious imposition of stamp the numerous objections which existed duties. The Act recites, been entertained respecting its operation upon against the oppressive and impolitic exaccorrespondence between merchants resident in tions which were contained in or created different parts of the kingdom, which, if sub- by the Act of July 10th, 1815. Many of ject to the effect of the said Act, and not within these objections have been removed, but the provisions by way of exception thereto, several still remain. would be attended with many evils to the commerce of the country. In plain language, it was supposed that the 23 Geo. 3, c. 58, would Such is Mr. Chamberlain's view of the render" inadmissible in evidence on trials of effect of the Stamp Acts relating to agreements causes, letters between merchants containing contained in the correspondence of parties to anything which could, by the ingenuity of alleged contracts. It should also be recollect lawyers, be strained into agreements, unless ed that the 17 & 18 Vic. c. 83, s. 13, repeals such letters were stamped; and as the Act pro- the former enactments which exempted letters vided that no agreement could be stamped ex- by the general post acknowledging the safe cept within 21 days after it was made, it is arrival of bills of exchange, &c., from the revery easy to understand that many most im-ceipt stamp.-Ed. L. O.
Proposed Consolid. of the Stamp Laws.-Unqualified Person Acting as Conveyancer. 203 The subsequent Stamp Acts, six in num- There is no need, on the present ocber, are the 13 & 14 Vict. c. 97; the 16 casion to do more than enumerate the Vict. c. 5; the 16 & 17 Vict. cc. 59, 63, recent numerous enactments on the subject and 71 ; and the 17 & 18 Vict. c. 83. of stamps. The Profession is, of course.
It may be said, more truly now than familiar enough with the new provisions. ever, that it is almost an act of common It will be sufficient to observe that the justice to consolidate the numerous scatter. whole question appears to be in an almost ed enactments in force upon this most im- inextricable mass of confusion, and also portant subject into one well-digested and that the probate and administration duties methodical Statute. Besides the multifa- are still left to inflict the injustice which rious Acts of Parliament bearing upon this they have been inflicting for the last forty every-day matter of business, sufficiently years. numerous and complicated to puzzle the most sagacious and entrap the most wary UNQUALIFIED PERSON ACTING practitioner, there are not a few important
AS CONVEYANCER. provisions respecting stamps, scattered about in Statutes not having any direct
ACTION TO RECOVER FEES. connexion with them. For instance, while
The defendants to an action brought by the Stamp Duties' Bill of 1850, that is the 13 & 14 Vict. c. 97, was before the public, drawn by him, pleaded in the terms of the
the plaintiff to recover for conveyances it was observed by the Parliamentary Committee of the Incorporated Law Society, 44 Geo. 3, c. 98, s. 14.1 On demurrer to
,, which suggested and carried several very useful amendments in that. Act, that it opinion that the defendants are entitled to would be desirable to introduce a clause judgment. The true principle is laid down enabling parties, when an objection is taken in Cope v. Rowlands, 2 M. & W. 149, and to the validity of a deed by reason of its Smith v. Mawhood, 14 M. & W. 452 ; and being insufficiently stamped, to pay to the the question in all these cases is, whether, officer of the Court before which the ob- looking at the Statute, the object of the jection is taken, the amount of the deficient Legislature in imposing a penalty was to duty and penalty thereon, under proper prohibit the particular act, or whether it regulations." But this most valuable
was for a different purpose. Therefore, the
suggestion was not acted on either in the Act simple point which we have now to decide of 1850 or the subsequent Acts, but in a is, whether the Legislature intended to modified form in the Common Law Proce- prohibit this Act being done under penalty, dure Act of 1854; the modification is, that
1 Which enacts, that “every person, who whereas the Committee contemplated an shall, for or in expectation of any fee, gain, or objection by the parties, the Act provides reward, directly or indirectly, draw or prepare that it shall be the duty of the officer of any conveyance of a deed relating to any real the Court to point out any deficiency in or personal estate, or any proceedings in law the stamp; but it may be observed, it does or equity, other than and except serjeants-atnot appear clear whether the officer is to law, barristers, solicitors, attorneys, notaries, satisfy himself of the sufficiency of the proctors, agents, or procurators, having obstamp, and object to it if it be deficient, or draftsmen in equity, and conveyancers, being
tained regular certificates, and special pleaders, whether he
the document without members of one of the four Inns of Court, and examination, if no objection be taken by having taken out the certificates mentioned in either party to the suit.
the said schedule to this Act annexed,” &c., The Succession Duty Act, also, is a
"and other than and except persons solely emStatute which, though not literally perhaps ployed to engross any deed, instrument, or a Stamp Act, must be taken to be another other proceeding not drawn or prepared by to be added to the list. The succession tively, and other than and except public
themselves and for their own account respecduty as akin and in strict analogy to the officers drawing or preparing official instru. legacy duties, will always be by the Profes- ments applicable to the respective offices, and sion connected with the complicated Law of in the course of their duty, shall forfeit and the Stamps, in addition to which the 9th pay for every such offence the sum of 50l. : section of this Statute expressly provides, provided always, that nothing herein contained that “the duties hereinafter imposed shall shall extend, or be construed to extend, to be considered as Stamp Duties, and be prevent any person or persons drawing or preunder the care and management of the paring any will or other testamentary papers, Commissioners of Inland Revenue."
or any agreement not under seal, or any letter of attorney."
204 Hilary Term Examination, 1855.- Attorneys to be Admitted in Hilary Term, 1855. and thus render it illegal; for if so the fore Wednesday, the 17th irstant, at the Law plaintiff cannot recover. Now, looking at Society's office. the Statute, I am of opinion that the ob
Where the articles have not expired, but will ject of the Legislature was to confine the expire during the Term, the Candidate may be
examined conditionally; but the articles must practice of drawing the instruments there be left within the first seven days of Tern, and in specified to a certain class supposed to answers up to that time. If part of the Term have a competent knowledge of the subject, has been served with a Barrister, Special and to protect the public against the mis- Pleader, or London Agent, answers to the takes of inexperienced persons in matters of questions must be ohtained from them, as to this kind ; and with that view, the Legis- the time served with each respectively. lature has prohibited these acts being done,
A Paper of Questions will be delivered to except by a particular class of persons. The each Candidate, containing questions to be object of the Legislature could not have heads of-1. Preliminary.
answered in writing, classed under the several
2. Common and been merely to secure to the revenue the Statute Law, and Practice of the Courts. 3. duty on certificates, because it is only per- Conveyancing. 4. Equity, and Practice of the sons who can by law obtain such certifi- Courts. 5. Bankruptcy, and Practice of the cates. In that respect, the case is differ- Courts. 6. Criminal Law, and Proceedings ent from Smith v. Mawhood, where the before Justices of the Peace. object of the Legislature was to compel the the Preliminary Questions (No. 1); and also
Each Candidate is required to answer all obtaining of licences, which any one might to answer in three of the other heads of in. obtain, to deal in a particular commodity.” quiry, viz. - Common Law, Conveyancing, and And Platt, B., added, "The Statute was Equity. intended to prevent ignorant persons from The Examiners will continue the practice of drawing conveyances of serious import. The proposing questions in Bankruptcy and in Legislature makes an exception in favour of Criminal
Law and Proceedings before Justices of serjeants-at-law and other persons of educa- the Peace, in order that Candidates who may tion. That such is the object of the enact- have given their attention to those subjects, may ment appears more especially from the tions, and having the correctness of their an
have the advantage of answering such queslanguage of the proviso, which
swers in those departments taken into consithe Act is not to prerent' any person deration in summing up the merit of their go from drawing a will,” &c. Taylor v. Crow- neral examination. land Gas and Coke Company, 10 Exch. R. Under the Rules of Hilary Term, 1853, 293.
it is provided that every person who shall have given notice of Examination and Admission,
and “who shall not have attended to be er HILARY TERM EXAMINATION, 1855. amined, or not have passed the Examination,
or not have been admitted, may within ONE THE Examiners appointed for the examina- WEEK after the end of the Term for which such tion of persons applying to be admitted Attor notices were given, renew the notices for Exapoys, have appointed Tuesday, the 23rd inst., at mination or Admission for the then nest enhalf-past nine in the forenoon, at the Hall of suing Term, and so from time to time as he the Incorporated Law Society, in Chancery shall think proper;" but shall not be admitted Lane, to take the examination.
until the last day of the Term, unless otherwise The Articles of Clerkship and Assignment, if ordered.' any, with answers to the questions as due service, according to the regulations ap- 1 This rule has been made in order to avoid proved by the Judges, must be left on or be the practice of giving double notices.
ATTORNEYS TO BE ADMITTED IN HILARY TERM, 1855.
Added to List pursuant to Judge's Orders.
To whom Articled, Assigned, St.
24, Huntly Street, Tottenhem Court Road. William Richard Bishop, Exeter
Joseph Roberts, Truro
Whitehall Place; Hadleigh; and Metting. J. F. Robinson, Hadleigh; Thomas Borrett, ham Castle
Whitehall Place Stone, George Wiliam, Albany Terrace, Camberwell
George Tamplin, Fenchurch Chambers