Page images


Dec. 16, 1871.]

BRAMWELL, B., expressed a hope that the sug- induced to accept it under any circumstances, but, and the honest man desirous to do his duty and gestion of the Lord Chief Baron should be acted that certainly the offer had not been made to me preserve his honourable character, must break upon, as, according to his present views, there by the proper person. The appointment belonged through the snare in which he had involuntarily appeared to be about twenty questions of novelty to the First Lord of the Treasury, and not to the involved his conscience. When he has done this and difficulty to be decided, which might be liti. Chancellor, and I considered it important to the the same electors who impose the pledge, will, if gated from court to court, and be most expensive interests of the public, as well as to the Profession, I correctly estimate their good intentions, approve to the parties concerned.

that the appointment should not be made by the of his conduct. But what man with his eyes open The learned counsel on both sides expressed Chancellor, and that I for one would not have would willingly place himself in so painful a situatheir concurrence in the views enunciated by the received it from him.”

tion? The electors ought to acquaint themselves court, and trusted that an amicable arrangement Upon Lord Melbourne intimating that there fully with the opinions of those whom they select would be come to between the parties. We refrain might have been some misunderstanding as to his for their representatives, and ought to be well from stating the various points of argument (Lord M.'s) concurrence, “I replied that as satisfied that the candidates for their suffrages (which were of a very interesting character) until to any concurrence, it was, under the circum. are men of untainted honour and character, posafter the court has delivered judgment.

stances, out of the question, because the Chan. sessed of appropriate knowledge and sufficient cellor's letter must have been written at Edin. discretion. But they act against their own in. burgh, on the day after Leach's death.”

terest, and the interest of the country, when by ECCLESIASTICAL LAW.

Opon reflection, and having been given to under the demand of pledges they seek to put a restraint

stand by the general effect of his interview with Lord upon the free exercise of that discretion, without NOTES OF NEW DECISIONS.

Melbourne, that the latter was anxious to know which the nation can derive no benefit from the

the exact terms in which the offer of the Solicitor- | deliberations of Parliament." BURIAL FEES-INCUMBENT'S RIGHT TO New Generalship had been made to him, Mr. Bicker, It is singular, but it is a fact unquestionable, Parish — CONTRIBUTION OF INHABITANTS TO steth forwarded the original letter of Lord that History reproduces itself, and that in Eng, THE BURIAL GROUND:- In 1852 an order of Brougham, and a copy of his answer thereto. land, at least, crises in political as well as legal council under 59 Geo. 3, c. 134, s. 16, authorised Upon this he received on the 5th Oct., a letter affairs occur at about a period of, say thirty years, services and offices to be performed in a new from Sir John Campbell, the Attorney-General, Then are brought about the discussions, and final church, assigned a district to it out of the parish dated, however, on the 2nd : “ Edinburgh, Oct. 2, determination by the influence of public opinion in which it stood, and granted the incumbent the 1831.' My dear Bickersteth,-From a correspon upon the action of the Legislature, those subjects fees. The district formed part of a borough dence I have had with Lord Melbourne and the of importance and advancement in civilisation which separately maintained its own poor. There Chancellor, I presume the office of Solicitor- which change of circumstances in the body politic was no burial ground in the assigned district, and General has been by this time offered to you. I require. We have lately been discussing, and so the persons dying in the district continued to

am afraid my opinion may not have much in far as human foresight may extend, brought to a be buried as before in the churchyard of the fluence with yon, but I cannot help expressing my termination, that most vexed and important ques. parish. No separate burial board has ever been anxious hope that the offer may be accepted. It tion--the Revenues of the Irish Church. In April, appointed by, or ground provided for the district. would be most delightful to me to have such a 1835, there was an attempt to settle this perplex. The plaintiff was appointed incumbent of this colleague, and I confess I am not aware of any ing matter by legislative enactment, and the same church in 1854. The burial ground of the defen- good reason why your country should now be de- keen competition by adverse parties in the country dants for the whole borough was consecrated in prived of your services.". 1856, the district of the said new church having

then had full play. The motion of Lord John contributed to the rates for providing it.

Mr. Bickereteth was strongly urged by many of Russell for an investigation and settlement of the

The his intimate friends to take upon himself the re. Irish Church question-as it was termed-was rectory of the parish became vacant and a new sponsibility and éclat of the office, but he never

carried by a majority of twenty-seven, and the conTector was appointed in 1864. Held, in an action for theless persisted in his refusal, feeling probably sequence was the immediate dissolation of the Cabi. the fees paid to defendants for the burials, since that he differed essentially in his notions both of net of Sir Robert Peel and the Duke of Wellington, the last avoidance of the rectory, of persons who the political and legal reforms then under conside which had only then lasted for some few months. had lived in the plaintiff'sdistrict, that the plaintiff ration and contemplated by Lord Brougham, with Lord Melbourne was again requested by the King was entitled to recover: (Cronshaw v. Wigan whom, as Lord Chancellor, he would be constantly to reconstruct the Whig ministry, and the same Burial Board, 25 L. T. Rep. N. S. 536. Q. B.) in close and confidential communication.

legal officers of the Government were rein. The post was in consequence offered to several stated in their former respective places, with

legal men of eminence at the Bar, and finally was the exception of that of the Lord Chancellor THE BENCH AND THE BAR. accepted by Sir Robert M. Rolfe (afterwards Lord (Brougham). His absence from the Government

Cranworth), who had been strongly recommended arose from the general feeling of the King towards SELECT BIOGRAPHICAL SKETCHES.

by Bickersteth to Lord Melbourne. The cabinet him personally and that of his former colleagues

of the latter was, however, dissolved during the in the ministry, who had found it next to imFrom the Note-books of a “ LAW REPORTER." following month of November, and Lord Lynd. possible to consult with him cordially upon the [SECOND SERIES.]

hurst, then Chief Baron of the Exchequer, was important subjects then in abeyance. To neu. HENRY BICKERST ETH-LORD LANGDALEagain appointed Lord Chancellor.

tralise, however, the hostility of the energetic, MASTER OF THE ROLLS.

The reputation of Mr. Bickersteth as a sincere and, it must be said, restless activity on the part (Continued from Vol. li., p. 319.)

and energetic reformer had now universally spread of Lord Brougham, it was determined to put the In Sept. 1831 Sir John Leach, the then Master itself, and on the 10th Dec. following, an influen. Seals in commission, and the Master of the Rolls of the Rolls, died, in Edinburgh. It happened tial deputation of the electors of Marylebone (Pepys), the Vice-Chancellor of England (Shad. that the Lord Chancellor (Brougham) was at the waited upon him with a request that he would well), and Mr. Justice Bosanquet, were appointed time enjoying part of his long vacation at that allow himself to be put in nomination at the forth the commissioners. This arrangement created place. On the very next day after Leach's coming election to be the representative in Parlia- great discontent in the mind of the public at large decease the Chancellor wrote to Mr. Bickersteth, ment of that important borough. This flattering as well as that of the legal profession , und was, in offering him the post of Solicitor-General in the offer he also declined, as he concluded from the fact, very detrimental to the public administration then Government. This appointment was to fill tenor of the conversation which then took place, of justice, as taking from their several courts during up the place of Sir C. Pepys (afterwards Loru that he would be expected to give certain pledges the sittings of the commissioners three most able Cottenham), about to be vacated by him to as to his general course of political conduct in the and conscientious judges in their respective courts. succeed Sir John Leach as Master of the Rolls. House of Commons, and as to his votes upon cer. In consequence Lord Melbourne was compelled to It was by the same communication intimated to tain subjects which it was anticipated would be turn his serious attention to remedying the evil Mr. Bickersteth that steps would be taken to forthwith brought under discussion in the House. arising from this state of things, and the clamour obtain for him a seat in the House of Commons. The following passage from one of his commu. of the public. He had several interviews with This offer he, however, immediately declined, nications written at this time puts in a striking Bickersteth upon the principal subject of ani. stating as his reason that, considering the con- light the great independence of character of the madversion--Chancery reform, and requested him fidential nature of the office of Solicitor-General, man, and his settled resolve upon certain topics to prepare a statement of what, in his opinion, and his political as well as legal duties, it did not then uppermost in the public mind :

were the necessary remedies to abate these evils. appear that it could be properly accepted by any. “I conceive that no considerate man-no one This he did at very considerable length, and the one between whom and the Administration no qualified to represent any portion of his country- statement was printed for the use the members political relation existed, or without a direct men in Parliament can enter into any such com- of the ministry. communication from the minister, and a clear petition, or consent to bind, or seem to bind, In Aug. 1835 Bickersteth married Lady Jane understanding with him as to the political and himself by any pledge. Having for more than Harvey, the only daughter of Lord and Lady legal measures of leading importance, the promo. twenty years, before the Reform Bill was brought Oxford, whom he had known from infancy. This tion or support of which would be required.” into Parliament, been a constant and earnest union, although not blessed with any children,

In consequence of this non-acceptance of the supporter of Parliamentary Reform, and having was a source of great happiness and comfort to offer after several personal calls on him by the paid considerable attention to the details of the both. Chancellor, on their return to London, but subject, I have no hesitation in saying that the The impatience of the public at the continued without their meeting, Lord Melbourne, then Bill, as passed, has many imperfections. Never. delays in the Court of Chancery, which showed Prime Minister, wrote him requesting an early theless, I should consider it wholly inconsistent itself in the daily journals, pamphlets, and reinterview, to have conversation upon with honour and duty to become a candidate upon monstrances, now approached a crisis, and nethe circumstances attending the offer. Upon any sort of promise, or understanding, which did cessitated the appointment of some one as Lord a second communication from the Minister, most not leave me perfectly free to act as a representa- Chancellor, and the Prime Minister greatly desired earnestly requesting an interview, they met; and tive in such manner as my discretion at the time to fill up this important office by proposing Bickerwe cannot do better than give our readers the might dictate. Pledges and promises are steth. It was found, however, to be impossible copy of the entry made by Bickersteth in his security against the treachery of a knave, they to pass by the Master of the Rolls (Pepys), who, it diary, ander date of Oct. 2: “I waited on Lord would be fetters on the fair and useful discretion may be mentioned en passant, was no favourite with Melbourne at the appointed time. The first thing of an honest man, if he could be induced to give Lord Melbourne. He, however, considered it ex. I waid to him was that I had come only to show them, and if they were strictly acted upon, they pedient, under the circumstances, to offer him the my respect for him, and wished it to be under might, and would often, defeat the honestintentions seals, which were, after some hesitation, accepted stood at once that I had declined the office of of those who imposed them. But in truth, pledges by him, he at the same time receiving a peerage Solicitor-General, but without any feeling of dis. and promises, of this nature, can never be binding with the title of Baron Cottenham. respect for him, or any dislike as to the general | The knave of course is always at liberty. But By the etiquette of the Profession the Attorney. policy of his adıninistration; that, on the con conceive an honest man bound by a pledge to vote General, Sir John Campbell, might have expected trary, I thought that he ought to be supported, for a particular measure, which at the time and to be appointed to the vacated post of Master of and that if I knew a way in which I could pro: season when it is brought forward cannot be sup the Rolls, but, feeling that this might be distasteperly render him service I should be glad. "He ported without injury to the country! What is to ful to the public, as well as to the Profession, expressed his regret at my determination, and be done? When the vote is required, is it to be from his not being an equity lawyer, or as having rather in manner than in words, showed a wish to governed by that which is the interest of the practised but rarely in the equity courts, Lord know my reasons. I said that I hardly thought country at the time of the preceding election ? Melbourne determined to offer that place to Mr. myself qualified for the office, and that I ha The answer is obvious. The safety of the country | Bickersteth. In a most flattering letter the dislike to it, and probably could not have been is not to be neglected; the pledge must be violated,' announcement of this intention was made to him.



[ocr errors]
[ocr errors]
[ocr errors]

The conclusion of this offer, and the circum. fully appreciate your motives, and I think you the plaintiff as tho inner wall of the back stances attending his final acceptance of it, are perfectly right.'

portion of his house. This state of things as now highly conduce to a due appreciation of the He soon afterwards said that the subject must existing arose thus: By a deed dated the 2nd strength of mind and independent spirit of Lord be considered further, from which I understood it Sept. 1859 the plaintiff purchased and had duly Langdale. We, therefore, give them a little in was necessary to consult his colleagues. Late in conveyed to him the fee simple of the house, of detail.

the evening of the same day I received the follow which he is still the owner. By a deed dated In the letter containing the offer was the fol- ing note from Lord Melbourne: "Downing-street, the 13th May 1863 the plaintiff purchased lowing passage : “ Considering the general state Jan. 11, 1836. My dear Sir,-We should lament and had conveyed to him the fee simple of of parties, and considering also the great pending Campbell's resignation and consider it a great the house, of which the defemdant is now the legal questions, it is evident that we shall require loss, but we cannot now draw back. We are owner. The plaintiff's house, when he bought it, pour aid and support in Parliament, but whether therefore determined, at all hazards, to proceed was a single house, one room deep. The defenin the House of Lords or Commons may be left with our arrangement, and if you are ready to dant's house, when the plaintiff bought it, was for further consideration. I only wish to be undertake the Rolls, we are ready to give it, and still is a double house two rooms deep, and informed whether you would be unwilling to under the understanding you so clearly expressed as the properties then stood the main wall of the accept a peerage if it should be thought expe. to me this morning. We can hardly dispense with defendant's house extended at the back beyond dient for the present arrangement, or on general your assistance in the Honse of Lords, but you the line of the main wall of the plaintiff's house grounds," &c.

must not consider yourself bound to give support by the depth of the second room. During the The answer was as follows: “I have the honour politically,” &c.

period of the plaintiff's ownership of both proto acknowledge the receipt of your Lordship’s The following extract from the answer is perties, he converted his single house into a letter of the 25th inst., which reached me at a late characteristic : "I beg leave to thank you most double one by building rooms at the back so as to hour last night. If I were to act on the impulse sincerely for the early information which you have range in a line with the defendant's house, and of the moment, I should at once gratefully ex- been kind enough to give me. If the peerage can for that purpose used the main wall of the defenpress my willingness to undertake everything be dispensed with, or even postponed, I shall feel dant's house as the inner wall on that side of the which your Lordship suggests, for reasons, and great additional gratitude : but if required, and new building, and timbers of the roof of the new under circumstances so Hattering to me, and so notwithstanding the reluctance and misgiving building were laid into the main wall of the gratifying to my feelings; but I have not been which I cannot satisfactorily overcome, I consent defendant's house; and thus, during the plaintiff's accustomed to consider legal reforms in reference to accept it on the terms of perfect political ownership of the two properties, this part of the to possession of office by myself, and I hesitate independence which your Lordship so liberally (and defendant's main wall was permanently approfrom a distrust which I feel of my ability to if I may presume to say so), so properly sanctions priated to the use of the house now owned by perform the duties which would be required of me and approves."

the plaintiff as became necessary for its con. in a manner which I think adequate to their Sir John Campbell gave way. The appointment tinuous enjoyment as if it were a partition wall. importance. May I hope that I am not taking of Bickersteth as Master of the Rolls was made; In the two houses, while the properties were thus too great a liberty in asking the indulgence of he took the title of Baron Langdale of Langdale, held and enjoyed, the plaintif, by deed dated the a little time for reflection. I shall be in town on in the county of Westmoreland. The congratula- 13th June 1867, sold and conveyed to the defenSaturday night, and shall be anxious to wait tions of friends and admirers were voluminous. dant the house now owned by him by the same on your Lordship when you may appoint,” &c. In answer to one from his old master Jockey Bell, description by which it had been conveyed to the

In reply to this Lord Melbourne made an ap- who only survived for a few weeks afterwards, he plaintiff by the deed of 13th May, 1863, accompointment to receive him, and the result of the says, “ Be assured that no congratulations on this panied by a plan indorsed, which showed that the interview is thus given by Mr. Bickersteth in his occasion can be more gratifying to me than yours. site of the whole of the main wall in question was diary : “He told me that Pepys had agreed to take It was you who first directed me to the sources of conveyed to the defendant. This deed did not the office of Chancellor, although he wished to post professional knowledge, you solved the difficulties contain any reservation in favour of the plaintiff pone the time. I then said that upon considera. which occurred to me in my early practice, you of any right to the user of the waste for any purpose. tion I had so far come to a resolution that if the whose prevailing advice overcame the reluctance A few months ago, the defendant having occasion Mastership of the Rolls were offered to me alone, I felt to step within the Bar; you therefore are to make some alterations in the cellar of his house, I should venture to accept it, but that I could not intimately associated with every part of my pro- pulled down a part of the bottom of this wall; and feel disposed to take a seat in either House ; that gress, and I will endeavour not to disappoint your the effect of this was to cause part of the wall to I was on principle opposed to the union of judicial expectations. Certainly I can never forget the give way on the ground and upper floors of the and political offices in the same person. I thought kindness which I have always received from you. newly added part of the plaintiff's house, and it wrong, and fit to be altered in the case of the In the midst, however, of the congratulations some damage was the necessary consequence. Chancellor. To make the union in the case of which I receive from you and other friends, 1 This has been partly repaired by the defendant, Master of the Rolls, was, for the present at least, confess that for the present the feeling of respon- but not to the extent required by the plaintiff

, to increase the evil instead of removing it. I sibility outweighs every other consideration in my and the question now arises whether the plaintiff

, thought it quite clear that the Master of the Rolls own mind, and that I cannot yet feel so well satis. having conveyed the house and the main wall to ought not to be a member of the House of Com. fied as I could wish to be, that I have not under the defendant without having reserved any right mons--if active, he would act inconsistently with taken a task too great for my ability.”

to himself, can insist as against the defendant his judicial character; if inactive, he might Lord Langdale took his seat in the Rolls Court upon the right to the continued user and enjoyneglect the interest both of his constituents and on the 19th Jan. 1836, and presided over his court ment of the wall for the purposes to which he has others. There was much less objection on public for the space of fifteen years.

devoted it during his ownership of both proper, grounds to the House of Lords; there was less to We purpose giving a few remarks on his cha. ties. It was alleged by the defendant, and do-less squabble and heat-but still the judicial racter as an advocate and judge, with a few anec. I assume truly as matter of fact, that office was sufficient to occupy the whole of any dotes with reference to it.

until the wall fell away in consequence of his man's time, and there would be an union, though

(To be continued.)

operations in his cellar he did not know that the less cluse, of the judicial and political offices, and

wall had been made use of by the plaintiff for the on private grounds I had strong objections. I had

purpose of the additions he made to his original no adequate fortune to warrant me in taking an

house. But it was apparent from the mode in hereditary peerage. : ... He then said that the


which, by the masonry, the added portion had been King was very much pleased with the arrange.

built, that the existing wall had been made use of ments, and willing to make me a peer directly.


as the inner wall of those portions from the At the close he said, 'Your view is to consent to

Nov, 7, 14, and 21.

ground to the roof, and the nature and extent of take the judicial office by itself, but not connected

the case could have been ascertained upon a with a seat in either House ?' I said, “ Exactly

(Before W. T. S. DANIEL, Q.C., Judge.)

careful inspection by a person conversant with so,' Lord M. replied, 'I must take a little time


such matters. The role as to what is an apparent to consider of it and let you know.' I then said, Continuous and apparent easements.- Efect of easement is thus stated in Gale on Easements ‘Supposing that this subject may now be closed, permanent alteration by owner during possession (4 edit. p. 89), and was approved by the Court I beg to return my thanks. I then withdrew, and ownership of properties afterwards sepa- of Exchequer in Pyer v. Carter (1 8. & N. 922). thinking the whole matter at an end."

rated. Where the owner of two tenements makes The question of right as thus raised between Of course it was advisable that Bickersteth permanent alterations which operate as a burden these parties is one which has been the subject should consult with his more intimate friends upon one for the benefit of the other, upon sub. in recent times of conflicting judicial opinionsupon the result of this interview, and his inten. sequent alteration, each property passes as it is conflict which, however, conceive has been comtion to refuse the peerage offered to him.

burdened or benefited, and no express grant or pletely set at rest by the decision of the present They were strongly averse to this reservation, reservation is requisite in either case. Watts v. Lords Justices in January of this year, in the case particularly the lato Mr. Sutton Sharpe, who Kelson (L. Rep. 6 Ch. App. 166), treated as of Watts v. Kilson (L. Rep. 6 Ch. App. 166.) In offered such arguments to persuade him to accept settling the law, and afirming the rule as laid that case all the authorities were fully cited, and the peerage, as altered his determination in that down in Gale on Easements (4th edit., p. 89). the authority of the old case of Nicholas v. Cham. respect. The negotiation was thereupon re- Berry for plaintiff.

berlain (Cro. Jac. 121), recognised and acted upon. opened with Lord Melbourne, who requested a Tarry for defendant.

The cases in which conflicting opinions have been second interview to discuss the subject.

His "HONOUR. — This action is brought to expressed are carefully collated and stated in the The entry in the diary is as follows: "I waited recover the sum of 21. for damages done by edition of Gale before referred to in the notes upon Lord Melbourne. He began by asking the defendant to a house in the plaintiff's occupa- from p. 91 to p. 95. The question which has perwhether my views had in any respect altered. tion, and of which he was owner, by partially pul- plexed judges seems to have been whether, where I said they had ; that on consideration, although ling down and injuring a mesne or partition wall. the owner of the two tenements sells and conveys my personal objections to the peerage had in no Upon opening the plaintiff's case on 7th inst. it the servient tenement without an express reserva. respect diminished, yet my difficulties might appeared that the real question between the parties tion of the servitude, retaiuing himself the domiperhaps give way if I could be persuaded that by involved one of right to the wall alleged to be nant tenement, he would

not, when claiming the means of it I should be able to render any useful damaged. And it being suggested on behalf of benefit of the servitude, be derogating from his assistance towards law reform, and if I could be both parties that a view would assist in the con- own grant. But the law as now established entirely free in politics. ... This is a subject on sideration of the matter and save expense in the seems to be that where the owner of two tenements which there should be no ambiguity. There is production of evidence, I consented to have a view, during his ownership executes apparent works of nothing

more hateful or mischievous than a and the case stood over for that purpose ; and a permanent character upon either or both of his political judge, influenced by party feelings. In accordingly, on the 14th Nov., being attended by tenements, whereby a servitude is fixed upon one my opinion, he should be wholly free from any the solicitors of the respective parties and by the for the benefit of the other, and he afterwards party ties, and if I, being a jndge, am also to be parties themselves, I viewed the properties, and sells both or either of the tenements without exin Parliament, it can only be on the clearest had the particular subject matter of the present press mention of the burden or benefit of the serunderstanding that I am to be free from any complaint pointed out to me. The two houses Vitude, the property passes to the buyer as party ties ;-to put it strongly, as free under your now owned and occupied by the plaintiff and it is, 'with the character which the owner, in administration as if I had received my judicial defendant respectively are contiguous to each the exercise of his right of property, has im. appointment from your opponents. To this after other, and the wall, which is the subject pressed upon it. If the conveyance is of the a silence of a few minutes, Lord Melbourne said, of the present dispute, is the main wall of property upon which the servitude has been fixed with gravity and dignity, 'I understand you, and he defendant's house, but is also used by it passes with the burden ; if of the property for


[ocr errors]
[ocr errors][ocr errors]


the benefit of which the burden has been imposed, that money paid to prevent a distress could not be responsible persons being appointed as col. it passes with the benefit, and it makes no differ- set off against a claim in another action, and Lord lectors, whoever was appointed found him. ence whether the owner convey the tenements to Kenyon based his judgment on the broad grounds self associated with a person of the name different purchasers, nor what is the order in date that such payment would not be deemed a pay- of Barton ; and the practice was for the of the conveyances; whether the conveyance of ment by compulsion, as the defendant might by a last collector to nominate his successor, instead the servient tenement precede the dominant, or replevin have defended himself against a distress, of the assessors nominating the collectors. Inthe conveyance of the dominant tenement pre- and therefore after a payment so made, he should stead of two responsible names being given in, cede the servient, nor whether if the owner not be allowed to dispute its legality. He might, only one responsible name was given, and the retain one the one retained be the dominant or however, have had replevin, as appeared by the gentleman found himself associated with a perservient tenement. Nor does the rule depend second resolution of the court in the Six Carpen- son of the name of Barton, who was a profesupon the particular character of the servitude, ters' case, 8 Coke's Rep., p. 147. After quoting sional collector of taxes, and who, in addition to provided only it be continuous and apparent. As other cases in support of this view, his Honour getting 1}.l. in the pound from the district for the I read and understand the authorities which I am said : In the case of Glynn v. Thomas (25 L. J. collection of the taxes, had always been paid 151. at present bound to take for my guide, they affirm Ex. 125), the facts were identical with the one under by his associate. Mr. Parr felt it to be an injus. the law as expressed by Mr. Gale in the following present consideration, and in delivering the judg. tice to be associated with a person who was not a luminous passage of his original text (p. 89): “It ment of the court in error, Judge Coleridge says, responsible man, and also to have to pay 15l., and is true that strictly speaking a man cannot sub. “The plaintiff should have made a tender to the to be responsible for the collection of the taxes. ject one part of his property to an easement, for defendant of the amount admitted to be due, and It might seem extraordinary that such a set of no man can have an easement in his own property upon his refusal to accept that sum, the plaintiff's Acts could exist in this country, and also that such but he obtains the same object by the exercise of course was to procure the immediate possession of a law should be allowed to remain on the statute another right, the general right of property, but the goods by replevin, and put the disputed ques. book, because it was practically a fine against he has not the less thereby permanently altered tion in that course of settlement which the law gentlemen living in outlying districts. Mr. Parr, the quality of the two parts of his heritage ; and if prescribes for it." With regard to the case cited having business in London, could not attend after the annexation of peculiar qualities he alien by the advocate for the plaintiff

, it has no one fact before the commissioners on the 26th Jan., and on one part of his heritage, it seems but reasonable in common with the present one. There the de- the following day he received a letter from them if the alterations thus made are palpable and fendant was a stranger who wrongfully seized the requesting him to appear on the following Tues. manifest, and in their nature permanent changes goods of the plaintiff, who was not his tenant, and day to show cause why the penalty of 201. should in the disposition of the property, so that one part having no title of colour whatever. In that case not be imposed upon him for neglecting to attend. thereby become dependent upon another, that a unquestionably trespass would have lain. My At that time Mr. Parr had a residence in Liverpool purchaser should take the land, barthened or judgment on the law would in any case have been as well as at Waterloo, his residence in Liverpool benefited,: as the case may be, by the qualities for the defendant, and it is so on the facts also, as being separate from his place of business; and which the previous owner had undoubtedly the it is by no means proved to my satisfaction that believing that he was exempt from serving as right to attach to it.” And Mr. Gale adds, " This the previous quarter's rent had been paid as collector for Great Crosby on account of his reasoning applies to those easements only which alleged.

Judgment accordingly. having a residence in Liverpool, he went to are attended by some alteration which is in its

Mr. Gill, his solicitor, and instructed him to natare obvious and permanent; or, in technical

notify the commissioners to that effect, and language, to those easements only which are


to claim exemption. This was done, and several apparent and continuous ; understanding by appa. (Before Mr. Serjeant TINDAL ATKINSON, Judge.) letters passed between Mr. Waring, the clerk, to rent, not only those which must necessarily be

Important Points of Practice.

the commissioners, and Mr. Gill, the plaintiff's seen, but those which may be seen or known on a

attorney, with respect to the matter. The com.

DENHAM V. ARMITAGE. careful inspection by a person ordinarily conversant with the subject.” Applying the law thus During the hearing of the case it appeared that missioners held that Mr. Parr was entitled to laid down, and, as I conceive, fully established proper particulars had not been furnished to the serve, and ultimately the Board of Inland Revenue

was appealed to on the subject, but they decided by the authorities, to the case between these officers of the court to annex to the summons to be that they had no power to interfere with the ap. parties, I am of opinion that by the conveyance Honour said: “I have had very great reason to of persons who were returned as fit and proper,

served on the defendant. In reference to this his pointment of collectors by district commissioners of the 13th June 1867, the house bought by the defendant was conveyed to him as it was at the complain, so have other judges, that satisfactory and that his lodgings at Liverpool did not affect time, that is with the wall in question, subject to particulars are not given to the officers of the his liability to serve for the tywnship of Great such servitude as the

plaintiff had imposed upon it court with regard to the sums sued for: The Crosby, where his residence was situated. Mr. when, as owner of both houses, he made the addi- defendant is taken by surprise. I do

Samuel said the Board of Inland Revenue had ing the roof timbers, and as the inner wall of the fortunately the officers of the court have no in Liverpool, as, under the Act, any person having

seemed to think that it was his place of business tons he required, using it as the wall for support impute anything—it is a lax method; and unadded rooms. And, consequently, though

the defen- power to compel other particulars to be given a residence in a borough was clearly exempt from

than those delivered to them. I intend to alter serving as collector in an outlying township. dant is owner of the wall, he is not at liberty to use it in such a way as to injure the plaintiff in his 40s., I shall insist upon the plaintiff furnishing the that system. In all cases, especially those above

His HONOUR.-Has he a house in Liverpool ? for ,

Russell said the fact was that the plaintiff had and judgment will, therefore, be entered for the items to be sued for, or. I will either dismiss the lodgings in Bedford-street

, Liverpool

, where he plaintiff, with 21. damages and costs. And I

case, or adjourn it for that purpose and allow the occasionally slept; but he haia house in Waterloo, certify that the title has come in question, and this defendant his costs. In the same action, on his where he entertained his friends, and where he certificate will give the defendant the right of he found a notice that interest would be charged

Honour perusing one of the plaintiff's statements, habitually slept. appeal if he desires to exercise it.

Samuell said he contended that the plaintiff had on “overdue” accounts. On this point his Honour

a residence in Liverpool. After further corres. said :-" Those who are thus charged with interest pondence on the subject, on the 18th May the EAST STONEHOUSE COUNTY COURT.

are not liable. At common law no interest is recommissioners gave the plaintiff notice that he Friday, Nov. 24. coverable ; and by statute, interest is only re

was to appear before them on the 25th, and they coverable where notice is given in writing and on (Before MATTHEW FORTESCUE, Esq., Judge.)

should fine him 201. He did not appear, as he bills of exchange or promissory notes."

had business in London; but Mr. Dunville, HILL v. ROWE.

managing clerk for Mr. Gill, attended. The result Wrongful distress-Money paid under-Not re


was that the plaintiff was fined 201. for wilfully coverable.

refusing or neglecting to serve the office of col. The plaintiff is a widow residing at 12, Charlotte.

Monday. Dec. 11.

lector. Mr. Samuell contended that the plaintiff terrace, Morice-town, and the action was brought

(Before H. B. GILMOUR, Esq., Judge.) had not wilfully refused or neglected to serve the to recover from the defendant, who is a pensioner, Inhabited house duly-Penalty inflicted by com- office, but had simply claimed his exemption from living at 26, Harvey-street, Torpoint, the sum of missioners-Judgment of commissioners--Right performing the duties of collector ; and further, 41., for that the defendant in the month of July of County County to review.

that the commissioners had fined him without 1871, wrongfully seized, detained, and converted The plaintiff, Mr. Lawrence Hodson Parr, a mer going into the proof as they ought to have done, certain goods and effects the property of the plain chant carrying on business in Liverpool, and hav- they having refused to hear Mr. Dunville. Mr. tiff, then being on the premises of the plaintiff in ing a residence at Waterloo, sued Messrs. Richard Samuell held that the commissioners had thereHarvey.street. The case was tried before his Owen and John Robinson, the commissioners of fore maliciously inflicted upon the plaintiff this Honour in August last, when judgment was re- the land tax, income tax, and inhabited house duties penalty of 201. served.

for the district of Ormskirk, for that they wilfully A number of witnesses were in readiness to be Rundle then appeared for the plaintiff.

and maliciously and without good cause or reason called, but, as Russell had some objections to take, Edlmonds for the defendants.

did inflict a penalty of 201. upon him, which he it was decided to hear him. The case for the plaintiff was that the defen. had to pay and did pay.

Russell said that Mr. Samuell was not correct in dant when “no rent was due” levied on the plain- Samueủ, barrister, for the plaintiff.

saying that the commissioners had refused to tiff's goods, and to avoid their being removed and C. Russell, barrister, for the defendants.

hoar Mr. Dunville. On the contrary, he was sold she paid the money. The defence was that The plaintiff's case, as stated by Mr. Samuell, heard, and urged the same grounds of exemption the quarter's rent was due, and in addition to was as follows:-In Jan. last Mr. Parr received a

as had been urged all along in the correspondence. this Xr. Edmonds contended that no action would notice from the defendants, requiring him to After this penalty had been imposed, Mr. Parr lie, because it was the duty of the plaintiff to appear before them at Mr. Waring's office, in was advised to apply to one of the Superior Teplevy the goods, and that this was the only Ormskirk, on the 26th Jan., to be appointed a Courts to remove the order of the commissioners form in which the right to distrain could be tried. collector of the land tax, income tax, and in hy certiorari, on the ground that they had made

His Honour now gave his decision. He said habited house duties for the township of Great the order without any jurisdiction to make it ; it was not from any doubt as to what his judg. Crosby, until the 5th April 1871, and to receive and an application was accordingly made to ment should be, either with respect to the law or his instructions in order to the due execution of Willes, J, upon affidavits on each side, and the facts, that he reserv.d his judgment, but the said office. These appointments, Mr. Samuell Willes, J. decided that, under the 6th section of because a case was urged upon him as an autho said, were made under a statute of Geo. 3, the Act of Geo. 3, he had no power whatever to rity, of which the marginal note initiated so much The' statute (43 Geo. 3, cap. 99) provided for review the proceedings of the commissioners, and against what he understood to be law-at least, the appointment of commissioners, and the com. dismissed the summons, as applicable to the subject before him—that he missioners issued their precepts to certain gentle.

His Honour.-It he had no right to review the desired to read the case through. It was admitted men of the district to act as assessors, and those commissioners' judgment, surely this court has by the advocate for the plaintiff that an action assessors were empowered to assess the various not. for money had and received would not lie, and, inhabitants of the districts, to bring in before the Rossell. That is so, and that is what I am going indeed, there were many authorities to that effect. commissioners their assessments, and at the same

to contend. Mr. Russell having read the 68th In Lindon v. Hooper (Cowper's Reports, 414), it time to give in the names of certain persons whom section, in which it was stated that the adjudicaFas held that such action would not lie to recover they believed to be fit and proper persons for the tion of the commissioners should be final and con. back the money paid even where the distress was collection of the taxes. Abuses had, however, clusive, said that Mr. Samuell might be quite right wrongful; and Gulliver v. Cosens (1 C. B. 788), crept in, and the working of the statute in that in saying that it ought to be removed from the was to the same effect. Knibbs v. Hall decided district appeared to be this—that instead of two statute book, and it might be a great inconvenience



[ocr errors]
[ocr errors]
[ocr errors]

to Mr. Parr to be called upon to discharge one of bound, certify the grounds of refusal to the court, 104; Woodfall, Book 2, c. 9; Evans v. Elliott, 8 the duties of citizenship which the Legislature and thus you will have a simple and easy mode of L. J. 51, Q.B. ; Clowes v. Hughes, 39 L. J., N. S., imposed upon him; but the Legislature having getting my decision reversed should the learned 62, Ex.; Ee parte Hesham, 1 Rose, 146; Ex parte said that should be one of his duties of citizen. judge of this court think it erroneous and order St. Barbe, 11 Ves., jun., 413; Ec parte Castell, 2 ship, it was not for Mr. Parr to set himself up the resolutions to be registered.

G. & J. 124; Bedford v. Button, 4 L.J., N. S., against the law. The two defendants, who were

Registration refused.

97, C. P.; Cox v. Bent, 5 Bing. 185; Vincent v. charged with having maliciously done grievous

Godson, 21 L. J. 121, Ch. ; Ex parte Plant, 2 Dea. wrong to Mr. Parr, were innocent and harmless

& Ch. 160; Richardson v. Bank of England, 4 Myl. persons, and could not have the slightest feeling PETERBOROUGH COUNTY COURT. & C. 165; Ex parte Living, 2 Mont. & Ayr. 223; of malice towards him, as they had not seen him

Aug. 14 and Nov. 20.

Ex parte Carr, 6 Jur. 588; Hunger foril v. Clay, before that day. So far as the appointment of

9 Mod. 1; Franklinski v. Ball, 34 L. J. 153, Ch.; Mr. Parr was concerned, their functions were

(Before Fras. ELLIS McTAGGART, Esq., Judge.) Lindley on Partnership Property.) Objection purely ministerial. The machinery of the Act was


was taken, but afterwards waived, to Mr. William cumbrous, and he admitted that less antiquated Partnership-Creation of tenancy-The Bank.

Wyche being heard upon the ground that his ap. machinery might be found. That was fair sub.

ruptcy Act 1869.

pointment was invalid, the separate estate being ject for discussion, but not in that court. The A case was submitted for the opinion of his vested in the trustee of the joint estate. assessors had to nominate the collectors, and, only Honour in the matter of Thomas Wyche and

Nov. 20.- His HONOUR gave judgment as two names being returned, the commissioners had Henry Thomas Bryan, of Crowland, millers and follows :- I am of opinion that the provisions no choice but to elect them. The commissioners did not make the selection; it was the assessors.

corn merchants, bankrupts. In 1861 Wyche and in the deed of partnership between Wyche and

Bryan entered into partnership for fourteen years, Bryan, for a half-yearly payment to Wyche in The assessors for the previous year were Mr. and articles of partnership were executed. At consideration of the occupation of his mill by the John Haddock, shipbroker and merchant, Liver that time Wyche was the freeholder of a steam firm for the purposes of its business, do not create pool, who served in the same capacity last year as it was said Mr. Parr should serve this; and asso

mill and four acres of land in Crowland, subject a rent for which the party entitled to it can disciated with him was Mr. Barton, who had got of the articles of partnership was that the business That section must, in my opinion, be taken as in

to a mortgage thereon, and one of the provisions train under sect. the Bankruptcy Act 1869. himself in as one of the assessors, and nominated should be carried on upon the mill and premises. tending to give a right of distress in those cases himself as one of the collectors.

Samuell.—Mr. Haddock says he would not do it The articles provided that the stock and effects of only where the rent is one for which, if bankagain for 501.

Wyche should be taken by the partnership at ruptcy had not intervened, the party would have Russell said that when the plaintiff was fined allowed and paid out of the partnership property recognising the common law privilegos of distress,

a valuation, and that the sum of 2101. should be had a right at common law to sue or distrain; as 201., even assuming that it was an inequitable to Wyche, his heirs, or assigns, half-yearly in and allowing it to prevail,

notwithstanding the order, the conclusion of the commissioners was to be taken as final. If they had done that which the every year for the rent of the mill. No formal bankruptcy of the tenant, but curtailing the exlaw said should he conclusive, even supposing the nership, but they continued to hold upon the cised after the bankruptcy. There is nothing to

demise of the mill and land was made to the part-tent to which that privilege is available if exerorder was inequitable, how could that be action. terms as to rent specified in the articles of part. indicate an intention to extend the class of per: able which they had a legal right to do? Although nership, and the mortgagee was no party to the the present case might serve a useful purpose in

sons by whom, or the subject matter in respect of an agitation for getting a reform of the law, it was Wyche and his mortgagee granted and assigned of the section, therefore, it becomes important to

arrangement for the use of the mill. In 1865 which, the privilege is exercisable. On this view clear that no case could be made out in that the mill and premises to Messrs. Robert Appleby see whether the ordinary common law relations of court. His Honour said that in substance the court and Wm. Pyke by way of transfer of mortgage landlord and tenant are created by the provisions

for securing 20001. and interest, but there was no of the deed. The deed provides that the business was asked to review the decision of the commis- attornment in the deed by the mortgagor to the of Wyche and Bryan is to be carried on upon , sioners, and he wished Mr. Samuell to show where it had power to do that.

new mortgagee. This sum of 20001. still remained certain mill and premises, " the private estates

unpaid. On the 28th April 1870, a petition was Samuell said his contention was that the com.

of Wyche, and “ that the annual sum of 2101. shall missioners had acted altogether outside the Act, and Bryan, and on this petition they were, on the perty to the said T. Wyche, his heirs or assigns,

filed by Mr. Chas. Wylie against Messrs. Wyche be allowed and paid out of the partnership proand, having done that, they had rendered them- 14th May following, adjudicated bankrupts, and in oqnal half-yearly payments, on the 11th Oft. selves amenable to that court for any wrong they Mr. J. F. Arnold was appointed trustee of the and the 6th April in every year, for the rent of the had done.

His Honour said it was the assessors who had estate. On the 9th April 1870 Thos. Wyche insti. said mill and premises ; and that all rates and done wrong if wrong had been done. The com.

tuted proceedings for liquidation in bankruptcy in taxes (landlord's property tax only excepted) in missioners had no alternative but to appoint the creditors was duly held on the 29th of that month, nership property: respect of his private estate. A meeting of his respect thereof, shall be paid out of the said part

What “ property” means aptwo persons whose names were presented to them. and liquidation was determined on : Mr. William pears further on. “That the clear profits arising from He was of opinion that the court had no jurisdic. Wyche, brother of the debtor, was appointed the said business” « shall be divided equally between tion to entertain the application, and the case was dismissed.

trustee. This trustee claimed arrears of rent the said partners twice in every year, viz., on the Russell at first suggested that costs should be

in respect of the mill and premises to the 11th Oct. and the 6th April in every year, and that given, but afterwards said he would not press Woche and the partnership books, it appeared ness shall be borne by them respectively in the

amount of 7001. and upwards ; on examination of all losses happening in the course of the said busi. for them.

that a general running account had been kept like proportions."

upon the understanding that Wyche should, for 2101. and other outgoings, and the costs of keeping BANKRUPTCY LAW.

the purposes of a private trade which he carried the said mill and all the machinery thereof in good on, take goods from the mill and set them off and substantial repair," and of insuring the mill

against the rent. The account had never been and partnership stock, and of paying clerks, HALIFAX BANKRUPTCY COURT. made up nor any rent credited, except an account porters, and servants, “and all other expenses Saturday, Nov: 25.

made just before the liquidation, and therein which may be incurred by the said partners re: (Before Mr. Registrar RANKIN.)

Wyche appeared to be indebted to the partner. spectively in the course of the said business, shall

ship in a very large sum. Then for the first time be paid and borne out of the profits of the said Re WILLIAM JOHN HUGHES (in liquidation). the arrears of rent then due were carried to ac- business, and in case the same shall be insufficient Special resolutions require majority in number of count, and showed a balance in favour of Wyche for that purpose, then by the said partners in creditors-Votes of creditors for sums not exceed for 7001. or thereabouts, which was now claimed equal shares.” The effect of this a rangement ing 101. not to be reckoned in number-No credi. against the joint estate by Wyche's trustee and appears to me to be as follows:- If, at each halftor for 101. present at meeting-Registration of also by his mortgagees. The opinion of the court yearly striking of an account, the gross profits resolutions refused.

was desired on the following questions: 1. Whether were sufficient to pay this so-called rent, and all At a meeting under this petition for liquidation the provision in the articles of partnership by other outgoings and current expenses, Wyche by arrangement, only three creditors attended. which the firm were to be charged 2101. per annum would get 1051., and his share of the net profits, if The debts for which they proved were of the re

for the use of the mill, &c., created a rent with any. if the gross profits were insufficient, or if spective amounts of 128. 6.1., 61.6s. 32., and 41. 135. its usual incidents, there being neither demise nor there were none at all, Wyche would have to pay, only. It appeared that the debtor had several attornment ? 2. If the court should be of opinion out of his own pocket, half of what was necessary other creditors whose respective debts exceeded that the said clause did create a rent with its to make up the deficiency, Bryan paying the other 101., but they had their remedies against suretics, usual incidents, then is the whole balance appear. half. If, therefore, the amount so paid by Wyche and declined to attend or prove under this peti: ing on the current account between the partner- equalled the amount (1057.) credited to him for tion. The three small creditors above mentioned ship and Thomas Wyche to be treated as rent in rent, he would, practically, receive none; if the assented to and duly signed resolutions for liqui. arrear, i.e., 7001., and, if so, who is entitled to such amount so paid by him exceeded 1051.

, he would dation by arrangement, for appointment of trustee rent-the trustee of Wyche’s separate estate, or not only reeeive no rent, but make a loss besides. without security, and at certain remuneration, and the mortgagees, under their notice given under the There is this difficulty, at the outset, in treating for the discharge of the debtor.

circumstances appearing after the act of bank. this contract as a demise, that it is a demise (if it England, solicitor, now presented these rosolu. ruptcy, 3. If the court shall be of opinion that can be called so at all) by a partner to his firm, tions for registration.

Wyche's trustee was the person in whom the claim for partnership purposes, without the intervention The REGISTRAR.—These are special resolutions. vested, can he participate in dividend out of the to the rent was at the date of the liquidation of a trustee. It is, no doubt possible (though by

no means easy), without such intervention, to See Bankruptcy Act 1869, sect. 125, paragraphs joint estute in respect of such rent until the joint frame an agreement directly between partners, so land 9. See also Rule 278. Special resolutions creditors have been paid in full, and is he entitled as to enable the one to sue the other upon it, by require the votes of a majority in number as well

to any preferential payment to the extent of one taking care not only to exclude the party sued as three-fourths in value of the creditors as

year's rent under the statute ? 4. If the court from all share in what is sought to be recovered sembled. Now the Act of 1869, sect. 125, para. shall be of opinion that Wyche's mortgagees are from him, but to exclude the party suing from all graph 14, enacts that in calculating the majority the persons in whom such claim was and is obligation to contribute towards his own pay. on a special resolution, creditors whose debts vested, are they entitled to the preferential pay. ment. But here, if the state of the partnership amount to sums not exceeding 101. shall not be ment of one year's rent, and are they entitled to funds were such as to make them liable for this reckoned in the majority in number. In this case

prove on the partnership estate for the balance ? so-called rent, Wyche would have, in fact, to sue not one creditor was present who would be ac.

Palmer, barrister (instructed by Messrs Deacon. himseif jointly with Bryan, and to recover out of cordingly entitled to be reckoned in number, con. and Wilkins), appeared for the trustee of the funds which were their joint property, or to dissequently I consider that these resolutions cannot joint estate.

train upon property belonging jointly to both, on be said to have been carried by a majority in number, and that the requirements of the Act and the private estate.

Atter, of Stamford, represented the trustee of premises occupied by both jointly. It is impossible

to hold that a tenancy, in the ordinary and com. rules have not been complied with. As far as I am aware this case has not occurred before, either in mortgagee (Mr. Appleby).

Calthrop attended on behalf of the surviving mon law sense of the term, is created by such an

agreement as this. But, independently of this: this or any other court, and I have not certainly The whole of the afternoon was occupied in objection, the contract, in my opinion, lacks that seen any decision to gnide me. I must decline hearing the arguments, and the following autho. I certainty which is the essence of a demise. It registering the resolutions, but I shall, as in duty rities were cited: (Bankruptcy Act 1869, ss. 34 & depends upon the state of the partnership funds,

[ocr errors]


[ocr errors]

Dec. 16, 1871.)

at each half-yearly account, not only whether payable, and that then the duty (ad valorem) must money paid by the Sub-purchaser shall be the one inWoche is to get all, or part, or none of this rent, be upon the amount mentioned in the conveyance serted in the deed, as regulating the ad valorem Duty;

the following is the Clause in question:but whether the partnership funds are to be liable or transfer (be that amount more or less than the

"And where any Person having contracted for the for it at all; whether what he gets, if he gets any. sum for which the land or other property was first purchase of any 'Lands or other Property, but not thing, is to come wholly from those funds, or sold). It will be noticed that this foot note is not having obtained a conveyance thereof, shall contract to partly from them and partly from Bryan indi. addressed (at least I think not) to the seller, for sell to any other Person, and the same shall, in conridually. Not only the amount to be paid, but it says, “the consideration money set forth in a sequence, be conveyed immediately to the Sub-purchaser the parties by whom it is payable, and the pro transfer may differ from that which the first seller the principal or only deed or Instrument of Conveyance portions in which is to be paid by each, are liable will receive," and if addressed to the seller there shall be charged with the said ad valorem Duty in re

spect of the Purchase or Consideration-money herein to vary with the state of the business each half-year. should have been added the following ridiculous mentioned, to be paid, or agreed to be paid, by the SubA luctuating arrangement of this kind, even if not and astounding words, namely, “therefore the purchaser (55 Geo. 3, c. 184, p. 1570.) an arrangement between partners, could not, in seller, if called upon, will be bound to sign a my opinion, create a demise in the ordinary legal transfer acknowledging the receipt of money he

FINAL EXAMINATIONS.—Allow me through the sense of the word. For these reasons, I am knows will never be paid to him.” No; it is only medium of your paper to draw attention to what of opinion that Wyche's claim is an equitable one addressed (as I venture to suggest) to the last (if true) seems like injustice to us and a perversion merely, between himself and his partner; one parchaser intimating to him that Government re- of the law. I have been informed that the ques. which would not vest in any mortgagee of Wyche’s; quires that his conveyance or transfer shall bear tions for the final examination, which are preand one, therefore, which, according to my view of an ad valorem stamp sufficient to cover the pur- pared by a committee of solicitors, are got up by sect. 34, is not enforceable by him or his mort-chase money mentioned in such conveyance. The

some members of the committee, jotting down gagee, wholly or in part, under that section. I am Act quoted is a mere fiscal (and very proper) such points occurring to them in practice as need of opinion that the trustee of the joint estate of arrangement of Government, and in no way sug. searching up. Now, Sir, all the articled clerks, Wyche and Bryan is the person in whom the claim gests or controls the mode of conveyance: Sup like myself, to whom I have spoken (and they are for this 7001. is vested; not as rent, but as a part. pose I sell my dwelling-house to A. for 15001. to

not many) agree with me in saying that it is unjust nership item of account. The bankruptcy of be paid in a month, and in less than a fortnight to us that, after having spent five years in study Wyche and Bryan, which relates back to the pro- he has the good fortune to find a party (B.) who and a not inconsiderable amount of money, all of ceedings in liquidation in March 1870, vested both will give him 17001. for it, how surprised I should which has as yet yielded no profit, we should be the joint and the separate estate of each partner be if, when the conveyance was presented to me, subject to an examination which by hardly any in the trustee under that bankruptcy. The subse- to find that it stated that in consideration of amount of study one can hope to pass. We quent proceedings in liquidation taken by Wyche 17001. paid to me by B., I conveyed to him the

are willing to pass (if necessary) a stiff examinaseparately, in April 1870, became, as was admitted premises.” I should, of course, refuse to sign it, tion, but let it be one of general practice and upon the argument, inoperative and void. It will and say that I have not sold the property to B. for principles, from which alone we may hope for be the duty of the trustee under the bankruptcy 17001. but to A. for 15001., and I will only give a

some good, and for which we are advised to read and of the firm to carry this claim to the credit of receipt for 15001., and will not convey to B. un. have read'; and it does not seem the proper end Woches separate estate ; which will not, however, less A. requests me to do so; and how truly laugh- of an examination to trip up the students by some be entitled to receive a dividend out of the joint able it would be to be told that the Act of Parlia

“nick," as one expressed himself but yesterday. estate in respect of what may be due under this ment referred to in the foot note compelled me It scarcely can be expected that young men claim until the other joint creditors have been paid to give the receipt. And this reminds me that without actual practice can answer questions of in full. The rule upon this point is clear. There the Act of Parliament quoted was passed in nicety to puzzle old experienced practitioners. is an exception where the partner's claim upon the 1815, long before railways were known, and

We none of us wish the standard lowered, but we firm is for a debt contracted by the firm with him was repealed in 1870 (but a similar clause do hope the examination will be conducted fairly in the course of a separate trading. But it is not is very properly inserted in the new Stamp towards us.

AN ARTICLED CLERK. suficient that there should merely be such sepa- Act). We have no such foot note to our Birrate trading: The debt itself must have been con. mingham transfers (indeed we have no foot notes tracted solely and strictly in the course of that at all) and I know there is none to the Manchester THE STAMP ACT.-I should be much obliged trading: (Ex parle Williams, 3 M. D. & D. 433.) transfers, but we have on our transfers “Printed by your inserting this letter in your next issue. Tue claim here is for the balance of the rent by Alex Day, New-street, Birmingham,” which I Sect. 60 of the Stamp Act (33 & 34 Vict. c. 97) (purely a partnership item of account), after think is about as binding on a seller of railway expressly states that every person not being a setting off the debt due in respect of the separate stock to sign a receipt for a larger sum than he is duly certificated attorney," &c., who shall draw trading: and does not, therefore, fall within the to receive, as the Liverpool foot note is. I pity or prepare, either directly or indirectly, any instruexception to the rule.

the unfortunate defendant in the case referred to, ment (save such as are excepted by the Act), relaNotice of appeal was given.

and hope that some higher court will reverse the ting to real or personal estate, or any proceedings judgment, as I can picture to myself that much in law or equity for or in expectation of any fee, fraud may be committed on the authority of this &c., shall forfeit 501. The section is somewhat

What is meant by the words in foot note and decision. I will mention only one ambiguous. CORRESPONDENCE OF THE

instance, suppose two or three stock-brokers in italics ? Would, for instance, a person drawing PROFESSION.

Liverpool having a particular stock to sell, put a and preparing an apprenticeship indenture, either

much larger sum in the transfers than the real with or without a premium, under seal be liable to NOTE.-This department of the Law Tieg being open to

selling price, they would thereby create a fictitious above penalty ? It is, by the way, important that free discussion on all professional topics, the Editor is not value of that stock, and would know how to avail this should be generally known, as many masters responsible for any opinions or statements contained in it. themselves of the circumstance. In conclusion I bind their own apprentices on stamped forms sup.

would ask how is it possible that any Act of plied by the stamp distributors, or employ attorTRANSFERS OF RAILWAY STOCK.-I have read Parliament, or any dictum of any stock exchange neys' clerks, agents, and accountants to draw up with some surprise the report of the action Case (or both together) can bind me to sign a deliberate indentures of apprenticeship, which of course is v. MeClellan, tried in the Common Pleas on the and wilful antrnth ?


work belonging solely to solicitors. 24th Nor. last, in which, as I understand it, it The following is a form of transfer :.

OBSERVANDA was ruled that a footnote at the end of an ordinary

Coupon for £ Stock forwarded transfer of railway stock (used in Liverpool) is

to the Company's Office.

COUNTY COURT JUDGES.-Those most able to part of the transfer, and that such foot note is TRANSFER

form an opinion on the merits and ability of binding on a seller of railway stock, because it is

County Court Judges, are those regularly practis. the usual form adopted by the Liverpool Stock

In consideration of the Sum of paid to

ing before the courts, and those are the attorneys.

by hereinafter called the said Transferee Exchange, and that the operation of such foot

do hereby bargain, sell, assign, and transfer to the There is a class of men at the Bar who receive note is to compel a seller to sign a receipt for a said Transferee , of and in the undertaking generally through interest, appointments as larger sum of money than he is to receive. I have called the

revising barristers. These gentleman then get on obtained a Liverpool transfer form, and therefore

TO HOLD unto the said Transferee

Exe. the list for County Court Judgeships. They are am able to give the words of the foot note, which are

cators, Administrators, and Assigns, subject to usually what are called “ briefless barristers, and the several conditions on

held the as follows: “ N.B. The consideration money set

have merely a theoretical and superficial know.

same immediately before the execution hereof; and ledge, and I undertake to say thọt they make the forth in a transfer may differ from that which the

the said Transferee firat seller will receive owing to sub-sale of the to accept and take the said , subject to the very worst judges, for they are full of crotchets. original buyer; and the Stamp Act requires that conditions aforesaid.

and theory, and give the most extraordinary deci. in such cases the consideration money paid by the

AS WITNESS Our Hands and Seals this day of sions. I have had a large practice as an advocate sub-purchaser shall be the one inserted in the in the Year of Our Lord One housand and have seen a good deal of this.

I heard some Eight Hundred and Seventy deed as regulating the ad valorem duty. The fol.

time ago, from a member of the Bar, that on the lowing is the clause in question : 'And where any

Signed, sealed, and delivered,

Lord Chancellor's list of appointments for County

by the above-named person having contracted for the purchase of any

in the Presence of )

Court Judgships were the names of twenty-five lands or other property, but not having obtained

Q. Cs., so there can be no dearth of good men ! a conveyance thereof shall contract to sell to any Signature,

Why are fewer appointed ? Mr. Homersham Cox other person, and the same shall in consequence Address, and

has shown himself in an unfavourable light, be convered immediately to the sub-purchaser ; signed, sealed, and delivered,


judging from reports, but why need he have been the principal or only deed or instrument of con.

by the above-named

appointed ? If so many good names remain, why veyance shall be charged with the said ad valorem

in the Presence of

are not the best and most practical men on the duty in respect of the purchase or consideration Witness's

list chosen ? Judicial appointments should be money therein mentioned to be paid, or agreed to

conscientiously made ; if the reverse, it inflicts a be paid, by the sub-purchaser (55 Geo. 3, c. 184,

Address, and

grievous hard-hip on the suitors, to say nothing p. 1570)"I cannot think that such a foot note is Signed, sealed, and delivered, 2


of the Prcfession.

AN ATTORNEY. part of the transfer, or that it is binding on a

by the above-named seler ; but for the present I will assume both

in the Presence of

PUBLIC PROSECUTORS AND SANITARY ACTS. these points, and confine my remarks to the other Witness's

CONSOLIDATION Bill.—The present Government point-namely, that a seller is bound by the word. Signature,

have neither been so fortunate in their legislation ing of that foot note to execute a transfer, wherein Address, and

or in their adininistration as to induce us to repose

Profession. he knowingly acknowledges to receive a larger Signed, sealed, and delivered, )

entire confidence in their manipulation of legal sum of money than he is going to receive. Now,

by the above-named

measures. Therefore it is that I venture once me lawyers all know that to a sale of “Land

‘in the Presence of)

more to bring under the notice of the Profession or other property,” no stamp duty is attached,

the need of a Public Prosecutors' Bill, feeling and that A may sell to B. for 10001., and B. to


assured that we may wait till the Greek Kalends, C. for 12001., and C. to D. for 14001., and so

Address, and

if we are to wait for a satisfactory and successful on, and incur no stamp duty beyond the ordi.

Government measure. Now, the legal Profession nars agreement stamp (od.), and that it is only may differ from that which the first Seller will receive; in Parliament, and surely those who represent it,

N.B. - The consideration money set forth in a Transfer is represented as to both branches very efficiently when a sale is completed by an actual conveyance owing to sub-sale of the original

the Stamp of the land or other property, that stamp duty is Act requires that in such cases, the consideration. whether they sit on the right or left of the Speaker




[ocr errors]




« EelmineJätka »