418 Analytical Digest of Cases: Common Law Courts. to be completed at a future day, may recover as damages for the non-delivery, the difference between the price agreed on and the market price of the day on which the sale should have been completed; but that he is not entitled to damages in respect of a further advance of price taking place afterwards at the time of the actual issuing of the scrip. Tempest v. Kilner, 3 C. B. 253. M. & W. 653; Chesman v.Nainby, 2 Str. 739; 2 Ld. Raym. 1456; 1 Bro. P. C. 234. REWARD. storation of stolen property.-The defendant, Discovery and conviction of a felon.-Re who had been robbed of jewellery, published an advertisement, headed "301. reward," describing the articles stolen, and concluding thus: "The above sum will be paid by the adjutant of the 41st regiment, on recovery of the property, and conviction of the offender, or in proportion to the amount received." 4. Differences on re-sale of shares.-A., a share-broker, on the 28th of July, 1845, contracted to sell to B. certain railway shares belonging to C. The scrip having been sent to the A., a soldier, on the 10th of June, informed company's office for registration, and A. being his sergeant that B. had admitted to him that consequently unable to deliver the shares, B., he was the party who had committed the on the 23rd of September, purchased other robbery, and the sergeant gave information at shares at an advanced price, and claimed the the police-station. On the 14th, the plaintiff, difference from 4. 4. accordingly paid him a police constable, learning from one C. that the amount, after notice from C. not to do so— B. was to be met with at a certain place, went one of the rules of the Hull Stock Exchange, there and apprehended him. The plaintiff, by of which A. and B. were both members, de- his activity and perseverance, afterwards suc claring brokers to be personally responsible ceeded in tracing and recovering nearly the for the fulfilment of their respective contracts whole of the property, and in procuring with each other-and claimed to be recouped evidence to convict B.: Held, that the plaintiff the same by C., as money paid to his use. The was not, but (per Tindal, C. J., and Cresswell, price of the shares had not been offered to C., J.) that A. was, the party entitled to the renor had any transfer been tendered to him for ward. Thatcher v. England, 3 C. B. 254. execution: Held, that the action was not main tainable. And held, that a letter from C. to A., requiring all further communications to be addressed to his solicitors, did not dispense with the necessity of such tender. Bowlby v. Bell, 3 C. B. 284. Case cited in the judgment: Stephens v. De REPLEVIN. See County Court, p. 399, ante. RESTRAINT OF TRADE. Case cited in the judgment: Lancaster v. Walsh, 4 M. & W. 16. SELECT VESTRY. Custom for election of churchwardens.-From the year 1684, (the earliest period of which any records could be found,) the parish of S. W., in the city of London, had been governed by a select vestry, composed of the rector and churchwardens, and those inhabitants who had served the office of churchwardens, or paid a fine for not serving, down to the year 1734, (except in two or three instances, and between Divisibility of covenant.-By deed, reciting 1667 and 1672, when the affairs of the parish that A. and B. carried on business as perfumers were deranged by the great fire of London, in partnership, and that it had been agreed be- the course had been for the select vestry an tween them that B., in consideration of 2,1001., nually to choose, from among the parishioners should assign to 4. his moiety of the good will, at large, one person to act as junior church stock in trade, &c., of the co-partnership, B., warden, who at the end of the year succeeded in consideration thereof, covenanted that he to the office of senior churchwarden. From would not, during his life, carry on the trade 1734 to 1775, no records of the parish could be of a perfumer within the cities of London and found. And from 1775 to 1824, the same Westminster, or within the distance of 600 miles from the same respectively; and for the stances. The number of persons composing course had been pursued, except in four inobservance of the covenant, he bound himself the vestry on these occasions varied, sometimes to A., his executors, &c., in the sum of 5,000l., by way of liquidated damages, and not of three. Upon a special case, leaving it to the as many as 16 being present, sometimes only penalty: Held, in the Exchequer Chamber, court to draw inferences from the facts, as the (affirming the judgment of the Court of Exchequer,) that this covenant was divisible, and jury would be warranted in drawing. was good so far as it related to the cities of London and Westminster, though void as to the 600 miles; that a breach, that B. carried on the trade in the city of London, was good; and that A. was entitled to recover, in respect of such breach, the whole sum of 5,000l. Quare, whether a bill of exceptions lies for misdirection of a judge on the execution of a writ of inquiry. Price v. Green, 16 M. & W. 346. Cases cited in the judgment : Mallan v. May, 11 Held, that a repeated re-election of the same without any necessity for so doing, was in vioperson to the office of senior churchwarden, lation of the custom, and consequently void. Gibbs v. Flight, 3 C. B. 581. SHERIFF. Relief under Interpleader Act. — Entering premises of a third party.-Goods seized by the sheriff under a fi. fa. against A., out of the Court of Exchequer, were claimed by B., to whom they were restored upon the establish Analytical Digest of Cases: Common Law Courts. ment of her right upon an issue directed, at the sheriff's instance, under the Interpleader Act. B. afterwards brought trespass against the sheriff, for breaking and entering her house, on the occasion of the seizure. This court refused to stay the proceedings, holding the relief and protection afforded to the sheriff by the 1 & 2 W. 4, c. 58, s. 6, to be confined to disputed claims to the goods seized, or to their proceeds. And, semble, that if the proceedings in this court were a violation of the interpleader order, the application for relief should have been made to the court in which the interpleader took place. Hollier v. Laurie, 3 C. B. 334. 419 as to boundaries.—Agreement for rent-charge.— Statute 6 & 7 W. 4, c. 71, s. 45, empowering the Tithe Commissioners to decide any question touching the "boundary of any lands," does not authorise them to settle, by their award, a dispute as to the boundary of parishes. Nor can they do this under the power granted by statute 7 W. 4, and 1 Vict. c. 69, s. 2, even at the request of two-thirds in value of the land-owners, if the boundary of the parish be also a boundary between counties. For by stat. 2 & 3 Vict. c. 62, s. 37, this and the two prior acts are incorporated; and sect. 34 of stat. 2 & 3 Vict. c. 62, forbids the commissioners to adjudicate on a boundary which divides Case cited in the judgment: Lawrence v. Mat- counties as well as parishes. thews, 5 Dowl, P. C. 149. SHIP-BROKER. If the commissioners are proceeding to adjudicate on such a boundary: Quære, whether prohibition lies. But the court, in such case, made a rule ab Commission for procuring execution of charter-party. Custom of trade.-The actual earning of freight under a charter-party is not a condition precedent to the right of the ship-ground. solute for a prohibition, the commissioners showing cause and making no objection on this broker to his commission for procuring the Quære, whether a parochial agreement for a execution of the charter. continuation rent-charge can legally be made and confirmed, under stat. 6 & 7 W. 4, c. 71, ss. 17, 27, &c., while a dispute exists as to the boundary of the parish. In re the Ystradgun lais Tithe Commutation, 8 Q. B. 32. 2. Certiorari to bring up commissioners' award.-Form of award.-Power of commissioners.-To a motion for certiorari to bring up the award of an assistant tithe commissioner, it is no answer that the award is already in court under certiorari, obtained by another party. A., a ship-broker, procured a charter-party to be made between B., a ship-owner, and C., under which the owner contracted to bring home a cargo of guano, and the merchant agreed to pay freight at the rate of 41. 15s. per ton, to be reduced to 41. 12s. 6d. if the ship did not arrive off Cork or Falmouth on or before a given day. There was no express engagement on the part of C. to ship a cargo: Held, that A. was entitled to recover from B., upon a quantum meruit, for his work and labour in procuring the charter to be executed, without Statute 6 & 7 W. 4, c. 71, s. 95, took away showing the arrival of the vessel on or before certiorari in the case of orders and adjudicathe day mentioned, and notwithstanding only a tions made by the tithe commissioners under very small quantity of guano had been shipped, that act. Stat. 7 W. 4, and 1 Vict c. 69, s. 2, and a small amount of freight actually earned; empowers commissioners to settle parish bounthat the amount of compensation due to him daries; and sect. 3 gives a certiorari to any was a question for the jury; and that, in estiperson interested in the judgment respecting mating such compensation, they were properly the said boundaries, who shall be dissatisfied guided by evidence of what was customary in therewith, and enacts, that, no removal of such similar cases. Hill v. Kitching, 3 C. B. 299. judgment under the writ, the decision of the court thereon shall be final and conclusive as to the boundaries: Held, that on the certiorari thus restored, the court was authorised to consider, not only the merits of the decision as to boundary, but all questions usually discussed on certiorari. Case cited in the judgment: Devaux v. . L'Anson, 5 N. f. 519; 7 Scott, 507. SURETY. The award of an assistant tithe commissioner Release in a joint and several covenant for payment of an annuity.-A release to one of two sureties who entered into a joint and several covenant to pay an annuity, in default of payment by the grantor, was accompanied employed to settle the boundaries of a townby a proviso, that such release should not pre-ship on request of the landowners, under stat. judice the right of the grantee to enforce its 7 W. 4, and 1 Vict. c. 96, s. 2, was quashed payment against the grantor and the other on certiorari, as not sufficiently showing jurisdiction: surety, or either of them: Held, that the proviso restrained the operation of the release, and that the liability of the co-surety was affected by such release. Thompson v. Lack, 3 C. B. 540. not Cases cited in the judgment: Solly v. Forbes, 2 66 1. Because it did not state the district to be one of which the tithes were to be commuted.” 99 66 2. Because it stated the request to have been signed, not "at a parochial meeting called for of" stat. 6 & 7 W. 4, c. 71, s. 17, (referred to by that purpose, according to the jurisdiction stat. 7 W. 4, and 1 Vict. c. 69, s. 2), but only "at a meeting called for that purpose." In stat. 1. Power of commissioners to settle dispute 2 & 3 Vict. c. 62, s. 34, (giving the commis 805. TITHES. 420 Analytical Digest of Cases: Common Law Courts. sioners power, on requisition, to ascertain old or set out new boundaries,) the proviso "that nothing in this provision" shall extend to any boundary line of a county, or of a copyhold without the consent of the lord, applies only to the enactment in the same clause. And sect. 37 of stat. 2 & 3 Vict. c. 62, which incorporates it with stat. 7 W. 4, and 1 Vict. c. 69, does not abridge the power given by sect. 2 of the prior act. Therefore, in a case under stat. 7 W. 4, and 1 Vict. c. 69, s. 2, the commissioners may ascertain the existing boundary of a parish, although it be also that of a county, or of copyhold in a manor, the lord of which does not consent to the inquiry. An award under that clause can be made only when the tithes are "to be commuted,' and there is no jurisdiction under it if the tithes have been commuted already. In re the Dent Tithe Commutation, 8 Q. B. 43. 3. Apportionment of rent.-Change of cultivation. Prohibition.- On a commutation of USE AND OCCUPATION. tion of a term.-Tenant of premises at 471. USURY. Charge on land.-Judgment.-The proviso in the 2 & 3 Vict. c. 37, e. 1, contemplates a direct and immediate security upon the land. Therefore, a loan of more than 51. per cent. upon bills of exchange and upon a warrant of attorney, authorising the party to whom it is given to enter up judgment immediately, with default of payment of the bills of exchange, is a defeasance that execution shall not issue until not "a loan or forbearance of any money upon security of any lands," &c., within the meaning of the proviso in the 2 & 3 Vict. c. 37, s. 1; although a judgment duly signed and registered is " a charge upon the land, under the 1&2 D. & L. 408. Vict. c. 110, ss. 13, 19. Lane v. Horlock, 4 Cases cited in the judgment: Colebrooke v. Lay. ton; 4 B. & Ad. 578; Saltmarshe v. Hewett, 1 A. & E. 812; Withey v. Gilliard, Leg. Obs Hil. Term, 1842, Q. B. tithes under stat. 6 & 7 W. 4, c. 71, the valuer made an apportionment, which was objected to by landowners in the parish, and the objectors heard, first, by the asssistant commissioners, who received evidence for and against the objections, and then by the tithe commissioners, according to section 61. It appeared that the tithes of corn and grain in the parish were payable to the rector, and moduses for all other tithes to the vicar. A rent-charge, in lieu of such tithes and moduses, had been awarded under section 36. H., one of the above landowners, held ancient pasture land of the dean and chapter of Canterbury by lease, which forbade him to plough the land without their licence in writing, for which he had never applied or proposed applying; but lands of the dean and chapter within the same district had been ploughed within living memory. Part of the lands in the parish were woodland. The valuer, in apportioning the rent-charge, under sections 33 and 44, upon H.'s pasture lands, assessed them to the vicar's rent-charge according to the modus, and added and occupied a messuage, &c., as tenant therea small portion of rent-charge to be paid to the of to the plaintiff, under a demise thereof made rector as part of the gross-rent charge awarded by the plaintiff to the defendant, by`reason of to him, where it seemed that the productive which said tenancy it became and was the duty quality of the land admitted of its being arable, of the defendant to manage and use the said and that there was a reasonable probability of tenements in a tenant-like and proper manner, its being tilled; but he made no additional asand not to permit or commit waste thereto; sessment on the woodland, not considering yet the defendant did not manage and use the that a reasonable probability existed of that said tenements in a tenant-like and proper land becoming arable. The objectors disputed and unjustly suffered and permitted them to be manner, but on the contrary thereof, wrongfully both the facts and the principle of assessment. The commissioners having inspected the evi- waste, ruinous, &c., for want of tenantable and dence given as above stated for and against the necessary repairs: Held bad, on general deobjections, decided that they would confirm murrer, for not showing that the defendant was the apportionment if they were not forbidden more than a tenant at will, who is not able to by a superior court. an action for permissive waste. On motion for a prohibition, held, that a prohibition did not lie, the commissioners having acted within their statutory jurisdiction, and according to law. And that the apportionment was right in principle. In re the Appledore Tithe Commutation, 8 Q. B. 139. WASTE, PERMISSIVE. claration in case stated, that the defendant held Against whom action maintainable.—A de Semble, a tenant for years is liable under the stat. of Gloucester, 6 Edw. 1, c. 5, to an action for permissive waste. Harnett v. Maitland, 16 M. & W. 257. Case cited in the judgment: Greene v. Cole, ? The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, MARCH 4, 1848. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. PROPOSED CONTINUANCE OF THE subject to the ordinary fluctuations and INCOME TAX. vicissitudes. The professional man has in general no capital but his own industry and ASPIRING, as we do, to nothing beyond ability; he is expected to assume and mainreflecting the feelings and promoting the tain a certain position in society, calling for interests of a particular profession, we have a heavy expenditure; and if illness or acusually thought these objects best consulted cident obliges him to suspend his personal by refraining from discussing in our pages exertions, he cannot employ a substitute, party questions, or even questions of gene- and the character and connection which he ral politics. In adverting to the proposed has spent years in establishing ceases to continuance of the Income Tax in its pre- afford him any income. To compel the sent objectionable form, we venture to hope man, dependent on his personal exertions we shall not be considered guilty of a de- for the means of living, to contribute the viation from the rule generally acted upon. same per centage to the exigencies of the The tax presses with such unjust and un- state, as one who has a solid and permanent equal severity upon all who derive their income, is sheer injustice, which only reincomes from the exercise of talent or quires to be stated in order to be felt. The industry, as compared with those whose distinction is easily illustrated. Suppose a incomes arise from real property or invested person with 5007. per annum, arising from capital, that it operates as a peculiar hard-lands, houses, money in the funds, or money ship upon professional men, and especially secured by mortgage, becomes ill or dies. upon those belonging to the legal profession. In either event his income continues-in The profits arising from trade are un- the one case for his own benefit, in the doubtedly subject to great variations and other for the benefit of those who survive uncertainty, and a tradesman who is com- him. If a professional man with an average pelled to pay even three per cent., upon income of 500l. a year, is unable to give his an income derived from profits, has personal attention to business, his profits good reason to complain that the tax generally fall away to nothing, and when falls very unequally upon him, as com- that which comes sooner or later to all pared with the party whose income arises comes to him, if he has expended what the from land, houses, the government funds, government has left of his income, he leaves or any species of investment which pro- nothing to his family. Of all professional duces an amount of income not subject men, the lawyer is peculiarly dependent to any considerable reduction. The profits upon the profitable employment of his of trade, however, are generally propor- time for the continuance of his income. tioned in some degree to the amount of His profits have been within a few years capital employed, and the tradesman is diminished 20 per cent., in some instances usually enabled to carry on his business, 50 per cent., by the direct interference of VOL. XXXV. No. 1,043. T 422 Proposed Continuance of the Income Taz. the legislature, and the special pleader, announced, a petition has been prepared, solicitor and attorney, are already sub- and lies for signature in the Hall of the Injected to the certificate duty, which is in corporated Law Society, to which the memthe nature of, and was intended for an equi-bers of the profession at large are invited to valent to an income tax, and creates an un-affix their signatures. We have little doubt enviable distinction between the members that the various law societies established in of the legal profession and all other profes- the provinces, will follow the example set sions. The proposal to continue the same by the Incorporated Society, and that the amount of income tax, without any cor- government and the legislature will speedily responding alterations of the burthens to be informed that, although the legal prowhich the legal profession are exclusively fession are ready, and even desirous, to bear subjected, justifies the most decided hostility their full share of the public burthens, they to the measure. To give the opposition, protest against being made the peculiar which we are satisfied is universally felt victims of a system of fiscal polity which is among the members of the legal profession hot recommended by any statesmanlike conto the proposed measure, its fair and legiti-siderations, accompanied by any prospect of mate weight, there must be previous concert compensation, or rendered indispensable by and united action. Why should not all any national emergency. The principles branches of the profession co-operate to and representations under which the present defend themselves from a grievous and un- income tax was originally introduced and just infliction? The history of the pre-submitted to, are sufficiently explained by sent income tax certainly affords no good the following extract from the speech of the reason why the members of the legal pro- Duke of Wellington, upon proposing the fession-or indeed the public at large-third reading of the bill, in the House of should acquiesce silently in the imposition Lords. His Grace is recorded to have of an increased or even of the same rate of said :— duty. "We are aware of the odious nature of the appointed to carry out its provisions, and to whom it must be entrusted, and we reconcile it only to ourselves by the strong necessity of the case-nothing but the certainty that no other course could be taken which would proculties of the country, or to take those measures duce a revenue to enable us to meet the diffiwhich may be necessary for its prosperity, could have induced us to propose such a measure to parliament, and, as I said before, it will not be continued one moment longer than is absolutely necessary." The act for levying a tax "on profits aris-powers given to the commissioners and others ing from property, professions, trades, and offices," (5 & 6 Vict. c. 35,) obtained the Royal Assent on the 22nd June, 1842, and it was expressly enacted by the 193rd section, that it should "commence and take effect from and after the 5th April, 1842, and continue in force until the 6th of April, 1845, and no longer." By the 8th Vict. c. 4, however, the rates and duties granted by the first recited act were continued "for the term of three years, to be computed from the 5th April, 1845," and the words no We shall only add an expression of our longer were ominously omitted. It is now hope, that neither the momentous events frankly stated, by the head of the depart- which are occurring at the opposite side of ment to which the management of the re- the Channel, nor the modification of the venue is peculiarly entrusted, that the tax is original plan lately proposed by the governto be considered as permanent in its nature, ment, will induce the legal profession tamely though he hoped that the proposed increase to submit to what amounts to a positive would be temporary. In 1842, when this injustice. Circumstances may render the impost was first imposed, the sense of the opposition for the present unsuccessful, but legal profession as to the peculiar severity its effects will be felt hereafter, when the of its operation on its members as a distinct taxation of the country is placed on a fair body, was generally felt and expressed, but and equitable basis. The imposition of a there was a want of organization and united uniform rate without reference to the source action which materially detracted from the from whence income is derived, is equally force which any representation backed by objectionable in principle, whether the rate the strength of the profession, may be ex-per cent. is continued at three, or increased pected to carry with it. Now that the tax to five pounds per annum. We trust, therehas avowedly assumed a permanent charac-fore, that the renewal will not be silently ter, there are additional grounds for a acquiesced in, as such acquiescence may be loud and unanimous protest against its im- considered a ground for an increase upon position in its present form. As already some future emergency. |