1861.

JOLLY

V.

would thereby become futile; and then no provision is made in respect of costs either to the claimant as between party and party or as between attorney and client, or to WIMBLEDON the Company, in respect of useless litigation which the claimant chose to force them to; and all this for no other purpose than securing some promptness in making compensation-about which litigation has probably increased if not created the delay.

In the case of The Marquis of Salisbury v. The Great Northern Railway Company (a), the title was shewn and disputed, and ejectment was brought to try the title, and it was doubted whether ejectment would lie for lands of which the possession was to be undisturbed; but it was held to be by implication given in the case where the title should be disputed, solely for the purpose of trying the title, execution being stayed as soon as that purpose should be effected. If the title is disputed, the section may be held to give by implication a right to resort to law, and by limiting the right to the case of disputed title all would be in order; but if it is given where there is no dispute of title the confusion above described would follow.

This judgment does not conflict with any opinion of the Court below, who considered that the point here was within Lord Salisbury's Case; but, as above mentioned, that case appears to us to have no application to the present, because the title there was disputed,-here it is

not.

For these reasons we think the defendants are entitled to succeed and that the judgment of the Court below should be reversed.

Judgment reversed.

and DORKING Railway Company.

(a) 5 C. B. N. S. 174.

1861.

MEMORANDA.

On the last day of Michaelmas Term, Mr. Justice Hill resigned his office as Judge of this Court, in consequence of ill health.

In the Vacation, John Mellor, Esq., one of her Majesty's Counsel, was appointed a Judge of this Court; having been previously advanced to the degree of the coif, when he gave rings, with the motto "Lex ratione probata."

END OF MICHAELMAS VACATION.

The applicant had been articled as clerk to his father and served the five years required by law without the applicant's knowledge, as he alleged, that the articles were not stamped. The affidavit of the father stated that, having before the articles been subject to much pecuniary loss and pressing expenses, and a diminution of professional income on account of the changes in the law and personal and family affliction, he was at the time of the articles without the means to pay the stamp duty thereon; and that he had not articled the applicant speculatively, but with the intention of ultimately stamping and enrolling the articles. The Lords of the Treasury having, under stat. 19 & 20 Vict. c. 81. s. 3., directed the Commissioners of Inland Revenue to stamp the articles upon payment of the duty and penalty, and the articles having been stamped accordingly: Held, by Cockburn C. J., Wightman and Mellor JJ., Crompton J. dissentiente, that they might be enrolled, and the service under them be computed from the date of their execution.

THIS

HIS was a motion that the applicant might have leave to enrol his articles of clerkship, and that the B. & S.

VOL. I.

3 1

Monday,
January 13th.

Attorney. Articles of clerkship.

Omission to

stamp.
19 & 20 Vict.

c. 81.

1862.

Ex parte HERBERT.

service thereunder should count from the 16th August, 1856, being the day of their execution. The affidavit of the applicant stated that, at the age of eighteen years, he was, by articles of clerkship, dated the 16th August, 1856, articled to his father, an attorney at law, for five years, which expired on the 16th August, 1861; that he had served his father as his articled clerk during the said term; that at the time of entering into the articles he did not know that it was necessary that they should be stamped before execution, or that it was necessary that they should be enrolled; that when the articles were executed they were kept by his father in his own possession, and he never afterwards saw them until last October, when his father gave them to him, and he found that they had not been stamped, nor enrolled; that he presented a memorial to the Lords Commissioners of Her Majesty's Treasury praying that the Commissioners of Inland Revenue might be permitted to stamp the articles; and that their lordships had been pleased to authorize the Commissioners to affix the necessary stamp on payment of a penalty of 50l., in addition to the duty of 801. The affidavit of the father of the applicant stated in substance that, having before the applicant was articled to him been subject to much pecuniary loss and various pressing expences, and a diminution of professional income on account of the changes in the law and personal and family affliction, he was at the time of the articles wholly without the means to pay the stamp duty thereon; that the articles were not duly stamped before their execution, nor enrolled within six months from their date and execution for these reasons, and because he thought that, under. stat. 19 & 20 Vict. c. 81., they could be afterwards stamped on payment of the penalty mentioned in that

statute; that he had no preconceived plan to article the applicant speculatively, but had articled him solely with the intention of ultimately stamping and enrolling the articles, and had been prevented from so doing for the reasons before mentioned, and for no other; and that he joined the applicant in borrowing the sum of 1301. to stamp the articles and pay the penalty, which he did on the 21st December instant.

Cook Evans, in support of the application.-Ex parte Bishop (a) is an authority for granting this application. In that case Erle C. J. said, "If the non-payment of the duty was the result of some unforeseen emergency, something over which the party had no control, I should be disposed to assist him; but if the omission was intentional, and part of a scheme to make use of the service under the articles in the event of its proving a promising speculation, I should decline to grant the application." But the application in that case was granted, though there was no unforeseen emergency;" and the facts were the same as in this case. [Crompton J. Erle C. J., when in this Court, always expressed a strong opinion against relaxing the rule as to payment of the stamp duty at the time of the execution of the articles; he laid it down that applications for that purpose ought not to be granted unless there was some mistake or inadvertence in the non-payment of the stamp duty (b). Wightman J. Stat. 19 & 20 Vict. c. 81. s. 3. provides a scale of penalties to be paid according to the time within.

(a) 9 C. B. N. S. 150.

(b) See Ex parte Williams, coram Erle J. in Bail Court, 3 Jur. N. S.

160.

1862.

Ex parte HERBERT.