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Review: Woolrych on the Metropolitan Building Act.
architect, who, with his clerks, is to be paid by salary; but who must not follow any other occupation.
"The second part of the Act is devoted to the consideration of dangerous structures. Upon an intimation of danger a survey is to be made under the direction of the Commissioners of Sewers or of the Police, to whom notice is in the first instance to be given by the district surveyor. This certificate is the report upon which the Commissioners are to act if it be unfavourable to the structure, and power is given to proceed before a justice to compel repair, and even to sell the property, if the requisitions be not complied with.
"It is very properly ordained, that inmates may be removed from these dangerous buildings by constables, and they shall be received into the workhouse if they have no other place of abode.
"Party structures embrace the third particular of the Metropolitan Building Statute. "The
in setting forth the procedure, in declaring the repeal of Acts upon the same subject, or other collateral matters, and, finally, in directing compensation to the official referees, the registrar, and others whose offices have been abolished."
Numerous alterations are taking place in the law district, as well as all other parts of the metropolis, in the pulling down and rebuilding of houses; and it may therefore be useful to call the attention of our readers to the extent of the precaution necessary in providing hoards and shorings or supports to adjoining buildings. In the notes to the present Act, the Author says:—
who builds a house at the extremity of his "It is not to be supposed that any person land is at once to become so far entitled to a neighbour may not use his own land as he secure foundation there as that his adjoining rights of the two owners, the building damage the house. It is his duty to protect pleases, even although he may, in so doing, and adjoining owner are separately dealt with himself by shoring. If his neighbour digs his The one owner may build, but, unless in case land near to the foundation of the new house, of danger, he must give notice of such his intention to the other owner. The expenses are so as nevertheless, not to touch the other's to be borne by these owners in proportion, re-into the pit, no action lies. It was the fault of soil, although by such digging the house falls gard being had to the use which each owner the builder to erect his house so near to the makes of the structure.
"The fourth part is a miscellaneous collec- stranger's territory (Wilde v. Minsterley, 2 Ro. tion, in the early part of which the persons, house and make cellars upon his own soil, Ab. 564; 15 Car. 1). So if a man build a building and adjoining owners,' are more par- whereby a house newly built upon the adjointicularly defined. The expenses above mentioned must be repaid; if not satisfied by the ing soil falls down, no action lies (Stansell v. owner, they will fall, in the first instance, on Jollard, Selw. N. P. 435). The plaintiffs were the occupiers, who may deduct the sums paid owners of a house in Cheapside; the defendfrom the rent due to the landlord. Should ants were owners of the adjoining dwelling. The defendants' house, being in bad repair, there be more than one owner, the rule of contribution must be applied. The owner under had, for many years, been supported by strutts sect. 3 is interpreted to mean the person in it became necessary to rebuild it, and during or shores placed against the house; at length possession or receipt of the rents or profits, or the progress of the work the shores were rethe occupier other than tenant from year to moved. No supports being substituted by the year, or tenant at will. Hence, a tenant for more than a year may be classed amongst the defendants, the plaintiffs put up some internal owners, and, as all owners are to contribute supports, and it appeared that if the house according to the use which each makes of the | had been properly shored internally no injury would have happened. No notice had been structures, the occupying tenant, who has no inconsiderable share of the benefit of party shore up the house, but that was not alleged given by the defendants to the plaintiffs to structures, must have his share of the costs of in the declaration as a ground of injury. Upon repair or improvement. Certainly the occu- these facts Lord Tenterden directed a nonsuit, pier of premises who has paid any expenses being of opinion that the plaintiffs should have under the Act is entitled to deduct his payment sufficiently propped up their own premises. It from the rent by virtue of No. 5 in sect. 9; was then moved to set aside the nonsuit, 1st, but this occupier must mean an occupier from because the defendants were answerable; and year to year, or at will, and not a tenant for years. For, immediately afterwards, power is 2nd, because they had given no notice. given to an owner to deduct from his landlord's of notice, it was not alleged as the breach, and the Court discharged the rule. As to the point rent any sum beyond his due proportion. therefore the Court would give no opinion There are few expressions which lead to more whether a notice was or not necessary. confusion than those of owner and occupier. But the Statute may be read with sufficient upon the main question, the liability, it was in consistency, if the word owner be referred to proof that the defective state of both houses owners in the ordinary sense of that word and was known to both parties; and there was no evidence to show any grant to the plaintiffs of occupiers for more than a year. Occupier, a right to the support of the adjoining buildunder the Act, will them mean a tenant at will, ing. No such gr. nt could, consequently, be or from year to year, or for any less term. "The residue of these provisions is employed of London, 9 B. & C. 725).” inferred (Peyton and others v. The Mayor, &c.,
Review.-Conduct and Character of Attorneys.
Buildings which are in a dangerous state | The notes to the Act are valuable to all on complaint to the Commissioners may be who are engaged in carrying its provisions surveyed, shored up, and notice given to into effect or considering the alterations the owner or occupier requiring him to take made in this department of the Law. down, secure, or repair the same, as the case may require; and the inmates may be. removed by an order of the justice of the peace, and in certain cases the Commissioners have power to sell dangerous structures (ss. 69, 72, 73, 74, 80).
The provisions in the Act as to the party liable to pay the expenses of carrying the
provisions of the Act into effect are fully observed upon by the Author. He
CONDUCT AND CHARACTER OF
OUR attention has recently been called to several cases regarding the misconduct of Attorneys, which the Incorporated Law Society has felt bound to bring to the notice of the Superior Courts at Westminster. :says:- On the other hand, it may not be inappro"The words owner and occupier are often priate to record the opinions pronounced by productive of confusion, and require at all times to be carefully dealt with. The meaning eminent Judges on the exemplary conduct, of this Act, with reference to these terms, honour and integrity of the general body of seems, however, to be sufficiently obvious. the Profession. Under the old law a tenant at rack rent was not liable to contribution. (Southall v. Ledbetter, 3 T. R. 458; Stone v. Greenwell, id., 461; Beardmore v. Fox, 8 T. R. 214.) Neither was a tenant liable who had much improved his premises, and thus became possessed of a beneficial interest (Lambe v. Hemans, 2 B. & Ald. 467); but, latterly such an occupier has not been discharged, and herein the present Statute follows the 7 & 8 Vict. c. 84, s. 49, which it supersedes.
Certainly, if there be an independent agreement between landlord and tenant, that would stand upon a different foundation. Indeed, in the case of dangerous structures, there is an especial provision (sect. 73) to protect the right of the lessor. The owner, being in possession, must pay these expenses, in the first instance. "The owner of the improved rent, being in possession, must do the same and charge his next landlord with contribution. The owner of a beneficial lease will stand in the same position. The occupier under a lease for years is an occupier' within the clause, although he is also an owner under the interpretation clause (sect. 3). He must pay upon default of the owner, and must look for indemnity (if any) from his landlord; and under sect. 97 (No 5), he may deduct the amount from his rent. The occupier, however, shall not pay more than the rent due or to become due thereafter in respect of the premises. Whether that rent is at once to be calculated, so as to pay off the debt in full, or to be redeemed, so as to pay the debt by instalments, is not particularly specified. The same rules apply to the occupier from year to year, or at will.
"This clause would seem to invite landlords to introduce covenants into their leases for their tenants to pay all expenses attending the execution of the Building Act. The 111th section, moreover, expressly saves all liabilities as between landlord and tenant."
This last observation of the learned Serjeant should receive the attention of our conveyancing friends in preparing future leases.
On a bill filed by parties interested under a will against the sole acting trustee and executor, and against his solicitor, under whose advice the trust property had been improperly sold out by the trustee and applied principally to the solicitor's use, praying that the stock might be replaced, the Court at the hearing, the solicitor should show cause why, having after directing certain inquiries, ordered that regard to his answer and the evidence in the
cause, his name should not be struck off the Roll of Solicitors of the Court of Chancery.
After hearing the case urged on the part of the attorney, Lord Justice Knight Bruce (then Vice-Chancellor) observed, that if the conduct on the part of a solicitor could be attributed to want of prudence, to want of knowledge, or to both-if there was an absence of desire to benefit himself, and of bad intention, it would, harsh, and, if not wrong, yet not requisite, to probably, (however glaring the irregularity) be say that he had placed himself under any other endeavoured to bring himself to think it posthan a civil responsibility merely; and he had sible, reasonably, to take that view of the transaction in question. He had misgivings in an honourable profession, the upright peras to the propriety of continuing the solicitor formance of the important duties belonging to which was of such high interest to society. He had paused, however, upon the fact that, at the period in question the solicitor was only had lost his father in his boyhood-upon the old-upon the circumstance that he restitution, though late, that he had submitted to make-upon the amount of costs to which he had been subjected by this Court-upon himself to entertain of the nature of the transthe sense which he, by his counsel, had stated action. Pausing on these considerations, he abstained from proceeding further in the matter-trusting that the Solicitor would manifest a proper sense of what he owed to himself, to his family, and to the Profession of which he was a member
"A Profession," (said the learned Judge)
which the application for re-admission was intended to be made, and the rule for such reaffidavit and an affidavit of such copy having admission shall be drawn up on reading such been left and notice given in compliance with this rule." It does not say the rule is to be absolute in the first instance.
Conduct and Character of Attorneys.—Practice regarding Re-Admission of Attorneys. 143 "the powers of which, for good or ill, as far | Bench before the Term on the last day of as the worldly interests of the mass of mankind were concerned, could scarcely be too strongly stated,—a Profession owning, he was happy to be able to say, so many who would do honour to any calling, and who, well aware that sincerity and integrity were the surest guides to prosperity and distinction, were true and just from higher motives and less worldly considerations.
"Let it be the study and ambition of the solicitor in question to become deserving of being ascribed to that class of solicitors;—a class meriting and receiving the countenance and protection, the respect and esteem, of those in whose hands was placed the administration of justice;-among not the least urgent of whose duties on the other hand, it was to mark, to censure, to repress, and, if necessary, to extirpate from the Courts such men, as, by abusing the functions and privileges of so important a Profession, become a scandal and pestilence to society." Goodwin v. Goswell, 2 Coll. 457.
PRACTICE REGARDING THE RE-
The question we refer to, arose on the application of Sir F. Thesiger for a rule in the case of Richard Sill.
Mr. Hodgson said, that last Term a similar application was made in the Court of Common Pleas. He appeared for the Law Society in opposition to the rule, and there the course proposed was taken.
Lord Campbell.-If cause is shown in the have cause shown against the rule we certainly first instance, that may be so,-but unless we shall not agree to it. In a case where an attorney has been struck off the Roll for misconduct there is a prima facie case against his been willing either to review its former deadmission. Although the Court has always cision, or on new matter being introduced, or thinking that the punishment had been enough that has been already suffered, the Court will be ready to hear an application.
After some further discussion on the proper course of proceeding in such cases, the Judges Court think you may move for a rule to show conferred, and the Lord Chief Justice said, "the cause and that will be the proper mode of proceeding. The rule may be served on the Incorporated Law Society as has been done hitherto; we are aware of nothing to alter that You had better proceed to move for
A DECISION of the Court of Queen's Bench on the last day of last Term, somewhat alters the practice relating to the mode of re-admit-your rule to show cause.' ting Attorneys who have been struck off the Roll for misconduct. In accordance with this rule nisi. He said Mr. Sill was struck off the Sir F. Thesiger then proceeded to move for a decision, it appears that an application to re-rolls by the order of this Court on the 6th store an Attorney to the Roll should be in the May, 1853. He had been 23 years an attorney, form of a rule nisi to be served on the Incor- and was a gentleman of education, station, and porated Law Society as Registrar of Attorneys ability; but unfortunately in 1852, he was retained as an attorney in a prosecution which was brought against three persons of the name of Broome, Staden, and James, a case which obtained considerable noteriety, and was known as "the Brighton card-cheating case," the name of Hamp. It was the great misfortune person victimised being a young man of the of Mr. Sill's life that he was engaged in that prosecution, for the defendants were persons of very dangerous and desperate character. He became particularly obnoxious to them in consequence of the part he took in the prosecution; and unfortunately by want of caution and discretion-the Court might be disposed to put it higher-he placed himself in their power, and they determined to take proceedings to crush and ruin him; and three different indictments were preferred against him by these parties in respect of two bills of exchange for 1207. each, which he had received from the brother of Broome, and which he stated he received as costs for the different proceedings connected with the prosecution. The first indictment was for assaulting the Broomes and
Mr. James Wilde was instructed to appear on the part of the Incorporated Law Society to watch the proceedings and to see that the facts were correctly stated to the Court.
The Lord Chief Justice intimated that the Court would not order the re-admission by a rule absolute in the first instance. By the 7th section of the Examination Rules of Hilary Term, 1853,-" On an application to re-admit an attorney who has been struck off the Roll, the applicant shall, before the commencement of the Term next preceding that in which he intends to apply to be re-admitted, give notice thereof as in the case of an original admission, and the affidavits in support of such application shall be filed at the office of the Master, and a copy thereof left at the chambers of the Lord Chief Justice of the Court of Queen's
Practice Regarding the Re-Admission of Attorneys.
putting them in bodily fear, and also for taking | as to whether the conviction was so far satis from them these bills. That indictment was factory as to induce the Court to strike him removed by certiorari to the Court of Queen's off the Rolls. The Lord Chief Justice, in Bench, and it came on for trial at the sittings giving judgment, observed, that he could not after Trinity Term, but no counsel or witnesses say that the conviction, even on its merits, for the prosecution appearing, an acquittal took could be supported; but it so happened that, place. The second indictment was preferred upon the account of the transactions in the for taking these bills as a reward for com- affidavits of Mr. Sill, their lordships came to pounding the prosecution, and for obtaining the conclusion that he had been dealing imthem by false pretences. Those pretences properly with the parties, and obtained those were afterwards made the subject of a third bills of exchange for the purpose of stopping indictment, on which Sill was ultimately con- the prosecution; and they pronounced the victed. In respect to the second indictment, most extreme sentence which could be passed which involved the same matter on which Sill upon an attorney, by excluding him altogether was afterwards removed from the rolls, a simi- from the Rolls. This sentence, however, was lar course was taken as in the first. The indict passed in respect of matters which were not ment was removed by certiorari to this Court, preferred against him, but arose incidentally in and came on during the sittings after Trinity the affidavits. No steps were taken by the Term; but when the case had been partly Incorporated Law Society to remove him from opened, it was stated that the witnesses were the Rolls of the Court of Chancery and the not in attendance, and a verdict of not guilty Court of Common Pleas, and his name still rewas again returned. In order that their lord-mained upon them; but being under the senships might be satisfied that this was not tence of their lordships, he did not attempt in owing to an arrangement between Sill and the parties prosecuting, he might remind them that a third indictment was preferred; and this contained the charge for obtaining the bills under false pretences, and though he was advised by counsel to plead and might have pleaded in answer to it autre fois acquit, he declined to do so, but determined to take his trial upon that indictment; but unfortunately, the result was that in August, 1852, he was convicted.
the smallest degree to practise in those Courts. From May, 1853, until July, 1854, he was wholly without employment. At the end of that period he had the good fortune to attract the attention of two most respectable attorneys at Walsall-Mr. Duignan and his partnerwho had employed him up to the present time as their managing clerk; and so satisfied were they with his conduct that they were ready to admit him as a partner in the firm 12 months after he should be again re-instated on the The Incorporated Law Society, in discharge rolls. He had conducted their very extensive of their important duty, which they most faith business at the Assizes, the Sessions, the fully performed, brought that conviction under County Court and before the magistrates; and the notice of the Court, and applied to have all the persons who had become acquainted Mr. Sill struck off the Rolls. In the mean- with him while so engaged had pressed fortime, however,-viz., in January, 1853,-the ward to express before their lordships their judgment upon that indictment was set aside opinion as to his admirable conduct, honour, on, it was admitted, a technical objection. In and integrity. Among others who spoke to the same month, Mr. Sill preferred an in- his character were the County Court Judge dictment against Henry Broome, the brother (Mr. Serjeant Clarke), Mr. Whateley, Q. Č., of John Broome, one of the conspirators, for the member of Parliament for the Borough, perjury. It came on for trial before Lord and several magistrates. Under all the cir Campbell, at the sittings after Hilary Term. cumstances he (Sir F. Thesiger) trusted their Mr. Sill was examined at very considerable lordships would think that Mr. Šill had underlength, and he had two witnesses to prove the gone a sufficient punishment for whatever perjury, but, unfortunately, with that fatality offence he had been guilty of, and that the which seemed always to attend his proceedings heavy sentence inflicted upon him might be in this matter, they did not appear when remitted, and his name placed again upon the called upon; but it appeared from the affida- rolls of the Court. vits that they had just left the Court, supposing that Mr. Sill's examination would last much longer, and when they came back they found that a verdict of acquittal had been re
The Court then granted a rule to show cause why the re-admission should not take place— the rule to be served on the Incorporated Law Society, and leave was given to bring it on the Under these circumstances the ques-second day of next Term. tion as to striking Mr. Sill off the Rolls came before the Court in May, 1853, the only ground for the application being the conviction already mentioned, no affidavits having been put in or anything else stated with regard to his conduct. On that occasion Mr. Sill conducted his own case in person, and he brought before their lordships, in affidavits,
all the matters connected with these transactions, in order that they might form an opinion
1 Mr. Sill's last certificate having expired in November, 1852, he could not after November, 1853, practise without the leave of the Court or a Judge (which of course would not have been granted), and consequently it was unnecessary to incur the expense of making the several applications to the other Courts.
Law of Costs.-Notes on Recent Statutes.-Legal Education.
LAW OF COSTS.
OF SUIT BY SURETY FOR CONTRIBUTION.
issued for service upon a British subject residing out of the jurisdiction, and the defendant was served on July 14. This writ was tested April 9, 1851.
THE plaintiff, who was one of the sureties for securing the due performance of the duties On a rule to set aside the concurrent writ of a tax collector, was called on to pay, and and the service for irregularity, Parke, B., said, paid the amount due from him on his principal "We have considered the case, and looked at failing in the performance of the obligations. the different clauses of the Act, are of opinion He filed a bill to have contribution against the that a concurrent writ can only be issued withrepresentattives of the solvent co-sureties, alleg-in six months from the time of issuing the ing that the others were insolvent, and it was original writ. In this case, the first renewed required by the answer that these persons, al-writ under the Common Law Procedure Act, though insolvent, should be made parties. 1852, became quasi the original suit; but then Held, by the Vice-Chancellor Kindersley, that the concurrent writ should have been issued the insolvent sureties must pay their own costs within six months from the time of issuing of being brought before the Court to the final that writ. Such is the plain language of the hearing of the cause. Hitchman v. Stewart, 3 Act. This concurrent writ having been issued Drewry, 271. after that time, must be set aside, but as this is a new point of some importance, without costs." Cole v. Sherard, 11 Exch. 482.
OF PETITION BY TENANT FOR LIFE SERVED
THE tenant for life of a fund paid into Court by a railway company on the purchase of certain estates required by them, presented a petition for its investment, and for payment of the dividends for himself. Certain persons, entitled to a charge on the real estates were served with the petition and appeared. The Vice-Chancellor Stuart refused to direct the railway company to pay their costs. In re Webster's Settled Estate, 2 Smale & G. vi.
NOTES ON RECENT STATUTES. COMMON LAW PROCEDURE ACT, 1852. LEAVE TO DEFEND AN ACTION OF EJECT
Held, that a person who had recovered judgment in an action of ejectment upon the forfeiture of a lease by reason of breaches of covenant, is not entitled to come in and defend an action of ejectment, under the 15 & 16 Vict. c. 76, s. 172, where he had not actually obtained possession. Thompson v. Tompkinson and others, 11 Exch. 442.
CONCURRENT WRIT OF SUMMONS.
An original writ of summons was tested on April 9, 1851, and was duly continued by alias and pluries, and was in force when the 15 & 16 Vict. c. 76 came into operation. It was first renewed under that Act, on November 30, 1852, and was afterwards renewed within every six months,—the last renewal being May 18, 1855. On June 16, 1855, a concurrent writ was
REDUCTION OF STAMP DUTY AND INCREASE
To the Editor of the Legal Observer.
In my remarks on the character of ordinary law clerks, I was far from wishing to make any uncharitable reflections: I was simply desirous of echoing the general opinion, with a view to counteract the effect of the too favourable representation which had been given; as if to make it appear, that their condition was so satisfactory as to be incapable of amendment. The United Law Clerks' Society, I am under the impression, is a kind of benefit club, and the members, therefore, are justly deserving credit for their economy and prudence, but their connexion with it cannot be legitimately adduced to prove their morality and religion. Moreover, the members of that praiseworthy institution form only a per-centage of the great mass, and are therefore exceptions and not the rule.
The evidence offered to prove the evils resulting from the present system, has been curiously applied by your correspondent. His argument is similar to that of the American Slaveholders against Negro Emancipation-to point to their degradation, the result of a pernicious system,-and then ask, how the restrictions can be safely removed. Let the