Copyhold Acts Amendment Bill. 211 the full enjoyment, improvement, or cultivation of | copyhold commissioners to dispense with notice), the land enfranchised. and all proceedings thereon (except as otherwise by this act is provided), shall be applicable to such 15. Payments to trustees of corporations.-In the case of a corporation lord of the manor not authorized to make an absolute sale otherwise than under the provisions of the copyhold acts, and where the money to be paid for the use of such corporation does not exceed £200, enfranchisement moneys may be paid into the hands either of the official trustees of charitable funds acting under "the Charitable Trusts Amendment Act, 1855," or, at the option of the corporation, into the hands of trustees to be nominated by the commissioners, by order under seal, in the same manner as in other cases already provided for by the copyhold acts; and the money shall be applied by the trustees, with the consent of the commissioners, to the purposes to which enfranchisement money paid into the Bank of England in the name of the Accountant-General is directed by this act to be applied; and upon every vacancy in the office of such trustee, or in case any such trustee should be desirous of resigning or should become incapable of acting, some other person shall be appointed by the commissioners in like manner. 16. The commencement of every commutation or enfranchisement, and of any rent-charge, may be fixed by the memorandum of confirmation of the instrument of commutation or enfranchisement, or, in default of being so fixed, it shall take place on the day of confirmation; but the commissioners shall have power to fix the day whence the half-yearly payments of the rent-charge shall commence to be calculated, at any period not more than six months posterior to the day fixed for the commencement of the commutation or enfranchisement; and the portion of rent-charge which shall accrue between the day of the commencement of the commutation or enfranchisement and the day fixed by the commissioners as the day whence the half-yearly payments of the rent-charge shall commence to be calculated shall be paid and recoverable in like manner as any after-accruing half-yearly sum is payable or recoverable. 17. Reversioners.-When the copyhold acts require that notice in writing be given to the person entitled to the next estate of inheritance in remainder or reversion in the manor or land to be effected by a commutation or enfranchisement, so that the assent or dissent or acquiescence of any person entitled in remainder or reversion may be stated in writing to the commissioners when the application for voluntary enfranchisement by award or the instrument of commutation or enfranchisement is sent to them, the commissioners may, if they shall see fit, by an order under seal, dispense with such notice in all cases where, after reasonable inquiry has been made, the person entitled to the next estate of inheritance in remainder or reversion cannot be discovered. 18. Ecclesiastical commissioners.- Where any land proposed to be enfranchised under this act shall be held of a manor belonging either in possession or reversion to an ecclesiastical corporation within the meaning of the act of the fourteenth and fifteenth years of her Majesty' reign, chapter one hundred and four, the ecclesiastical commissioners for England shall have notice of such proceedings, and shall have the same power of expressing assent to or dissent from such proceedings as is by this act directed with respect to persons entitled to the next estate of inheritance in reversion or remainder, and the provisions of the copyhold acts respecting such notices (other than and except the power of the said cases. 19. Notices.-Where notice or other writing is by this act required to be given to any designated person or party, it may be given either by sending it by the post in a registered letter to or by leaving it at the office or usual place of abode of such person, and all notices required to be given by the commissioners or any valuer (the mode of giving which is not particularly directed) may be in the name either of the person giving the notice or of any person authorized by the commissioners to give notices, and all notices so given shall be deemed sufficient notices to all persons concerning all matters and things to which such respective notices may relate. 20. Charges on land.-Whenever by the copyhold acts power is given or an obligation attaches to any person to pay money as consideration or compensation for commutation or enfranchisement, it shall be lawful for such person, with the consent of the commissioners, to charge upon the land commuted or enfranchised the sum of money paid. 21. Whenever land is conveyed as consideration or compensation for commutation or enfranchisement, and the person conveying the same was absolute owner of the land so conveyed, it shall be lawful for such person, with the consent of the commissioners, to charge upon the land commuted or enfranchised such reasonable sum as in the judgment of the commissioners may be equivalent in value to the land so conveyed. 22. Where power is by the copyhold acts given to the lord to purchase the tenant's interest in land, he shall have the same right to charge the land purchased, and also the manor and any land settled therewith to the same uses, as a tenant has under this act to charge enfranchisement moneys. 23. Expenses.-Any expenses incurred in proceedings under the copyhold acts may be charged upon the manor or upon the land commuted or enfranchised, or upon both, according as the obligations to pay may attach, or expenses payable by the lord may be paid out of the compensation or consideration money, or be charged upon the rent charge or other consideration or compensation for commutation or enfranchisement. 24. Any charge under this act in respect of consideration or of compensation money, or of purchase money, or of the value of land conveyed, may, when the parties so agree, and the commissioners approve, be made for a principal sum and interest, or for a series of periodical payments, which, at the termination thereof at the period specified, shall leave the manor or land discharged. 25. Whenever by the provisions of the copyhold acts any lord or tenant is authorized to raise money upon charge, or to purchase or convey any land, and to charge the principal or the purchase money or the value upon a manor or land, then the expenses incurred about the raising of such money upon charge, or incurred about the purchase, or purchase and conveyance, shall (but as distinct from the general expenses of commutation or enfranchisement) be considered for all purposes or effects of charging as part of the principal purchase money or value to be charged. 26. All other charges in respect of expenses of proceedings under the copyhold acts (except the expenses of a purchase by a lord) shall be for such period as the parties may agree and the commissioners may approve, not exceeding fifteen years, and at such interest as stated in the certificate of charge. 27. If by reason of disputes as to title or other circumstances it shall appear to the commissioners to be uncertain upon what person the order to pay costs or expenses should be made, the commissioners may, if they shall so see fit, grant to the person entitled to receive payment of such costs or expenses a certificate of charge upon the manor or land in respect of which such costs or expenses were incurred, which shall operate in all respects as other certificates of charge under this act. 28. Every charge under this act shall be made by a certificate under seal of the commissioners, to be called a certificate of charge; and if such charge shall be a series of periodical payments which, at the termination thereof at the period specified, shall leave the manor or land discharged, such series shall be specified in the certificate; but if the charge shall be a principal sum bearing interest, and repayable at or before a certain future date, or after a certain notice, then such certificate shall specify the whole amount of principal money to be charged, and shall contain a proviso declaring that such certificate shall be void on payment of the amount thereby secured, with any arrears of interest due thereon, at a time therein appointed, or at the expiration of an ascertained notice; and such certificate shall state whether the charge was made in respect of costs or expenses, or in respect of consideration or compensation money, and may specify any place, to be agreed upon between the parties, as the place of payment of the principal money and interest charged by such certificate; and the manor or land charged thereby may be described by reference to the enfranchisement proceedings under the copyhold acts, or otherwise, as the commissioners may see fit. 29. Every certificate and the charge thereby made shall be transferable by endorsement on such certificate. 30. Whenever a lord of limited interest shall be entitled to a certificate of charge in respect of enfranchisement money left chargeable upon the land enfranchised, the charge shall remain appendant and appurtenant to the manor (but not so as to be incapable of being severed therefrom, or to be affected by the extinction thereof); and the certificate of charge shall state that the lord to whom such certificate is issued has only a limited interest in such charge, or it may purport to be issued to the lord for the time being of the manor; and either of such statements in such certificate shall be notice to all persons of the limited interest in such charge which may pass by transfer of such certificate. 31. Stamps.-Every award of enfranchisement, certificate of charge, and transfer thereof, issued or made under this act, shall be chargeable with the like stamp duties as are chargeable in respect of deeds of enfranchisement, mortgages, and transfers of mortgages. 32. Priority of charge.-Any charge under this act made in consideration of the value of land conveyed as consideration, or of consideration or compensation money, or of purchase money, or of the expenses of purchase and conveyances, shall be a first charge on such manor or land, and shall have priority over all mortgages, charges, and incumbrances whatsoever affecting such manor or land (except tithe commutation rentcharges, and any charges or rentcharges which may have been or shall be charged upon the same land for the drainage thereof, by virtue of any of the statutes in that behalf), notwithstanding the actual priority in point of date or anterior title of such mortgages, charges, and incumbrances; but any moneys already invested or previously secured or charged thereon may be continued on the security of the same, notwithstanding the imposition of the said charge under this act. 33. Merger. Any such certificate of charge may be taken by any person, although he may be the lord or tenant or owner of any manor or land charged thereby; and the same shall not merge in the freehold unless the owner of such charge shall, by indorsement upon the certificate of charge or otherwise, declare in writing that it is his will that such charge shall merge and cease. 34. The owner for the time being of a certificate of charge shall, in respect of any payment in the nature of interest or instalment that may become due under the certificate, have the same remedies and be subject to the same conditions in the recovery thereof as are by the copyhold acts provided in respect of rentcharges; and for a further and additional remedy in that behalf, and in respect of any payment in the nature of interest, or of a periodical payment, or of an instalment, or of a gross principal sum, that may be secured by the certificate, the manor or land shall from the date of the certificate stand charged with the respective sums mentioned in such certificate to be payable, and until such payment the owner for the time being of the certificate shall be deemed to stand seised of the manor or land as a mortgagee in fee thereof, and it shall be lawful for the person so seised from time to time to adopt such means and proceedings as a mortgagee in fee of freehold land is entitled to, for the enforcing payment of principal sums, or interest, with the like right to obtain payment of all attendant and incident costs and expenses. 35. Form of certificate of charge. 36. Form of transfer of certificate. 37.-Undivided shares.-When land is held in undivided shares the person for the time being in receipt of at least two thirds of the value of the rents and profits of such land shall be the "tenant" of such land for all the purposes of "the copyhold acts." (To be concluded in our next.) In lieu of the stamp duties now payable on the several instruments of proxy hereinafter described, there shall be charged and paid the duties following: For and in respect of every letter or power of attorney, and every commission, factory, mandate, or other instrument in the nature thereof, made for the sole purpose of appointing or nominating a proxy to vote at any meeting within any part of the United Kingdom of the proprietors or shareholders of or in any joint-stock company or other company or society whose stock or funds are divided into shares, and transferable, or made for the purpose of appointing, nominating, or authorising any person to vote as a proxy, commissioner, mandatory, or otherwise, at any parish meeting of heritors or proprietors of Bill for abolishing Archidiaconal and Peculiar Courts.-Law of Attorneys & Solictiors. 213 real or heritable property in Scotland, the stamp duty of sixpence. 2. Provisions of 7 Vic. c. 21, s. 6, and other stamp acts to be applied to the new duties. 3. By the 7 Geo. 4, c. 44, the Commissioners of Stamps, or any of their officers, are not to stamp, after the expiration of six months from the date thereof, any vellum, parchment, or paper, upon which shall be engrossed, printed, or written any articles of clerkship, contract, indenture, or other instrument, whereby any person shall become bound to serve as a clerk or apprentice, in order to his admission as a solicitor, attorney, proctor, writer to the signet, agent, or procurator in any of the courts of law or equity, or the High Court of Admiralty, or any ecclesiastical court, or the courts of session, justiciary, exchequer, commission of teinds, or the commissary court, or any inferior court in Great Britain: It is now proposed to enact, that it shall be lawful for the Commissioners of Inland Revenue, in any case where they shall be directed so to do by the Lords Commissioners of her Majesty's Treasury, to stamp any such instruments as last mentioned, upon payment of the duty chargeable thereon at the date thereof, and of such further sum as hereinafter specified by way of penalty, and in lieu of all other penalties As to any such instrument bearing date and executed before the 1st August, 1853, the sum of £20. As to any other such instrument where the same BILL FOR ABOLISHING ARCHIDIA- THE proposed enactments of this bill are as follow:1. The jurisdiction of all archidiaconal, commissariat, peculiar, and manorial courts, of or concerning probates of wills and letters of administration of the estate and effects of deceased persons, shall, on and after the 1st Jan., 1857, be transferred to and vested in the courts of the diocese wherein such archidiaconal, commissariat, peculiar, and manorial courts are respectively situate; and, subject to such transfer of jurisdiction as aforesaid, the provisions of the 10 & 11 Vict., c. 98 shall continue until the 1st Aug., 1857. Provided that such transfer of jurisdiction to the diocesan courts shall not be deemed or taken in any manner to preclude or impede the passing of any future act for the abolition or modification of the said diocesan courts. And provided that it shall be lawful for such archidiaconal, commissariat, peculiar, and manorial courts to complete any duty commenced before the 1st Jan. 1857, and to grant probate of any will or letters of administration of any estate duly applied for before that day. 2. That the judges, deputy judges, registrars, deputy registrars, and other persons holding office in any court whose testamentary jurisdiction is hereby abolished, may send in a statement to the Commissioners of the Treasury of the average amount of the fees of their respective offices for the period of six years before the 1st Jan., 1857, and of the nature and tenure of their office, and the said commissioners shall forward such statement to the officers of the diocesan court to which the testamentary jurisdiction is hereby transferred, and the said commissioners shall award the annual sum that should be paid by way of compensation to each one of the officers of the courts whose testamentary jurisdiction is so transferred as aforesaid, having regard to the said average annual value of the fees, and to the nature and tenure of the office, and upon the principle that the compensation so awarded shall be a fair equivalent for the loss caused to such officer by such transfer as aforesaid. 3. And such compensation shall be paid in manner following, that is to say-the compensation of the judges and deputy judges of every court the testamentary jurisdiction of which is hereby abolished shall be paid out of the fees that after this act comes into operation shall be payable to the judge of the diocesan court to which the testamentary jurisdiction is transferred, and such compensation shall be due and payable at such times and in such manner as the said commissioners shall award, and shall be deemed and taken in every court of law and equity to be a charge upon such fees; and in like manner the compensation of the registrars, deputy registrars, and other officers in the courts whose testamentary jurisdiction is transferred shall be a charge upon and shall be paid out of the fees of the corresponding officers in the diocesan courts to which the jurisdiction is transferred respectively. LAW OF ATTORNEYS AND SOLI- LIABILITY OF MORTGAGOR TO PAY MORTGAGEE'S SOLICITOR'S COSTS ON ABORTIVE MORTGAGE. THIS was an action for work and labour as an attorney, and for money paid, to which the plea was never indebted. It appeared that the claim arose out of a proposed mortgage transaction, the defendant being the proposed mortgagor, and the plaintiff the solicitor for the proposed mortgagee. It was admitted that the negotiation went off by the default of the defendant. Williams, J., who presided at the trial, told the jury that where a mortgage transaction was completed, the usual course was that the charges of the mortgagee's solicitor were paid out of the money advanced; but he did not state (nor was he asked so to do) what happened when the transaction went off, as it had done in the present case. The defendant obtained a verdict, and this was a motion for a new trial. Jervis, C. J., said "I am of opinion that there should be no rule in this case. Ordinarily, the contract is, that the party who employs the solicitor shall pay his charges. In the case of a mortgage, where the negotiation goes on, and the money is advanced, the charges of the mortgagee's solicitor are deducted out of the advance. If the mortgagor were insolvent, it could hardly be contended that the mortgagee would not be liable to his own solicitor. The proper remedy of the plaintiff in this case was against his own client, who might have recovered over against the now defendant. I see no misdirection; and, as my brother Williams has not expressed himself dissatisfied with the verdict, there is no ground for disturbing it." Cresswell, J., concurred. Crowder, J., said "The only implied contract here as to mortgagee's expenses would be between 214 Law of Costs.-Order for Transfer of Causes.-Notes of the Week. the mortgagor and the mortgagee: there is none as between the mortgagor and the mortgagee's solicitor.* The intention of the parties, as evidenced by the correspondence, was to look to a completed transaction. So, with regard to the evidence of usage, it all related to transactions which resulted in the advance of the money." Willes, J., added-"I am of the same opinion. The case of Grissell v. Robinson, 3 N. C. 10; 3 Scott, 329, is almost in point. There, pending a negotiation between the defendant and one P for a lease of certain premises belonging to the latter, P died; a suit in chancery was instituted for the purpose of carrying his will into effect; the agreement between the defendant and P not being in writing, and therefore not capable of being enforced in equity, the plaintiffs, the executors of P, consented to grant the defendant the lease upon the terms originally agreed on by their testator. The lease was accordingly prepared by their solicitor, and executed, but was retained by him, a part of the purchase money remaining unpaid. The defendants afterwards paid the balance of the purchase money, and demanded the lease, but refused to pay the expenses of preparing it. The plaintiffs having paid the expenses out of a fund in Chancery belonging to them as executors; it was held, that, on proof of the usual course of business in such cases being for the lessor's solicitors to prepare the lease, and for the lessce to pay the expenses, the plaintiffs were entitled to recover the amount as money paid to the defendant's use; for,' says Tindul, C. J., the payment was made in respect of a lease for which the defendant was ultimately bound to pay, and for which the plaintiffs were compellable to pay in the first instance, by virtue of the privity between them and Taylor.' I think the case was properly left to the jury, and there is no ground for quarrelling with their verdict." Wilkinson v. Grant, 18 Com. B. 319. LAW OF COSTS. OF GARNISHEES UNDER COMMON LAW PROCEDURE A PLAINTIFF obtained judgment in an action brought * See Pratt v. Vizard, 5 B. and Ad. 808; 2 N. and M. 455. There, A, wishing to borrow money on a mortgage of land, delivered the title deeds to B, the intended mortgagee, for examination, and said that he would pay the expenses. B handed the deeds to his own attorney to be investigated. The negotiation went off, and the attorneys being requested by A to return his deeds, refused to do so till he paid their bill of costs. On assumpsit brought by A against the attorneys, to recover back the money so paid, it was held that the defendants could not be considered as having acted for both parties in the negotiation, and therefore had not a lien against A as his attorney; that supposing A was liable to B for the costs incurred, B could not communicate to his own attorney a lien upon A's deeds, by handing them to the attorney for investigation; that the undertaking of A to B, if it amounted to a promise to pay these costs, did not entitle B's attorneys to detain the deeds, as it established a privity between them and A; and that A might have brought trover for the deeds, and was entitled to recover in that action. Lord Denman says:-"Whether or not the defendant in this case had a lien on the title deeds depends upon the question whether or not the plaintiff employed the defendants to do his work in respect of those deeds. Now, the evidence shews that he did not. Their employment was for the intended mortgagee, and rather against than for the mortgagor. And, though there was a letter in which the mortgagor expressed himself willing to pay the expenses, that was addressed to the adverse party, and does not establish any privity between the mortgagor and the attorneys of the mortgagee." issued, and the plaintiff declared. The defendant demurred to the declaration, and obtained judgment, but no mention was made of costs. The Master having taxed the defendant his costs, a rule was obtained to review the taxation. Pollock, L. C. B., said :-" The rule must be discharged. According to the practice in courts of equity, where the court has given the liberty of bringing an action at law, which in its form imporis the carrying of costs, the successful party is entitle! to costs unless the order of the court deprives him of his right. That being the principle, we are now called upon to say whether the defendant in this case is entitled to have his costs taxed. I am of opinion that he is, and that there is no occasion for the court to exercise any discretion on the subject." Johnson v. Diamond, 11 Exch. 431. ORDER FOR TRANSFER OF CAUSES. Monday, July 14, 1856. Whereas, from the present state of the business before the Vice-Chancellors Sir William Page Wood and Sir John Stuart respectively, it is expedient that a portion of the causes standing for hearing before the Vice-Chancellor Sir William Page Wood, should be transferred to the Vice-Chancellor Sir John Stuart. Now I do hereby order, that the several causes mentioned in the schedule hercunto subjoined, be accordingly transferred from the book of causes standing for hearing before the Vice-Chancellor Sir William Page Wood to the Book of Causes for hear ing before the Vice-Chancellor Sir Jolin Stuart. CRANWORTHI, C. Motion for decree Plaintiff. SCHEDULE. Levy Craco Lamb Recent Decisions: Lords Justices; Master of the Rolls; V. C. Kindersley. RECENT DECISIONS IN THE SUPERIOR COURTS. Lards Justices. Hodgson v. Smithson, July 10, 1856. MOTION TO VARY DECREE OF COURT BELOW BY PERSON NOT PARTY TO RECORD. An inquiry had been directed upon motion for decree as to the next of kin of a testator, and the chief clerk certified that A was the person next entitled to take out letters of administration to B, who was such next of kin. No letters of administration had been taken out by A, nor was there any personal representative of B. The Lords Justices gave A leave on motion exparte to move to vary the decree of the Court below, although he was not a party to the record. Ir appeared that under the decree made by the Master of the Rolls, on motion under the 15 & 16 Vict., c. 86, s. 15, an inquiry was directed as to the next of kin of a Colonel Hill, and that the chief clerk found that there was no personal representative of the next of kin, but that the present applicant was entitled to take out letters of administration to her, although none had been taken out. Bristowe now moved on his behalf exparte, for leave to vary the decree. The Lords Justices granted the application, but without prejudice to the question of defective administration. Master of the Rolls. In re Hadland's settlement. June 30, 1856. TRUSTEES RELIEF ACT-PETITION-TENANT FOR LIFE-REMAINDER MAN-COSTS. The costs of a petition by a tenant for life for payment of the dividends to him for life are payable out of the income, but of the remainder-man appearing on the petition, and of the trustees both of appearing and paying the money in, are payable out of the corpus. A FUND (to the dividends of which the petitioner was entitled for life) had been paid into Court by the trustees, under the 10 & 11 Vict., c, 96. Waller now appeared in support of his petition for payment of the dividends to him for life. W. Pearson for the remainder-man; Smith for the trustees. The Master of the Rolls, in making the order, said that the costs of the petitioner must be paid out of the income, and the costs of the trustees, both of paying in and appearing on the petition, and of the remainder-man, must come out of the corpus. 215 restrain the trustees of the Tottenham Court Road Chapel from building on the burial ground attached thereto, or making use of the tomb-stones for paving the burial ground. It appeared that the five plaintiffs had purchased family graves there, and that State to be closed, under the 15 & 16 Vict., c. 85, upon the ground being ordered by the Secretary of the defendants had given notice of their intention to build thereon, and had removed some of the tombstones for the purpose of paving it over. R. Palmer and Greene in support; Follett and Ellis contrâ. Cur. ad. vult. The Master af the Rolls said that the motion would be granted, but recommended the parties to come to some arrangement, as the defendants did not desire indecently to molest the graves, and no injury could be sustained by having the graves properly paved over. July 8, 1856. Vice-Chancellor Kindersley. Wilks v. Groom. WILLCONSTRUCTION-ANNUITY-"CLEAR YEARLY SUM -FREE OF LEGACY DUTY. A testator directed his trustees under his will to pay one annuity or clear yearly sum of £100 to the plaintiff for her life, and after her decease the principal as therein directed: Held that the annuity was payable to the plaintiff free of legacy duty. THE testator, John Hooper, by his will devised and bequeathed all his real and residuary personal estate to two trustees upon trust, after making the payments thereby directed, to pay one annuity or clear yearly sum of £100 to the plaintiff for her separate use for her life, and after her death to pay the principal to the person therein mentioned. The question free of legacy duty. was now raised whether the annuity was to be paid Baily and G. Collins for the plaintiff; Selwyn and R. W. Moore for the party entitled to the principal on the death of the annuitant. Glasse for the defendant; Swanston and Cracknall for the legatees; Wickens for a purchaser. The Vice-Chancellor said, that in accordance with the decision of Haynes v. Haynes, 3 De G. McN. & G. 590, the annuity was payable free of legacy duty. |