« EelmineJätka »
Analytical Digest of Cases: Privy Council Appeals.
3rd. The captors may be ordered to pay costs and damages to the claimant.
General principles applicable to condemnation of captors in costs and damages.
Costs and damages, when decreed against the captors, are not inflicted as a punishment on the captors, but as affording compensation to the injured party.
In order to exempt captors from costs and damages in case of restitution, there must be some circumstances connected with the ship or cargo affording reasonable ground for belief that the ship or cargo might prove a lawful prize.
What amounts to such a probable cause as to justify a capture incapable of definition, and is to be regulated by the peculiar circumstances of each case.
It is not necessary to prove vexatious conduct on the part of the captors to subject them to condemnation in costs and damages.
Neither will honest mistake, though occasioned by an act of Government, relieve the captors from liability to compensate a neutral for damage which the captors by their conduct have caused the neutral to sustain.
A neutral ship was captured in the Gulf of Finland by one of her Majesty's ships of war for breach of the blockade of Cronstadt, when no such blockade existed, and sent to England for adjudication as a prize. Held, reversing the sentence of the Admiralty Court, that the owners of such ship and cargo were entitled to restitution, with costs and damages, as the seizure was made without probable or reasonable Schacht v. Otter, 9 Moore, P. C. 150.
Cases cited in the judgment: Charming Betsy, 2 Cranch, 98; Statira, ib. 99; Maria Shroeder, 3 Rob. 152; Triton, 4 Rob. 79; William, 6 Rob. 316; Actaon, 2 Dods. 51: Elizabeth, I Acton, 10; George, 1 Mason, 24; Speculation, 2 Rob. 293; Nemesis, Edwards' Rep. 50; Washington, 6 Rob. 275; Rufus, 2 Dod. 55; Huldah, 3 Rob. 235; Driver, 5 Rob. 145; Betsy, 1 Rob. 93; Elize, 1 Spinks, 88; Luna, Edwards' Rep. 190; John, 2 Dod. 336; Mentor, 1 Rob. 179; Zacheman, 5 Rob. 152; San Juan Nepomuceno, 1 Hagg. 265; Eleanor, 2 Wheat, 357; Lindo v. Rodney, 2 Doug. 614; Haabet, 6 Rob, 54; Lively, 1 Gallis, 327.
VENDOR AND PURCHASER.
Equity of tenant in possession against purchaser Notice of interest-Absolute assignment and saleMortgage. Where a tenant is in possession of land, a
purchaser is bound by all the equities which the tenant could enforce against the vendor.
This equity of the tenant extends not only to interests connected with his tenancy, but also to interests under collateral agreements.
The principle is the same in both classes of cases, that the possession of the tenant is notice that he has some interest in the land, and a purchaser having notice of that fact is bound to inquire what that interest is.
But a purchaser is not bound to attend to vague rumours or to statements by mere strangers. A notice, to be binding, must proceed from some person
interested in the property.
B., the owner of land in West Canada, under a contract of sale from the chancellor and scholars of King's College, being indebted to T. and Co., induced P. to assume the debt, and to secure him from any loss in consequence of such assumption, by deed poll endorsed on his original contract of sale, absolutely assigned the land to P. Up to the time of this assignment, B. himself had never been in the actual possession of the land, his father having managed the same as his agent. P. afterwards, in satisfaction of certain debts due by him, assigned the land conveyed to him by B., with other property to G. This assignment was also endorsed on the original contract of sale. Prior to the execution of this assignment G. made some inquiries about the ownership of the property, but it did not appear that he received any information that B. was the owner.
In a suit by B. against P. and G. for redemption, held, upon appeal (affirming the decree of the Court of Error and Appeal in Canada)—
1st. That, under the circumstances, the transaction between B. and P., although in form an absolute assignment and sale, was in effect a mortgage only.
2nd. That as G. had acted with proper bona fides taking the assignment from a party who had the original contract of sale in his possession, and who had taken an absolute assignment of that contract, he had no notice actual or constructive of B.'s title. —Barnheart v. Greenshields, 9 Moore, P. C. 18.
Cases cited in the judgment: Taylor v. Stibbert, 2 Ves. j. 437; Daniels v. Davison, 16 Ves. 249; Allen v. Anthony, I Mer. 212; Crofton v. Ormesby, 2 Sch. and Leb. 583; James v. Smith, 1 Hare, 60; Bailey v. Richardson, 9 Hare, 734; Oxwith v. Plummer, 2 Vern. 636.
Grant of use of stream-Prescriptive right—Dicersion of stream-Law of Isle of Man.-Grant of the use of a stream of water from an artificial flow over the grantor's land for the purpose of working “a mill or otherwise, an instrument wherewith to plate iron, and likewise a smithy," the grantor engaging to keep up a full dam of water for that purpose. Held, in the absence of any objection by the grantor, or those claiming under him, to the use of the water during a period of 50 years, for other purposes than those limited by the grant, to confer by the law of the Isle of Man, on the grantee, a prescriptive right in the water granted, and damages awarded for a diversion of the stream by the representative of the grantor.
Semble, whether if the grantor had prescribed the use of the water to a specific object, it could be used for any other purpose? Tobin v. Stowell, 9 Moore, P. C. 71.
Case cited in the judgment: Magor v. Chadwick, II
A. and E. 571.
The Legal Observer,
SATURDAY, AUGUST 30, 1856.
THE NEW STAMP DUTIES' ACT.
19 & 20 VICT. c. 81.
THE Statute Law Commissioners have announced that a bill for the consolidation of all the acts of Parliament relating to Stamp Duties has been prepared, and is under the consideration of the Commissioners of Stamps. If the act be successfully prepared, it will be invaluable to the legal profession as well as the public, and we trust it will be printed early in the session, so as to allow the practitioners ample time to consider all its details, and to suggest such amendments as may render it as perfect as possible.
In the meantime it appears that the Government have been induced to amend the present law in regard to three points of no very great importance to the public at large, though we presume that the relief which the act affords has been pressed for by the parties interested, and will be satisfactory to them.
I. STAMPING ARTICLES OF CLERKSHIP. We shall first notice the amendment of the laws relating to the stamping of articles of clerkship to attorneys and others. By the 7 Geo. 4, c. 44, the Commissioners of Stamps were not to stamp, after six months from the date thereof, any articles of clerkship, contract, or other instrument, whereby any person should be bound to serve as a clerk or apprentice in order to admission as a solicitor, attorney, proctor, writer to the signet, &c.
It is now enacted by the 3rd section of the 19 & 20 Vict. c. 81, that from the passing of the act (29 July, 1856), the Commissioners of Inland Revenue, where directed so to do by the Commissioners of her Majesty's Treasury, may stamp any such instruments upon payment of the duty chargeable thereon at the date thereof, and of the following penalties:Instruments dated and executed before 5th Aug. 1853, £20.
Instruments brought to be stamped within one year from the date*.. ........£10
After one year, and within two.......£20
The present power of the Commissioners of Inland Revenue to stamp articles of clerkship on payment of a penalty of £5, within six months, does not appear to be repealed. That power was exercised as a matter of course on all applications, and we presume will be continued.
It sometimes happened that, not for the sake of saving the immediate outlay of the stamp duty, but for the purpose of ascertaining whether the young gentleman liked the profession, the payment was postponed for six months, and formerly the penalty was only £2 more than the interest of the money.
Under the present act, however, the Commissioners are not authorised to affix the stamp unless so directed by the Treasury. It is not improbable, therefore, that a reasonable case must be made out to satisfy the authorities that the ordinary rule should be relaxed in the case of the applicant. It may be that some instances of extraordinary hardship have occurred, where, by no omission of the parents of the articled clerk, the articles have remained unstamped, and yet the whole service has been duly performed, and irreparable injury would result if another five years' servitude were required. "Hard cases make bad law." We trust that the relief contemplated by the act will not be perverted to dangerous purposes. To guard against any fraudulent practice, it would have been better to confide the exercise of the power of the act to the Judges, instead of the Treasury, and the judges would probably have made regulations under which due notice would be given of such applications, and of the grounds on which they were made, like applications to renew or take out certificates, and affidavits in support thereof being filed at the judges' chambers and the masters' office, the necessary inquiries might be made by the Incorporated Law Society as registrar of attorneys. The Lords of the Treasury may, however, adopt some rules by which any deception on them may be prevented.
We mention these points because we know it was generally considered that the stamp duty of £120 constituted some safeguard, as a property qualification, against the admission of improper persons into the profession. Mr. Gladstone, when pressed, as Chancellor of the Exchequer, to repeal the annual certificate
The New Stamp Duties Act.
duty, thought proper, unasked, to reduce the duty of £120 to £80, for the sake, as he avowed, of a more free competition," and took off one-fourth only of the annual tax. We remember that the Incorporated Law Society, having charge of the measures for the repeal of the certificate duty, were blamed in certain quarters as if they had favoured the reduction of the duty on articles of clerkshipa measure which the Government of its own mere motion adopted. It is true that this tax on entering the legal profession (not imposed on the medical) is for the most part paid by the parents of the articled clerks, but it often tends to lower the premium for instruction which ought to be paid to the attorney, and it must be admitted that the large sum paid in this way would be better bestowed in providing means for a superior kind of legal education, by the endowment of an attorneys' college, and the establishment of law libraries and law lectures in the cities and large towns in the country.
An important point will arise in the operation of the act in regard to the registration of articles of clerkship which remain unstamped for more than six months after their execution. Under the Attorneys and Solicitors' Act, 6 & 7 Vict. c. 73, articles cannot be registered without an order of the court after the expiration of six months; and unless the articles are registered the service cannot be "deemed good service." When, therefore, a contract has been made on unstamped paper, and the instrument is subsequently stamped under the provisions of the new act, the case must come before the court on an application for leave to register the articles nunc pro tunc; and the court will require proof of bonâ fide service from the date of the contract, and probably also some satisfactory reason for the delay in stamping the articles according to the usual
II. STAMPING INSTRUMENTS OF PROXY. Considering the great number of meetings which take place annually, or oftener, of public companies, at which the proprietors or shareholders who do not personally attend are entitled to vote by proxy, it must be advantageous that such proxies are now made receivable when stamped with the moderate duty of sixpence, instead of the former stamp on powers or letters of attorney.
This relief is effected by the 1st section of the 19 & 20 Vict. c. 81.
III. STAMPS ON FREEDOM OF THE CITY OF
The act of 1 & 2 Vict. repealed the stamp duty on admissions to freedom by birth or servitude in any city or borough returning members to Parliament. In the city of London the right to vote in ward elections is vested in freemen-occupiers, on whose admission a stamp duty was payable.
The 3rd section of the 19 & 20 Vict. c. 81, repeals the stamp duty on the admission to the freedom of the city of London by redemption; but leaves unrepealed the stamp on admissions to the freedom of any company.
The following are the title and sections of the act: An Act to reduce the Stamp Duties on certain Instruments of Proxy; to amend the Laws relating to the stamping of Articles of Clerkship to Attorneys and others; and to exempt from Stamp Duty Admissions to the Freedom of the City of London by Redemption. [July 29, 1856.
Whereas it is expedient to reduce the stamp duties on certain instruments of proxy, and to amend the laws relating to the stamping of articles of clerkship to attorneys and others: be it therefore enacted as follows:
1. From and after the passing of this act, 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; that is to
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 real or heritable property in Scotland, the stamp duty of sixpence.
2. The provision contained in section 6 of the 7 Vict. c. 21, relating to instruments for appointing proxies, thereby charged with a certain stamp duty and also, so far as the same shall be applicable, and shall not be inconsistent with such provision, all other powers, provisions, clauses, regulations, directions, allowances, and exemptions, fines, forfeitures, pains, and penalties contained in or imposed by any act or acts relating to any duties of the same kind or description, shall, for and in the raising, levying, collecting, and securing of the duties hereby granted, and otherwise in relation thereto respectively, have full effect, and be observed, applied, allowed, enforced, and put in execution with respect to the last-mentioned duties, and to the vellum, parchment, and paper, matters and things, charged and chargeable therewith, and to the persons signing, or voting or acting, or attempting to vote or act, under any such instrument, as fully and effectually, to all intents and purposes, as if the same had been herein repeated, and specially enacted with reference to the duties hereby granted, and the instruments charged or chargeable therewith.
3. And whereas by the 7 Geo. 4, c. 44, it is enacted, that it shall not be lawful for the Commissioners of Stamps or any of their officers to stamp, under any
pretence whatever, 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
New Statutes effecting Alterations in the Law.-County Court Fees.
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: Be it enacted, that it shall be lawful for the Commissioners of Inland Revenue, notwithstanding the said last-mentioned act, in any case where they shall be directed so to do by the 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; that is to say—
As to any such instrument bearing date and executed before the fifth day of August, one thousand eight hundred and fifty-three, the sum of twenty pounds;
As to any other such instrument where the same shall be brought to be stamped within the period of one year from the date thereof, the sum of ten pounds;
After one year and within two years, twenty pounds;
After two years and within three years, thirty pounds;
After three years and within four years, forty pounds;
And after four years, fifty pounds.
4. Whereas by 1 & 2 Vict., intituled An Act to repeal the Stamp Duty now paid on Admissions to the Freedom of Corporations in England, it was enacted, that after the passing of that act no stamp duty should be chargeable on the admission of any person entitled to take up his freedom by birth or servitude in any city or borough in England returning a member or members to serve in Parliament: And whereas in the City of London the right to vote in ward elections is vested in the freemen occupiers, and it is expedient that all impediments to the admission of occupiers in the City of London to the freedom of the City of London by redemption for that purpose should be removed, and that the stamp duty payable on such admission should be abolished: Be it enacted, that from and after the passing of this act no stamp duty shall be chargeable on the admission of any person to the freedom of the City of London by redemption: provided always, that this act shall not repeal any stamp duty now payable on the admission to the freedom of any company.
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
ADMINISTRATION OF INTESTATES ESTATES.
Repeal of Section 4 of 22 & 23 Car. 2, c. 10, and part of section 18 of 11 G. 1, c. 18, save with respect to estates of persons who have died before 31st Dec. 1856; special customs concerning the distribution of personal estates of intestates in certain places to
An Act for the uniform Administration of Intestates' Estates. [29th July, 1856]. Whereas it is expedient that throughout England and Wales one uniform rule should prevail concerning the distribution of the personal estate of persons
dying intestate: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows:
I. That from and after the thirty-first day of December one thousand eight hundred and fifty-six, section four of the act passed in the session holden in the twenty-second and twenty-third years of King Charles the second (chapter ten), "for the better settling of intestate estates," and also so much of section eighteen of the act of the eleventh year of King George the first, chapter eighteen, "for regulating elections within the city of London, "and for preserving the peace, good order, and govern"ment of the said city," as preserves the custom of London in the case of persons dying intestate, shall be repealed, save only with respect to the distribution of the personal estate of persons who may have died on or before the said thirty-first day of December; and the special customs concerning the distribution of the personal estate of intestates observed in the city of London, or in relation to the citizens and freemen of such city, and in the province of York, and certain other places, shall, with reference to all persons dying on or after the first day of January, one thousand eight hundred and fifty-seven, wholly cease and determine, and the distribution of the personal estate of all persons so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estate of intestates generally prevalent in the province of Canterbury had prevailed throughout England and Wales, any law or statute to to the contrary notwithstanding.
COUNTY COURT FEES.
[According to the 19 & 20 Vict. c. 108.] FOR every plaint-10d. in the pound.
No fee shall be payable on any application for a new trial, or to set aside proceedings, or in the nature of a scire facias, or for a summons in an interpleader.
For every judgment by consent under the 13 & 14
An additional hearing fee shall be taken for every new trial.
The hearing on interpleader shall not be prepaid, but shall be estimated on the amount of the money or the value of the goods claimed, which value, in case of dispute, shall be assessed by the judge, who at the hearing shall direct by whom, and when, and how, such fee shall be paid.
No fee shall be payable for hearing any application for a new trial, or to set aside proceedings, or in the nature of a scire facias. For every jury-5s. shall be paid to the registrar by the party demanding the jury, on such demand, for the use of the jurors.
For every summons for commitment under the 9 & 10 Vict. c. 95, sect. 98—3d. in the pound on the amount of the original demand then remaining due. For every hearing of the matters mentioned in such summons for commitment-6d. in the pound on the amount last aforesaid..
County Court Fees-Sularies of County Court Judges.
For issuing every warrant against the body or goods | SALARIES OF THE COUNTY COURT
For issuing every warrant to deliver possession of tenements-1s. 6d. in the pound.
For taking the acknowledgment of a married woman -£1.
High Bailiff's Fees.
For keeping possession of goods till sale, per day (including expenses of removal, storeage of goods, and all other expenses), not exceeding five days6d. in the pound on the value of the goods seized, to be fixed by appraisement in case of dispute.
Brokers and Appraisers' Fees.
For the appraisement of goods, whether by one broker or more-6d. in the pound on the value of the goods appraised, over and above the stamp duty.
For the sale of goods, including advertisements, catalogues, sale and commission, and delivery of goods-1s. in the pound on the net produce of sale.
In all plaints for the recovery of debt or damages, all poundage, except where otherwise specified in this schedule, shall be estimated on the amount of the claim.
In replevins all poundage, except as aforesaid, shall be estimated on the amount of the alleged rent or damage, to be fixed by the registrar.
In plaints for the recovery of tenements when the term has expired or been determined by notice, all poundage, except as aforesaid, shall be estimated on the amount of the weekly, monthly, or yearly rent of the tenement, as such tenement shall have been let by the week or by the month, or for any longer period; and if no rent shall have been reserved, then on the amount of the half-yearly value of the tenement, to be fixed by the registrar.
If in any plaint for the recovery of tenements a claim be made for rent or mesne profits, an additional poundage shall be paid on the amount of such claim.
In plaints for the recovery of tenements for nonpayment of rent, all poundage, except as aforesaid, shall be estimated on the amount of the half-yearly rent of the tenement.
In every case where the poundage would but for this rule be estimated on an amount exceeding
£20, it shall be estimated at £20 only. In every case where the poundage cannot be estimated by any rule in this schedule, it shall be estimated on £20.
All fractions of a pound, for the purpose of calculating poundage, shall be treated as an entire pound.
Where the plaintiff recovers less than the amount
of his claim, so as to reduce the scale of costs, he shall pay the difference, unless the reduction shall be caused by a set-off.
In cases of interpleader the judge may allow at the hearing the actual costs incurred by the high bailiff in keeping possession of the goods claimed, and no more.
No increase of fees shall be made by reason of there being more than one plaintiff or defendant.
[According to the 19 & 20 Vict. c. 108.]
R. Brandt, Esq., Judge of the County Court
J. Pollock, Esq., Judge of the County Court
Mr. Serjeant Storks, Judge of the Shoreditch and Bow County Courts of Middle
W. Walker, Esq., Judge of the County Courts of Yorkshire, holden at Barnsley, Doncaster, Goole, Rotherham, Sheffield,' and Thorne
T. H. Marshall, Esq., Judge of the County Courts of Yorkshire, holden at Leeds, Dewsbury, Pontefract and Wakefield
J. W. Harden, Esq., Judge of the County Courts of Cheshire, holden at Altrincham, Birkenhead, Chester, Knutsford, Nantwich, Northwich, and Runcorn; and of the County Courts of Lancashire, holden at Salford and Warrington
Mr. Serjeant Clarke, Judge of the County Courts of Staffordshire, holden at Oldbury, Wallsall, and Wolverhampton; and of the County Court of Worcestershire, holden at Dudley
George Clive, Esq., Judge of the Southwark County Court of Surrey
D. D. Heath, Esq., Judge of the Bloomsbury County Court of Middlesex
Mr. Serjeant Jones, Judge of the Clerkenwell
J. Stansfeld, Esq., Judge of the County
Courts of Warwickshire, holden at Atherstone, Birmingham, and Tamworth J. Addison, Esq., Judge of the County Courts of Lancashire, holden at Blackburn, Burnley, Clitheroe, Colne, Garstang, Kirkham, Lancaster, Poulton, and Preston 1,500 Mr. Serjeant Dowling, Judge of the County Courts of Yorkshire, holden at Easingwold, Knaresborough, Leyburn, Northal lerton, Richmond, Ripon, Selby, Stokesley, Thirsk, Wetherby, Whitby, and York F. Dinsdale, Esq., Judge of the County Court of Leicestershire, holden at Lutterworth; of the County Court of Northamptonshire, holden at Daventry; of the County Court of Oxfordshire, holden at Banbury; of the County Courts of Warwickshire, holden at Alcester, Coventry, Nuneaton, Rugby, Solihull, Southam, Strat