New Orders in Chancery-Review: Pratt's Prize Courts.-Enfranch. of Copyholds.

son of unsound mind] will be bound by the proceedings in the above cause in the same manner as if you [or, the said infant, or person of unsound mind] had been originally made a party to the suit, and that you [or, the said infant, or person of unsound mind] may, by an order of course, have liberty to attend the proceedings under the within-mentioned decree or order. And that you [or, the said infant, or person of unsound mind] may, within one month after the service of this notice, apply to the Court to add to the decree or order."

123

ence to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto.

XIV. Any party who may be dissatisfied with the certificate of the Taxing Master as to any item or part of an item which may have been objected to as aforesaid, may apply to the Court by motion or petition for an order to review the taxation as to the same, and the Court may thereupon make such order as to the Court shall seem just; but the certificate of the Taxing Master shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid.

IX. The charges for copies of pleadings, and other proceedings and documents fur- XV. Such motions and petitions are to be nished under the General Orders of 25th heard and determined upon the evidence which October, 1852, Order number one, sections shall have been brought in before the Taxing two, three, and four, to a person admitted to Master, and no further evidence is to be resue or defend in forma pauperis, or to his so-ceived upon the hearing thereof, unless the licitor, by or on behalf of any other party shall Court shall otherwise direct.

be at the rate of 14d. per folio. Provided always, that if such person shall become entitled to receive dives costs, the charges for such copies shall be at the rate of 4d. per folio; and nothing shall be allowed in taxation in respect of such charges, until such person, or his solicitor, shall have paid or tendered to the solicitor, or party by whom such copies were furnished, the additional 24d. per folio. But this proviso shall not apply to any copy which shall have been furnished by the party himself, who is directed to pay the costs, and not by his solicitor.

X. The charges for copies furnished by a person admitted to sue or defend in forma pauperis, other than those furnished by his solicitor, shall be at the rate of 14d. per folio.

XI. Expenses incurred in consequence of affidavits being prepared or settled by counsel, are to be allowed only when the Taxing Masters shall in their discretion, and on consideration of the special circumstances of each case, think such expenses properly incurred; and in such case they are to be at liberty to allow the same or such parts thereof as they may consider just and reasonable, whether the taxation be between solicitor and client or between party and party.

XII. Any party who may be dissatisfied with the allowance or disallowance by the Taxing Master, in any bill of costs taxed by him of the whole or any part of any item or items, may, at any time before the certificate is signed, deliver to the other party or parties interested therein, and carry in before the Master an objection in writing to such allowance or disallowance, specifying therein, by a list in a short and concise form, the items or item, or parts or part thereof objected to, and may thereupon apply to the Master for a warrant to review the taxation in respect of the same.

NOTICES OF NEW BOOKS.

Notes on the Principles and Practice of Prize Courts, by the late Judge Story; with Documents and Forms in the Court of Admiralty in England. Edited by FREDERICK THOMAS PRATT, D.C.L., Advocate, Doctors' Commons.

THIS publication is necessary and welltimed. It will be found very useful to advocates and proctors and to persons interested in shipping, and to the officers and solicitors employed in Admiralty business in the out ports.

The letter and paper by Lord Stowell and Sir John Nicholl will be read with great pleasure by every lawyer.

The notes of the late truly eminent Mr. Justice Story is the only account of Prize Courts in our modern times; it includes all the English and American and other cases, and therefore deserves publication at this time in England.

It includes, also, the Queen's declaration of war with Russia, a declaration as to neutrals, orders in Council as to bargo, &c., &c.

em

ENFRANCHISEMENT OF COPY

HOLDS.

MANOR OF KENNINGTON, ETC.

WE subjoin a copy of the important petition, now in course of signature, from the XIII. Upon the application for such warrant, copyholders in this manor, for an equitable or upon the return thereof, the Taxing Master enfranchisement of their copyhold estates, is to reconsider and review his taxation upon which the lord of the manor and his officers such objection, and he may, if he shall think fit, receive further evidence in respect thereof; have at present the power, but little or no inand if so required by either party, he is to state, clination, to effect. either in his certificate of taxation or by refer

We shall only notice two cases out of a host

124

Enfranchisement of Copyholds-Manor of Kennington.

which no man can number, to substantiate the necessity of a compulsory enfranchisement in

this manor:

Arden's Case. He bought a ground-rent of 607. a year issuing out of premises let for 90 years from 1790. A fine of 6447. was demanded by the officers of the duchy, who subsequently proposed to reduce it to 2357. if paid before next Court, that is nearly four years' fine, the original demand being a fine of 10 years.

"That your petitioners have heard with great satisfaction, that a petition of aldermen (including the present Lord Mayor) and liverymen of London to her Majesty the Queen on this important subject, has been referred by Lord Viscount Palmerston to the Lords of the Treasury, who have assured the petitioners copyholds held of the Crown, is now under that the subject of such petition, as regards their lordships' consideration.

"That the Commissioners appointed by his late Majesty King William the 4th, to inquire into the Law of England, as to the Real ProSawyer's Case.—He purchased a ground-rent perty, reported, after full inquiry and mature of 87. 10s. on a lease granted in pursuance of a deliberation, that the laws and customs relating licence from June, 1796. The fine anterior to to copyholds, from their great variety and unand during the reign of Wm. the 4th would certainty, as well as their unsuitableness to the have been 177., but a fine of 1471. was demanded, present state of society, were the cause of much litigation and extortion; that from the interof which 271. 5s. was afterwards returned, retain-mixture of such lands with those of freehold ing 1197. 15s., a sum equal to 12 years' income, -thus depriving the party out of 12 years' rent of the 14 years unexpired of the lease.

tenure much needless expense and difficulty, in the transactions relating to the sale, settlement, or disposition of real property were occasioned; and, as a still greater evil, that such laws and To illustrate the absurdity and injustice directly interfered with the profitable enjoycustoms prevented or checked improvements, of demanding a compensation for enfran- ment of the soil, and materially diminished the chisement on the rack-rent instead of the public wealth; for which reasons the Commisground-rent, which alone is received by the sioners gave it as their opinion, that on comcopyholder, it may be stated that a ground-pensation to the lords, an abolition of copyhold rent of 10 houses, at 51. each, amounts to 50l. a year, and the rack-rent, receivable by the builder, amounts to, say, 500l. a year; the compensation, therefore, for enfranchisement, based on the full annual value or rack-rent would amount to 3,000l., almost the full value of the entire property.

laws would be for the benefit of both themselves and the tenants.

"That a Select Committee of your honourable House was appointed on the 27th day of July, 1838, to consider of the enfranchisement of copyholds, and to report their opinion thereon. That such Committee on a resolution moved by the late Sir Robert Peel, did accordingly report that they were satisfied that copyhold tenure was ill adapted to the wants of the present day and a blot on the judicial system of the country-that the peculiarities and inci“The humble petition of the undersigned Copy-venient to the owners of the land and prejudicial dents of copyholds were at once highly inconholders of the Manor of Kennington, in the to the general interests of the State;-that parish of Lambeth, in the county of Surrey.

"To the Honourable the Commons of Great Britain and Ireland in Parliament assembled.

"Sheweth,-That the said manor of Kennington is part of the possessions of the Duchy of Cornwall, and that His Royal Highness the Prince of Wales, as Duke of Cornwall, is lord of the manor in right of the said duchy.

where the fine payable to the lord is upon the improved value, it operates as a tax upon the capital of the copyholders, and is a direct check to all building and all agricultural improvements; and after detailing other disadvantages and objections, the Committee stated they had come to the conclusion that the abolition of "That your petitioners are respectively copy-copyhold tenure would not only be a great pubhold tenants of the said manor, holding lands of inheritance parcel of the same to them and their heirs by copy of court roll, according to the custom thereof.

"That for a very long period, dating back even to the time of the great Lord Bacon and Sir Edward Coke, the most eminent lawyers, statesmen, and political economists, including (along with the two high authorities referred to) the Lord Keeper Guilford, the Lord Chancellor Cowper, Archdeacon Paley, the late Sir Robert Peel, Bart., Lord Brougham, and the present Lord High Chancellor, and Lord Chief Justice of England, have in the strongest terms pointed out the evils and enforced the necessity of the abolition of copyhold tenures.

lic benefit, but should be made, if possible, a national object; and they recommended that it should be effected under the Commissioners for the Commutation of Tithes.

"That a second Select Committee of your honourable House was appointed in the year 1851, to consider the same important subject; who adopted similar views to those of the former Committee, and reported that it was highly desirable for the interests of the lords, the copyholders, and the public-that the entire enfranchisement of copyhold tenures should be effected as soon as practicable on equitable terms, due regard being had to the rights and just claims of all parties. The great advantage and utility

Enfranchisement of Copyholds.-Law of Attorneys and Solicitors.

125

of such a general measure of enfranchisement of an unenlightened and oppressive feudal age, thus appear to be placed by the high autho- and entirely out of harmony with the improved rities above referred to, beyond the possibility legislation and progressive institutions of the of any further doubt or question. present time.

"That the copyhold lands within the said manor of Kennington are, from their contiguity to the metropolis, peculiarly capable of being greatly improved and largely augmented in value by means of enfranchisement, which the various hardships and grievances complained of would be effectually remedied; and that your petitioners and (as they have reason to believe) the general body of copyhold tenants of the said manor, are most willing and anxious to enfranchise their copyholds upon fair and liberal terms; but that, notwithstanding the recommendation of the Real Property Commissioners, of the decisive and strongly expressed opinions of two successive Committees of your Honourable House, your petitioners find themselves almost entirely debarred by the exorbitant terms demanded for enfranchisement within the said manor, from availing themselves of the benefit of such recommendations and opinions. For your petitioners have to complain that the surveyors and agents acting heretofore under the Council of the Duchy of Cornwall, instead of adopting the equitable principle which pervades the Act for the Commutation of Tithes, have proposed, as the terms or price of enfranchisement, the payment by the copyholders of the said manor of sums very much larger than the actual value of the manorial rights of the lord, and far beyond what are usually exacted by the lords of other manors,' and, in fact, in the said manor of Kennington the copyholders have been generally refused any enfranchisement what

ever.

"Your petitioners therefore humbly pray, "That the enfranchisement of all copyhold lands holden of manors belonging to the Crown or the Duchies of Cornwall and Lancaster may, through the recommendation or other constitutional interposition of your Honourable House, be offered to the copyholders, on fair and equitable terms of adjustment and compensation for the manorial rights; and that as a most important national measure of legal and social reform, in union with the spirit of the present age, and in strict accordance with the recommendation of the Commissioners and the reports of the two Select Committees above referred to, a Bill may be forthwith introduced into your Honourable House, with a view to the passing of a law for the general and speedy enfranchisement of all the copyhold lands in the kingdom, upon similar fair and equitable terms of adjustment and compensation for the manorial rights.

THE defendant, a claimant in a Chancery suit, retained the plaintiff as his solicitor, who agreed to conduct it upon the ordinary "That from the want of a more general and stringent system of copyhold enfranchisement, terms, and not to press the defendant, but the alienation and free disposal of all property wait until he should come into possession of of this description has been greatly impeded, certain property, to which he was entitled and the public revenue as well as the general on the death of his father. An order was interests of the community at large, thereby obtained on July 29, 1851, from the Master . seriously injured, and that the unreasonable of the Rolls for leave to sue in formá pauimpediments and difficulties which (contrary, as peris, but the defendant's father died on your petitioners are well assured, to her MaOctober 31 following, but the plaintiff, aljesty's gracious intentions) have been thrown in the way of the enfranchisement of copyholds though aware of his death, had taken no within the said manor of Kennington, and like- steps to get his client dispaupered. An wise (as your petitioners have ascertained) in order was made on December 8, whereby all the other manors belonging to the Crown the defendant was dispaupered from the and to the two Royal Duchies of Cornwall and time of his father's death. The bill in Lancaster, have unfortunately caused the loss of a most influential example in the highest quarter for the promotion of the public good. "That the copyhold tenure, in all its diversified and in innumerable instances most absurd varieties and customs throughout the kingdom, is almost the last remaining vestige

It may be mentioned that His Grace the Duke of Sutherland and T. W. Giffard, Esq., offered just and equitable terms to the copyholders of Bilston, Willenhall, and Wolverhampton, as stated in the Report of the last Copyhold Committee.

Chancery was dismissed in March, 1852, and this action was brought for services performed therein. There is an item in the bill of costs for a payment to the law stationer for copying and for parchment and paper, and also for counsel's fees, which, however, had not been paid.

On a motion, pursuant to leave to reduce the verdict for the plaintiff,

Parke, B., said, "We never entertained any doubt that an attorney cannot charge for counsel's fees which have not been paid. In point

126

Law of Attorneys and Solicitors.-Law of Costs.

LAW OF COSTS.

OF QUO WARRANTO AGAINST CORPORATE

OFFICER.

of law they are gratuities; and as he has not | am of opinion that he cannot. I think that the paid them, with respect to them he is not a law contemplates that the attorney will take farthing out of pocket. It is, therefore, per- that duty upon himself, and therefore he ought fectly clear, that he is not entitled to that item. not to incur those charges. He should draw The next point is, whether the bill is to be re- his instructions for counsel, and write the brief duced by the amount charged for business fairly in the first instance, so as not to make it done whilst the pauper order was clearly in necessary that it should be copied. If he gets force, that is to say, up to the 31st of October, it copied, he does so on his own responsibility. 1851. The plaintiff was appointed to act as If there had been any decision to the contrary, the defendant's attorney in the Chancery suit, I should have felt bound by it, but that does under the 1 Hen. 7, c. 12, which expressly says, not appear to be so. The plaintiff, therefore, that poor persons shall have writs, therefore can recover for the value of the parchment and nothing paying for the seals of the same nor to paper only." Holmes v. Penney, 9 Exch. R. any person for the writing of the same;' and 584. that the Chancellor shall assign clerks to write the same writs ready to be sealed, and also learned counsel and attorneys for the same, without any reward taken therefore; and it provides that if the writ shall be returned before the King in his Bench, the justices there shall assign counsel and likewise appoint attorWHERE a person, wrongfully elected to a ney for the same poor person or persons, and corporate office has accepted it so that the all other officers requisite and necessary to be office is full, the Court, in making absolute a had for the speed of the said suits, which shall do their duties without any reward for their rule by his consent for a quo warranto, refused counsel's help and business in the same. The to make it one of the terms of the rule that plaintiff, therefore, cannot charge for any mat- any further proceedings should be at the cost ters falling under this description, as for skill of the relator, although the defendant did not and advice, which would include all necessary business, as for preparing the requisite docu- oppose the rule being made absolute with costs ments, although he would be entitled to be re- up to the present time, and was willing to reimbursed money out of pocket. The next sign or disclaim. Crompton, J., referred to question is, whether the plaintiff was entitled to Regina v. Sidney, 2 L. M. & P. 149, and charge for business done between the 31st of Oct. and the 8th of Dec., as to which interval Regina v. Earnshaw, 3 E. & B. 143, n., overthe Master of the Rolls decided that, as between ruling Regina v. Morton, 4 Q. B. 146. Regina the plaintiff and defendant in that suit, the v. Hartley, 3 Ellis & B. 143. defendant had been improperly litigating as a pauper at a time when he was not one in truth. The Master of the Rolls did not decide as between attorney and client. That On a plaint being brought against Mr. Holmatter was not before him, but the question land, the alleged owner of a ditch, to recover a was between the litigant parties to the suit, sum of money expended by the guardians of and the order had reference to them alone. the union in enforcing an order of justices under The Master of the Rolls, therefore, did not decide any question as to fees. Prima facie, the Nuisances' Removal Act (11 & 12 Vict, c. every step which was taken between those 123), he applied at Chambers for a prohibition dates was taken gratuitously, and the plaintiff on the ground that he was not the owner of had no right to make any charge on that ac- the ditch, when the Judge suggested that count. If, then, the pauper is liable for this

OF MANDAMUS ON COUNTY COURT JUDGE.

part of the claim, it must be by virtue of some the case should stand over for the opinion contract; but there was no such evidence; of the Court, but the application was not and indeed the case was not rested upon that proceeded with. The plaint was then tried, ground at the trial; and if it had, I think it and the plaintiffs obtained a verdict, the would have failed, as being a contract without

consideration, and consequently nudum pactum. County Court Judge acting in the belief that a The plaintiff clearly had no ground for charg-prohibition had been refused, but he refused to ing the defendant on his original agreement. make an order for payment of the amount. The plaintiff, therefore, cannot recover for his A rule was then made absolute for a mandaservices between the 31st of October and the 8th of December. The only remaining question is, what charges for stationery the plaintiff could make while the pauper order was thus in force. He is entitled to charge for paper and parchment necessary for carrying on the suit. It was said, he was also entitled to recover the stationer's charge for copying. In the absence of any authority upon this point, I

mus upon the County Court Judge upon reference to section 3 of the Nuisances' Removal Act (reported 2 Ellis and B. 188).

In discharging a rule nisi on Mr. Holland to pay the costs of the rule for a mandamus, Erle, J., said, “The late cases have generally given the costs of obtaining the writ to the

Law of Costs.-Questions at the Examination.

When were fines and recoveries abolished, 11, COMMON AND STATUTE LAW, AND PRAC- and how may an entail be barred at this day,

As the law now stands, are trustees to preIf a man marry a woman to whom he is in-serve contingent remainders necessary? Exdebted, and to whom he has given a security plain their use in settlements.