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130

Superior Courts: V C. Stuart-V. C. Wood.-Queen's Bench.

was settled in trust for such persons, and in such manner as the settlor should by any deed or deeds, instrument or instruments in writing legally executed, direct or appoint, and in default, or in so far as any such appointment should not extend, in trust for the plaintiffs. The settlor afterwards, by will, bequeathed all his personal estates not otherwise effectually disposed of to trustees upon certain trusts: Held, that the will did not operate as an appointment, under the 7 W. 4, and 1 Vict. c. 26, s. 27, and that the plaintiff's were entitled.

By a voluntary settlement, dated in March, 1848, Mr. Winter vested a sum of 1,500l. in trustees, in trust for such person or persons in such shares and manner as he should at any time, by any deed or deeds, instrument or instruments in writing, to be by him legally executed, direct or appoint; and in default of such direction or appointment, or in so far as any such direction or appointment (if incomplete) should not extend, in trust for the plaintiffs. It appeared that, by his will dated in August, 1852, he bequeathed, upon the trusts thereinmentioned, all his personal estate not otherwise effectually disposed of. The question now arose, whether the will operated as an appointment under the 7 Wm. 4, and 1 Vict. c. 26, s. 27, as a general disposition of the residuary personalty.

Walker and J. V. Prior for the plaintiffs; Bacon and Selwyn for a party in the same interest; Malins and Osborne for the residuary legatees; Amphlett for the executors.

The Vice-Chancellor said, that as the testator had intimated by his will his intention not to touch any part of his personalty otherwise disposed of, he showed his intention not to interfere with the disposition under the deed, and the plaintiffs were therefore entitled.

AFFIDAVIT

Fallows v. Lord Dillon. June 7, 1854. CREDITORS' SUIT. COSTS. FILED AFTER MASTER'S REPORT. In a creditors' suit against the defendant, who had assigned certain real property to trustees for the benefit of his creditors, the plaintiff, a party thereto, who had succeeded in such suit, was held entitled to his costs, although the trustees contended the suit was unnecessary.

An affidavit filed on the plaintiff's behalf since the Master's report on the debts, was received on the ground that it stated circumstances with a view of guiding the judgment of the Court on the question of

costs.

Court were sufficient to discharge the same, and the question now arose as to the costs. Wigram, for the trustees, contrà, on the ground the suit was unnecessary; Jessel for the defendant.

The Vice-Chancellor said, that as the plaintiff had succeeded, the costs must follow the result in accordance with the ordinary rule, and an objection was also disallowed to an affidavit filed on behalf of the plaintiff since the Master's report, on the ground that it stated circumstances with a view of guiding the judgment of the Court on the question of costs.

Vice-Chancellor Wood.

Gwatkin and others v. Campbell. June 7, 1854.
PLANTIFFS' RIGHT TO WITHDRAW DEFEND-

ANT'S EVIDENCE AFTER EXAMINATION
AS WITNESS.

The plaintiff's examined a defendant in a suit,
but withdrew his evidence: Held, that they
were entitled to do so, although the defend-
ant was thereby obliged to use it as his own
evidence.

In this suit by the trustees of the North Western Bank of India against the manager of their London branch, it appeared that they had examined the defendant as a witness, but proposed on the hearing to withdraw such evidence.

Daniel and Craig, for the defendant, took an objection to their right so to withdraw such evidence, as it would throw on the defendant the necessity of using it as his own.

Rolt and Moxon for the plaintiffs.
The Vice-Chancellor overruled the objection.

Court of Queen's Bench.
Regina v. Russell. June 12, 1854.

INDICTMENT FOR NUISANCE.-NEW TRIAL

REFUSED.

A new trial was refused of an indictment for a nuisance by the erection of embankments on the shores of the Menai Straits, whereby the navigation was obstructed, upon the defendant obtaining a general verdict under the direction of the Judge that he could only be convicted if such embankments constituted a material nuisance.

This was a rule nisi granted on April 21 last, for a new trial of this indictment for a nuisance by the erection of three walls or embankments on the shores of the Menai Straits, whereby the navigation was obstructed. On the trial, before Williams, J., at the last Car narvonshire Assizes, it was admitted by the defendant, who was a fisherman, and had Malins and Brown appeared for the plaintiff erected the walls for the preservation of cer in this creditors' suit on behalf of himself and tain oyster beds, that it would be better if the the other creditors of the defendant, who, it embankments were removed, whereupon it appeared had assigned certain real property to was left to the jury to say whether the em trustees for the benefit of his creditors, and bankments constituted a material nuisance, which deed the plaintiff had executed. The upon which the defendant could only be conMaster had reported the amount of debts and victed. The jury found a general verdict for the assets in the hands of the trustees and in the defendant, adding that, although the de

Superior Courts: Queen's Bench.-Exchequer.

fendant had created a nuisance, it was not one for which he could be indicted.

Welsby and M'Intyre showed cause against the rule, which was supported by M. Lloyd.

The Court said, that as this was a penal proceeding, and in which a very grave offence was charged against the prisoner, which would subject him to be punished with fine and imprisonment, a new trial could not be granted, and the rule must be discharged.

Hughes v. Humphries. June 12, 1854.
WEIGHTS AND MEASURES' ACT.-SALE OF
66
WHEAT.- HOBBETT.'

The plaintiff had sold certain wheat to the
defendant, described in the arrangement as
a "hobbett," which consisted of 168 pounds
avoirdupois: Held, that the contract was
not illegal under the 5 & 6 Wm. 4, c. 63,
and that the plaintiff was entitled to recover
in an action for their value.

THIS was an action brought to recover the value of certain wheat, which the plaintiff had sold to the defendant. It appeared on the trial before Williams, J., at the last Flintshire Assizes, that the sale was by measure (a "hobbett"), and the defendant accordingly pleaded the illegality of the contract, under the Weights and Measures' Act, 5 & 6 W. 4, c. 63, s. 11, as being by measure and not by imperial measure, and he obtained a verdict, subject to leave reserved. Welsby and Milward showed cause against the rule which had therefore been obtained; J. Brown and Coxon in support.

The Court said, that the sale was a sale by weight of 168 pounds avoirdupois, of which a hobbett consisted, and was no infringement of the Statute. The rule would be made absolute.

Bott v. Stancliffe and another. June 12, 1854.

ACTION BY ENGINEER AGAINST OVERSEERS
OF PARISH.-SURVEYS ON APPEAL FROM
RATE.

Court of Exchequer.

131

Rodriguez v. Melhuish and another. June 3, 6, 1854.

VESSEL. LIABILITY OF OWNER FOR ACCIDENT, ALTHOUGH PILOT ON BOARD. The owner of a vessel which was to sail on the 4th from the river Mersey, had moved her out of dock on the 2nd, and had taken on board a pilot, although under the Liverpool Pilot Act the obligation to take on board a pilot only applied to vessels outward bound: Held, that, under these circumstances, the owner was not exonerated from liability in respect of an accident arising from the mismanagement of the vessel.

the pilot of a ship, for negligently managing THIS was an action against the owner and the same in the river Mersey, while in their joint possession and control, whereby the plaintiff's craft for raising anchors lost in the the vessel had taken on board a pilot, and that river, was sunk. It appeared that the owner of upon one of the anchors being lost, the plaintiff was engaged to raise it with his boat, but that while so engaged the ship sheered against it and caused the anchor to slip, whereby the boat was sunk. On the trial before Platt, B., at the last Liverpool Assizes, the jury found that the accident was caused by the mismanagement of the vessel, and found a verdict for the was, whether the owner or the pilot alone was plaintiff generally. The question now raised responsible, or whether jointly. Rules nisi had by both the defendants. been obtained on April 24 last, for a new trial

ground that the pilot was on board as servant Edwin James and Brett showed cause, on the of the owner, the Liverpool Pilot Act only imposing the obligation on vessels outward bound. Knowles and Milward in support.

The Court said, the questions were, whether the owner at the time of the accident was bound to have a pilot on board, and if so, whether the An engineer was employed by the overseers of accident was the exclusive fault of the pilot. a parish to make certain surveys upon an It appeared that the sailing day of the vessel appeal against a rate imposed on a railway was the 4th, and although she moved out of company, but which appeal was referred to dock on the 2nd, she was not ready for sea, and arbitration and the award was not made might have refused to take a pilot on board. therein until after the defendants had gone It would therefore be unnecessary to consider out of office: Held, that they were, never-whether the pilot was exclusively to blame, theless, liable in an action brought by the and the rule obtained by the owner must be engineer to recover for his services. discharged.

- THIS was a rule nisi for a new trial of this action, which was brought by the plaintiff, an engineer, against the overseers of the township of Kirkeaton, in Yorkshire, to recover for certain services rendered by him in taking surveys upon an appeal against the rate imposed on the Lancashire and Yorkshire Railway Company. It appeared that the appeal had been referred to arbitration, and that the award was not made until a few days after the defendants had gone out of office at Lady-day, 1852. On the trial the plaintiff obtained a verdict.

1 Couling showed cause; H. Hill in support. The Court said that the defendants were liable, and discharged the rule accordingly.

Nicholl v. Grotz. June 6, 1854.
SALE UNDER WRITTEN CONTRACT DESCRIB-

ING ARTICLE SOLD. EVIDENCE.

It appeared that the plaintiff had contracted in writing to sell to defendant a quantity of foreign refined rape oil warranted to correspond with the sample. The defendant refused to accept the oil tendered, although it corresponded with the sample, as it did not correspond with the description in the contract: Held, that evidence could not be admitted of a custom in respect of description, and that the defendant knew what

132

Superior Courts: Court of Exchequer.

he was purchasing, whereby the terms of under the will, notwithstanding the deed by the contract would be varied. the defendant and his wife, and also whether the acknowledgment was sufficient and its validity could be disputed until the certificate had been taken off the file of the Court of Common Pleas?

Knowles for the plaintiff; Lee and Atherton for the defendant. Cur. ad. vult.

THIS was a motion for a rule nisi for the new trial of this action, which was brought to recover damages by reason of the defendant not accepting a quantity of rape oil pursuant to a contract in writing for the sale of foreign refined rape oil warranted to correspond with the sample. On the trial before Parke, B., it appeared that the oil tendered corresponded with the sample, but did not correspond with the description of foreign refined rape oil, as there was an admixture of hemp oil. The jury, under the direction of the Judge that the plaintiff could not recover if the oil did not correspond with the description, found for the defendant, but that there was a custom of the trade in reference to such description, and that the defendant knew he was not purchasing re-certificate or to obtain its removal from the fined rape oil. file, and the defendant was therefore entitled to judgment.

Watson in support.

The Court said, that the parties were bound by the written contract, and that the evidence as to the defendant's knowledge and of the custom could not be admitted to vary the terms, and the rule would therefore be refused.

Banks v. Ollerton. May 1, 3; June 7, 1854.
FINES' AND RECOVERIES' ACT.-VALIDITY

OF ACKNOWLEDGMENT OF MARRIED WO-
MAN TO DEED.

The Court said, that although the rule of the Court of Common Pleas, which allowed one of the Commissioners to be a party interested, might prove to be bad as not warranted by the Statute, it was unnecessary to decide that question, as the sufficiency of the proceedings could not be questioned so long as they remained in the proper form on the records of that Court. It was requisite for that purpose to quash the

Lake v. Plaxton. April 28; June 13, 1854.
INCLOSURE OF PORTION OF MANOR, PART

OF ROYAL FOREST.- RIGHT OF COM

MONERS.

On the trial of an action by the agent of the lord of the manor of Wanstead, which was part of the Royal Forest of Waltham, to try the question whether the defendant, a commoner, was justified in breaking down cerA deed creating a charge in favour of an at- tain fences on a portion which had been torney was acknowledged by a married wo- inclosed, the jury were directed in deter man, under the 3 & Wm. 4, c. 74, before mining the question, whether there was such attorney and his partner, and the cer- sufficient common left after such inclosure, tificate and affidavit of verification by such to leave out of consideration the power of partner was duly filed in the Common Pleas : the Crown to keep deer without stint in the Held, that whether such acknowledgment forest, and a book of attachments kept by a was sufficient or not, it could not be ques- former steward of the manor was rejected tioned until either the certificate had been in evidence: Held, discharging a rule for quashed or its removal obtained from the a new trial, that the book was properly refile of the Court of Common Pleas. jected, and that there was no misdirection. THIS was a special case for the opinion of THIS action was brought by the plaintiff, as the Court, from which it appeared that the tes- agent of the lord of the manor of Wanstead, to tator by his will gave, subject to the life estate try the question whether the defendant, a comof his wife, two houses to his daughter and three moner, was justified in breaking down certain houses to the plaintiff, the daughter of another fences on a portion which had been inclosed. daughter, Anne, and directed that if either died It appeared on the trial before Cresswell, J., at without issue, the whole was to go to the sur. the last Chelmsford Assizes, that the manor vivor, with a gift over as therein-mentioned, on was part of the Royal Forest of Waltham, in the death of both without issue. It appeared which the Crown had power of keeping deer that the daughter had married the defendant, without stint, and the jury was directed in deand upon the death of the testator's widow they termining whether there was sufficient common conveyed the whole estate, subject to the life left after the inclosure in question, to leave out estate of the plaintiff, to a trustee for uses, with of consideration this power. A book of attacha term of 1,000 years to secure a sum of 801.ments kept by a former steward of the manor, to Mr. John Lord, and after satisfaction thereof, to the use of themselves and the survivor of them. The defendant's wife acknowledged the deed, under the 3 & 4 Wm. 4, c. 74, before Mr. Lord and his partner, Mr. Woodcock, and Sir F. Thesiger and Bovill showed cause; E. the certificate and affidavit of verification by James, Bramwell and Rodwell in support. Mr. Woodcock was duly filed. The defend- The Court said, that the book had been proant's wife died before the plaintiff, who there-perly rejected, and on the other point (after upon brought this action to recover possession taking time to consider) also discharged the of one of the houses. The questions now rule.

raised were, whether the plaintiff was entitled

was also rejected as evidence on behalf of the defendant. This rule had been obtained for a new trial, on the ground of misdirection and rejection of evidence.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JUNE 24, 1854.

REMUNERATION OF SOLICITORS. preparation. But, as the power of taxation

PROPOSED PER-CENTAGE.

is one which we believe the Legislature will not be disposed to part with, we deem it far wiser to endeavour to mitigate some of the evils arising from it, rather than waste our exertions in endeavouring to get rid of it.

EVERY one who has at all considered the subject is well aware that the main difficulty in dealing with the remuneration of There is one hardship which the Prosolicitors is caused by their bills being sub- fession are exposed to under the present ject to taxation, and the necessity which it system which ought not to exist. If the involves of regulating their charges by fixed Legislature assume to regulate their charges, and arbitrary rules, which often operate the scale ought at least to be varied when a most unjustly to the Profession, instead of different state of circumstances arises; but leaving the value of their services to be re- this has not been the case hitherto. All gulated by the ordinary principles regulat the reforms which have been made during ing all other professions. Hence an im- the last 20 years have been made at the expression has arisen that their charges must pense of the Profession,-and as instances be dealt with on different rules from those of this we may refer to the Acts for abolishof other professional men, and too great a ing the lease for a year and assignment of disposition exists to regard abstract prin- terms, which being simple and involving ciples and the mathematical precision of little trouble in their preparation, were the scale, rather than the marketable value, if we may so express it, of the services rendered.

sources of considerable emolument to the Profession, but which have been abolished without any alteration whatever being made in the existing scale of charges.

Our principal object in calling the attention of the Profession to the per-centage system is to render them, to a greater extent than they are, independent of the changes in the Law, and also to effect what has always been felt to be most important,-viz., the shortening of deeds; but this can never be arrived at unless the solicitor is allowed, in some shape or other, the same amount of remuneration for a short deed as he now receives for a long one.

Thus, one of the objections which we have heard strongly urged against the percentage system is, that it does not adapt the remuneration to the work done, but makes up by an overpayment in some cases for the inadequate remuneration which it affords in others. We confess we do not ourselves see anything very objectionable in this principle. No system was ever yet devised by which a professional man's charges were apportioned strictly according to the work done, and although the present system is founded in theory on this prin- If the per-centage system were adopted, ciple, practically it is not so, -as the it would, of course, be the interest of the solicitor is as much overpaid for drafts solicitor to draw his deeds as short as poswhich are lengthy and which contain little sible; but as the system would not be apelse than common forms, as he is inade- plicable to every class of deed, and the quately remunerated for drafts which are of subject is a large one and requires mature necessity shorter, but which involve a much consideration, we would suggest that the greater amount of skill and labour in their plan proposed by us of allowing a higher VOL. XLVIII. No. 1,372.

I

134

Remuneration of Solicitors.-New Statutes effecting Alterations in the Law.

rate of charge on the shorter deeds-in NEW STATUTES EFFECTING ALTEfact holding out a premium for shortness— should be first taken into consideration.

We have slightly revised our former scale, and we propose to do away with the charges which are now made for attending the solicitor on the other side with draft; attending him returning same; attending to get duty impressed; and attending making appointment to execute; which,

we believe, tend to create erroneous impressions as to the nature of a solicitor's services, and ought not to be made.

RATIONS IN THE LAW.

INCOME TAX (No. 2).

17 VICT. c. 24.

Increased rate of income tax to be charged from 5th April, 1854, in lieu of existing rates; s. 1.

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Duty to be assessed and raised under the provisions of recited Acts; s. 2. Interest on exchequer bills how to be charged; s. 3.

All relief, abatement, and deduction to be proportionate to the increased rate of duty granted by this Act; s. 4.

Copies of poor rates in Ireland to be transmitted to the Commissioners of Inland Revenue only when required by them; s. 5. Commencement and continuance of this Act; s. 6.

The scale stated below will show the charges which we propose to substitute in lieu of the present charges, and the gain and loss to the Profession by comparison with the present rate of charging, and we believe, on the whole, that the Profession would slightly gain by the alteration; but it must be remembered that although they may gain slightly in the charges for the preparation of the deed, their profits will be diminished hereafter when they are called upon to furnish abstracts or copies of the Act :of such deed, and that the Public will be

Act to continue in force for recovery of arrears of duty, &c.; s. 7.

The following are the Title and Sections

more than compensated in the benefits they An Act for granting to her Majesty an in

will derive from the shortening of deeds.

Proposed new Rate of Charges, viz. :—

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creased Rate of Duty on Profits arising from
Property, Professions, Trades and Offices.
[16th June, 1854.]

We your Majesty's most dutiful and loyal subjects, the Commons of the United Kingdom of Great Britain and Ireland in Parliament aso sembled, towards raising the supplies to defray the expenses of the just and necessary war in o which your Majesty is engaged, have freely and voluntarily resolved to give and grant unto 6 your Majesty the rate and duty hereinaftermentioned; and do therefore most humbly beseech your Majesty that it may be enacted, as

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1. From and after the 5th day of April, 1854, there shall be charged, raised, levied, collected, and paid yearly, unto and for the use of her Majesty, her heirs and successors, in lieu of the rates and duties chargeable under the Act O passed in the last Session of Parliament, cap. 034, and of the rates and duties granted by an 6 Act passed in the present Session of Parliament, cap. 10, for and in respect of all property, profits, and gains chargeable under the 4 said first-mentioned Act, the increased rate and duty of 1s. 2d. for every 20s. of the annual value or amount of all such property, profits, and gains respectively.

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