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Superior Courts: V C. Stuart-V. C. Wood.- Queen's Bench. was settled in trust for such persons, and Court were sufficient to discharge the same, in such manner as the settlor should by any and the question now arose as to the costs. deed or deeds, instrument or instruments in Wigram, for the trustees, contrà, on the writing legally executed, direct or appoint, ground the suit was unnecessary; Jessel for and in default, or in so far as any such ap- the defendant. pointment should not extend, in trust for The Vice-Chancellor said, that as the plainthe plaintiff's. The settlor afterwards, by tiff had succeeded, the costs must follow the will
, bequeathed all his personal estates not result in accordance with the ordinary rule, otherwise effectually disposed of to trustees and an objection was also disallowed to an affiupon certain trusis : Held, that the will davit filed on behalf of the plaintiff since the did not operate as an appointment, under Master's report, on the ground that it stated the 7 W. 4, and i Vict. C. 26, s. 27, and circumstances with a view of guiding the judgthat the plaintiff's were entitled.
ment of the Court on the question of costs, By a voluntary settlement, dated in March, 1848, Mr. Winter vested a sum of 1,5001, in
Vice-Chancellor Ulood. trustees, in trust for such person or persons in Gwatkin and others v. Campbell. June 7, 1854, such shares and manner as he should at any time, by any deed or deeds, instrument or in- PLANTIFFS' RIGHT TO WITHDRAW DEFEND
ANT'S EVIDENCE AFTER EXAMINATION struments 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
The plaintiff's examined a defenılant in a suit, such direction or appointment (if incomplete)
but withdrew his evidence : Held, that they should not extend, in trust for the plaintiffs. It
were entitled to do so, although the defendappeared that, by bis will dated in August, ant was thereby obliged to use it as his own 1852, he bequeathed, upon the trusts therein
evidence. mentioned, all his personal estate not otherwise In this suit by the trustees of the North effectually disposed of. The question now Western Bank of India against the manager of arose, whether the will operated as an appoint- their London branch, it appeared that they had ment under the 7 Wm. 4, and i Vict. c. 26, s. examined the defendant as a witness, but pro27, as a general disposition of the residuary posed on the hearing to withdraw such evipersonalty.
dence. Walker and J. V. Prior for the plaintiffs ; Daniel and Craig, for the defendant, took Bacon and Selwyn for a party in the same in- an objection to their right so to withdraw such terest; Malins and Osborne for the residuary evidence, as it would throw on the defendant legatees; Amphlett for the executors.
the necessity of using it as his own. The Vice-Chancellor said, that as the testator Rolt and Moxon for the plaintiffs. had intimated by his will his intention not to The Vice Chancellor overruled the objection, touch any part of his personalty otherwise disposed of, he showed his intention not to inter
Court of Queen's Bench. fere with the disposition under the deed, and the plaintiff's were therefore entitled.
Regina v. Russell. June 12, 1854.
INDICTMENT FOR NUISANCE.-NEW TRIAL
Fallows y. Lord Dillon, June 7, 1854.
A new trial was refused of an indictment for CREDITORS' SUIT. COSTS. AFFIDAVIT
a nuisance by the erection of embankments FILED AFTER MASTER'S REPORT.
on the shores of the Micnai Straits, whereby In a creditors' suit against the defendant, who
the navigation was obstructed, upon the dehad assigned certain real property to trus- fendant obtaining a general verdict under tees for the benefit of his creditors, the the direction of the Judge that he could plaintif, a party thereto, who had succeed- only be convicted if such embankments coned in such suit, was held entitled to his stituted a material nuisance. costs, although the trustees contended the This was a rule nisi granted on April 21 suit was unnecessary.
last, for a new trial of this indictment for a An affidavit filed on the plaintiff''s behalf nuisance by the erection of three walls or em
since the Master's report on the debts, was bankments on the shores of the Menai Straits, received on the ground that it stated cir- whereby the navigation was obstructed. On cumstances with a view of guiding the the trial, before Williams, J., at the last Carjudgment of the Court on the question of narvonshire Assizes, it was admitted by the costs.
defendant, who was a fisherman, and had Malins and Brown appeared for the plaintiff erected the walls for the preservation of ceri 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 emtrustees 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 cons Master had reported the amount of debts and victed. The jury found a general verdiet for the assets in the hands of the trustees and in the defendant, adding that, although the do
VESSEL- LIABILITY OF
Superior Courts: Queen's Bench.-Exchequer.
131 fendant had created a nuisance, it was not one
Court of Erchequer. for which he could be indicted.
Rodriguez v. Melhuish and another, June 3, Welsby and M'Intyre showed cause against
6, 1854. 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
CIDENT, ALTHOUGH PILOT ON BOARD. charged against the prisoner, which would The owner of a vessel which was to sail on the subject him to be punished with fine and im- 4th from the river Mersey, had moved her prisonment, a new trial could not be granted, out of dock on the 2nd, and had taken on and the rule must be discharged.
board a pilot, although under the Liverpool
Pilot Act the obligation to take on board a Hughes v. Humphries. June 12, 1854. pilot only applied to vessels outward bound : WEIGHTS AND MEASURES' ACT.-SALE OF
Held, that, under these circumstances, the WHEAT.-“ HOBBETT."
owner was not exonerated from liability in The plaintiff had sold certain wheat to the
respect of an accident arising from the mis. defendant, described in the arrangement as
management of the vessel. a " hobbelt,” which consisted of 168 pounds the pilot of a ship, for negligently, managing
This was an action against the owner and avoirdupois : Held, that the contract was not illegal under the 5 & 6 Wm. 4, c. 63, the same in the river Mersey, while in their and that the plaintiff was entitled to recover
joint possession and control, whereby the in an action for their value.
plaintiff's craft for raising anchors lost in the
river, was sunk. It appeared that the owner of This was an action brought to recover the the vessel had taken on board a pilot, and that value of certain wheat, which the plaintiff had upon one of the anchors being lost, the plaintiff sold to the defendant. It appeared on the trial was engaged to raise it with his boat, but that before Williams, J., at the last Flintshire Assizes, while so engaged the ship sheered against it that the sale was by measure (a “hobbett”), and and caused the anchor to slip, whereby the boat the defendant accordingly pleaded the illegality was sunk. On the trial before Platt, B., at of the contract, under the Weights and Mea- the last Liverpool Assizes, the jury found that sures' Act, 5 & 6 W. 4, c. 63, s. 11, as being by the accident was caused by the mismanagement measure and not by imperial measure, and he of the vessel, and found a verdict for the obtained a verdict, subject to leave reserved. plaintiff generally. The question now raised
Welsby and Milward showed cause against was, whether the owner or the pilot alone was the rule which had therefore been obtained; responsible, or whether jointly. Rules nisi had J. Brown and Coron in support.
been obtained on April 24 last, for a new trial The Court said, that the sale was a sale by by both the defendants. weight of 168 pounds avoirdupois, of which a Edwin James and Brett showed cause, on the hobbett consisted, and was no infringement of ground that the pilot was on board as servant the Statute. The rule would be made absolute. Of the owner, the Liverpool Pilot Act only im.
posing the obligation on vessels outward bound. Bott v. Stancliffe and another. June 12, 1854. Knowles and Milward in support. ACTION BY ENGINEER AGAINST OVERSEERS The Court said, the questions were, whether OF PARISH.-SURVEYS ON APPEAL FROM 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 arbilration 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 Nicholl v. Grotz. June 6, 1854. engineer, against the overseers of the township SALE Under WRITTEN CONTRACT DESCRIBof Kirkeaton, in Yorkshire, to recover for certain services rendered by him in taking surveys upon an appeal against the rate imposed on the
It appeared that the plaintiff had contracted Lancashire and Yorkshire Railway Company.
in writing to sell to defendant a quantity It appeared that the appeal had been referred to
of foreign refined rape oil warranted to arbitration, and that the award was not made
correspond with the sample. The defenduntil a few days after the defendants had gone
ant refused to accept the oil tendered, alout of office at Lady-day, 1852. On the trial
though it corresponded with the sample, as it the plaintiff obtained a verdict.
did not correspond with the description in 1 Comling showed cause; H. Hill in support.
the contract : Held, ihat evidence could not
be admitted of a custom in respect of deThe Court said that the defendants were liable, and discharged the rule accordingly.
scription, and that the defendanl knew what
ING ARTICLE SOLD-EVIDENCE.
OP ACKNOWLEDGMENT OF MARRIED WO-
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 This was a motion for a rule nisi for the the acknowledgment was sufficient and its vanew trial of this action, which was brought to lidity could be disputed until the certificate bad recover damages by reason of the defendant been taken off the file of the Court of Common not accepting a quantity of rape oil pursuant
Pleas? to a contract in writing for the sale of foreign Knowles for the plaintiff; Lee and Atherton refined rape oil warranted to correspond with for the defendant. the sample. On the trial before Parke, B., it
Cur. ad. vult. appeared that the oil tendered corresponded The Court said, that although the rule of the with the sample, but did not correspond with Court of Common Pleas, which allowed one of the description of foreign refined rape oil, as the Commissioners to be a party interested, there was an admixture of hemp oil. The jury, might prove to be bad as not warranted by the under the direction of the Judge that the Statute, it was unnecessary to decide that ques. plaintiff could not recover if the oil did not tion, as the sufficiency of the proceedings could correspond with the description, found for the not be questioned so long as they remained in defendant, but that there was a custom of the the proper form on the records of that Court. trade in reference to such description, and that It was requisite for that purpose to quash the 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 Watson in support.
to judgment. The Court said, that the parties were bound by the written contract, and that the evidence Lake v. Plaxton. April 28 ; June 13, 1854. as to the defendant's knowledge and of the INCLOSURE OF PORTION OF MANOR, PART custom could not be admitted to vary the terms, and the rule would therefore be refused.
On the trial of an action by the agent of the Banks Ollerton, May 1,3 ; June 7, 1854.
lord of the manor of W'anstead, which was FINES' AND RECOVERIES' ACT.-VALIDITY part of the Royal Forest of Waltham, to try
the question whether the defendant, a com
moner, was justified in breaking down cerA deed creating a charge in fuvour of an at. tain fences on a porlion which had been
torney was acknowledged by a married wo- inclosed, the jury were directed in deter. man, under the 3 & 4 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 Pleus : 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 sleward of the manor was rejected tioned until either the cerlificate hud been in evidence : Held, discharging a rule for quashed or its removal obtained from the a new trial, that the book was properly re. file of the Court of Common Pleus.
jected, unit 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 802. ments kept by a former steward of the manor, to Mr. John Lord, and after satisfaction there was also rejected as evidence on behalf of the of, to the use of themselves and the survivor of defendant. This rule had been obtained for a them. The defendant's wife acknowledged the new trial, on the ground of misdirection and deed, under the 3 & 4 Wm. 4, c. 74, before rejection of evidence. 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
Che Legal Observer,
SATURDAY, JUNE 24, 1854.
REMUNERATION OF SOLICITORS. preparation. But, as the power of taxation
is one which we believe the Legislature will
not be disposed to part with, we deem it PROPOSED PER-CENTAGE.
far wiser to endeavour to mitigate some of Every one who has at all considered the evils arising from it, rather than waste the subject is well aware that the main dif- our exertions in endeavouring to get rid of it. ficulty 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, sources of considerable emolument to the if we may so express it, of the services Profession, but which have been abolished rendered.
any alteration whatever being made Thus, one of the objections which we in the existing scale of charges. have heard strongly urged against the per- Our principal object in calling the attencentage system is, that it does not adapt tion of the Profession to the per-centage the remuneration to the work done, but system is to render them, to a greater extent makes up by an overpayment in some cases than they are, independent of the changes in for the inadequate remuneration which it the Law, and also to effect what has always affords in others. We confess we do not been felt to be most important, -viz., the ourselves see anything very objectionable shortening of deeds; but this can never be in this principle. No system was ever yet arrived at unless the solicitor is allowed, in devised by which a professional man's some shape or other, the same amount of charges were apportioned strictly according remuneration for a short deed as he now to the work done, and although the present receives for a long one. 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.
134 Remuneration of Solicitors.--New S!atutes effecting Alterations in the Law. rate of charge on the shorter deeds—in NEW STATUTES EFFECTING ALTEfact holding out a premium for shortness
RATIONS IN THE LAW. should be first taken into consideration. t-, We have slightly revised our former INCOME TAX (No. 2). scale, and we propose to do away with the
17 VICT. C. 24. charges which are now made for attending Increased rate of income tax to be the solicitor on the other side with draft; charged from 5th April, 1854, in lieu of attending him returning same ; attending existing rates ; s. I. to get duty impressed; and attending Duty to be assessed and raised under the making appointment to execute; which, provisions of recited Acts; s. 2. we believe, tend to create erroneous im
Interest on exchequer bills how to be pressions as to the nature of a solicitor's charged; s. 3. services, and ought not to be made.
All relief, abatement, and deduction to The scale stated below will show the be proportionate to the increased rate of charges which we propose to substitute in duty granted by this Act ; s. 4. lieu of the present charges, and the gain Copies of poor-rates in Ireland to be and loss to the Profession by comparison transmitted to the Commissioners of Inland with the present rate of charging, and we Revenue only when required by them ; s. 5. believe, on the whole, that the Profession Commencement and continuance of this would slightly gain by the alteration; but Act ; s. 6. it must be remembered that although Act to continue in force for recovery
of they may gain slightly in the charges for arrears of duty, &c. ; s. 7. the preparation of the deed, their profits will be diminished hereafter when they are called upon to furnish abstracts or copies of the Act :
The following are the Title and Sections of such deed, and that the Public will be more than compensated in the benefits they An Act for granting to her Majesty an inwill derive from the shortening of deeds.
creased Rate of Duty on Profits arising from
Property, Professions, Trades and Offices. Proposed new Rate of Charges, viz.:
[16th June, 1854.]
£ s. d. We your Majesty's most dutiful and loyal Drawing any deed not exceeding one
subjects, the Commons of the United Kingdom skin of 15 folios.
2 o of Great Britain and Ireland in Parliament asSecond ditto
1 10 o sembled, towards raising the supplies to defray Copying any deed not exceeding two
the expenses of the just and necessary war in skins, for each skin of 15 folios
5 o which your Majesty is engaged, have freely Engrossing each skin of 15 folios 0 15 o and voluntarily resolved to give and grant unto Second ditto.
0 7 6 your Majesty the rate and duty hereinafterFor drawing, copying, and engross
mentioned ; and do therefore most humbly being any deed exceeding two skins
seech your Majesty that it may be enacted, as of 15 folios, for each skin . 100 follows:
1. From and after the 5th day of April, 1854,
there shall be charged, raised, levied, collected, Present Rale.
and paid yearly, unto and for the use of her 30 folios.
Majesty, her heirs and successors, in lieu of the £ s. d.
£ s. d. rates and duties chargeable under the Act Drawing 1 10 0 Drawing .
0 passed in the last Session of Parliament, cap. Copying and
Copying · 0 10 0 34, and of the rates and duties granted by an engrossing 1 10 0 Engrossing. 1 6 Act passed in the present Session of ParliaInstructions Instructions
ment, cap. 10, for and in respect of all proand attendand attesting
perty, profits, and gains chargeable under the 2 0 0 execution 0 13 4 said first-mentioned Act, the increased rate and
duty of ls. 2d. for every 20s. of the annual £5 0 0
£6 o 10 value or amount of all such property, profits,
and gains respectively. Present Rate. Proposed Rate.
2. The said duty hereby granted shall be as£ $. d.
£ s. d. sesaed, raised, levied, and collected under the 45 folios. 6 10 o 45 folios . 7 10 o regulations and provisions of the said Act 60 dicto
o passed in the last Session of Parliament, and 75 diito 9 10 75 ditto 0 0 of the several Acts therein-mentioned or re90 ditto 11 0 90 ditto 10 0 o ferred to, and all powers, authorities, rules, re105 dilto , 12 10 0 105 ditto 11 0 Ogulations, directions, penalties, clauses, matters,
and things contained in or enacted by the said several Acts, and in force with respect to the duties granted by the said first-mentioned Act,