236 New Statutes effecting Alterations in the Law.-Admiralty Court Bill. the person so having made default in like manner as they might have done if such person had neglected or refused to appear in obedience to a writ of subpoena or other process issued out of such last-mentioned Court. It shall not be necessary to sue out any commission for the examination of any witnesses in any matter, suit, or proceeding in the said Court; and any examiner appointed by any order of the said Court shall have the like power of administering oaths as Commission 4. None of the said Courts shall in any case proceed against or punish any person for hav-ers now have under commissions issued by the ing made default by not appearing to give evidence in obedience to any writ of subpoena or other process issued under the powers given by this Act, unless it shall be made to appear to such Court that a reasonable and sufficient sum of money to defray the expenses of coming and attending to give evidence, and of returning from giving such evidence, had been tendered to such person at the time when such writ of subpoena or process was served upon such person. 5. Nothing herein contained shall alter or affect the power of any of such Courts to issue a Commission for the examination of witnesses out of their jurisdiction, in any case, in which notwithstanding this Act, they shall think fit to issue such Commission. 6. Nothing herein contained shall alter or affect the admissibility of any evidence at any trial where such evidence is now by law receivable, on the ground of any witness being beyond the jurisdiction of the Court, but the admissibility of all such evidence shall be termined as if this Act had not passed. ADMIRALTY COURT BILL. Court for the examination of witnesses; s. 6. All answers, examinations, affidavits, depositions on oaths, declarations, affirmations, and attestations in or relating to any matter, suit, or proceeding in the said High Court of Admiralty shall and may be sworn and taken in England and Wales before any such Commissioner appointed as aforesaid, or before any magistrate or justice of the peace or before any Commissioner to administer Oaths in Chan cery; s. 7. All answers, examinations, affidavits, depositions on oath, declarations, affirmations, and attestations in or relating to any matter, suit, or proceeding in the said High Court of Admiralty of England shall and may be sworn and taken in Scotland or Ireland, or the Isle of Man, or the Channel Islands, or any of them, or in any colony, island, plantation, or place under the dominion of her Majesty in foreign parts, before any Judge, Court, magistrate, notary public, or person lawfully de-authorised to administer oaths in such country, island, or plantation, or place respectively, or before any of her Majesty's consuls or viceconsuls in any foreign parts out of her Majesty's dominions; and the Judge and other officers of the said High Court of Admiralty shall take judicial notice of the seal or signature, as the case may be, of any such Judge, Court, magistrate, notary public, person, consul, or vice-consul attached, appended, or subscribed to any such answers, examinations, affidavits, depositions on oath, declarations, affirmations, and attestations, or the documents to be used in the said Court; s. 8. COMMISSIONS TO SOLICITORS, PROCTORS, It shall be lawful for the Judge of the High Court of Admiralty of England, and he is hereby empowered, from time to time and as and when he may think fit, to appoint any person practising as a proctor, solicitor, or notary public in any part of England and Wales to administer oaths and take declarations, affirmations, and attestations in or relating to any matter, suit, or proceeding in the High Court of Admiralty of England; and such persons shall be styled "Commissioners to administer Oaths in Admiralty," and shall be entitled to charge and take a fee of 1s. 6d. for every oath administered by them, and for every declaration, affirmation, and attestation taken by them, subject to any order of the Judge of the said Court varying or annulling the same; 8. 3. The fiat or document by which any such Commissioner shall be appointed shall bear a stamp of 1., and it shall not be necessary that any such appointment should be published in the London Gazette; s. 4. It shall not be necessary to sue out any commission to take the personal answers of any party in any matter, suit, or proceeding in the said Court; and any such answers may be filed without any further or other formality than is required in the swearing and filing of affidavits; s. 5. Penalty for false swearing, &c.; s. 9. Penalty for forging signature or seal of Judge, &c., empowered to administer oaths under this Act; s. 10. The Judge of the High Court of Admiralty of England may, whenever it shall appear to him necessary so to do, authorise any person to administer oaths and to take affidavits, depositions on oath, declarations, affirmations, and attestations during the time such person shall be on the high seas, or in any place not within her Majesty's dominions, in or relating to prize proceedings in the said Court, and it shall not be necessary to affix any stamp to the fiat or document by which any such person shall be appointed; s. 11. Power of Judge to issue commissions as heretofore, to administer oaths, &c.; s. 12. Power to Court to proceed by way of monition; s. 13. Her Majesty may by order in Council vary, alter, or abolish fees, and provide for their collection by stamps; s. 14. After such order fees not to be received in money, but by means of stamps; s. 15. Real Estate Charges' Bill.-Extension of Inclosure Acts. Commissioners of Inland Revenue to give the necessary directions as to the stamps, and to keep separate accounts; s. 16 Provision for sale of stamps; s. 17. Commissioners of Inland Revenue may make regulations as to allowance for spoiled stamps; s. 18. Provisions of former Acts relating to stamps to be applicable to stamps under this Act: s. 19. No document which by any order as aforesaid ought to have had a stamp impressed thereon or affixed thereto shall be received or filed or be used in relation to any proceeding in the High Court of Admiralty, or be of any validity for any purpose whatsoever, unless or until the same shall have a stamp impressed thereon or affixed thereto in the manner directed by such order: provided always, that if at any time it shall appear that any such document which ought to have had a stamp impressed thereon or affixed thereto has, through mistake or inadvertence, been received or filed or used without having such stamp impressed thereon or affixed thereto, the Judge of the said Court may, if he shall think fit, order that a stamp, not exceeding in value four times the amount of such original stamp, shall be impressed thereon or affixed thereto; and thereupon, when the proper stamp shall, in compliance with such order, have been impressed on such document or affixed thereto, such document, and every proceeding in reference thereto, shall be as valid and effectual as if such stamp had been impressed thereon or affixed thereto in the first instance; s. 20. Officers guilty of fraud or wilfully neglect in relation to stamps liable to be dismissed; s. 21. It shall be lawful for the Commissioners of 237 1. Where any person shall die seised of or entitled to any estate or interest in any land which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee to whom such land shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate, but the lands shall, as between the different persons claiming through or under the deceased person, become primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof: provided that nothing herein contained shall affect or diminish any right of the mortgagee on such lands to obtain full payment or satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise. 2. When any person shall die seised of or entitled to any land for an estate of inheritance, and having the power to dispose of the same by will, and shall have by his will directed the same to be sold for the payment of his debts or the purposes of his will, then unless such person shall by his will have signified any contrary or other intention, the land so devised shall be deemed by a Court of Equity to be converted into personal estate, and the whole, or any portion thereof that may not be reshall be divided under the Statute for the Disquired for the purposes mentioned in the will, tribution of the Estates of Intestates. 1. LANDS subject to be inclosed may be exchanged pending inclosure proceedings. 2. Undivided shares in any land or other subject matter of exchange may be exchanged upon the application of the person interested. 3. Land to include incorporeal heredita her Majesty's Treasury, on the recommenda- EXTENSION OF INCLOSURE ACTS. tion of the Judge of the High Court of Admiralty, to order to be paid to any person executing the office of registrar, marshal, clerk, or servant of the said Court, who shall be afflicted with some permanent infirmity disabling him from the due execution of his office, and shall be desirous of resigning the same, an annuity not exceeding two-third parts of the yearly salary which such person shall be entitled to atments. the time of his resigning the same, to be paid and payable at the same times and in the same manner as the salaries of the said registrar, marshal, clerk, or servant are; s. 22. Except where it shall be otherwise expressed, the provisions of this Act shall apply to all instance, prize, and other matters, suits, and proceedings of which the High Court of Admiralty may legally take cognizance; s. 23. REAL ESTATE CHARGES' BILL. THIS Bill, as amended in Committee and on consideration of Amendments, recites that it is expedient that certain rules of Law and Equity whereunder the real and personal assets of deceased persons are administered should be amended; and it proposes to enact as follows: 4. Where any land or hereditaments shall have been leased for a term which shall have exceeded 100 years from the commencement thereof, and it shall be shown to the satisfaction of the Commissioners that no rent or acknowledgment has been paid or given for the period of 20 years, or that the person entitled to the rent reserved upon such lease cannot, upon reasonable inquiry, be ascertained, the person in the actual possession or enjoyment of such land or hereditaments, or in the actual receipt of the rents and profits thereof as owner of such term, shall be and be deemed to be the person interested within the provisions of the Inclosure Acts. 5. Extending time for application for conversion of land to be inclosed into a regulated pasture. that behalf; and the Commissioners, or any person authorised by them for that purpose, may take all such proceedings, and have all such remedies for the recovery of such expenses, as they, or the valuer acting in the matter of any inclosure, now have or may at any time hereafter by law have for the recovery of the expenses of or incident to any inclosure under the powers of the said recited Act. 1845," or under any railway or other special Act by which money may have been directed or authorised to be paid to a committee as compensation for the extinction of commonable 9. In all cases where any lands or hereditaments are charged with any fee-farm rent, rent seck, rent of assize, or chief rent, or other annual or periodical fixed rent, or other certain payment, any person interested, according 14. Where any money shall have been or to the provisions of the said Acts, in such may hereafter be paid to a Committee under lands, and in the said rent or other certain" The Lands' Clauses' Consolidation Act, payment as aforesaid issuing therefrom, may make application in writing to the said Commissioners to apportion the said rent or other fixed payment among all the lands charged with the payment thereof, and the Commissioners, or other rights, or for lands, being common upon receipt of such application, shall, by lands or in the nature thereof, the right to the themselves, or by an Assistant Commissioner, soil of which may have belonged to the com or other person to be by them appointed for moners, and the majority of such Committee that purpose, make inquiry, and satisfy them- shall be of opinion that the provisions of such selves as to the expediency of such apportion- Act for the apportionment thereof cannot be ment; provided always, that if in any case satisfactorily carried into effect, such majority there shall be any doubt as to the extent, may make application in writing to the Comidentity, or boundaries of the lands and here- missioners to call a meeting of the persons inditaments charged with any such rent or pay-terested in such compensation money, to dement, the Commissioners, Assistant Commis- termine whether or not such compensation sioner, or other person appointed by them as money shall be apportioned under the proaforesaid, shall inquire into and ascertain such provisions of this Act. extent, identity, or boundaries. 15. If the majority in number and interest shall resolve that such compensation money shall be apportioned, the amount of such compensation money shall be forthwith paid into the Bank of England, to the credit of an account to be named by the Inclosure Commissioners for England and Wales; and the said Committee shall be absolutely discharged from all liability in respect of such compensation money upon payment thereof into the Bank of England as herein before directed. 10. If the said Commissioners, after inquiry made, shall be satisfied of the expediency of such apportionment, they may, by an order under their hands and seal, apportion such rent or other fixed payment among all the lands charged with the payment thereof, and also, where necessary, determine the extent, identity, and boundaries of the land and hereditaments charged with such rent or payment; provided that any specific portion may, upon the application of the person interested in such lands, 16. As soon as the said moneys shall have be charged and apportioned upon any close or been paid into the bank, the Inclosure Comcloses or other part of the estate in respect of missioners, or any Assistant Commissioner, which the said portion of rents or other fixed shall proceed to ascertain, determine, and payment was apportioned, so that in the judg-award the names of the parties who were enment of the said Commissioners such part of titled to such estates, rights, and interests in the estate be of not less than six times the an- the said common and commonable lands, and nual value of the sum so charged thereupon. 11. Confirmation of order by the Commissioners. 12. And from and after the confirmation of the said order the owner for the time being of the said rent or other fixed payment as aforesaid, so far as the same has been apportioned upon the lands of persons interested and making application as aforesaid, shall have all such rights and remedies for the recovery of the apportioned parts of such rent or other fixed payment as against the portions of land severally charged therewith respectively as such owner would have had for the recovery of such rent or fixed payment as against the lands originally charged therewith in case no such order had been made. 13. The persons making such application as aforesaid shall pay the expenses incident to such apportionment in such proportions and to such amount as the Commissioners shall certify in the amount or value of their respective shares, rights, and interests therein, and the proportionate amount of the price so to be paid as aforesaid for such estates, rights, and interests to which each party so entitled as aforesaid is entitled, in respect of his share, right, or interest as aforesaid; and the award of the Commissioners under their common seal, or Assistant Commissioner in writing under his hand and seal, shall be binding on all parties claiming such estates, rights, and interests as aforesaid; and for the purpose of ascertaining the rights and interests of such parties as aforesaid it shall be lawful for the said Inclosure Commissioners or Assistant Commissioner to call such meetings as they or be shail think fit of all persons having or claiming any such rights or interests in the said common and commonable lands as aforesaid, at such time and place as the said Commissioners or Assistant Commissioner shall think fit, so as the same shall Extension of Inclosure Acts.—Law of Attorneys and Solicitors. 239 for the purpose of ensuring the payment thereo to the person or persons duly entitled to receive the same, as the said Commissioners shall by any order direct. be appointed by a public notice thereof in is hereby authorised and required to take the 19. In all cases where the sum payable by virtue of such award, in respect of any estate, right, or interest, shall not exceed 20%, and the person entitled to such estate, right, or interest shall be under any disability or incapacity, such sum shall and may be paid to the guardian, committee, or husband of such person; and where any such person shall have a limited interest only in such estate, right, or interest, the whole of such sum shall and may, nevertheless, be paid to the person having such limited interest, to his or her guardian, committee, or husband, as the case may be. 20. This Act to be deemed part of "The Acts for the Inclosure, Exchange, and Im testimony of any witnesses upon oath (which LAW OF ATTORNEYS AND SOLI oath they and he are and is respectively hereby empowered to administer), or to take the affirmation of such witnesses in cases where affirmation is allowed by law instead of oath. 17. All the costs and expenses of the Inclosure Commissioners and Assistant Commis CITORS. TAXATION OF BILL OF COSTS IN BANKRUPTCY, WHERE LACHES. THE solicitor to a fiat in bankruptcy was sioner, and of any valuer or surveyor employed discharged in July, 1851, and another apunder the provisions herein before contained, pointed, and it appeared that he had deshall, in the first place, be paid out of such livered his bill of costs in the year 1850, compensation moneys, and the residue of the and that its amount had been either paid said moneys shall be paid and divided between and amongst the said several parties to be named in the award, and in the shares and proportions to be ascertained and set forth in such award. to or retained by him out of the moneys received on account of the estate. The new solicitor, although acquainted with these facts on his appointment, had not taken any objection to the bills nor intimated any intention to tax them before October, 1852. On an appeal from the Commissioner directing a taxation, Lord Cranworth, L. J., said, "I confess that I entertain great doubt whether there is authority, in the absence of a case of fraud, to interfere under the 18. When it shall appear to the Commis. sioners or Assistant Commissioner that any of the parties entitled to such rights or interests are only entitled thereto for a limited interest, then it shall be lawful for them or him, by their or his award, to direct that the moneys to be paid in respect of such right or interest, where the same shall exceed 204. shall be paid to the trustees acting under the will, convey- summary jurisdiction which is given or ance, or settlement under which such person regulated by the Act. The provisions of having such limited interest shall be interested the 37th section are all directed to the in such rights or interests, and where there are taxation of bills remaining unpaid. Then no trustees then into the hands of trustees to the 41st clause is directed to bills which be appointed under the hands and seal of the have been paid, and it contains this proviso: Commissioners, to be held by them on trusts Provided the application for such reference similar to the uses or trusts to which such be made within 12 calendar months from rights or interests had been immediately before the payment of such moneys into the bank payment.' I doubt whether there was any subject to, or as near thereto as the said Com- jurisdiction to direct taxation; but, if there missioners or Assistant Commissioner can as-was, certainly this does not appear to be a certain; and the rights or interests of all par- case for its exercise; the bill having been ties to be ascertained in such award as afore-paid seven months before another solicitor said shall, as from the payment of such moneys was appointed, and no proceedings having to such Committee as aforesaid, be taken and been taken for a year and a half after the considered as personal estate; and the receipts of any trustees to whom any such moneys shall application was made." Exparte Pemberbe paid as aforesaid shall be good and suffi-ton, in re Tyther, 2 De G., MN. & G. 960. cient discharges for the same provided that the payment of all such sums shall from time to gain o tiene time be subject to such rules and regulations, 240 Law of Costs.-United Law Clerks' Society. BY MORTGAGORS. pay opinion that there has been an uncondi tional tender to the defendants of a sum, which they might either accept or refuse at their own peril. There must, therefore, be a decree for an account of what was due for principal, interest, and costs on the 18th of March last; and if the amount found due should not exceed 570, then the defendants must pay the costs of the suit, but if the amount should exceed that sum, then there will be the usual decree as to costs as if there had been no tender." THE parties, in whom a mortgage became vested, demanded by notice payment by the persons entitled to the equity of redemption, of the mortgage money, and stated their intention, in default of ment to sell the property. At the expiration of the notice, and in consequence of difficulties arising in ascertaining what was due, the mortgagors made, on March 18, 1853, an unconditional tender of 570l., which was according to their calculation UNITED LAW CLERKS' SOCIETY. sufficient to pay the amount due for principal, interest, and costs. The mortgagees declined to receive such amount, and the mortgagors then filed this suit to redeem. On a question as to the costs of the suit, the Master of the Rolls said, "I am of opinion, that when the time fixed by the notice expires, the mortgagee is bound to know the amount due to him, and if that sum or a sum calculated by the mortgagor to be the probable amount of principal, interest, and costs, be tendered to him, unconditionally, he is bound to accept it. A mortgagee is not bound to accept payment without proper notice given to or by him; but if, after proper notice, the amount is tendered to him, and he refuses to accept it, he does so at his own peril. Harmer v. Priestley, 16 Beav. 569, WE are glad to place before our readers a full report of the excellent addresses which were delivered at the Annual Festival of this valuable Society, by Vice-Chancellor Sir Wm. Page Wood, who presided, and by both the Lords Justices and other distinguished members of the Profession, who kindly attended the meeting, and eloquently advocated the cause of the Society. We gave the Annual Report in a recent Number (p. 164, ante), and would now particularly call the attention of our brethren to the important fact, that an eminent firm had come to the resolution of extending relief during age or sickness to such of their clerks as were members of the United Law Clerks' Society. A small annual subscription by each clerk will thus secure them from calamities to which all are liable, and if the solicitors would take the trouble of exhorting their clerks in general to join the Society, its numbers would soon place it in a position that would enable the Committee to increase the "In Harvey v. Tebbutt, 1 Jac. & W. 197, Sir Thomas Plumer lays it down that a mortgagee is not, in all cases, entitled to his costs; and in Shuttleworth v. Lowther (cited in Detillin v. Gale, 7 Ves. 586), the mortgagee was even held bound to pay costs. In Wilson v. Cluer, 4 Beav. 214, a mortgagee in possession being found, on taking the account, to have been overpaid, liberal measure of relief to all the members costs were given against him. So in Roberts who may require it. a Tavern, on Thursday, 22nd June. The ViceChancellor Sir William Page Wood presided on the occasion, and was supported by the Q. C., and a numerous assemblage of each Lords Justices, Mr. Serjeant Shee, Mr. Daniel, branch of the Profession. About 300 gentlemen sat down to dinner. v. Williams, 4 Hare, 129, the sum tendered The Twenty-Second Anniversary Festival of to the mortgagee before suit being greater this Society was celebrated at the Freemasons' than the balance found due, he was ordered to pay the costs; and in Smith v. Green, 1 Coll. 555, the mortgagee was deprived of his costs. In all these cases there was dispute as to the amount, but upon its appearing that the full amount had been received by, or tendered to, the mortgagee, The Chairman, in proposing the health of the Court held, that he was not justified in her Majesty the Queen, said, he felt confident compelling the mortgagor to institute a that it was quite unnecessary for him to add suit for the purpose of taking the account. anything to commend the toast to the warm "A mortgagee is, no doubt, favourably reception of that assembly, and he would at looked on by the Court; but he will not be once propose "The Queen.' allowed, by disputing the account, to throw the expenses of an unnecessary litigation upon the mortgagor. In this case, I am of The toast was most cordially responded to. The Chairman proposed the health of his Royal Highness Prince Albert, Albert, Prince of Wales, and the rest of the Royal Family. |