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DAVIDSON, of the Middle Temple, Esq., Barrister at Law. A. Maxwell & Son, 32, Bell-yard, Lincoln's-inn, Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. 11, John Street, Bedford Row, in the County of Middlesex. Saturday, January 16, 1847.** Privy Council. A. GORDON, Esq. of the Inner Inner Temple, Barrister at Law. Ir is generally believed, both in and out of the Profession, that measures are in active progress for the establishment in practice of the county courts under the 8 & 9 Vict. c. 95, and that within a very short period of time the public may expect to have the benefit of the new jurisdiction. We have often, in the pages of this Journal, and that long ago, when county courts were talked of, but with little hope that they would be speedily organised and brought into existence, urged the propriety of giving to such courts, if formed at all, an equity as well as a common-law jurisdiction. Vice-Chancellor Wigram's [F. FISHER, Esq. of Lincoln's Temple, Barrister at Law. Inn, Barrister at Law. D. PoWER, Esq. of Lincoln's (W. PATERSON, Esq. of Gray's { Barrister at Law. J. P. DEANE, D.C.L. of Doctors JW.W.COOPER, Esq. of the Inner specific performance, upon a contract perhaps for 100%., to be made out by letters passing between two petty farmers! Formerly, to such an observation the answer would have been, that it is better that such little litigations should be nipped in the bud, and that, when people of small means cannot go to law about their trifling purchases and trivial rights, they will settle them out of court. Whatever might have been the weight of such an argument, the principle of it was given up when the Legislature passed the County Courts Act; because it is obvious, that every argument which is applicable to the alleged impolicy of permitting equity litigation in reference to small matters, is equally applicable to shew the impolicy of permitting general litigation at law about 207. debts. And as the Legislature has de such legal questions, so ought it, if the existence can be shewn of a mass of equitable claims incapable of being settled by any existing jurisdiction, to afford to the people the possession of a competent tribunal for such matters. Since we commenced this equitable agitation, many changes have taken place in the law and in the practice of the law which, if such a jurisdiction was then neces-clared that it is politic to give the means of settling sary, have made it now doubly desirable. Among other things, the Legislature has interfered to facilitate the transfer of real property and to shorten conveyances; and, if it has not been successful in all its efforts, it has at least aided the growing tendency of the public to seek, and of the Profession to adopt, with reference to property of small amount, a practice in conveyancing distinguished by endeavours at simplification and brevity, calculated to render estates susceptible of regular sale, and mortgage, and settlement, which, under the old practice, were quite unavailable as an exchangeable commodity. Now, can it be doubted that such a mass of small equitable claims does exist? We ask every conveyancer and every Chancery practitioner, whether it has not frequently occurred to him in practice, to advise against proceedings in Chancery, admitting that, without such proceeding, no satisfactory result can be arrived at, simply because the smallness of the estate or fund, the subject of dispute, would be utterly annihilated, perhaps, before even getting so far as a prelimi The result of this is of course a growing increase of causes of equitable litigation among a class of persons, and in reference to a class of estates, for which the assist-nary decree for inquiries, and inevitable before reaching ance of the High Court of Chancery is quite unattainable. Imagine a suit in Chancery to ascertain and settle the claims of devisees of an estate of the value of 2007., and the priorities of incumbrancers on the shares of one or more such devisees; or a fighting suit for VOL. XI. B a final hearing of the cause. Practically, it may be said, without the fear of contradiction, that there is no tribunal whatever in this country that can adjust purely equitable claims, where the property at stake does not exceed 2001.; and at or about that we should be disposed to place the maximum of value that should be litigated in equity in county courts. Many also of the objections of a practical character that could formerly have been speciously made to the creation of a petty equity jurisdiction, are now rendered impossible by the creation of the county courts. There will be in existence courts with all their staff and machinery; there will be judges all ready to judge; clerks and officers all ready to take accounts and make inquiries; treasurers to act as accountants-general; taxing officers, bailiffs, everything in short requisite to carry on litigation. All the materiel will exist; and the only thing remaining to be done will be to give jurisdiction, and to frame rules and orders as to procedure, a task which would not be of excessive difficulty. It might be a question, whether, if such a jurisdiction were given to county courts, it would be better that every court should be a court both of law and equity, or that certain of the courts should be exclusively courts of equity. That would be a question of detail, which would probably not be found of insuperable difficulty, if the Legislature were once to determine upon adopting the principle. Viewing, then, the unquestionable existence of subjects of equitable litigation, for which there is no accessible jurisdiction; the unavoidable inference in regard to the policy of permitting such litigation, arising from the declared opinion of the Legislature in reference to subjects of common-law litigation; and the practical facilities afforded by the establishment of the county courts, for the introduction into the jurisprudence of this country, of courts of equity as well as courts of law for the poor man, we conceive, that, in urging again and again this subject upon the notice of the Profession, we shall be doing, in our very humble sphere, some service to the State. COURT OF QUEEN'S BENCH. Rebiew. A Treatise on the Stamp Laws in Great Britain and Ireland: being an Analytical Digest of the Statutes and Cases, with Practical Observations thereon, and a Table of Stamp Duties payable throughout the Kingdom. By HUGH TILSLEY, Assistant Solicitor of Stamps and Taxes. 8vo., pp. 692. [London: Stevens & Norton.] Gentlemen in official situations are seldom very successful when they undertake to write on the subjects with which they are, or ought to be, best acquainted. Whether it be that office is seldom worthily bestowed, or that official aptitude is incompatible with what Bacon calls "the faculty of tradition," we do not know; but certain it is, that, from "The Lincoln's Inn Guide" and "Rigge on Registration" upwards, few works bearing the official stamp have been worth much. When we saw this work announced, and remembered the very curious dicta as to stamps that to our knowledge have occasionally emanated from Somerset House, have been agreeably disappointed; for an exception we did not expect to see an exception to the rule. We the present work is, and a very striking one. Mr. Tilsley is evidently a gentleman of considerable ability and industry, and would have written well and soundly on the subject, even if his employment had not made it peculiarly his own*; and in legal apprehension alone the Stamp Office) he fairly beats his predecessors and (a qualification which he certainly has not acquired at rivals, Messrs. Chitty and Collins. The cases are well stated, and acutely criticised. But this is not all: the book is completet, and admirably arranged for reference; and these merits we place to the credit of its official origin. It is a perfect working book of reference, and bears internal evidence of having been originally compiled, as the author says, for the use of himself, and those associated with him in his official duties. The table of contents will shew the plan and scope of the work: Introductory matter relating to subjects of a general character connected with the Stamp Duty on Instruments Advertisements - Affidavits-AgreementsAppointments to Offices-Appraisements and Appraisers -Awards-Apprentices-Articled Clerks-Attorneys Jan. 19.-Lord Denman, C. J., delivered the judg- and Solicitors, &c.-Bills of Exchange and Promissory ment of the court in the following cases: Jan. 21.-This court will hold sittings on Saturday, the 6th day of February next; also on Monday, the 8th day of February next, and the five next following days; and on Monday, the 15th day of February next; and will proceed in disposing of the business then pending in the New Trial Paper and in the Special Paper; and, on Monday, the 22nd day of February next, to deliver judgment in all cases then standing for judgment. BY THE COURT. Read in open court,-E. Bennett. Notes, Bankers-Bills of Lading, Charter-party, Certificate on Debentures for Drawback-Bonds-Cards and Dice-Conveyance on Sale-Copyhold Estate-Denoting Stamp-Discount and Allowances, DrawbackForgery, Fraud-Instruments, general enactments relating to (sub-divisions: 1. The local extent of the Stamp * Mr. Tilsley refers, in his Preface, to a supposed effect of his belonging to the junior branch of the Profession, upon "the estimate of his production, whatever may be its real merit." This looks like feigned modesty, and is, to say the least of it, a sentiment of great injustice. Members of the senior branch of the Profession will use a good book, whether its author be a barrister, or a solicitor, or a layman. + We must make one qualification. Mr. Tilsley mentions, both in a separate chronological table, and under each head in the body of the work, all the repealed statutes by which stamp duties were imposed; but he does not state the amounts of the duties which they imposed on instruments of a permanent character,-information which is not easily obtained, because, in the current editions of the Statutes at Large, the titles only of those repealed stamp acts are printed. In his next edition, we hope the author will give a table of all the stamps that have ever been imposed on instruments of a permanent nature. Something of this sort is, we believe, done in Mr. Coventry's work, a book, like the rest of that gentleman's productions, well conceived and badly executed. Mr. Tilsley has a table, which he entitles "Table of Duties payable prior to 10th October, 1804," but, if we are not mistaken, it does not include all the duties to which we refer. Laws; 2. The Stamping of executed Instruments; duties of a foreign country, Mr. Tilsley thus pro3. The Admission of unstamped Instruments in Evi- ceeds:dence for collateral Purposes, and herein as to Second- "Alves v. Hodgson and Clegg v. Levy are generally ary Evidence; 4. Instruments relating to several Parties referred to as establishing a distinction between foreign and Matters; 5. Alterations after Execution; 6. Time independent states and the British colonies; but no for Objecting to Sufficiency of Stamp; 7. Inforcing Pro- allusion was made to any such distinction in the judgduction of Instrument to be stamped; 8. Special Plead-ment in either case, nor was any argument attempted ing with reference to Stamps; 9. Instruments subject to be founded upon it on one side or the other; and to the common Deed Duty)-Insurance-Lease-Li- 'the broad principle upon which the decisions were cense to sell Stamps-Medicines-Mortgages-News-come to admits of no limit in its operation. The papers-Pawnbrokers-Penalties for Offences-Plate-point seems to have been recently entertained by the Postage Stamps-Progressive Duties-Public Officers 'Court of Common Pleas, by granting a rule nisi to Receipts Schedules Spoiled Stamps Stamp, set aside a verdict obtained on two bills not stamped various general Enactments Surrender, Release, Re-according to the law of Belgium. Conceding, hownunciation, Disclaimer-Probate Duty-Legacy Duty ever, such principle to be altogether repudiated in the -Table of present Stamp Duties (being the Schedule 'case of foreign powers, the reason for it, viz. the abto the General Stamp Act, enlarged and corrected ac- sence of necessity, does not apply to the British cocording to the existing laws)-Table of Duties payablelonies." prior to 10th October, 1804. Appendix-A second form of instrument written on paper stamped for one instrument only; Hackney Carriages; Hawkers and Pedlars; Railways; Stage Carriages; Abstract of Statutes in Ireland relating to Stamp Duties; List of Statutes granting Stamp Duties in Great Britain, or otherwise relating thereto. Addenda. Index to Irish Statutes." The arrangement is alphabetical, and under each head the statutes, as well those repealed as those in force, are referred to in order; and then the cases are stated. The decision on the construction of the Stamp Acts are, as our readers are aware, very numerous and very important, and they unfortunately constitute the only help which the practitioner can obtain for the solution of the perplexing questions that are constantly arising; for, as is remarked in the introductory part of the work, (page 10), the Commissioners of Stamps and Taxes have no authority given by the Legislature to decide, or, by any act of theirs, (except in the instance of denoting stamps in particular cases spe'cially provided for), to preclude inquiry as to the suf'ficiency of the stamp on any instrument," the courts not being "in the habit of referring to the Stamp 'Office on any question before them." Mr. Tilsley adds, "Of course, neither the commissioners nor their 'officers are responsible for the consequences of a defi· ciency of duty on any instrument stamped after it is executed; for, although they refuse to impress a duty which is palpably insufficient*, they, in cases of doubt, allow parties to exercise their own discretion, at the same time not withholding advice; and it may reasonably be presumed, that, whenever a doubt is really 'entertained upon any point, a recommendation is never 'given to take the lower stamp. It certainly is by no means probable, that, in any instance where a question is suggested whether the stamp should be the common <deed duty or one of less amount, a party is advised to be content with the latter if the point be one of real difficulty." The work is not limited to the laws as, before the passing of the 5 & 6 Vict. c. 82, they affected England, and their operation since the date of that statute, but extends also to those which in any way regulate the stamp duties in Ireland; and within its scope will be found a very carefully compiled collection of, we believe, all the statutory enactments relating to stamps which have ever been in force in any part of the United Kingdom, from the 5 W. & M. c. 21, in the year 1694, down to the present time. In illustration of our author's mode of discussing the authorities, we shall give two extracts. The first will be found at page 302, where, after speaking of the principle of lex loci contractûs with reference to the stamp * A refusal in which, however, they are clearly not justified. At p. 11, after referring to the case of Doe d. Fryer v. Coombes, deciding, that, primâ facie, a deed which bore the appearance of having had a stamp upon it, but the amount of which, in consequence of the parchment being worn and obliterated, could not be ascertained, was admissible in evidence, it is said— "This case must be received with a due consideration of all the circumstances attending it, and was 'not intended as an authority on all occasions where a stamp is destroyed. The decision was founded in reason. Here was an old deed, which, from want of ' due care, had become almost illegible; the deed itself and the stamp upon it were in a state of premature decay; there was evidence of a stamp having been impressed; and, under the circumstances, the court was justified in presuming it to be correct. Except in cases of a similar description, no such presumption is warranted; but, on the contrary, the suspicion naturally arises, where the stamp is obliterated, that such stamp was improper, unless the deed itself, as well as the stamp, appears to have undergone a ma'terial change either from natural decay or some acci'dental cause.' We shall now refer to one or two positions in which we cannot agree with our author. At p. 479 he states, without disapproval, the decision in Pierpoint v. Gower, (5 Scott, N. R., 605; 6 Jur. 952), that a mortgage given as a further security for a debt previously secured by a warrant of attorney, is exempted from the ad-valorem duty by the 3 Geo. 4, c. 117, s. 3, which mentions bonds only, and adds, "a warrant of attorney and a bond is for this purpose the same." The decison is clearly erroneous, as we have shewn in another place (8 Jur. 43); a warrant of attorney is not, for any purpose, a bond. At p. 477, Mr. Tilsley quarrels with the decision in Sellick v. Trevor, (11 Mee. & W. 722), that a deed of covenant to accompany a conditional surrender by way of mortgage of copyholds is sufficiently stamped with the ad-valorem duty, where that duty is 21. or under. We think that the decision was correct, though the grounds of it were not very happily expressed by the court. The title "Mortgages," in the schedule to the Stamp Act, has a provision for the case of "several distinct deeds or instruments falling within the description of any of the instruments hereby charged with the advalorem duty on mortgages" being made at the same time for recovering the same sum; and it directs, that the ad-valorem duty, if it exceeds 21., is to be charged on one only of such instruments, the others being liable to such duty as may attach on them under any more general head in the schedule; and the parties are to be at liberty to determine which instrument is to bear the ad-valorem duty. But then follows a proviso, that, in the case of a mortgage of copyholds by conditional surrender or grant, the ad-valorem stamp is to be affixed to the surrender or grant, no option being left to the parties. In other respects, the preceding provision for the case of several instruments is left untouched, so that | where the ad-valorem duty does not exceed 21., and there is a conditional surrender and an accompanying mortgage deed, both are liable to the ad-valorem duty only. This was the case in Sellick v. Trevor, where the accompanying deed contained covenants for title, a covenant to pay the mortgage debt, and a power of sale, and the amount being 1007., the deed was held liable to a duty of 17. 10s. only. The deed was clearly a mortgage in equity. Mr. Tilsley says it was no mortgage, and adds, that, in the case of a covenant to surrender copyholds, if a surrender be never made, but the person lending the money remains satisfied with the covenant, there is then no mortgage, and, consequently, no ad-valorem duty. This is a mistake: a Covenant to surrender copyholds by way of mortgage is unquestionably an equitable mortgage, and would be enforced in Chancery, if no surrender were made. Such a covenant, when the surrender is made at the same time, is exempted from the ad-valorem duty (if it exceed 27.) by the proviso referred to; but if the surrender is not made at the time of executing the deed, the deed is plainly liable to the ad-valorem duty. At p. 224, Mr. Tilsley cites authority to shew that any acknowledgment of a debt, if under seal, is a bond; and adds, "a covenant to pay money cannot be made liable to a stamp duty as a bond, unless it be a bond." Granted: but this is surely disposing in too ambiguous and summary a manner of the important question, whether an unqualified covenant to pay a sum certain is not liable to the ad-valorem duty on bonds. See 3 Jarm. Conv., 3rd ed., p. 361. We shall probably take an early opportunity to notice some other interesting points, which want of space obliges us at present to pass over. CIRCUITS OF THE COMMISSIONERS FOR THE RELIEF OF INSOLVENT DEBTORS. - SUMMER CIRCUITS, 1847. SOUTHERN CIRCUIT. HENRY REVELL REYNOLDS, Esq., Chief Commissioner. Dorsetshire, at Dorchester, Monday, Aug. 2. Durham, at Durham, Friday, July 2. Cumberland, at Carlisle, Wednesday, July 7. MIDLAND CIRCUIT. WILLIAM JOHN LAW, Esq., Commissioner. Essex, at Colchester, Friday, June 25. Norfolk, at Yarmouth, Thursday, July 1. HOME CIRCUIT. CHARLES PHILLIPS, Esq., Commissioner. Kent, at Dover, Thursday, July 8. London Gazettes. TUESDAY, JANUARY 19. BANKRUPTS. GEORGE SHARP and SAMUEL SHARP, Commercialroad, Lambeth, Surrey, stonemasons and merchants, dealers and chapmen, Jan. 27 and March 2 at 1, Court of Bankruptcy, London: Off. Ass. Pennell; Sols. Lawrance & Plews, Old Jewry-chambers, City.-Fiat dated Jan. 18. WILLIAM WILES, Dulwich, Surrey, pawnbroker, Jan. 26 at 2, and March 2 at 11, Court of Bankruptcy, London: Off. Ass. Belcher; Sols. Lawrance & Plews, Old Jewrychambers, City.-Fiat dated Jan. 11. JOSEPH DOREY and JOHN HISKINS, Powis-street, Woolwich, Kent, brewers, Jan. 26 at 2, and March 2 at 12, Court of Bankruptcy, London: Off. Ass. Belcher; Sols. Miller & Carr, 47, Eastcheap, London.-Fiat dated Jan. 18. JOHN EDWARDS, Nag's Head-court, Gracechurch-street, London, ironmonger and commission agent, Jan. 28 at halfpast 11, and March 1 at 11, Court of Bankruptcy, London: Off. Ass. Turquand; Sols. Phillips & Co., Size-lane.-Fiat dated Jan. 16. |