« EelmineJätka »
Metropolitan Police Bill.-Review: Rouse's Practical Conveyancer.
determined without the sanction of Secretary purpose of securing the distinct interest of of State; s. 13.
3 & 4 Vict. c. 88, s. 24, repealed; s. 14. Interpretation of terms; s. 15.
Act to be construed with 2 & 3 Vict. c. 93,
and 3 & 4 Vict. c. 88; s. 16.
Act not to extend to Metropolitan Police District or City of London; s. 17.
METROPOLITAN POLICE BILL.
PREAMBLE recites 10 Geo. 4, c. 44, and 2 & 3 Vict. c. 47.
One commissioner of police only to be hereafter appointed; s. 1.
Two assistant commissioners of police to be appointed; s. 2.
Salary of commissioner to be 1,500, and
assistant commissioners 8001. each; s. 3.
Assistant commissioners to be within the Superannuation Act 4 & 5 Wm. 4, c. 24; s. 4. The powers of the commissioners of police to be vested in the sole commissioner; s. 5. Duties of assistant commissioners; s. 6. Matters now required to be done by one of the commissioners of police to be done either by the commissioner or an assistant commissioner, as the Secretary of State may direct; s. 7. In case of vacancy of office of commissioner of police, or of his illness or absence, an assistant commissioner may be authorised to act for him; s. 8.
Certain provisions applicable to the commissioners of police to be applicable to the assistant commissioners; s. 9.
Acts done by one commissioner during the vacancy in the office of the other confirmed;
NOTICES OF NEW BOOKS.
some particular parties, and are therefore
It appeared, therefore, to Mr. Rouse that, by adopting the course usual with conveyancers in preparing a draft, all the advantage of having the drafts complete might be obtained, and yet the forms given within a small space. That course is, first, to prepare an outline of the draft, and then to fill up the clauses. The experienced practitioner will find this not only the readiest mode of preparing a draft himself, but the means of enabling him to detect at a glance, any unsuitableness in the form; and, if possessed of numbered clauses, he will also be able in a few words and figures to give instructions to a clerk to prepare even a lengthy draft.
To a young practitioner, also, having before him a sort of bird's-eye view of the draft, he would not be confused by its length and complexity, and would not, in filling up each clause, have his attention distracted by considering the effect of the draft generally.
The Practical Conveyancer, a Companion to Rouse's Practical Man, giving, in a Mode Again, it appeared to the Author that the combining Facility of Reference with General Utility, 365 Precedents of Con- arrangement of forms might be improved, veyances, Mortgages, and Leases, and a by giving the variations according to the Collection of Miscellaneous Forms. By order of the different parts in a conveyance. ROLLA ROUSE, Esq., of the Middle Thus to commence with variations in the Temple, Barrister-at-Law, Author of parties conveying; then take those in the "The Practical Man," "The Copyhold parties to whom the conveyance is made; Enfranchisement Manual," &c., Lon-next in the consideration; then in the don: Butterworths. 1856. Pp. 545. grant; and afterwards in the parcels and THE precedents usually given are pre- estate conveyed. pared for the assistance of the conveyancing practitioner from drafts submitted to counsel, either on account of some special circumstances attending the title, or for the
Adopting such an arrangement,-however numerous might be the collection of forms,-the part of the table of contents to which reference should be made would be
Review: Rouse's Practical Conveyancer.
known at once, and much time saved in | draft, even of a special deed, he need only looking for the form required.
In accordance with these views, Mr. Rouse has prepared the forms, giving in each case a complete outline of the draft, with the letters and numbers of the clauses in full, required to complete its respective parts.
note down the number of the form to be taken, give names of parties and consideration money, and sheets in the abstract when deeds recited, and the parcels will be found, in order to have the draft prepared with but little fear of mistakes.
4th. In the instruction of articled clerks, by being able to point out to them in a simple manner the variations between the different deeds.
An objection may be entertained to references in these precedents; and when the references are to other precedents, the objection is well founded, especially where, To the clerk, by the readiness with which as in some large works on conveyancing, re- he will find the required form, instead of ferences are made not only to other prece- having to go through and select from nudents, but, in many instances, to two or merous drafts. three, in as many different volumes. If, To the student, by enabling him better however, no references are made to other to understand a deed, the different parts of precedents, but merely to numbered clauses, which are plainly in outline before him, than all given separately, and in a way to be rea- by having to wade through long and heavy dily found, the objection will not apply. clauses, whilst he can, also, by carefully The work extends to conveyances, mort-reading over those clauses separately, make gages, and leases only, as the mode of pre- himself fully acquainted with the details of paring drafts is more usefully applied to the deed. those drafts than to settlements; and, with respect to wills, Mr. Rouse having given a collection of forms in the "Practical Man," he has not deemed it necessary to repeat
To show the advantage which may be derived from preparing forms in the manner adopted in this work, the Author gives a statement of the number of Precedents in the corresponding parts of "Bythewood's Conveyancing," which extend to four volumes, and those here given :Bythewood.
He will also derive advantage from the ready means afforded him of comparing different and yet somewhat similar drafts, and noticing in what they differ. To do this he might copy the outline forms, strike out the clauses which agree, and then compare those which differ; or he might compare them in the book without copying, and refer merely to the clauses, the outlines of which differ; the former would, however, be the better course.
Mr. Rouse draws attention to the great This Work. advantage which would arise from the general adoption of the power of attorney to surrender, in a mortgage of copyholds with power of sale. Such power is introduced in the forms given in the work; it may in many cases be the means of avoiding much expense and difficulty, and it is not liable to the objection to which a surrender to uses was held liable in the case of The Queen v. Downing College.
Mr. Rouse adds the following remarks on the other advantages attending his plan, as respects the Practitioner, the Clerk, and the Student.
To the Practitioner.-1st. A saving of at least three-fourths in expense; as no work, giving the forms in the ordinary way, could be published at less than, if so little as, four times the expense of this work, if containing the same number of forms.
2nd. If himself preparing drafts,-instead of having to refer to several precedents, and select the parts of different deeds which may be applicable, the arrangement of the Table of Contents in this work will enable him to know at once into what part of it to look in order to find any draft he may require.
3rd. In directing a clerk to prepare a
The following is an outline of the Contents of the Volume:
The 1st Part comprises
Review.-Summary Proceedings on Bills of Exchange Act, 1855.
Nos. 326,, 327-Freehold, Copyhold, and
Leases- 331 to 365.
Miscellaneous Forms-366 to 400.
P.-Provisions as to conveyances of
R.-Provisions as to Registry of Deeds,
The observations on stamping deeds are valuable to the practitioner; they are as follow :
"Agreements may be stamped within 14 days after entered into, without payment of penalty; or subsequently, on payment of 101. penalty. (7 Vict. c. 21, s. 16.)
"Attested copies within 60 days after date of attestation without payment of a penalty. (39 & 40 Geo. 3, c. 84.)
Bills, notes, drafts, or orders are not to be stamped after signature. (31 Geo. 3, c. 25.)
payment of penalty, if brought to commisszoners within two calendar months after being received in the kingdom, on proof of facts to the satisfaction of the board.
"ADJUDICATION STAMP.-The commissioners are, by sect. 14, empowered to denote that an instrument is properly stamped; or, by sect. 13 of 16 & 17 Vict. c. 59, that an instruinent does not require a stamp.
"The instrument, with a proper abstract, and an affidavit, the form of which can be obtained at the office, being delivered at the Inland Revenue Office, with the payment of 10s., the commissioners will assess the duty, if any payable, and, on its payment, impress an adjudication stamp, on receiving which the instrument is to be deemed duly stamped, or free from duty, as the case may be.
"An appeal against the decision of the commissioners is given by sect. 15 of the 13 & 14
Vict. c. 97.
UNSTAMPED INSTRUMENTS, produced at Trials. By the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 28, upon production of document in evidence at trial, the officer of the Court, whose duty it is to read the same, is to draw attention of the Court to omission or insufficiency of stamp; and same, if unstamped or not sufficiently stamped, shall not be received in evidence until the whole or deficiency and penalty required by Statute, with an additional penalty of 17., shall have been paid.
"By sect. 29, the officer, on payment, is to give a receipt for same, and thereupon the document shall be admissible in evidence, saving all just exceptions on other grounds.
“On production of officer's receipt, the commissioners are to stamp the document. The enactment is not to extend to any document which cannot be stamped after execution, on payment of duty and penalty."
SUMMARY PROCEDURE ON BILLS
"Deeds and instruments generally may, under 13 & 14 Vict. c. 97, be stamped at any time, on payment of a penalty of 101. each; and where duty required exceeds 107., then, in EXTENSION OF ACT TO COURTS OF RECORD addition, as penalty, interest at 51. per cent. per annum on duty, calculated from date or first execution of the instrument; but such interest is limited to amount of the duty.
IN ENGLAND AND WALES.
It is ordered by her Majesty in Council that all the provisions of "The Summary Procedure on Bills of Exchange Act, 1855," shall apply "Power is given to commissioners to remit to all the Courts of Record established under penalty, within twelve calendar months after the provisions of the Act passed in the Session execution by the person who first executed, holden in the 9th and 10th years of her present where shown to their satisfaction that it was Majesty, cap. 95, within one month after any not duly stamped, by reason of accident, mis-order that may be made and shall have been take, inadvertency, or urgent necessity, and published in the London Gazette in respect of without any wilful design or intention to de- actions upon bills of exchange and promissory fraud the Crown, or to evade or delay the pay-notes, where the plaintiff claims a sum not exment of the duty. ceeding 501.
"The general power is not to apply to any instrument, the stamping which is expressly prohibited or restricted, and for which special provision is made by any law in force.
"As to instruments executed abroad, without being properly stamped, sect. 13 of the Act provides that they may be stamped without
And it was further directed, that the powers and duties incident to the provisions of the said "Summary Procedure on Bills of Exchange Act, 1855," with respect to matters in the said Courts of Record, shall and may be exercised by the Judges of the said Courts respectively, or their respective deputies, for the
Summary Proceedings on Bills of Exchange Act, 1855.-Law of Attorneys.
time being, or in their absence by the respective clerks of the said Courts for the time being; and that the enactments, Secretary of State's orders, practice, and forms, in force and used in the said Courts of Record, shall be adopted with reference to proceedings had under the said last recited Act, so far as the same are applicable, mutatis mutandis.
LIVERPOOL BOROUGH COURT OF RECORD.
IT is ordered by her Majesty in Council that within one month after such order shall have been made and published in the London Gazette all the provisions of the "Summary Procedure on Bills of Exchange Act, 1855," contained in the sections numbered respectively 1, 2, 3, 4, 5, 6, and 7, in the printed copy of the said Act, except so much of section 1 as provides for the mode of fixing the amount of costs to be endorsed on the writ of summons under that tion shall extend and apply to the Court of Record of the borough of Liverpool, called the Court of Passage, as to matters and proceedings in that Court.
MANCHESTER CITY COURT OF RECORD.
all the authorities powers and duties exercisable by a Sheriff under any of the sections of the said Act as aforesaid shall, as regards matters and proceedings in the said Court of Record be exercisable and exercised by the Serjeant-at-Mace of the said city of Manchester.
LAW OF ATTORNEYS AND SO-
AGREEMENT BY CONTINUING MEMBER OF
THE plaintiff and defendant were in partnership as solicitors, and on September 1, 1848, they entered into the following agree:-"We do hereby declare and agree our mutual positions to be as follows:-1st, That all partnership accounts between us up to the 29th July, 1846, have been duly closed and settled. 2ndly, That since the 29th of July, 1846, the capital invested by the said George Douglas Aubin in our coAnd it was further directed, that all the partnership business has become, and still powers or duties exercisable by "the Court" or "a Judge" under any of the sections of the is, the sole property of the said Henry same Act shall, as regards matters and Frederick Holt. 3rdly, That from the said ceedings in the said Court of Passage, be exer- 29th of July, 1846, the said H. F. Holt cisable and exercised by "the Court " or " As- has been, and still is, entitled to the whole sessor;" and that all the powers or duties ex-profits of the business carried on by him ercisable by the Masters of the Superior Courts, under the style of Holt & Aubin.' That or any three of them, under the first section of in consideration of this agreement, the said the said Act shall, as regards matters and pro- H. F. Holt shall, from the 1st day of Occeedings in the said Court of Passage, be ex-tober next, grant unto the said G. D. Aubin ercised and exercisable by the Registrar of the said Court, subject to the approval of the said a clear annuity of 3007. during the life of his mother, Mrs. Elizabeth Aubin, he the said G. D. Aubin paying thereout all interest now or hereafter to become due by Ir is ordered by her Majesty in Council him to Mr. Chapman or his assigns. That that within one month after such order shall all arrears of the annuity of 150l. agreed to have been made and published in the London be paid to the said G. D. Aubin by the Gazette all the provisions of the " Summary said H. F. Holt, according to the agreement Procedure on Bills of Exchange Act, 1855 of the 29th of July, 1846, have been fully paid and satisfied. That in the event of the decease of the said G. D. Aubin in the lifetime of his mother, the said Elizabeth Aubin, the said H. F. Holt shall pay to any widow the said G. D. Aubin may leave And it was further ordered, that all the au- him surviving an annuity of 1007. per thorities powers or duties exercisable by the annum during the life of the said Mrs. Court or a Judge, or any number of Judges Elizabeth Aubin, on whose decease the said under any of the sections of the said "Summary Procedure on Bills of Exchange Act, annuities to cease altogether. That in the 1855," hereby extended and applied to the said event of the decease of the said H. F. Holt Court of Record within the city of Manchester, in the lifetime of the said Mrs. Elizabeth shall, as regards matters and proceedings in Aubin, the said G. D. Aubin shall be enthe said Court of Record be exercisable and titled to receive the sum of 5001. in princiexercised by such Court, or the Recorder thereof; and that all the authorities powers or duties exercisable by a Master or any number of Masters under any of the sections of the said Act as aforesaid, shall as regards matters and proceedings in the said Court of Record be exercisable and exercised by the Registrar of the said Court of Record or his deputy; and that
(except such as are contained in the sections numbered respectively 8, 9, and 10, in the copy of the said Act printed by her Majesty's Printer), shall extend and apply to the Court of Record within the city of Manchester, as to matters and proceedings in the said Court.
pal money out of the estate or property of the said H. F. Holt, and to the entire profits of the business of the said Holt & said H. F. Holt. That the said H. F. Aubin,' from the day of the decease of the Holt shall be permitted to carry on his business in the name and under the style
304 Law of Attorneys.-Law of Costs.-Marriage with a Deceased Wife's Sister.
of 'Holt & Aubin,' he indemnifying and guaranteeing the said G. D. Aubin from all liability in respect of his name being used as aforesaid. That at the decease of the said Elizabeth Aubin, the partnership between us to cease and determine."
Mr. Holt continued to carry on the business as provided by the agreement, but the annuity having fallen into arrear, the solicitors of the plaintiff, Mr. Aubin, wrote requesting payment of such arrears, and the execution of a proper deed within 14 days, and that if not complied with, proceedings would be taken.
This bill was then filed praying that the defendant might be ordered by deed or otherwise to effectually grant and secure to the plaintiff an annuity of 3001. according to the said agreement, and also to duly and effectually indemnify and guarantee the plaintiff from all liability in respect of such use of his name as aforesaid, and any further use thereof, and otherwise specifically to perform the agreement, and for an account and payment of what was due in respect of the said annuity or otherwise under the agreement.
The Vice-Chancellor Wood said:-
"The plaintiff is entitled to have this agree ment performed, for the agreement itself is in terms to grant an annuity, and is not such an instrument as he is entitled to have to secure
the annuity. For this purpose the plaintiff is entitled to have a deed, and ought not to be left to his remedy at law upon this agreement, which may well be taken not to be an agreement to pay the annuity.
and it is not within the discretion of the Courtto refuse specific performance because agreement savours of illegality. It must be shown to be illegal.
"As to the account, the plaintiff has a right to have it taken as incidental to the other relief; and this Court is not bound, instead of taking the account, to direct the deed to be antedated so as to include the arrears of the annuity.
"With respect to the effect of the omission to tender a deed for execution upon the costs, I must hear a reply."
Rolt having replied, the Vice-Chancellor
"Upon this point of the tender I should have thought that the plaintiff, by omitting to make it, had forfeited his right to costs; but before instituting this suit he asked the defendant also to pay the annuity; and it was his duty to take some step to do this, and his failing to do this has made this suit necessary. On that ground only I think the plaintiff is entitled to costs." Aubin v. Holt, 2 Kay & J. 66.
LAW OF COSTS.
AN interim injunction was granted to restrain the publication and sale by the defendant of a song in imitation of one published by the plaintiffs, but instead of submitting he insisted on his right to continue the publication of his song.
The Vice-Chancellor Wood held that he must pay the costs of a motion against him to continue the injunction, although it appeared that no application had been made to him by the plaintiffs previously to the filing of the bill. Chappell v. Davidson, 2 Kay and J. 123.
MARRIAGE WITH A DECEASED
Fenton v. Livingstone.
We have been favoured with a Report
"With respect to the objection on the ground of public policy, the first observation on Lord Eldon's judgment in Caudler v. Caudler, Jac. 225, is that it is in favour of this claim in one respect. He says that he had doubted the legality of similar arrangements, but was happy to find the Court of King's Bench to be of a different opinion in Bunn v. Guy, 4 East, 190, though he never could entirely reconcile himself to their doctrine; and that it was one of the commonest things in the world, as I believe it is to this day, for a solicitor to retire from a firm leaving his name in it. The case of Thornbury v. Bevill, 1 Y. & C., Ch., 554, was of a different of the decision by the Court of Session at character. There a person, who had never Edinburgh, on the 15th January, in favour been in the firm before, was brought in upon of the claimant to an estate in Scotland, the retirement of one of the partners, under the name of the retiring partner; and being entirely a stranger in the business, he was allowed to use the name of an experienced person to launch him in the world, never having had any connexion with such person previously. That is a very different transaction ed. from one partner in a firm retiring, and the name of the firm remaining unchanged.
"The agreement must be legal or illegal,
whose legitimacy was questioned on account of his being the issue of the marriage of his father with the sister of his deceased wife. The following are extracts from the judg ment, and the reasons on which it is found
It is supposed that this decision will enable persons to evade the effect of Lord Lyndhurst's Act, 5 & 6 Wm. 4, c. 54.
We have, with some reluctance, omitted