Doubts on the Stamp Laws-Singular Case and Opinion. 445 a house and premises in Holborn, and in the said sum of 1007., with any further sum order to secure the said C. D. against loss C. D. may advance, not exceeding the sum of or damage, as well in respect thereof as for 1801., with interest for the same, the bargain any further sum not exceeding 2007., which he and sale shall cease." The sum of 1801. may advance or pay on account of the said means that 1801. is the aggregate or sum of A. B. It was agreed that the said A. B. should money advanced and to be advanced, and execute a bill of sale of his effects in Holborn, such is the strict literal proper and primary and deposit with the said C. D. an agreement signification of the word "sum." The words for a lease of the house and premises in Hol-"the sum of 180l." are so placed that they born aforesaid, together with a policy of insur- may, and naturally do, refer to as well the ance on the effects of the said A. B. for the sum advanced as the sum to be advanced, and sum of 1801. Now this indenture witnesseth, in this respect there is an observable difference that in pursuance of the above recited agree- between the language of the proviso and that ment the said A. B. hath bargained and sold, of recital showing a difference of intention. and by these presents doth bargain and sell The deed recites an agreement to secure C. D. unto the said C. D., his executors, administra- from loss, as well in respect of the money adtors, and assigns, all the furniture, agreement vanced "as for any further sum not exceeding for a lease of the house in Holborn aforesaid, 2001. which he may advance or pay," &c. The policy, fixtures, and all other effects mentioned words "not exceeding 2007." being in middle and described in the schedule hereto, together of the sentence relating to the future advance with all rights, advantages, privileges, and associate themselves with the words "further emoluments to arise therefrom or thereunto in sum;" the words "the sum" are omitted and anywise appertaining. To have, hold, receive, could not be properly used, since if 2001. was and take the said furniture agreement for lease, to be advanced in addition to 100l., 2001. could policy, fixtures, and all and singular other the not be "the sum," although it would be "the premises hereby bargained and sold, or intend- further sum." The proviso, however, shows ed so to be, with their appurtenances, unto the that this agreement to secure 2007. in addition said C. D., his executors, administrators, and to 100l. was not carried out, and that an addiassigns, for his and their own proper use and tional advance of 801. only is secured. The benefit; subject, nevertheless, to the proviso words there are, "not exceeding the sum of for redemption of the same premises herein- 180." The words "the sum" being introafter contained (that is to say): Provided al- duced to show that the 1801. is to be the total ways, and these presents are upon this express of the past and future advances, and the clause condition, that if the said A. B., his executors, not being inserted in the middle of the senadministrators, or assigns, do and shall well tence as to the future advances so as to agree and truly pay unto the said C. D., his execu- with the words "the further sum only, but tors, administrators, or assigns, the said sum being placed after both sentences so as to of 1007., with any further sum he may advance, agree with, refer to, and limit them both. The not exceeding the sum of 180., with interest proviso may and should be read thus,—"The for the same, on or before the day of said sum of 100%., with any further sum he 1851, without any deduction or abatement may advance, not exceeding the sum of 1801." whatsoever, then and in such case the bargain The words "with interest for the same" refer and sale, or other assurance herein before made, more strictly and properly to the sum of 1807., shall cease and be void to all intents and pur- the last antecedent as the aggregate and ultiposes whatsoever. And lastly, the said A. B., mate sum on which the interest is to be calcu for himself, his heirs, executors, and admini- lated. strators, doth hereby warrant and defend, and from time to time and at all times hereafter agree to warrant and defend, all and singular the furniture, agreement for lease, policy, stock in trade, and other effects hereby bargained and sold, or otherwise assured or intended so to be, unto the said C. D., his executors, administrators, and assigns, against all persons whomsoever. In witness, &c. OPINION. That the intention of the parties was only to secure 180l. appears further from the recital as to the policy which was for 180. only ;—had 2801. been the sum to be secured, there could be no reason in not having a policy for 280l., the additional premium and duty on which would only have been 4s. 6d. The principle of construction for which the plaintiff contends is that laid down by the Court of Exchequer in Mallun v. May, 13 M. & W. 517,-that words are to be construed according to their strict and primary acceptation, unless from the context of the instrument and the intention of the parties to be collected from it they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect, and Clift v. Schwabe, 3 C. B. 437, may also be referred to where the question was upon the meaning of the word "suicide." Taking the words "the sum of 180l." in their strict and primary sense, they mean that 1807. was to be 446 Doubts on the Stamp Laws-Singular Case and Opinion. the sum or TOTAL of both past and future advances. If words have ever been construed in a sense other than this it has been for the purpose of supporting and not destroying the instrument according to the maxim. "Benignæ faciendæ sunt interpretationes ut res magis valeat quam pereat," for which vide Broom's Maxims, 413. The maxim "Ex antecedentibus et consequentibus fit optima interpretatio" (Broom, 442) warrants the plaintiff in referring to the clause as to the policy as explaining the proviso. 2. The stamp may be looked at as explaining the intention of the parties, if the language of the instrument be ambiguous. In Doedem. Coon v. Clare, 1 D. & E. 739, the Court relied upon the fact that an instrument was stamped as an agreement as a reason for holding it to be an agreement for a lease rather than a lease. On 3. the same principle, the circumstance of land being of copyhold tenure which cannot be leased without incurring a forfeiture is material in construing an ambiguous document as an agreement for a lease: Lady Montague's case, Cro. Jac. 301; Hamlen v. Hamlen, 1 Bals. 189; Kenthall v. Thomas, 2 Keb. 267 ; Penny v. Child, 2 M. & S. 255. It is more reasonable to suppose that the parties would stamp the deed as they intended it to operate than that they would throw away their money and incur a penalty. The recent Stamp Act, 13 & 14 Vict. c. 97, proceeds on the principle of allowing the stamp to explain the intention of the parties in the provision, that when the amount to be secured is unlimited, the deed shall be a security for the amount to which the stamp is applicable. Schedule tit. Mortgage. The plaintiff says, that the words "the sum of 1801." in the proviso are used in their strict, 4. primary, and proper sense of the aggregate whole and total sum-the defendant proposes to read the words "the sum, &c.," as further sum," which is introducing a word and making "1801." not the sum." the Subjoined is an extract from Johnson's Dictionary of the word "sum," and "to sum," with all the quotations given under those heads, from which it will appear that the words "the sum," import the highest and largest amount of anything. The summit of the mountain is its highest point. The summum bonum is the highest good. It appears, therefore, that the proviso is framed with the greatest accuracy, and that not an unnecessary word has been used. Sum, n. s. Summa, Lat. Somme, French. 1. The whole of anything: many particulars aggregated to a total. "We may as well conclude so of every sentence as Shrined in his sanctuary of Heaven secure, 5. 1. Consulting in the sum of things foreseen "Such and no less is he, on whom depends the sum Weighing the sum of things with wise forecast Quantity of money. "I did send to you for certain sums of gold which you denyed me." As ample sums as Rome in Cæsar's days." Somme, French.-Compendium, Abridge- "This in effect is the sum and substance of that which they bring by way of opposition against those orders which we have common with the Church of Rome."-Hooker. "They replenished the hearts of the nearest unto them with words of memorable consolation, strengthened men in the fear of God, gave them wholesome instruction of life and confirmed them in true religion, in sum they taught the world no less virtuously how to die, than they had done before how to live."-Hooker. "This having learned, thou hast attained the sum of wisdom."-Milton P. L. "In sum no man can have a greater veneration for "Thy sum of duty let two words contain: "In sum the Gospel, considered as a law, prescribes Rogers. The amount, the result of reasoning or computation. "I appeal to the readers whether the sum of what I "Thus I have told thee all my state; and brought "In saying ay or no the very safety of our country, To sum, v. a. Sommer, French, from the noun. And summ'd the account of chance." Shakespeare, Henry 4th. "In sickness time will seem longer without a clock Doubts on the Stamp Laws.-Law of Arbitration. 2. To comprise, to comprehend, to collect into That what seemed fair in all the world seemed Milton P. L. "To conclude by summing up what I would say 447 reference by their attorney A. B. Taunton, J., in summing up to the jury, said, that A. B. having acted as attorney for the defendants, they must be taken to be bound by his acts.3 Even where a defendant swore that she had expressly desired her attorney not to consent to a reference, and that no step had been taken in it except the appointment of a meeting, the Court refused the application to set aside the Nisi Prius order of reference, and Mansfield, C. J., said,Here is an express agreement to refer, properly entered into by counsel and attorney; it is now said they had no authority to enter into that agreement; if so the defendant's remedy is by action against her attor ney." So where a cause was referred by Judges' order by consent of the attorneys, the Court enforced the award summarily, though the defendant swore that he had never authorised the reference, and previous to the award being made had sent a protest to the plaintiffs and the arbitrator against their proceedings.5 "In a case against a land steward defended by the landlord, the attorney had agreed to an order of Nisi Prius compromising that action, and also other actions between the plaintiff and the landlord; a motion was made to set aside the order on the ground that the attorney had no authority to bind the landlord by such an arrangement, and it was argued that employing an attorney in a cause gives him no authority to refer all matters in dispute between the parties; but the Court said it was constantly done, and refused to interfere in a summary way." 6 "On one occasion, where the question was raised but not determined, whether a retainer under seal was necessary to warrant the attorney of a corporation in conducting or referring an action, Pollock, C. B., distinguished the case of Arnold v. Mayor of Poole," saying that that case did not decide that the corporation might not be bound, but only that the attorney could not recover, without such a retainer. company, although they objected that the attorney not being appointed under seal had no authority to proceed in the action, or to refer it." "When a person has given an attorney any general authority to act for him in legal proceedings, the Courts have always been inclined to "More recently, however, where an incorhold him bound by his attorney's acts, and yield porated railway company had been served with with reluctance to any complaint that the attor-a writ, and their attorney had entered an apney has acted beyond or contrary to the autho-pearance, and ultimately referred the action, rity given him in consenting to a reference.' the Court enforced the award against the On one occasion Best, C.J., seemed to have assumed as clear, that an attorney in a cause has power to refer the cause, whatever be his authority as to matters out of it, and that attorneys for the parties generally have power to refer all matters in difference.2 In another instance, where it was necessary to prove at Nisi Prius that all the members of a firm had assented to a parol submission, the arbitrator stated in the witness-box that he had been requested by one partner only to undertake the arbitration, that the defendants had never personally attended, but were represented at the 1 "Latuche v. Pasherante, 1 Salk. 86; Buckle v. Roach, 1 Chitt. 193; Bodington v. Harris, 1 Bing. 187; Jamieson v. Binns, in re, 4 A. & E. 945; Paull v. Paull, 2 C. & M. 235. "Dowse v. Coxe, 3 Bing. 20. "The attorney's consent to an enlargement of time binds the client.' "A Judge's order referring a cause may be made a rule of Court without any consent on 3 "Adams v. Bunkart, 1 C. M. & R. 681. 8 66 1845. Mayor of Ludlow v. Charlton, Ex. E. T. "Faviell v. Eastern Counties Railway Company, 2 Exch. 344. "R. v. Hill, 7 Price, 636. the part of the client. If the attorney consents for him it is enough.2 "The acts of the attorney's town agent are as binding on the client as the acts of the attorney himself.3 "But a confidential clerk of an attorney is not competent to bind his principal or the client by consenting to the appointment of an umpire by lot. "That decision of Lord Eldon's was relied upon in the following case:-A counsel in a suit in equity, in the absence of his solicitor and of the client from the Court, consented to an order being drawn up on certain terms proposed by the other side. When the client was informed of it, he strongly objected to the terms, and moved to have the rule rescinded. The case was several times brought before Lord Lyndhurst, C., who stated his opinion, that a party was bound by the consent of his counsel given in Court, though they had no instructions to consent, if they were at the time apprised of all those facts, of which the knowledge was essential to the proper exercise of their discretion, but that he would be relieved from an order made by such consent if they gave that consent in ignorance of material cir"Like other agents, attorneys bind them- cumstances. He also intimated that if the soselves by a submission if they expressly con-licitor had been in Court, and with a full knowtract to be bound, and when they submit without authority they alone are bound.' "A distinction was formerly taken, which, however, may well be doubted now, between the authority of a solicitor and attorney. It was said that the assent of a solicitor to a reference by an order of a Court of Equity was not obligatory on the client without his actual concurrence, though in the same case it was admitted that such a reference by rule of Nisi Prius would bind him." "The attorneys of the parties to an appeal against a poor rate at the Quarter Sessions have sufficient authority to refer the question to arbitration." "When infants sue by their next friends in Chancery, the attorneys in the suit have no authority to bind the infants by a reference, or the next friends of the infants, for the due performance of the award by the infants."" Then, as to the authority of Counsel to consent to the reference of a cause, Mr. Russell considers that in general it will be binding on the party he represents : "A counsel appeared to consent to a compromise of a suit on behalf of one of the parties. Some doubt being suggested whether the counsel was authorised by the party to the suit, the instructions not being given by the solicitor she had formerly employed, Lord Chancellor Eldon said, It is for the counsel to consider whether he is authorised to give his consent for the widow. If he does, I must act upon it, and she will be bound by it." 5 6 Bac. Ab. Arb. C.; Colwel v. Child, Cas. in Chan 86, 1 Ch. Rep. 104. See Furnival v. Bogle, 4 Russ. 142. 6"Com. Dig. Arb. D. 2; Cayhill v. Fitzgerald, 1 Wills. 28, 58; Iveson v. Conington, 1 B. & C. 160. 7" Bac. Ab. Arb. C.; Bacon v. Dubarry, 1 Salk. 70, S. C. 1 Lord Raym. 246, Comb. 439, Carth. 412; but see Anon. 6 Mod. 16, and Wade v. Stanley, 1 Jac. & W. 674. "R. v. JJ. Northampton, 2 Bott. pl. 936, S. C. Cald. 30. See Stat. 12 & 13 Vict. c. 45, ss. 12, 13. See 9 "Biddell v. Dowse, 6 B. & C. 255. "Mole v. Smith, 1 Jac. & W. 673. R. v. Corporation of Helston, 10 Mod. 202. ledge of all the facts of the case had assented to the arrangement, it would have bound his client; and that if the solicitor, when he heard of the order, had dissented from it, it was his duty to have given immediate notice of his objection; that by not doing so he would be taken to have adopted it, and his client would be bound. Affidavits, however, were admitted to show that the counsel had not all the proper facts before them, and that there had been no laches in objecting on the part of the solicitor, and consequently the order was rescinded. "The principle that parties are bound by the consent of the counsel has been recognised in a late case, where a petition to restore a petition dismissed by consent upon the ground that no authority had been given to counsel to consent, was dismissed with costs." "Counsel seem to have equal authority in Scotland. On the trial of two cross actions in the Scotch Courts, the counsel had, at the suggestion of the Judge, agreed to refer them, and had subscribed a minute of judicial reference referring them to A. B., or failing him, to any arbitrator to be named by the Lord President. A party sole plaintiff in one, and the sole defendant in the other action, in the course of the day protested against the reference, and moved the Court to discharge it, alleging that he was not aware of the terms of it, and was taken by surprise, adding (what was the fact), that A. B. declined the reference. But the Lord President and lords of first division, before whom the matter was heard, admitted the reference, and appointed another arbitrator in the place of A. B. "In the course of the same cause, however, an order made by the consent of counsel only was rescinded. For after an award was made the matter was brought by appeal before the House of Lords. On the hearing of the appeals, they were at the suggestion of the lords New Fees in County Courts.—Salaries of the County Court Judges. present withdrawn upon terms consented to by the counsel of the parties, and embodied in an order of the House. That order was rescinded upon petition of the appellant's agent, stating that he had not considered the terms of the compromise when the counsel consented to it, and the appeals were reheard." NEW FEES IN COUNTY COURTS. THE following are the Fees proposed by the New Bill to be taken in the County Courts:For every plaint,-6d. in the pound on the amount of the demand. Notice.-No other fee whatever is to be taken on the entry of a plaint. Judgments by consent under the 13 & 14 Vict. c. 61, s. 8 and 9, and Judgments by default,—1s. in the pound on the amount of the demand. For every hearing,--2s. in the pound on the amount of the demand. Notice. -No other fee whatever is to be taken for the hearing or trial of a cause. For issuing any warrant against the body or goods,-1s. 6d. in the pound on the amount for which such warrant issues. For application for new trial, or to set aside proceedings,-6d. in the pound on the amount of the demand. Notice.-No other fees than the above to be taken on any account whatever. No increase of fees shall be made by reason of their being more than one plaintiff or defendant. High Bailiff's Fees. For keeping possession of goods till sale, per day (including expenses of removal, storeage of goods, and all other expenses whatever) not exceeding five days, 6d. in the pound on the value of the goods seized. [This, however, does not apply to cases of interpleader, in which the costs and expenses of possession are to be in each case specially allowed by the Judge at the hearing of the interpleader summons, but which shall in no case exceed the expenses incurred by the bailiff in keeping possession.] N. B.-In cases within the ordinary juris. diction of the Court the above-mentioned poundage and fees are to be taken; but where the sum demanded is above 201., the poundage is to be taken on 201. only. In all cases of jurisdiction conferred on the Court in pursuance of the 13 & 14 Vict. c. 61, s. 17, the poundage is to be calculated as upon the amount of 201. All fractions of a pound, for the purpose of calculating the poundage, shall be treated as an entire pound. Where the plaintiff recovers less than the ↑ "Baillie v. Edinburgh Oil Gas Light Company, 3 C. & F. 639. amount of his claim, so as to reduce the scale of costs, the plaintiff to pay the difference. The several fees payable on proceedings in replevin to be regulated on the above scale, by the value of the goods distrained, and on proceedings for the recovery of tenements, by the yearly, monthly, or weekly rent of the tenement, according to the letting or value of the tenement sought to be recovered; but in no case to exceed the fees payable on a demand of 201. In cases of interpleader, the summons shall be issued and the cause heard without the previous payment of any fees; but the fees on the summons and hearing shall be estimated on in case of dispute, shall be assessed by the the value of the goods claimed, which value, Judge, who, at the hearing, shall direct by whom such fees shall be paid. Subpoenas shall be issued gratis, but must be served by the parties or their agents. |