Page images

ment may

Review: Trevor's Taxes on Succession.


heirs may not be prejudiced. The political of personal estate; iv. Benefits derived from economists may put this forward, but it powers of appointment of produce of real seems to us no defence of the tax; nor is estate; v. Rent-charges and annuities; vi. Bethe next excuse better,-namely, that as quests to or for charitable purposes; vii. Forthe tax is payable when the contributors giveness of debts. Mode of calculating duty on annuities. Legacies to be enjoyed in sucare receiving money, it is convenient to pay cession. Legacies in joint tenancy. Exempit. To say that a man will work harder in tions:-i. As between the Crown and the order to save enough to pay the tax, can be legatee; ii. As between the legatee and the no proof of its justice. The time of pay-person entitled to the residue. Mode and time indeed diminish the immediate of valuation of effects not consisting of money. inconvenience,- —as a rich man may be less In administration suits, Court to provide for inconvenienced than a poor man when rob- payment of duty: general order of the Court bed or cheated. There is, however, high receipt to be the only evidence of payment. of Chancery dated 9th of March, 1854. Stamped authority for these impositions, for which Right of the Crown to duty upon interest as the Author must not be held in any degree well as principal. Personal attendance necesresponsible. sary on payment of duty. Payment out of Court under these Acts; legacy to an infant: present practice. Residuary account: executors to send particulars of their own legacies. Return or allowance of duty if wrongly paid. Application of money arising from the tax. Statutes relating to legacy duty in Ireland."

The work is divided under the general heads-1st, of Probate Duty; 2nd, of Legacy Duty; 3rd, of Succession Duty. The subject of Probate Duty is treated of under the following heads :


down to the resolution proposed by Mr. Gladstone, on which the new Act was founded; and proceeds to state the operation of the law,-giving an analysis of the several sections, and then setting forth the Act itself.

Origin of the probate and administration duty. Penalty imposed by the first Act for Mr. Trevor next treats of the recent Forgery and Fraud. Present penalty. Former "Succession Duty," noticing the previous Probate Duty Acts. Present rates of duty. unsuccessful attempts to extend the tax to Form of confirmation in Scotland. Inventory real property. He then brings the subject in Scotland. Exemptions. Probate insufficiently stamped, not received in evidence. Whether stamp on probate is evidence of assets. What property is to be included in the affidavit of value. What property is not to be included in the affidavit of value :-i. Desperate and doubtful debts; ii. Property situate abroad; iii. Property appointed by will in exercise of a The official regulations, Forms and Tables power; iv. Realty imposed in equity with the are next given, and are of great practical character of personalty. Trust property not value, comprising: chargeable. Rule where too much duty has been originally paid. Rule where too little duty has been originally paid. Commissioners may in certain cases give credit for the duty. Regulations in applying for the free stamp. Return of duty on the ground of debts. Important sections relating to inventories in Scotland. Statutes relating to probate duty in


The Author then proceeds to Legacy Duty, the several details of which are thus arranged :

"Origin of the legacy duty; at first only on the receipt for the legacy. Alteration of the law. Former rates of duties. Present rates of duties. Real property first charged. Arrangement of sections in principal Act. What payment or retainer of a legacy. Double liability of legatee and trustee or executor to the Crown: claim of executor, after payment of the duty, upon the legatee for the amount. Form of proceeding to compel payment of duty. What is a will within the Legacy Duty Acts. What is a person within the Legacy Duty Acts. What is a legacy within the Legacy Duty Acts: -i. Money directed to buy land; ii. Money to arise from sale of land directed to be sold; iii. Benefits derived from powers of appointment

[ocr errors]

"Form of affidavit of the value of estate and effects of deceased for probate (in England and Scotland). Regulations to be observed, and affidavits to be made in cases where too high and too low a probate duty has been paid in the first instance. Regulations to be observed, and affidavits to be made in cases where probate duty is to be returned on the ground of debts. Form of affidavit of the value of estate and effects of deceased for probate, (in Ireland). Legacy duty:-i. Form of legacy receipt; ii. Form of annuity receipt; iii. Form of residuary account. Succession duty :--iv. Form of account for property not chargeable by way of annuity; v. Form of account for life interest in personal property; vi. Form of account for real property; vii. Form of account on the payment of second and subsequent instalments of duty on real property. Tables for calculating (for the purposes of the legacy and succession duty) the value of an annuity of 100%.:-i. held on single life; ii. held on the joint continuance of two lives; iii. for any number of years not exceeding 95. Rules for inferring the value of an annuity of 100%., held:

i. on the longest of two lives; ii. on the joint continuance of three lives; iii. on the longest of three lives."

[ocr errors]


Review: Trevor's Taxes on Succession.-Law of Attorneys and Solicitors.

The Rules of Construction of Revenue | Mr. Remnant, to be his solicitor in his Acts are thus stated by Mr. Trevor :- place. The plaintiff thereupon asked for "The general rule, that all revenue Acts are his bill of costs and disbursements, and deto be construed strictly with reference to the livered his bill in April, 1838, which was rights of the subject is well known, Williams taxed under an order of the Court, and the v. Sengar, Reed v. Wilmot liberal construc- Master's allocatur was made on April 11, tion being given to any words of exception 1839, finding that on the balance of the bill confining their operation, Warrington v. Fur- of costs and the cash account 1,2381. 2s. 3d. bor for Lord Hardwicke says, in Fludyer v. was due to the plaintiff. In spite, however, Lombe, that laws that take away people's fran- of the plaintiff's exertions to serve James chises must be strictly construed; and Holroyd, J., in Buckridge v. Flight, that where Acts of Neale with the allocatur, he was unable to Parliament vary or take away the rights of do so until November, 1840, and conseparties, they ought to be strictly construed:quently could not get the order absolute to see also Cockburn v. Harvey. It is a well-pay the amount due until January 28, 1841. settled principle, that every charge on the sub- On the 30th of that month he registered ject muct be imposed by clear unambiguous the order, but never obtained payment, and words; Denn v. Diamond, Wroughton v. Tur- he re-registered on November 30, 1846, and tle, The Attorney-General v. Marquis of HertNovember 30, 1852. ford; nor will Courts of Law apply a Revenue Law to a case which does not strictly come within the letter of the Act; Tomkins v. Ashby, Denn v. Diamond,2 Platt v. Routh.3


"All Stamp Acts being a burden on the subject, must be clearly expressed whenever they impose the burden, Doe d. Scruton v. Smith: for the law on the subject of stamps is altogether positivi juris; in involves nothing of principle or reason, but depends altogether on the language of the legislature: Morley v. Hall. The Legacy Duty Acts, which impose duties on the subject, must be construed strictly, and consequently, if there be doubt whether any duty is payable or not, the parties sought to be charged are entitled to have the benefit of that doubt, Hobson v. Neale ; and, as far as possible, refinements in the construction of them are to be avoided; Shirley v. Earl Ferrers."

The Master of the Rolls (after stating the above facts), said :—

"The questions in this case are, what are his rights on the estate so recovered by his exertions, as against the defendant Remnant, who has various securities on them? The fee simple of the property recovered is wholly absorbed by the combined effect of the charges of the plaintiff and defendant. James Neale himself is dead, and his son, who represents him, admits this to be the case, and he neither claims nor expects any benefit from this or any other proceedings relating to his property. The questions, therefore, lie wholly between the plaintiff and the defendant Remnant.


"Various claims were advanced, but that the plaintiff is an incumbrancer on this estate, and that he is entitled to a decree to redeem the defendant Remnant, and foreclose the equity of redemption, is not disputed. extent of his incumbrance, also, is not in question; but where it is to rank, whether before all or any of the defendant's charges, is the question to be determined. In order to obtain LIEN FOR COSTS ON LAND RECOVERED. absolute priority over the defendant, various REGISTERING ALLOCATUR.—OPENING


[blocks in formation]

contentions were raised by the plaintiff, some of which are suggested by the bill, and were urged at the hearing of the cause, which I then disposed of, but to which I will shortly


"The first of these was, that the plaintiff Iwas entitled to a lien on the real estate recovered for the amount of his charges properly incurred in so doing. This was urged on the principle on which the Court acts, when it refuses to part with a fund in Court, produced by the exertion of a solicitor, until his costs of recovering it have been discharged. At the hearing I expressed my opinion that no such lien exists, either at law or in equity on a real estate recovered by a solicitor. It is, in fact, contrary to all principle; it would in truth evade the provisions of the Statute of Frauds more completely even than the case of an equitable mortgage by deposit of title-deeds, and would be obnoxious to many other principles which I adverted to at that time.

Law of Attorneys and Solicitors.-Law of Costs.

"It was, secondly, contended on behalf of the plaintiff, that the fact of registering the allocatur of the Master had the effect of a judgment and created a charge on the estate; but this also I decided against the plaintiff, such a claim being wholly unsupported by any provision to be found in the Statutes of 1 & 2 Vict. c. 110, or of 2 & 3 Vic. c. 11, on which Statutes alone, if at all, such a claim could rest. The sections referred to apply only to orders to pay a sum of money, but the allocatur of the Taxing Master, which finds the amount due, is not an order to pay that amount, which must be subsequently obtained.

"In the third place, the plaintiff contends, by reason of the conduct of the defendant Remnant, he, the plaintiff, is entitled to priority over all the incumbrances of that defendant, or at least over those which are subsequent in date to his judgment; and as to the others, even if he be not entitled to priority, he contends that he is entitled to open the account between James Neale and the defendant, and that Remnant is only to be allowed so much as would appear to have been the amount actually due to him at the respective times when he obtained these charges, in case at that time an account had then been taken between the late defendant James Neale and the defendant Remnant, and if his bills of costs had been properly taxed at that time.





for which the security was given. I stated at the hearing, and I repeat my opinion, that in no event could the position of the plaintiff stand higher than that in which James Neale could have stood, had he now sought to take this account, and that if James Neale could not have been permitted to go into such an inquiry, the plaintiff is also concluded. In saying this, I desire not to have it supposed that I put the rights of the plaintiff as high as those of Neale would have been, but I am confident at least that he can stand no higher. Regarding then the case in this point of view, although I am by no means satisfied with what I see of the accounts of Mr. Remnant, and although I am also satisfied that Mr. Taylor had no means of judging of the propriety of the bills delivered, and that in fact James Neale, in the matter of these securities was inops consilii, still after an acquiescence of 10 years in bills of costs and in accounts stated, I should not allow James Neale to open such an account, unless actual fraud, such as intentional misrepresentation or concealment, were proved. But this, as I have already said, is already disposed of in this case. The result is, that the plaintiff must take the accounts of the defendant Remnant as he finds them settled by the defendant Neale, and that he is not entitled now to open them or tax the bill of costs.






"I think it clear, on the construction of "And fourthly, the plaintiff contends that these clauses,' that the previous registrations under the clauses of the Statute above referred of this order are to be treated as nothing. It to, he is entitled to priority over, at least all is true, that it was under the first Statute a those charges of the defendant which are subse- valid and subsisting charge, when the dequent to the 31st of Jan. 1841, when the plaintiff fendant Remnant advanced his money or obobtained and registered an order against Neale tained his security; but it ceased to be any to pay the amount found due on the Master's charge at all when the five years had elapsed, The plaintiff and it became, so far as regards his interest, contends, that all these securities were obtained exactly as if it had been paid off, and the rewith a view of defeating his judgment and his gistration again operates only as if a new judgjust claim for costs, due for business done, and ment had been created and a new charge had without which the very property on which the been put on the land. Under the Statute, defendant had his charges would not have ex- therefore, I am of opinion, that the plaintiff isted, and that the order for the payment of can only rank as an incumbrancer from the his costs, which constitutes his judgment was 30th of November, 1852. The Statute does purposely delayed, and every device resorted not affect any right which the plaintiff might to for that purpose. And the plaintiff con- have independently of its provisions, but, extends, that as a consequence arising from this cept under the Statute, this order would have conduct, this Court ought to treat the proceed- no effect on the land of James Neale." Shaw ings of the defendant Remnant as fraudulent, v. Remnant, 20 Beav. 157. and ought to postpone his charges to that of the plaintiff. I expressed an opinion at the time of the hearing, that this claim could not be maintained, and that whatever may be the opinion of the Court, as to the general course of conduct which has wasted this poor man's estate, I see no ground for acceding to the contention of the plaintiff, that as between himself and the defendant, he is entitled to priority over him.



On the trial of a cause before Wightman, J., it appeared the jury retired to consider of their verdict, and after remaining some time in consultation, returned into Court and informed The next point I have to consider, subject the learned Judge that they could not agree to those I have already mentioned, is whether







the plaintiff is entitled to open the account as upon a verdict; some of them adding, that between the defendant Remnant and James there was not the slightest probability of an Neale, whether he is now at liberty to canvass the propriety of each item, including therein

1 2 & 3 Vict. c. 11, ss. 4, 5; 3 & 4 Vict. c.

the bills of costs which constituted the amount 82, s. 2.


Law of Costs.-Sittings in Chancery.-Superior Courts: Lord Chancellor.

agreement. The Judge therefore suggested that it would be useless to detain the jury any longer, and they were accordingly discharged. The cause was tried again, and the verdict found for the plaintiff. The Master, in taxing costs, allowed the plaintiff his costs of the first trial, including costs of a special jury, whereupon this rule was obtained to review his taxation.

Lord Campbell, C. J., said “The rule for a review of the taxation must be absolute. It has been decided, that where the Judge of his own authority discharges the jury, the party succeeding in a subsequent trial is not entitled to costs of that in which no verdict was given : and I think it would be inconvenient and improper to draw a distinction by saying, that if counsel do not stand out and insist upon the jury being locked up, the case shall be altered

as to costs.

Coleridge, J. added, "This was a discharge by the Judge. The consent of counsel amounts only to this, that they do not object, and will not raise any point, on which possibly the proceedings might be questioned afterwards. Though they waive this, the discharge is still the act of the Judge." The rule was therefore made absolute. Bostock v. North Staffordshire Railway Company, 18 Q. B. 777.

See also the 54th Rule of Hilary Term, 1853, which directs, that "if a new trial be granted without any mention of costs in the rule, the costs of the first trial shall not be allowed to the successful party, though he succeeded on the second.."


Trinity Term, 1856.

Lord Chancellor.

May 22, 30; June 5, 12.-Appeal Motions and Appeals.

June 6.-Petitions in Lunacy and Bankruptcy, and Appeal Petitions.

Master of the Rolls.

May 22, 30; June 5, 12.-Motions.
May 23; June 11.-General Petition Day.
May 24, 26, 27, 28, 31; June 2, 3, 4, 6, 7, 9, 10.
Pleas, Demurrers, Exceptions, Causes, Claims,
and Further Directions.

May 29.-Queen's Birthday, No Sitting.

Vice-Chancellor Kindersley.

May 22; June 5, 12.-Motions and General Paper.

May 23; June 6.-Petitions (unopposed first). May 24, 31; June 7.- Short Causes, Short Claims, and Causes.

May 26, 27, 28; June 2, 3, 4, 9, 10, 11.-Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions.

May 29.-Queen's Birthday, no Sitting.

May 30.- Petitions and Motions (unopposed Petitions first, then Motions, and then remaining Petitions).

Vice-Chancellor Stuart.

May 22; June 12.-Motions.

May 23; June 6.-Petitions and General Paper. May 24, 31; June 7.-Short Causes and Claims, and General Paper.

May 26, 27, 28; June 2, 3, 4, 9, 10, 11.-Pleas, Demurrers, Exceptions, Causes, Claims, and Fur

ther Directions.

May 29.-Queen's Birthday, no Sitting.
May 30-Petitions and Motions.
June 5.-Motions and General Paper.

Vice-Chancellor Wood.

May 22, 30; June 5, 12.-Motions and General Paper.

May 23, 26, 27, 28; June 2, 3, 4, 6, 9, 10, 11. -Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions.

May 24, 31; June 7.-Petitions, Short Causes, and Claims, and General Paper.

May 29.-Queen's Birthday, no Sitting.

The days are excepted on which the Lord Chancellor shall be engaged in hearing Appeals at the

May 23; June 11.-Petitions and Appeals. May 24, 26, 27, 28, 31; June 2, 3, 4, 6, 7, 9, House of Lords, and the days (if any) on which the 10.-Appeals.

May 29.-Queen's Birthday, no Sitting.

Lords Justices.

May 22.-Appeal Motions.

May 23.-Petitions in Lunacy, Appeal Motions, and Appeal Petitions.

May 24, 26, 27, 28, 31; June 2, 3, 4, 7, 9, 10, 11.-Appeals.

May 29.-Queen's Birthday, no Sitting. May 30.-Petitions in Lunacy, Appeal Motions and Appeals.

June 5, 12.-Appeal Motions and Appeals.

Lords Justices shall be engaged before the Judicial
Committee of the Privy Council.

Short Causes, Short Claims, Consent Causes, Unopposed Petitions, and Claims will be heard at the Rolls every Saturday during the Sittings (the unopposed Petitions to be taken first) at the Sitting of the Court. Consent Petitions must be presented and copies left with the Secretary on or before the Thursday preceding the Saturday on which it is intended they should be heard.

Claims will be placed in Vice-Chancellor Wood's Paper after Short Causes, &c., on each Saturday in precedence of the General Paper.


Lord Chancellor.


An application was refused, with costs, for an order on a petitioner for a patent to furnish a copy of his provisional specification to certain patentees of an invention which they alleged to be similar to his.

Superior Courts: Lord Chancellor-V. C. Wood.


THIS was a motion, on behalf of certain two children in the bequest made by the testapatentees of an invention, to have copies of the tor. provisional specification of the present petitioner for a patent for a similar purpose, in order to ascertain whether it infringed on their invention.

T. Webster in support; Hindmarch, con


The Lord Chancellor said, that it might be very injurious to an inventor to have his specification seen prematurely and before it was published to the world generally, and refused the motion accordingly, with costs.

Vice-Chancellor Wood.

In re Wright's Trusts.






"I will first state what the facts are that are established indisputably in this case, before considering how the law is to be applied to those facts. It seems that Mr. Wright, who was a person of extremely eccentric character and habits, was clearly in the first place a person who had by birth, by his domicile of origin, an English domicile,-of that I think there is no question. He went at an early period of his life into Scotland-he appears to have married in Scotland; but there is no evidence of his ever having lost the English domicile, and he certainly afterwards returned to England and there had an establishment and lived with his wife at sundry places, and at the April 7; May 7, time of her death he was living at Collumpton. The wife died in 1821. At this time Mr. Wright continued to have his original domicile. She having died in 1821, Mr. Wright, as it appears from the evidence of the daughters in the cause, was distressed at finding himself considerably in debt; that is not a matter in dispute on either side. His income was very small, it consisted of scarcely anything except the income of this property of which he was tenant for life, which is now in question in this suit,-something between 2007. and 300l. a year in the 5 per cents.; and in this state of things he was astonished to find that he was involved in a state of debt of which he was utterly ignorant, because his wife during her lifetime managed all his affairs. He broke up his establishment, went first to Bath under a feigned name, and ultimately went across the channel to Dunkirk, whether with a feigned name or not is not certain,-one of the daughters says that was not so; however, he went to Dunkirk, and clearly at that time with the view of evading his creditors, and at the same time with an honourable intention, which he ultimately fulfilled, of paying his debts. Now, it was in the month of July, 1823, I think, that he thus went to France; and then he became acquainted in France with the mother of the present claimant, and the child which was the fruit of the intercourse that took place between them was born in December, 1824. Their intercourse, therefore, took place at the usual period anterior to that time, some time about March or April, 1824.

A testator bequeathed a sum of stock unto and equally between or among all and every the child and children of his son who should be living at the time of his son's decease: Held, that a daughter, who was born of the son in France before marriage, was not entitled to share in the bequest, where it appeared that the son's domicile at the time of the birth was English and not French.

THESE were two petitions on behalf of the two daughters of Joseph Wright, deceased, for payment out of Court of a fund paid in under tne 10 & 11 Vict. c. 96. The facts sufficiently appear from the judgment.

Willcock and Karslake for Miss Wright, one of the daughters; Rolt and Surrage for Madame Binet, another of the daughters; W. M. James and Waller for Mrs. Williams, an illegitimate daughter; Hetherington for the


Cur. ad vult.

The Vice-Chancellor said: :- "The question in this case is, who are the persons entitled to claim under a bequest of a certain sum of 4,000l. and odd, contained in the will of the testator, Mr. Wright, by which will the property was given to the children of his son, William Wright, who should be living at the time of his death. At the time of his death there were two children living, who were born of a first marriage which he contracted, and who were indisputably legitimate. The whole question in this case arises upon the claim of a third party, a lady, who was born in France, as the fruit of an intercourse between Mr. Wright and a French lady, whom he did not marry for more than 20 years after that period -whom he then married, and whose child it is contended, by the effect of that subsequent marriage, has become legitimate, so as to be, at the time of the death of her father, William Wright, one of his legitimate children, and therefore, entitled to participate with the other


Now, the first question that I have to consider upon the facts is, what was his domicile at the date of the birth? That, I think, is a matter of very considerable importance. It appears to me perfectly clear upon the evidence that his domicile remained English at the date of the conception and birth of this child. The evidence is simply this, and there is nothing at all to meet that evidence, except one single circumstance very loosely deposed to, without any evidence at all as to the source from which it is derived, and as to which no further inquiry is necessary because it does not appear to me at all to change the nature of the case. It appears to me quite certain the original

« EelmineJätka »