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200 Equitable Defences to Actions at Law-Law of Costs.-Points in Equity Practice.

"Upon the same principle equity will give what is termed, an equitable interest in prorelief against proceedings at law, upon instru-perty. Where, for instance, a tenant has conments obtained by undue influence, from per- tracted to purchase from his landlord the prosons standing in some fiduciary relation to the perty of which he is in the occupation, if the holder, as that of trustee and cestui que trust, landlord take proceedings in ejectment, the guardian and ward, or any other relation in tenant must still resort to the Court of Chanwhich dominion may be exercised by one per- cery, for his injunction to stay proceedings." son over another. (Huguenin v. Basely, 1 Tudor's L. C. and note Cooke v. Lamotte, 15 Bea. 234, Espe v. Lake, 10 Hare, 860). It is presumed that such relation, and the consequences which follow from it, may be urged in WHERE CONCURRENT JURISDICTION UNDER a Court of Law on proceedings being now instituted upon such instruments.

LAW OF COSTS.

COUNTY COURT ACT.

tained a verdict with 51. damages, and a
THE plaintiff in an action of trespass ob-
Judge's order was made under the 15 & 16
Vict. c. 54, s. 4, to give him his costs of the
On a rule being obtained to rescind

"With regard to relief against forfeitures, when a forfeiture is sought, a plea may now be put in, which formerly was only available in equity, as a ground for staying proceedings at law. Thus where a lessee convenants to do or trial. not to do certain acts, with a clause of re-entry this order, upon the ground that the case was for breach of the convenant, and then commits such breach, equity will, under some circum- not within the 9 & 10 Vict. c. 95, s. 128, stances, relieve against the strict legal conse- Maule, J., said,-"The plaintiff having sued quences of breach of the obligation by the the defendant in the Superior Court, seeks to party bound. So, in some cases, when the recover costs, on the ground that the case is thing to be done, the not doing of which has worked the forfeiture at law, can be specifically one in which there is concurrent jurisdiction, done, so as to put the party bona fide and en- because the defendant does not reside or carry tirely in statu quo-or the injury can be com- on business within the district assigned to the pensated by a sum certain, or by damages ca- Southwark County Court. To make out that pable of being estimated by some certain rule of the Court-then equity will relieve, and proposition, the plaintiff states in his affidavit there the facts may now be pleaded. (Drewry so much, I think, as he could reasonably be on Injunctions, p. 88.) The jurisdiction, which expected to say upon the subject. I think the Courts of Equity assumed, to relieve a tenant defendant was called upon clearly to show, if from a forfeiture incurred by non-payment of the fact were so, that he really did carry on rent, upon a bill filed after an indefinite period, by payment of the rent due interest and costs, was limited by the Legislature (4 Geo. 2, c. 28) to cases where payment was made, on the bill being filed, within six months after judgment had and recovered in ejectment and execution executed thereon. Courts of Law were, however, in the habit of relieving the lessee, by staying proceedings in ejectment, at any time before execution executed, on payment of arrears and costs, and in some cases giving security for future payments. (2 Platt on Leases, 475.)

"With regard to the relation of principal and surety, Courts of Equity frequently give relief against proceedings at law. Where, for instance, parties appear on the face of an instrument to be bound jointly and severally, as upon a bond, if one of them only in fact joined as surety, he can in equity plead that he was only a surety; so that if the principal creditor had given time to the debtor, he would be discharged in equity, although held bound at

business at the place indicated. This might have been done by some clerk or foreman. But nothing of the kind is done. There is, it is true, an affidavit by his bailiff, which is evidently intended to give a sort of colour that business of some sort is carried on by the defendant at the place referred to. But I think there was amply sufficient to call upon the defendant clearly and distinctly to show where he carried on his business; and this he has not done." The rule was discharged, but, under the circumstances, without costs. Stokes v. Grissell, 14 Com. B..678.

POINTS IN EQUITY PRACTICE.

SETTING OUT DOCUMENTS IN ANSWER.
Held, that a defendant is not bound to set

law. (Craythorne v. Swinburne, 4 Ves. 160, forth in his answer a list of documents in his

170; Clinton v. Hooper, 1 Ves. jun. 173, 3

Bro. C. C. 201.) It is presumed, that now possession relating to his own title.

such person may, in an action against him by land v. Sutherland, 17 Beav. 209.

the creditor, plead that he was only a surety, and that time was given to the principal debtor.

"The Courts of Law have no power of interference in those cases, where a person has,

Suther

REFERENCE TO WIND UP COMPANY AT

CHAMBERS.

On a petition by a contributory to have a

Statistics of the Profession.-Proposed Consolidation of the Stamp Laws.

201

banking company wound up, the Master of were effected by the Act of 1850, and that the Rolls considered that it was not imperative whilst the Public was thereby relieved of on the Court, under the 15 & 16 Vict. c. 80, s. many vexatious burdens, the revenue has 10, to make such reference to the Master, and not ultimately suffered. said he would refer the matter to his own

Chambers, when it would be more immediately under his own control. In re Newcastle, Shields, and Sunderland Union Bank, 17 Beav.

470.

Our attention has lately been called to a pamphlet on this important subject by Mr. Chamberlain, a Solicitor at Portsea, the amendment of the Stamp Acts, precontaining many valuable suggestions for ceded by an historical summary,-from which we extract, in substance, the follow

STATISTICS OF THE PROFESSION. ing statement down to the 55 Geo. 3, c.

NUMBER OF CANDIDATES EXAMINED,

1836-1854.

184:

The first Act of Parliament imposing stamp duties, was the 5 & 6 William and Mary, Majesties several duties upon vellum, parch c. 21, entitled 'An Act for granting to their ment, and paper, for four years, towards car

THE following statement will show that upwards of two-thirds in number of the Attorneys and Solicitors in England and Wales, have un-rying on the war against France.' dergone the examination at the Incorporated Law Society during the last 18 years:

Candidates Passed. Postponed.

8 33

6

1850.-Hilary Easter Trinity

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The next Statute passed was the 9 & 10 Wm. and Mary, c. 28. Its title is, 'An Act for explaining and regulating several doubts, duties, and penalties in the late Act for granting several duties upon vellum, parchment, and paper, and for ascertaining the admeasurement of the tonnage of ships! This jumbling of one thing into another was a favourite usage with the fabricators of Acts of Parliament, with which every one conversant with the Statute Law is familiar. Numerous instances could be furnished. Many of the Statutes relating to attorneys contained enactments as to bread, coals, cattle, salmon, turnips, seamen, the excise, &c.

By the 9 & 10 Wm. 3, c. 25, stamp duties were imposed upon deeds, leases, and other documents, and also on legal proceedings. The 10th year of the reign of Wm. 3, was rather past the time at which the stamp duties, imposed for four years, should have ceased to be levied; but then came an Act perpetuating and increasing their number. With respect to the duties on law proceedings, the public have been relieved from these by 5 Geo. 4, c. 41.

Various Acts followed in the reign of Queen Anne for regulating, and also for increasing, the various stamp duties, until the reign of Geo. 1, by which time stamps were required to be affixed to a great variety of documents, besides those charged with stamp duties by the earlier Acts. The 1 Geo. 1, c. 12, constituted the stamp duties a part of the aggregate fund; and in that reign, and also in the beginning of that of Geo. 3, several other Acts were passed, down to the 23 Geo. 3, c. 49, which would appear to be what may be correctly termed the first modern Act upon the subject of the stamp duties, if an unimportant provision of 1 Anne, c. 22, be excepted, as, though for the most part repealed, a portion

of it is understood to be still in force.

This is the first Act charging bills of exchange and deeds with stamp duty, of which any portion is now law; but it was a repealed Act, framed one year before or in 1782, by

202

Proposed Consolidation of the Stamp Laws.

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which bills of exchange and notes were first portant transactions between merchants residcharged with stamp duty; and it may be ing at a distance from each other would be mentioned, the amount of duty at that time rendered absolutely nugatory for want of a was very moderate, being for all bills under stamp. It is easy to see how this might be 50l., threepence; and for all such documents the case now, and more easy to see how it given for larger amounts, sixpence. But it might have been the case upwards of 50 years should be remembered that the increase in this ago, when the 23 Geo. 3 was passed. The item of the stamp duties will bear no com- exemption provided by the 32 Geo. 3 does not parison to that in many others. The 23 Geo. 3, extend to parties not residing at the time of c. 49, had the effect of increasing most of the writing the letters at the distance of 50 miles stamp duties, and was the first Statute which from each other. With regard to corresponcharged them upon agreements. With regard dence constituting agreements requiring to be to agreements, they afford the example of stamped, it may be observed, that where practical and important relief to the community divers' letters shall be offered in evidence to being afforded by recent legislation on the prove any agreement, the stamp required is Stamp Laws. By the Act just mentioned a 17. 15s. The Act states, Where several letstamp duty of 16s. was charged upon every ters constitute an agreement, it shall be suffiagreement the matter whereof should exceed cient if any one of such letters be stamped the value of 201., with one or two trifling ex- with a stamp of 11. 15s.' Here, however, in ceptions. By the 44 Geo. 3, such agreements, steps the Common Law, and, besides innumerwith the alteration that the matter of them need able other decisions on the subject, determines not exceed but only amount to the value of 201., that if one instrument (that is, one letter) be were charged with a duty of 168.; and by the distinct, and does not refer to the others, 48 Geo. 3, the same duty of 16s. was con- though they may constitute one transaction, tinued. several stamps are necessary. From this se. vere law there is no relief, for the very acceptable Statute, 7 Vict. c. 21, only applies to agreements charged by the Stamp Act with a duty of one pound; therefore, by the rules of construction of Statutes known to lawyers, all agreements charged with a duty other than one pound are excluded from the operation of the Act.'

The duty on the same instruments, however, was subsequently augmented to 17., and continued to be of that amount until the great boon conferred on the public by the passing of the Act, 7 Vict. c. 21, by which the duty on agreements, previously charged with 17., was reduced to two shillings and sixpence. By this Statute immense relief is afforded to all the industrious classes. To use an expression which, were it not unfortunately so seldom required, might be stereotyped, the measure is a step in the right direction.'

The 31 Geo. 3, c. 21, imposes penalties on accepting or paying unstamped bills; and declares that such bills shall be inadmissible in evidence.

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The 30 Geo. 3, c. 55, was an Act relating to receipts, and there are many others on various matters connected with the stamp duties, on policies of insurance, probates of wills, newspapers, appraisements, and appraisers' licences. Next came the 48 Geo. 3, c. 149—an important Act repealing duties, but retaining the regulations of the prior Acts.

We come next to the 55 Geo. 3, c. 184, enThe 32 Geo. 3, c. 51, is entitled An Act titled an Act for repealing the stamp duties to exempt certain letters passing between mer-on deeds, law proceedings, and other written chants or persons carrying on trade or com- or printed instruments, and the duties on merce in the kingdom containing agreements fire insurances, and on legacies, and succeswith respect to merchandise, notes, or bills of sions to personal estate upon intestacies now exchange, from the stamp duty now imposed payable in Great Britain; and for granting on written agreements.' This statute is de-other duties in lieu thereof.' serving of a few passing remarks, as it affords an example of the wide-spread injury occa-berlain proceeded in his publication to state After this historical review, Mr. Chamsioned by the injudicious imposition of stamp duties. The Act recites, that doubts had the numerous objections which existed been entertained respecting its operation upon against the oppressive and impolitic exaccorrespondence between merchants resident in tions which were contained in or created different parts of the kingdom, which, if sub- by the Act of July 10th, 1815. Many of ject to the effect of the said Act, and not within these objections have been removed, but the provisions by way of exception thereto, several still remain. would be attended with many evils to the commerce of the country. In plain language, it was supposed that the 23 Geo. 3, c. 58, would render inadmissible in evidence on trials of causes, letters between merchants containing anything which could, by the ingenuity of lawyers, be strained into agreements, unless such letters were stamped; and as the Act provided that no agreement could be stamped except within 21 days after it was made, it is very easy to understand that many most im

1 Such is Mr. Chamberlain's view of the effect of the Stamp Acts relating to agreements contained in the correspondence of parties to alleged contracts. It should also be recollected that the 17 & 18 Vic. c. 83, s. 13, repeals the former enactments which exempted letters by the general post acknowledging the safe arrival of bills of exchange, &c., from the receipt stamp.-ED. L. O.

Proposed Consolid. of the Stamp Laws.-Unqualified Person Acting as Conveyancer.

The subsequent Stamp Acts, six in number, are the 13 & 14 Vict. c. 97; the 16 Vict. c. 5; the 16 & 17 Vict. cc. 59, 63, and 71; and the 17 & 18 Vict. c. 83.

It may be said, more truly now than ever, that it is almost an act of common justice to consolidate the numerous scattered enactments in force upon this most important subject into one well-digested and methodical Statute. Besides the multifarious Acts of Parliament bearing upon this every-day matter of business, sufficiently numerous and complicated to puzzle the most sagacious and entrap the most wary practitioner, there are not a few important provisions respecting stamps, scattered about in Statutes not having any direct connexion with them. For instance, while the Stamp Duties' Bill of 1850, that is the

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203

There is no need, on the present occasion to do more than enumerate the recent numerous enactments on the subject of stamps. The Profession is, of course. familiar enough with the new provisions. It will be sufficient to observe that the whole question appears to be in an almost inextricable mass of confusion, and also that the probate and administration duties are still left to inflict the injustice which they have been inflicting for the last forty years.

UNQUALIFIED PERSON ACTING 8
AS CONVEYANCER.

ACTION TO RECOVER FEES.

THE defendants to an action brought by drawn by him, pleaded in the terms of the the plaintiff to recover for conveyances

this plea,-Parke, B., said,-"I am of

44 Geo. 3, c. 98, s. 14.1 On demurrer to

Smith v. Mawhood, 14 M. & W. 452; and

the question in all these cases is, whether, looking at the Statute, the object of the Legislature in imposing a penalty was to was for a different purpose. Therefore, the prohibit the particular act, or whether it simple point which we have now to decide is, whether the Legislature intended to prohibit this Act being done under penalty,

13 & 14 Vict. c. 97, was before the public, it was observed by the Parliamentary Committee of the Incorporated Law Society, which suggested and carried several very useful amendments in that Act, that it opinion that the defendants are entitled to would be desirable to introduce a clause judgment. The true principle is laid down enabling parties, when an objection is taken in Cope v. Rowlands, 2 M. & W. 149, and to the validity of a deed by reason of its being insufficiently stamped, to pay to the officer of the Court before which the objection is taken, the amount of the deficient duty and penalty thereon, under proper regulations." But this most valuable suggestion was not acted on either in the Act of 1850 or the subsequent Acts, but in a modified form in the Common Law Procedure Act of 1854; the modification is, that whereas the Committee contemplated an objection by the parties, the Act provides that it shall be the duty of the officer of the Court to point out any deficiency in the stamp; but it may be observed, it does not appear clear whether the officer is to satisfy himself of the sufficiency of the stamp, and object to it if it be deficient, or whether he may pass the document without examination, if no objection be taken by either party to the suit.

The Succession Duty Act, also, is a Statute which, though not literally perhaps a Stamp Act, must be taken to be another to be added to the list. The succession duty as akin and in strict analogy to the legacy duties, will always be by the Profession connected with the complicated Law of the Stamps, in addition to which the 9th section of this Statute expressly provides, that "the duties hereinafter imposed shall be considered as Stamp Duties, and be under the care and management of the Commissioners of Inland Revenue."

Which enacts, that " shall, for or in expectation of any fee, gain, or every person, who reward, directly or indirectly, draw or prepare any conveyance of a deed relating to any real or personal estate, or any proceedings in law or equity, other than and except serjeants-atlaw, barristers, solicitors, attorneys, notaries, tained regular certificates, and special pleaders, proctors, agents, or procurators, having obdraftsmen in equity, and conveyancers, being members of one of the four Inns of Court, and having taken out the certificates mentioned in the said schedule to this Act annexed," &c., "and other than and except persons solely employed to engross any deed, instrument, or other proceeding not drawn or prepared by themselves and for their own account respectively, and other than and except public officers drawing or preparing official instruments applicable to the respective offices, and in the course of their duty, shall forfeit and pay for every such offence the sum of 50%.: provided always, that nothing herein contained shall extend, or be construed to extend, to prevent any person or persons drawing or preparing any will or other testamentary papers, or any agreement not under seal, or any letter of attorney."

204

Hilary Term Examination, 1855.—Attorneys to be Admitted in Hilary Term, 1855.

Where the articles have not expired, but will expire during the Term, the Candidate may be examined conditionally; but the articles must be left within the first seven days of Term, and answers up to that time. If part of the Term has been served with a Barrister, Special Pleader, or London Agent, answers to the questions must be obtained from them, as to the time served with each respectively. A Paper of Questions will be delivered to each Candidate, containing questions to be answered in writing, classed under the several heads of-1. Preliminary. 2: Common and Statute Law, and Practice of the Courts. 3. Conveyancing. 4. Equity, and Practice of the Courts. 5. Bankruptcy, and Practice of the 6. Criminal Law, and Proceedings Courts. before Justices of the Peace.

and thus render it illegal; for if so the fore Wednesday, the 17th instant, at the Law plaintiff cannot recover. Now, looking at Society's office. the Statute, I am of opinion that the object of the Legislature was to confine the practice of drawing the instruments there in specified to a certain class supposed to have a competent knowledge of the subject, and to protect the public against the mistakes of inexperienced persons in matters of this kind; and with that view, the Legislature has prohibited these acts being done, except by a particular class of persons. The object of the Legislature could not have been merely to secure to the revenue the duty on certificates, because it is only persons who can by law obtain such certificates. In that respect, the case is different from Smith v. Mawhood, where the Each Candidate is required to answer all object of the Legislature was to compel the obtaining of licences, which any one might to answer in three of the other heads of inthe Preliminary Questions (No. 1); and also obtain, to deal in a particular commodity."quiry, viz. :-Common Law, Conveyancing, and And Platt, B., added,-"The Statute was intended to prevent ignorant persons from drawing conveyances of serious import. The Legislature makes an exception in favour of serjeants-at-law and other persons of education. That such is the object of the enactment appears more especially from the language of the proviso, which says, that the Act is not to 'prevent' any person from drawing a will," &c. Taylor v. Crow-neral examination. land Gas and Coke Company, 10 Exch. R. 293.

HILARY TERM EXAMINATION, 1855.

THE Examiners appointed for the examination of persons applying to be admitted Attorneys, have appointed Tuesday, the 23rd inst., at half-past nine in the forenoon, at the Hall of the Incorporated Law Society, in Chancery Lane, to take the examination.

Equity.

The Examiners will continue the practice of proposing questions in Bankruptcy and in Criminal Law and Proceedings before Justices of the Peace, in order that Candidates who may have given their attention to those subjects, may have the advantage of answering such questions, and having the correctness of their answers in those departments taken into consideration in summing up the merit of their ge

Under the Rules of Hilary Term, 1853, it is provided that every person who shall have given notice of Examination and Admission, and "who shall not have attended to be examined, or not have passed the Examination, or not have been admitted, may within ONE WEEK after the end of the Term for which such notices were given, renew the notices for Examination or Admission for the then west ensuing Term, and so from time to time as he shall think proper;" but shall not be admitted until the last day of the Term, unless otherwise ordered.1

The Articles of Clerkship and Assignment, if any, with answers to the questions as to due service, according to the regulations ap- 1 This rule has been made in order to avoid proved by the Judges, must be left on or be- the practice of giving double notices.

ATTORNEYS TO BE ADMITTED IN HILARY TERM, 1855.

Queen's Bench.

Added to List pursuant to Judge's Orders.

Clerks' Names and Residences.

Bishop, Mortimer Samuel, 20, Chancery Lane;

To whom Articled, Assigned, &c.

24, Huntly Street, Tottenhem Court Road. William Richard Bishop, Exeter Harvey, Thomas Hingston, Mecklenburg St., Middlesex

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Safford, Fred., L. S., Lower Calthorpe St., Whitehall Place; Hadleigh; and Mettingham Castle

Stone, George William, Albany Terrace, Camberwell

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Joseph Roberts, Truro

J. F. Robinson, Hadleigh; Thomas Borrett,
Whitehall Place

George Tamplin, Fenchurch Chambers

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