THE MERCHANT SHIPPING BILL.

OVERLOADING VESSELS.

vessel

offices whatever; the occasion on which, and the sounder way to mark limits of safety than adopt-
purpose for which the words were used, sug- ing a fixed proportion of displacement, and that
gesting some limitation on their generality: evey type of vessel must be a law to itself, regu-
Anderson v. The Pacific Fire and Marine Assur-lated in reference to the form, dimensions, &c., of
ance Company, 21 L. T. Rep. N. S. 408. Priv. the vessel to which such limit of flotation has to
be applied. It is stated by a shipbuilder of great
Co.)
experience that a good-designed ship ought to
COLLISION-JURISDICTION-INEVITABLE ACCI- have 3-inch side, counting from top of deck plank
DENT-VESSEL AT ANCHOR.-Where a collision to water-line, for every foot immersed, but such
occurred in the harbour of New York, between rule depends upon the construction of the ship;
the British steumer Russia and the Austrian ship for instance, a vessel of a light draught of water,
Figlia Maggiore, by which the latter was sunk, being designed for a certain purpose, ought in no
and the Russia being libelled in this court, was
case to go to sea with less than a 3ft. 9in.
arrested within its jurisdiction, the witnesses, side at the lowest point. A 7ft. spar-decked
some of them being residents of New York, and side from top of plank on main deck to the
he considers safe when having 2ft.
there being in the case no special question
arising under any local law of either Great that with a cargo wholly composed of iron a ship
water-line. The same builder was of opinion
Britain or Austria: Held, that the court had ought to have 4in. side per foot immersed, and
jurisdiction, and that there were no circumstances two-thirds of the cargo stowed in a parallel line
in the case which called upon the court to refuse with the metacentre, or, in other words, well up in
to exercise it. Where the ship, lying at anchor the hold, to make the ship seaworthy. Another
in a proper position, was run into by the steam- shipbuilding firm give it as their opinion that for
ship as she came in from the sea, and the steam-spar-decked vessels (flush-decked ships, they say,
ship alleged that the accident was inevitable, especially steamers, scarcely exist at the present
arising out of the fact that the steamship did time, or at least none are now being built) the
not obey her helin, and it appeared that her not
old rule of having a clear side of one-fourth the
obeying her helm was caused by the meeting of depth of hold is a fair and reasonable one. Ano-
ther shipbuilder says, "All flush-decked steamers,
two tides, causing a tide-rip, which would affect
or steamers with raised quarter-decks or short
her helm as she entered it, but the tide-rip was
poops, to have a clear side of 24in. for every
well known and plainly to be seen, and its foot of depth moulded, such clear side to be
course, and character, and action upon a vessel measured from the surface of the water to the
entering it were not fortuitous, or varying, or top of the deck plank at the lowest point
uncertain: Held, that the defence of inevitable of the deck in ordinary trim, which point
accident was not made out, but the collision might be assumed to be one-fourth of the length
was, on the other hand, the result of negligence from the stern. In steamers with long full poops
on the part of the steamship in not guarding coming to the fore end of the engine space, the
against the effect of the tide: (The Steamship above clear side to be measured from the top of
Russia, 21 L. T. Rep. N. S. 440. United States the main-deck plank, at the fore end of the said
Adm.)
poop. Steamers with complete spar decks not to
be loaded above the scuppers, or say not above a
line 1ft. below the top of the deck plank of
the main or lower deck." Another builder gives
it as his opinion that the depth of side out of the
water should be at least 2in. to every foot of
the depth of hold in summer, and 24in. in
winter, and for a spar-decked vessel 3in. and
I consider," says a nautical authority whose
3in. respectively, according to the season.
opinion is entitled to some consideration, "that
a vessel without a spar deck, when fully
laden, should have
a clear
space of 24in.
from water to upper edge of main deck
(at centre frame) to every foot depth of
hold. With a spar deck, and its depth to
depth of main hold, and leave a clear space from
water line to upper edge of the lowest surface of
spar deck (at centre frame) of 4in. to every foot
depth of hold, including spar deck." (The above
refers to first-class vessels floating in salt water,
with dead weight properly divided.) Another
nautical authority of experience in steamships
says:-" What is a fair side for a laden steamer?
I would at once say that, as a broad rule, 2in.
clear side for every foot depth of hold amidshps
would suffice for any steamer of ordinary propor-
tions, and that a steamer so loaded would be per-
fectly seaworthy in any weather if properly con-
structed. By ordinary proportions I mean seven
and a half times the breadth in length, and
two-thirds of the breadth in depth, and with
a good shear." The necessity for a line of
extreme loading is admitted by all parties, and
the committee venture to suggest, that in the
event of the Government not approving any of the
above suggestions, or seeing fit to fix a basis for
vessels hereafter to be built, such line might be
determined by the builder, in conjunction with the
surveyor of Lloyds', or to the Liverpool Under-
writers' Association, under whichever inspection
built, together with the local surveyor of the
Board of Trade, thus representing the shipowner,
the underwriter, and the Government. In the
event of any disagreement arising between the
parties, the County Court judge of the locality
could be empowered to authorise two of the nauti-
cal assessors appointed under the Admiralty Juris-
diction Act to assist in determining the maximum
limit of flotation, the decision of such body to be
submitted to, and approved by, the Board of Trade:
and for vessels built under the inspection of
neither of these societies-a very rare exception-
the builder and Board of Trade surveyor could
determine such limit of flotation, with power to
call an assessor, as provided in case of any dis-
agreement. For vessels already navigating, the
builder and surveyor of such ships, when prac-
ticable, together with the local surveyor of the
Board of Trade, to fix such load line; and when
this arrangement is impracticable, the owner to
appoint a representative, who, in conjunction with
either the surveyor of Lloyds' or to the Liverpool
Underwriters' Association, and the surveyor to the
Board of Trade, may be called to determine such
line. The limit determined upon might be stamped
amidships, and the distance of such freeboard be
painted in legible letters and posted on some con-
venient part of the ship.

The Newcastle and Gateshead Chamber of Commerce has had the Merchant Shipping Bill under its notice, and a report proposed by Mr. James Hall and Mr. W. S. Daglish, submitted to and approved by the Chamber, refers in considerable detail to this very important subject of overloading. They regret that no provision is contained in the Bill to determine the maximum load-line of ships and steamers. Recent experience, they state, has shown with painful force how property is lost and how many valuable lives are sacrificed by overloading, and this can only be met by Government legislation. However perfect the measure may otherwise appear, if it be without distinct provisions to meet this increasing evil, it will not meet one of the most distinct and recognised deficiencies in the merchant shipping service. (From the 1st Sept. up to the 26th Nov. 185 vessels are reported to have foundered or been abandoned at sea; and there have been during the same time 289 cases of collision; included in the above are 18 steamers lost while trading to and from the Baltic, and of these five foundered at sea.) While fully sensible of the difficulty of laying down any arbitrary regulation, the committee would bring under notice various rules which exist, and some opinions on this point obtained by them from eminent shipbuilders and practical authorities of that district whose views are entitled to the greatest consideration. The old rule laid down by Lloyds for freeboard in midships from top of deck to load-line is 3in. to a foot of depth in hold; in summer months, 24in. But if this rule were deemed safe for a vessel of a certain breadth and depth, and 200ft. long, the same could not be reasonably applied to a ship 300ft. long and of the same breadth and depth. It is suggested by one authority that the most correct method would be to deal with the registered tonnage or the internal capacity of the vessel, and that for a cargo properly stowed, composed wholly of railway iron, chairs, or pig iron, once and a half of the registered tonnage would be a fair cargo. For dead-weight and measurement cargoes one and three-quarters of the registered tonnage might be admitted, and for lighter cargoes twice the registered tonnage might be taken on board. Spardecked ships are designed according to the rule of Lloyds' Register, "that the space between the main or middle deck and spar deck is intended only for accommodation of crew and passengers of steam vessels." In this space live stock might, however, be carried. Another authority doubts the practicability of applying any general rule, except such an one as this-that a common measure of stability should be arrived at in all vessels, and a range indicated, above and below which should be considered as extremes, and out of the pale. As this measure of stability would be affected very much by different cargoes, there is, of course, a difficulty in the way of any particular application of it. He believes it to be a

ECCLESIASTICAL LAW.

NOTES OF NEW DECISIONS. RESIGNATION OF A BISHOP-THE PROMOTER IN A SUIT-PRACTICE.-A bishop, the promoter in proceedings against a clerk charged with an ecclesiastical offence, sent the case by letters of request to the Arches Court. Afterwards the bishop, acting under the provisions of 32 & 33 Vict. c. 111, resigned his see. On a petition by the defendant to be dismissed from further proceedings: Held, that the proceedings did not the title of the suit might be amended by subabate on the resignation of the bishop; and that moter. Ecclesiastical courts are not governed stitution of the proper description of the proby rules or analogies drawn from the common law: (Bishop of Winchester v. Wix, 21 L T. Rep. N. S. 439. Arches Court.)

DR. TEMPLE'S CONFIRMATION.-The following is the judgment of the Vicar-General-I have taken upon myself the duty of confirming the election of the Rev. Frederick Temple, who has been elected to the see of Exeter, in obedience to the letters mandate of the Crown. Those letters mandate have been issued to his Grace the Archbishop of Canterbury, signifying that it has pleased Her Majesty the Queen to approve of the election of Dr. Temple to the bishopric. She has likewise commanded him to confirm the election, and his Grace has issued to me, his Vicar-General, his fiat to carry out the Queen's command. On these occasions it has been the practice to use certain judicial forms, which, as far as we are able to ascertain, go back to the earliest period of the Reformation, and were probably framed by the civilians of the day upon the ancient system connected with confirmations before the Pope, the archbishops, and bishops of other countries, and they were framed with the view of carrying out the provisions of the statute. There is no statutory sanction for these forms; they are not obligatory upon the Archbishop; he practice has been for three centuries to use has been pleased to adopt them, and the them. Before the Vicar-General takes his seat to-day a citation goes forth to all persons who wish to object to, or accept either the form of the election, or the person elected. to appear here. But they are informed that, notwithstanding their appearing, the confirmation will take place, so that beforehand they know they appear for the purpose of stating their objections, but not for the purpose of in any way having those objections entertained with a view to the confirmation being refused. It is important to consider, therefore, for what purpose they appear. In my opinion they come here to make such objections as may have arisen in their minds against the manner in which the election has been conducted, to urge any defects which may be known to them, and also intervene any error with regard to the person who is presented to be confirmed, that that error may be made known to me before I proceed to confirm the election. It is the peculiar business and power of the Archbishop, as provincial archbishop, to supply all defects whatever there may be in the election, and it is for the purpose of stating to his Grace's Vicar-General any defects that may be known that persons are invited here to-day to make their objections or exceptions upon these two points-that the elec tion has been defective, or that the person presented is not the person upon whom the choice of the Crown and of the electors has fallen. It is said that if opponents come and tender objectiors which I refuse to entertain, these proceedings are a scandal and a sacrilege. I was obliged to inform my learned friend that I thought these were strong terms to use. It was formerly the custom of all courts in the land to commence their sittings with prayers, and it is not because the Litany has been read to-day, that there is any peculiar sanctity to be attached to these proceedings, whereby, if I did not accede to the arguments of counsel who appear for the opposers, the proceedings would be justly exposed to such harsh terms. Sitting here as Vicar-General, I think it right that the impression shall not go out to the English people that there is that peculiar sanctity in the proceedings which lays them open to the terms which have been applied to them. The question now arises, am I or am I not to admit the allega tion of the opposer to proof. It is remarkable that there is no writer on English law dealing with this question of confirmation, and the course of proceeding which should be observed on matters of this kind, who has ever contem plated the appearance of opposers. Not but that opposers may come, but the proceedings of elections are now so carefully conducted that the opportunity, or the occasion for opposition upon the defects of elections are hardly impossible. But there is no case whatever that I am aware of

sioning increased friction; and that it would have been dangerous, and therefore improper to have sent the truck forward; that a change of truck thus became necessary, and the delay that occurred in consequence was inevitable. His Honour quoted authority to show that it was immaterial whether the heated axle was the result of accident or negligence, or whether more delay arose than was necessay to forward the cattle after the fact had been discovered. The cattle having been delayed, and having been injured by such delay, it was unnecessary to inquire how that damage arose. The company were therefore liable, and the case which his Honour had before referred to showed that injury to cattle resulting from the want of food and water, when the company were responsible for the delay, was a damage for which the company must make compensation. The evidence of damage was not precise, and was loosely mixed up by the defendant with loss of markets, for which his Honour considered the company was not responsible, and he therefore assessed the damage at 31., leaving the sum recovered by the plaintiffs, 6l. 3s. 5d. His Honour allowed costs of attorney and witnesses.

66

C. T. C.

THE NEW BANKRUPTCY ACT AND
GLOUCESTERSHIRE.

and 5 of this Act, with reference to the power to commit to prison for debt conferred on the Superior Courts. Perhaps, through the medium of your columns, someone will throw light upon it. Sect. 4 enacts that "no person shall, after the commencement of this Act, be arrested or imprisoned for making default in payment of a sum of money;" this is subject to six exceptions (which need not be set out), and in many of these cases the imprisonment cannot be for a longer period than a year. By sect. 5, any court may "commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt in pursuance of any order or judgment of that or any other competent court; subject, as to any court other than the Superior Courts of law and equity to certain restrictions. Here we have, first, the power of arrest and imprisonment for debt taken away entirely, except in six cases; secondly, the power of committing to prison for debt conferred on every court. If it is meant to make a distinction between "arresting and imprisoning" in the six cases excepted in sect. 4, and the general power of committing" given in sect. 5, under what process is a debtor to be "arrested and imA STRANGE COURT OF APPEAL. A question prisoned? as under the general rules for regulargely affecting the operations of friendly socie-lating the practice under this Act, provision is ties generally, and of the Order of Foresters in only made for committal. If no such distinction particular, was on Saturday decided in the is intended, the effect of sect. 5 is to give a general Wolverhampton County Court by Mr. A. M. power to commit for debts for a term not exceedSkinner, Q.C., the judge. Court "Honest Hope," ing six weeks, and sect. 4 enlarges the term in held in that town, had been sued by the widow of certain cases to not exceeding one year. a former member, named Eli Massey, to recover 181., funeral money. The husband had died in the United States, and the officers refused to pay the money, because the member had been behind in his payments, and was on that account suspended. The rules required that in the event of a claimant being dissatisfied with the decision of the officers, the question might be argued before a tribunal of arbitrators who were members of the court. But in this instance the claimant preferred to sue the court in the County Court. When some time ago the case came on, the court was represented by Mr. Young, a barrister on the Oxford Circuit, who contended that the arbitrators were the tribunal to decide the matter. To this it was replied by Mr. J. E. Underhill, solicitor, on behalf of the plaintiff, that such a tribunal was opposed to the first principle of English law, which required that a man should not be a judge of his own case. The arbitrators, being members of the court, were vitally interested in the decision, and therefore were legally incompetent to decide the point. Even if this were so, Mr. Young maintained that the deceased had consented to the tribunal, because he had had the rules in his possession, and had been regularly summoned to the half-yearly meeting at which the committee of arbitrators was appointed. Two days had been occupied in the discussions, and on Saturday the judge ruled that such a court of arbitrators was entirely in opposition to the honest principle of English law, that tribunals shall be absolutely beyond suspicion, by reason of their being constituted of persons who had no interest in the result; and he very much regretted that the principle should be violated in the rules of friendly societies. In the case before him, however, the deceased had consented to such a tribunal, and therefore, shocking as such a court was to his idea of justice, the widow must go before it.

BANKRUPTCY LAW.

NOTES OF NEW DECISIONS. FRAUDULENT PREFERENCE. The respondents, assignees of a bankrupt, brought an action against the appellants' bank to recover a sum belonging to the bankrupt, and alleged to have been in the appellants' hands at the date of adjudication of bankruptcy. The said sum, in pursuance of an agreement between them and the bankrupt previously to adjudication, had been carried by the appellants to a special account, as security against bills not yet at maturity, drawn by the bankrupt and discounted by the appellants: Held (reversing the judgment of the Supreme Court of China and Japan), that the action failed, since by the contract the sum claimed formed no part of the bankrupt's estate, but was rightly in the hands of the appellants at the time of the action. Fraudulent preference, under such circumstances, could have no application to the case: (The Chartered Bank of India v. Evans, 21 L. T. Rep. N. S. 407. Priv. Čo.)

Correspondence.

THE DEBTORS' ACT 1869.-There seems to me some doubt as to the precise meaning of sects. 4

We called attention last week to the fact that Cheltenham was about to present a petition to the Lord Chancellor against the intended transference of the bankruptcy business of the surrounding towns to Gloucester under sect. 79 of the new Bankruptcy Act. Petitions to the same effect are being signed in Cirencester, Stroud, Tewkesbury, and Newnham. The petition from Newnham is that of magistrates, merchants, traders, and others, carrying on business within the district of the County Court, and sets forth-"That if your Lordship should make such an order, it will, as a necessary consequence, compel all legal practitioners and their clients to attend at Gloucester from remote parts of the county, and not only entail upon members of the legal profession not residing at Gloucester great inconvenience and loss, but would in its operation be attended with serious trouble and expense to creditors and all persons residing at a distance from Gloucester who may have occasion to attend any bankruptcy proceedings in the court; that it is manifestly in the present day the intention of the Legislature that courts of justice should be brought as much as possible to the doors of the suitors, and that it would be contrary to such intention and to the spirit of the last Bankruptcy Act itself, that there should be any such centralisation of the courts for its administration, and your petitioners submit that such centralisation would prevent the bankrupt's estate being advantageously realised and wound-up as at present: that the district of the County Court holden at Newnham comprises the parishes of Abinghall, Arlingham, Awre, Blaisdon, Flaxley, Littledean, Longhope, Mitcheldean, Newnham, and Westbury-on-Severn, and also the township of East Dean, which is an important division of the Forest of Dean, and a large manufacturing and mineral division; that at the last census, taken in 1861, the total population of these parishes and township numbered 16,961 souls, since which date it has considerably increased, and may now be fairly estimated at not less than 20,000, and is still rapidly increasing; and that town of Newnham may fairly be called the centre, there are residing within the district, of which the ten solicitors, six of whom have for many years practised in the court, and are familiar with the law as administered therein.

At the Bristol Court of Bankruptcy last week the commissioner said he had received a communication from the Lord Chancellor, which he desired should be read. The document stated :"Sir,-I am directed by the Lord Chancellor to inform you that having further considered the course that should be adopted under sect. 130 of the Bankruptcy Act 1869, he is of opinion that inasmuch as the creditors in the several bank the 31st Dec. 1869, could have removed such bankruptcies which may be pending in your court on ruptcies to a County Court, it is fair to consider that they approved of their being proceeded with in your court, and that therefore their convenience will be consulted by his Lordship transferring all pending business to the County Court of the town in which a district bankruptcy court holds its sittings, unless application be made to the court in any case to the contrary. I am, therefore, to forward to you the inclosed notice, and to state that

his Lordship requests that you will be good enough to cause a copy of the same to be posted up in your court. I am to state, with regard to the appointments for last examinations and first meetings which would have been fixed by you in the ordinary course, that they should be left unmade, with protection given to the bankrupt to the 20th Jan.; and that with regard to adjournments, they should be made sine die, with protection as aforesaid, leaving the parties in such cases to apply to the County Court to which the bankruptcy may be transferred to make the appointments.-I have the honour to be, sir, your obedient servant, HENRY NICOL." Notice is hereby given, that on the first day of January next, or as soon after as conveniently may be, an order will be made pursuant to sect. 130 of the Bankruptcy Act 1869, for the transfer of all business of the Court of Bankruptcy for the Bristol district held at Bristol. It is the intention to transfer all the business of the said court, including all bankruptcies which have not been, or shall not be transferred by creditors, pursuant to the Bankruptcy Act 1861, to any other County Court, to the County Court of Gloucestershire holden at Bristol. The assignees, or any parties interested, may, how. ever, at any time before the 20th inst. (December), make application to the said District Bankruptcy Court, and show cause why any particular matter should be transferred to the London Bankruptcy or to any County Court, and the Court of Bankruptcy at Bristol will report to the Lord Chan cellor what in its opinion will be the most convenient court for the further prosecution of the said matter, who, if he thinks fit, will make order accordingly."

THE ARREST OF AN ENGLISH BANKRUPT IN HOLLAND.-The case of Mr. Lamb, the absconding Bristol bankrupt, who was arrested some time since by a ruse at Rotterdam, has been brought before the Dutch Parliament. Strong complaints were made, our correspondent writes, about the manner in which Mr. Lamb was taken. The Minister of Justice replied, observing that the English police were really not to blame. The English Cabinet (the Minister proceeded) communicated with our Government as soon as they were informed of the affair, stating that they were willing to do all in their power to set Mr. Lamb at liberty. But Mr. Lamb having come to an arrangement with his creditors, the intervention of the English Government had become superfluous. The minister further stated that the police of Rotterdam had not assisted in the arrest, but they were blameable for not having prevented it. Six persons were known to be guilty of complicity in the business. Four of these were Englishmen and two Dutch. Those persons were now under prosecution for having violated the personal liberty of a foreigner who, being upon Dutch territory, was under the protec tion of the Dutch law. The following persons have been summoned to appear on the charge on the 19th inst. :-Jan Prokrop, forty-seven years old, born at Amsterdam, living actually in London, where he is in the service of the Dutch consul general; Arthur Marris, living in Bristol; and Harold, solicitor's clerk, living in London.

CORRESPONDENCE OF THE

PROFESSION.

[NOTE.-This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it.]

COSTS.-I have great pleasure in giving your correspondent "H." an answer to the question put by him in the LAW TIMES of Saturday last, brought, has the attorney any right to insist upon the question is, "where a debt is paid before action payment of the costs of the letter of application." It is clear from the decisions in several cases reported, that the answer to the question must be in the negative. (See Gordon v. Strange, 7 Exch. Caine v. Coulson, 32 L. J. 97, Ex. ; 7 L. J. Rep. N. S. 477; Hough v. May, 4 A. & E. 954, distinguished; 636.) In the case of Caine v. Coulson (which was decided by the Court of Exchequer sitting in banco), this view of the question was taken by the whole of the presiding judges, and Baron Martin, in delivering judgment, said: "I do not at all mean to say it is unreasonable that where a and the creditor has to employ an attorney for the debtor has not paid a debt in the usual course, purpose of enforcing it, the attorney should have a right to say: 'Remit me the money, and 6s. 8d. the costs of this letter.' I do not think there is anything unreasonable in that, nor do I think any blame ought to be imputed to an attorney for so writing. But all that is due is the debt, and the claim for writing the letter is no claim from the debtor to the creditor, and if the former remits the amount of the debt he has done all by law he

is bound to do, for he has paid all that he owes, and if the attorney does not think fit to accept it, his duty is to return it, and put the parties in statu quo, and then issue a writ, if he thinks fit to get his costs." The propriety of the attorney returning the money and issuing a writ in order to get his costs, might be questioned in a case where the actual amount due is offered to him in such a way as to constitute a legal tender and in a case of this kind it would be very dangerous to act upon the suggestion of Baron Martin, as in the event of the action going on, the plaintiff would have to pay the costs should the defendant prove a plea of tender. The usual practice of respectable practitioners in London and the provinces in cases of debt, is to ask the debtor for payment of a certain sum for the costs of the letter of application; and, as Baron Martin says, there is nothing unreasonable or improper in so doing, and in a moral sense the debtor ought not to scruple to pay it, as it is generally through some default on his (the debtor's) part that the intervention of an attorney becomes necessary; but in a strict legal sense an attorney has no right to demand payment of any costs of an application for payment of a debt where no proceedings are taken to recover it. It is true there are many attorneys who only intimate to a debtor that they are instructed by serving him with process, but this lack of common courtesy is looked upon with disfavour by the courts in all cases, and particularly in actions of tort.

6, Old Jewry, E.C. F. LUCAS, Costs Settler.

INTERMEDIATE EXAMINATION. - Numerous complaints have been made, because there is no publication of the names of successful candidates at the above examination of articled clerks in any legal or other paper. Other professional examinations, such as the medical, I have seen noticed in the Times and the Lancet. Why should not this compliment be paid to law students, and on whom does the blame fall for its omission? I am aware that the subject of these few lines is one which has been constantly raised in the columns of your paper, I must therefore apologise for again introducing the matter; but I feel myself fully justified in so doing, for being an articled clerk, I am an interested party, and feel aggrieved that the favour which has been so often solicited has not yet been obtained. I venture to hope that this will now be taken into immediate consideration.

an

pear to have been made absolute, probably be-
cause the action was settled. But the same prin-
ciple was acted upon so long ago as Morrison v.
Summers, 1 Dowl. P. C. 325. There the defendant
had remitted the debt to the plaintiff personally,
and not to the attorney, after the usual letter for
payment, and on the same day on which the
writ had been issued. The court refused to
stay proceedings except upon payment of 13s. 4d.
and the costs of the application, because they
considered that the defendant by paying the debt
behind the attorney's back in order to avoid the
costs of the letter had disentitled himself to the
summary interference of the court on any other
terms. The practical result of the cases seems to
be this:-If payment of the debt be made before
action, the costs of the letter cannot be recovered.
Where a tender can be pleaded, the debt alone, if
tendered, must be accepted, and the costs of the
letter are in this case also irrecoverable. But
where a tender is not pleadable, the attorney may
refuse to accept the debt, unless the costs of his
letter be tendered to him as well as the debt, and
the court will not stay proceedings until such costs
are paid.

KAIN, SPARROW, WITT, and Co,
Law Accountants and Costs Draftsmen.
69, Chancery-lane, Dec. 6.

NOTES AND QUERIES ON

POINTS OF PRACTICE.

[N.B.-None are inserted unless the name and address of the

writers are sent, not necessarily for publication, but as a guarantee for bona fides.]

Queries.

NOTE.-R. H. S. is referred to Jane Menhennitt's case, 21 L. T. Rep. N. S. 332.

property devised to her separate use, wishes to convey 19. HUSBAND AND WIFE.-A woman possessed of real it to her husband. The parties being in a humble condition of life, and expense an object to them, I thought of advising the wife to make her will giving it to her husband in case he survives her, but as far as I can at present find, the authorities seem to disagree as to whether real property given to a woman for her separate use, gives her a power to dispose of the equitable interest without an acknowledged deed, or even a power of testamentary alienation. Williams on the Law of Real Property, p. 207, 7th edit., says: "It is sufficient to give her in equity a power to dispose of it by deed or will." In Lechmere v. Brotheridge, 32 L. J. 577, Chan., the Master of the Rolls ruled against this, though in Atchinson v. Le Mann, 23 L. T. 302, Turner, L. J. laid down that a married woman might dispose by will of lands given to her for her separate use, although the devise or grant to her contained no power for that purpose. Will some of your readers inform me what is the settled law on this point, and the

latest decision thereon ?

G. O.

20. WINE LICENCE.-H. in the borough of T., not previously licenced, applies to the magistrates after the annual licensing meeting, and where no adjournment of such meeting took place, for a licence to sell wine by retail, not to be consumed on the premises. Notices were served on the constable and one of the overseers, but not till after the annual licensing day had passed. Can the magistrates legally grant H. a licence on one of the transfer days?

C. P.

21. INTERMEDIATE EXAMINATION.-I should like to

know how many candidates presented themselves, and how many were successful, at this examination in Michaelmas Term last. Am I right in supposing that this information is given in the Law Examination Repor ter not before several months after the examination has taken place?

A CANDIDATE.

22. BANKRUPTCY-SALE BY AUCTION.-Where the cre

ditor's assignee of a bankrupt assigns to a purchaser a policy of insurance effected by the bankrupt on his own life, in whose name or names is the assignee (the purchaser) to sue, and in what words will the power of

attorney be expressed ?

marries.

ARTICULUS.

23. WIFE'S MORTGAGE.-Female mortgagee in fee Her husband becomes insolvent, and his assignee in insolvency conveys and assigns fee and term and mortgage moneys to a transferee for value. Husband dies leaving wife sur S. S. S.

24. TITLE.-Is a knight or a baronet a commoner?

TEMPLAR.

25. COSTS-COMMON LAW.-I shall be obliged if one of the following question, viz. :-At what stage of the proyour correspondents will favour me with an opinion on ceedings in an action is the attorney entitled to charge a term fee, and what charges is such term fee intended to cover? FINEM.

STAMP ON BUILDING LEASES, &c.-Allow me to call attention to a recent decision at Somerset House on this important subject. The Solicitor of Inland Revenue has just put a construction, in the matter of a building lease, on the 16th section of 17 & 18 Vict. c. 83, which will, I submit, seriously affect such of these leases and of very many other deeds as have been executed since 1854. The latter part of that section enacts that "in any case where any deed or instrument chargeable with ad valorem stamp duty in respect of any sum of money yearly or in gross is made also for any further or other consideration, such deed or instrument is to be chargeable (except where express provision to the contrary is made in any Act of Parliament) with such further stamp duty as any separate deed or instrument made for such lastmentioned consideration would be liable to, except and for term of years, AN ARTICLED CLERK. progressive duty." Upon this the solicitor rules that a building lease containing a covenant by a lessee, as nearly every such lease does, to expend money in building is to be stamped (in addi-iving. Has transferee any, and what, interest? tion to the ad valorem stamp on the rent) as a "lease not otherwise charged 17. 15s.," in other words a lease which has just been charged ad valorem as such, is now to be further charged as a "lease not otherwise charged." correct, then every deed which contains a covenant If this ruling be or other clause beneficial to any-however small an-extent to the grantor or lessor, beyond the money consideration for it, must bear a 35s. deed stamp, in addition to the ad valorem stamp, though the latter may, perhaps, only amount to 6d., and, of course, cannot be given in evidence without it. I admit that the Legislature can, by express words, pass such an enactment as this; but I contend that the Court of Exchequer will not so construe the almost incomprehensible clause just quoted. The cases of Nichols v. Cross, 14 M. & W.; 14 L. J., Ex; Phillips v. Morison, 13 L. J., Ex.; Pearson v. Inland Revenue, 37 L. J., Ex.; and the opening" Observations on the Stamp Laws," in Hayes' Concise Conveyancer may be referred to, as leading to this conclusion. I shall be glad to hear from anyone who is interested in the discussion of this subject; for, if this ruling be correct, so many deeds made since 1854 must be wrongly stamped that a retrospective Act (after the precedent of Preston's Act in 1814, consequent on Wright v. Wakeford, and Doe v. Peach) should be applied for. The Legislature will doubt less see the justice of saving the public from numberless penalties, because their solicitors were unable of themselves-and their text books would not help them-to discover that a lease or other deed which is chargeable, and stamped ad valorem, should also be stamped as a "lease (or deed) not otherwise charged.'

COSTS.-Your correspondent "H." requests in your last number the opinion of some "practical and experienced costs settler" on the following point: "Where a debt is paid before action brought, has the attorney any right to insist upon payment of the costs of the letter of application?" We apprehend he has not. We answered a similar query some time since in the columns of one of your contemporaries; but we have much pleasure in stating again, in reply to your correspondent, the principles which, in our opinion, govern the question. Costs are recoverable against an opponent only by virtue of the Statute of Gloucester, which, after giving costs in some actions now abolished, adds, "And this Act shall hold place in all cases where the party is to recover damages.' But this statute only applies where action has been brought, and damages recovered. Before action there is no legal claim for costs by the creditor against the debtor, and therefore if, before action, the debtor pays, or in cases where a tender can be pleaded, tenders, the debt, the costs of the letter cannot be recovered. See the judgment of Baron Martin in Caine and another v. Coulson, 32 L. J. 97 Ex. In that case the plaintiff's attorney, after receiving the debt, issued a writ and went on for his costs; and the learned judge, after stating that he saw nothing unreasonable in an attorney's writing to a debtor for payment of his letter, proceeded thus: "But all that is due is the debt, and the claim for writing the letter is no claim from the debtor to the creditor, and if the former remits the amount of the debt he has done all that by law he is bound to do, for he has paid all he owes." We believe this to be still law,-at least, we have found no case to the contrary. In cases like that we have cited the defendant is not obliged to come to the court to stay proceedings, because a plea of payment or tender is an answer to the action. But where he cannot plead a tender, as in an action against an

acceptor on a dishonoured bill, his only mode of
escaping heavy costs is to apply to the court to
stay the proceedings: (per Lord Lyndhurst in
Siggers v. Lewis, 1 C. M. & R. 371.) And in all cases
where a defendant asks for the summary interfer-
ence of the court it will only be granted upon
condition of his doing what is right, and paying
the fair costs of the attorney's letter (see Wil-
liams v. Barnett, 16 L. T. Rep. N. S. 672): which,
however, was only a rule nisi, and does not ap-on Conveyancing.

C. P. H.

Agreement for LEASE.-Did the agreement contain a stipulation for "usual covenants ?" "The covenant named is unusual and unfair," say Barry and Greenwood in their respective excellent works W. R.

Answers.

(Q. 6.) COUNTY COURT COSTS.-I wish to draw the attention of Mr. Bell to the following point :-In the Nicol's last edition of their valuable work on County chapter on Replevin, p. 208, in Messrs. Pollock and Court Practice, it is stated that a plaintiff in replevin, if he sues in a Superior Court, must (under penalty of forfeiting his bond), prove that he had good ground for believing either that title to some corporeal or in

corporeal hereditament, or to some toll, market, &c. 201." It is quite plain what course is to be pursued if was in question, or that the rent or damage exceeded the rent or damage exceeds 201.; but with respect to the question of title, it seems to me that the learned editors have overlooked sect. 12 of the County Court Act 1867, which gives the County Court jurisdiction in cases of title where neither the value of the property annum. It appears to me that by virtue of the section nor the rent payable in respect thereof exceeds 201. per I have just quoted, a plaintiff in replevin, if he sues in a Superior Court, should be prepared to prove not only ditament, &c. is concerned, but that the annual value of that the title to some corporeal or incorporeal hereshall feel obliged to Mr. Bell if he will state his the property to which the title relates exceeds 201. I opinion on the subject in your issue of next week.

SOLICITOR.

I expressed last week, I beg to refer to a case of Nelson

(Q. 9). INFANT-TRUSTS.-In support of the opinion ▾ Duncombe, 9 Beav. 211, the principle of which appears to be decisive. The marginal note is as follows: "If a trustee be sued in Chancery for an account, and it appears that he has properly expended sums of money for the protection and safety, or for the maintenance and support of his cestui que trust, at a time when he, though adult, was incapable of taking care of himself, the court will allow him credit in account for such sums of moneys." It is clear, therefore, that if the infant had an indefeasibly vested interest, a trustee, without any express powers of maintenance and advancement, and without the assistance of 23 & 24 Vict. c. 145, s. 26, would be allowed sums properly expended for the neces sities of the infant. His defence against a criminal a necessary. If, on the other hand, the infant had not charge, being for his protection and safety, is evidently an indefeasibly vested interest, so that it would be necessary to rely on the powers given by the instru