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Construction of the Stamp Act.-Notes on Equity.
the exemption in the Stamp Act. The title to the property is good, but that the value exemption was intended to protect bond is sufficient. fide mercantile transactions of the sale and In a recent case before the Master of the purchase of goods, but this was a mere Rolls, it appeared that the defendant, a soagreement between one speculator and an- licitor, applied to the plaintiff, a clergyman, other, whereby the party acquired a right and requested him to lend to John Wyn the to the allotment of certain shares to be which had recently been valued at the sum of sum of 3,000l. on mortgage of certain lands, afterwards issued in a particular company. 3,9427. 10s. The plaintiff, who seems to have A judicial construction had already been had entire confidence in the solicitor, agreed, put upon these contracts in the case of gave him a cheque for 3,000l., and left the Humble v. Mitchell, in which shares in a completion of the arrangement in his hands. joint-stock banking company were held not to be within the words "goods, wares, and merchandises," within the 17th section of the Statute of Frauds, and the same construction must prevail here. Upon these grounds, the court was unanimously of opinion, that the ruling of the learned judge at the trial was correct.
A mortgage security was forthwith executed by Wyn, which bore date the 27th April, 1836. The solicitor retained it in his possession, and 4 per cent., as it from time to time became continued to pay to the plaintiff the interest at due, with one accidental omission. In November, 1840, he refused to continue further payment, stating that the rents were insufficient.
On investigation, it turned out that the seIn the course of the argument in Knight curity was considerably deficient; that Wyn v. Barber, the definition given by the late held part of the property, valued at 3751., as Justice Erskine in Vaughton v. Brine, was his wife therein; that other part, valued at fee-simple only in right of the life interest of adverted to, viz., "that such agreements 5291., had been altogether omitted from the seonly required to be stamped as would be curity; that the residue was subject to a debt. evidence against both the contracting of 50l. and a mortgage of 2001. due to the soparties;" but Parke, B., thought a more licitor under a deed of June, 1835. It was not correct definition was given in the case of shown that the nature of the security was made Beeching v. Westbrook, namely, "that a known to the plaintiff until the year 1839 or written instrument, to come within the 1840. Wyn became insolvent, and the proterms of this clause of the Stamp Act, 2,2001. This being insufficient to pay the mortperty was bought in at a sale by auction for must have been made with the intention gage to the plaintiff, negociations took place of containing in itself the terms of an with a view to obtain payment from the solici agreement between the parties." This tor, which being ineffectual, this bill was filed. definition was not adverted to in the more The bill prayed a declaration that the sum of recent and somewhat celebrated case of Vollans v. Fletcher, in which, it may be remembered, the Court of Exchequer determined, that a letter of allotment of shares on which the allottee afterwards paid the deposit, was not evidence of a contract requiring a stamp within the meaning of the Stamp Act.
NOTES ON EQUITY.
RESPONSIBILITY OF SOLICITORS.
A SOLICITOR to whom money is entrusted by his client for the purpose of investment on mortgage, is bound to see, not only that the
c 11 Ad. & El. 205.
d 1 Man. & Gr. 559; 1 Sc. N. R. 258. e 8 Mees. & W. 411.
See ante, p. 119. The case of Vollans v. Fletcher was cited before Wilde, C. J., in a case of Chapman v. Hearn, on the last day of the London sittings at nisi prius after Trinity Term, and the learned C. J. declined to act upon the authority of that decision.
3,000l. advanced by the plaintiff, was improand that the plaintiff was entitled to the benefit perly invested by the defendant, the solicitor; of the indenture of the 27th April, 1836, or to the benefit of the mortgaged premises, free from the charge thereby created.
The Master of the Rolls, after stating the case and reciting the deeds, observed, that the defendant was not agent and solicitor only, but also trustee. He received money from the plaintiff, without any security whatever but the confidence which the plaintiff placed in him. It was his plain duty, in his character of solicitor and agent only, to invest the money on proper security, and to use no fraud, misre presentation, or deceit; but, having obtained
It was wholly inconsistent with his duty, either as agent or as trustee, to take any security less than that on which he prevailed on Mr. Craig to advance the money.
If, as he alleges, he did not at the time when he produced the valuation to Mr. Craig, know that the life interest of Mrs. Wyn had been valued as the absolute property of Mr. Wyn;
Notes on Equity-Review: Crabb's Digest and Index to all the Statutes.
NOTICES OF NEW BOOKS.
A Digest und Index to all the Statutes.
MR. CRABB has adopted a convenient plan of posting up the statutes with the decisions which have taken place on their construction. The subjects comprised in this part of the digest are of considerable importance. Amongst them are the following:
if, as he alleges, he did not at the same time know that the property not absolutely conveyed to Wyn, had been valued at 5297., it is perfectly clear that he knew both facts in a few days afterwards, and whilst the money of Mr. Craig was in his hands or power. When the deed was executed, he knew that it comprised only the life interest of Mrs. Wy'n, although the property had been valued as an absolute interest of her husband; and he knew that he had withdrawn from the security property stated in the valuation to be worth 5291.; and he had then in his hands or power the sum of 3,0007. belonging to the plaintiff, which he parted with on that reduced security. In so acting, he was not acting as the solicitor or agent of the plaintiff to invest the money on a given security, but was assuming the power and discretion to invest the money on an altered security, and his conduct cannot be reconciled with the performance of his duty, either as solicitor and agent, or as trustee, and I am afraid it cannot Admiralty; Aliens; Auctions; Attorneys; be attributed to mere negligence. The utmost Barristers; Buildings; Companies; Copyvalue was stated to be 3,9427. 10s., and when holds; Copyright; Criminal Law; Debtor from this the value of the property excluded is and Creditor; Evidence; Factories; Lunatics; deducted, together with the difference arising Poor; Railways; Seamen; Shipping; &c, from the improper value of the life estate of Mrs. Wyn; and when it is further considered Before stating the substance of the that the defendant was at the time obtaining a recent enactments on these various matters, payment for himself, or a client for whom he Mr. Crabb gives a general review of the was personal security, and mixing up the plain- previous statutes. This is a very useful tiff's money and transaction with his own method of proceeding, and the references money and transaction, there is too much reason to think that the defendant must have to the former parts of the Digest enable had some distinct object of his own in view. the reader to find the whole state of the Statute Law, nor any given subject.
The case appears to me to be a case of "combined agency and trust, and I am of opinion that the defendant has so acted as to make himself personally answerable to the plaintiff for the whole sum advanced.
As an example of the work we shall select the Digest relating to Barristers and Attorneys, contained in the present part
1st, As to barristers, Mr. Crabb sets forth that ༢་། *
There are several miscellaneous provisions respecting barristers, as to their qualifications to be commissioners of inquiry respecting the exchange and purchase of glebe lands, by the 56 G. 3, c. 52; 1 G. 4, c. 6; 6 G. 4, c. 8 to be commissioners and judges in the Court of Bankruptcy, by the 1 & 2 W. 4, c. 56, see Dig. Part I., tit. BARRISTERS; to act as revising barristers in the registration of voters, by 6 & 7 Vic. c. 18, repealing and amending 2 & 2 W. 4, c. 45, ib. Part II. tit. PARLIAMENT, "The duty on the admission of a barrister is fixed by the 55 G. 3, c. 184, Sched. Part I.
The defendant seems to have thought he was only agent or solicitor: he says, he believes that the plaintiff was induced to accept the mortgage on seeing the valuation of Mr. Eyton, and of Wiley and Ash; but he states for himself, that he was not aware of the value of the premises, and did not consider it to be his duty to ascertain the actual value of the property on which the plaintiff advanced the money; that is, in the defendant's view of his duty he may prevail upon his client to advance money on a representation communicated by the defendant himself, without any knowledge of its truth. He further states, that he does not believe that the plaintiff relied on any thing said by him as The 3 E. 1, c. 29, subjects a serjeant plezto the value, but made inquiries in various der or other to imprisonment for a year and a quarters of the value of the security, but he has day for deceit, and never after to be heard to produced no evidence whatever in support of plead; the 13 E. 1, c. 49, prohibits the king's this allegation." His lordship directed that an counsel from receiving any land that is in plea account of what was due to the plaintiff should before H. M.; and by the 2 & 3 W. 4, c. 45, be taken, and the estate sold, the purchase- s. 52, a barrister is not to attend in a revising money of which was to be applied in payment, barrister's court; but by the 7 W. 4, and 1 V. and the defendant was to be held personally c. 114, any person charged with a felony may responsible for the deficiency and for the costs be admitted to make defence by counsel; so of the suit.
by 8 & 9 V. c. 10, in proceedings in bastardy, parties may be assisted by counsel; the 6 G. 3, c. 53, superseding prior statutes, regulates
all the Statutes.
Review: Crabb's Digest and Index to all
Geo. 4, c. 8, as to barristers of three years'
what baths are to be taken by barristers in general; and the 10 G. 4, c. 7, regulates what are to be t C. 92 the rules Roman Catholics. By institution of any savings b bank are to be submitted to a barris-17 W. 4, and 1 Vict. c. 114, authorizing deter; and the 10 G4, c. 56, amended by 4 & 5 fence by counsel. W4, c. 40, contains a similar provision for friendly societies, ib. Part 1, tit. BARRISTERS, BANKS (SAVINGS), FRIENDLY SOCIETIES, and ROMAN CATHOLICS; also post, tit. BAS
"13 Ed. 1, c. 49, as to King's or Queen's Counsel. B6 28 D 1937 and in 200
2nd, As to attorneys and solicitors, the learned author says that they have been "By the 5 & 6 W. 4, c. 76, the Municipal the subject of many statutes, several of Corporations Act, and the 5 & 6 V. c. 98, to which are now repealed and their proamend the law concerning prisons, barristers visions consolidated in the General Act, are appointed to arbitrate in cases of difference 6 & 7 Vict. c. 73, for which he refers to concerning certain accounts; and & SV.
c. 93, extends the provisions of these acts, 3rd part of the Digest, title "So
see INFRA. Tozoq dl utata 1984 97 & 8 V. 93,00Enabling Barristers ap- "Attornies and solicitors have been the subpointed to arbitrate between Counties and Boroughs to submit a Special Case to the Su-ject of many statutes, several of which are now perior Courts. repealed and their provisions consolidated in Sect. T.-After reciting the 5 & 6 W. 4, c. Part, III., tit. SOLICITORS. Among the statutes the General Act, 6 & 7, V., c. 73, see Dig. 76, and 5 & 6 V. c. enacts that in any case in which a barrister has been or hereafter shall are such as relate to making attornies or apor particular enactments in force, be named as in the recited acts, to arbitrate be- pearing by attorney, as the 20 H. 3, c. 10, for tween the parties, he shall, upon the in writing of the treasurer of the county, or of making suits to several courts; 6 E. 1, c. 8, in the visiting justices of the prison, or of the town pleas of trespass; 13 E. 1, St. 1, c. 10, for clerk of the borough, on behalf of the council for infant eloignes suing by prochein amy: 7 making general attornies; 13 E. 1, St. 1, c. 15, of the borough, who shall be interested in the R. 2, c. 14, for persons sued upon writs of decision of such borough, be empowered, if he think fit, before making his award, to state one H. M.'s licence; 7 H. 4, c. 13, for impotent præmunire who are departing the realm with or more special cases touching any of the matters referred to him for the opinion of such persons on reversal of outlawries; 15 H. 6, c. 15, for religious persons; 18 El., c. 5, for inone of the superior courts of common law at formers who may sue by attorney; 29 El., c. 5, Westminster as he shall direct, or to raise in s. 21, for defendants in penal actions; 11 G. 4, any award to be made by him at any time any and 1 W. 4, c. 65, for persons under disaquestions for the opinion of such court; and bilities; 7 W. 4, and 1 V., c. 114, for persons such court shall hear and determine the matter tried on any charge of felony. See further, according to the practice of the court upon Dig. ATTORNIES AND SOLICITORS, Parts I., special cases, and make such order as to the II, SOLICITORS, III.
costs, and by and to whom and in what manner "Attornies are prohibited by several statutes, the same shall be paid or borne, as to such court shall seem meet; and the decision of the court shall be binding on such barrister in making his award.
"Sect. 2.-In case any barrister so named dies or refuses to act, or is disabled from acting either from ceasing to practise as a barrister, or for any other reason, before making his award, the several parties before mentioned may name another barrister for the like purposes, and the barrister so newly named shall have the same authority to decide the matter in difference as if no other appointment had been made; and in every such case, in which, before the passing of this act, a second barrister has been appointed to determine matters left unsettled or undetermined by the barrister first appointed for that purpose, the appointment of such barrister shall be deemed good."
The 1st Part (p. 188,) contains references to the following statutes, regarding the offices conferred on barristers :
“2 & 3 W. 4, c. 45, as to revising barristers. "56 Geo. 3, c. 52; 1 Geo. 4, c. 6, and 6
as the 3 E. 1, cc. 25, 28; 13 E. 1, c. 49; 1 E. 3,
Review: Crabb's Digest and Index to the Statutes.-New Statutes.
thority, that the defendant may be discharged, glects of those whom they have served, see ib. PROCESS, tit. Attorney, Indorsement. INFRA.
"Persons convicted of forgery or perjury are disqualified to act as attornies by the 12 G. 1, c. 29, see Dig. Part II., tit. ATTORNIES and SOLICITORS, Confirmed by 6 & 7 V., c. 73; so an attorney or solicitor may not act as such while he is a prisoner, 6 & 7 V., c. 73, s. 31; so he may not act as agent for any unqualified person in any court of law or equity, ib. s. 32; so he may not be a justice of the peace while he continues attorney or solicitor, ib. s. 33; except in places having justices of the peace by charter, ib. s. 4, see Dig. Part III., tit. So
"The service of clerkship and all that is necessary for an attorney's clerk to do to qualify himself for admission as attorney or solicitor, is now regulated by 6 & 7 V., c. 73, ss. 5—15, ib. tit. SOLICITORS, by which the 2 G. 2, c. 23; 6 G. 2, c. 27; 12 G. 2, c. 13; 22 G. 2, c. 46; 23 G. 2, c. 26, are repealed; the duty payable on the admission of attornies is fixed by the 55 G. 3, c. 184, Sched. Part I.
"The repealed act, 2 G. 2, c. 23, s. 23, contained some provisions respecting the taxation of bills of costs delivered in by attornies and solicitors, which has been re-enacted with considerable additions and alterations by the 6 & 7 V., c. 73, ss. 37-43, see INFRA."
Mr. Crabb then states so much of the 6 & 7 Vict. c. 73, as relates to the taxation of costs, namely, ss. 37 to 41, inclusive, and gives the several decisions on the construction of those important clauses. To which is added the 7 & 8 Vict. c. 86, for the relief of clerks to attorneys and solicitors who have omitted to inrol their contracts, &c.
These extracts may not be uninteresting at the present time, when the exclusive preference shown by the legislature to the higher grade of the profession is undergoing considerable discussion. It may not "Formerly the admission of an attorney in be matter of surprise that where barristers one court did not qualify him to practise in another court; but by different acts now reattorneys are both eligible to fill parpealed this rule had been departed from, and ticular offices, the superior influence of now by the general provision in the 6 & 7 V., the former should generally prevail; but c. 73, s. 27, persons duly admitted in one court it is neither politic nor right in government are capable of practising in all other courts, on to exclude any class of men from the possigning the rolls of each respective court. The sibility of promotion to useful offices. The inrolment of attornies in courts of law, and so- public service requires, at least, that the licitors in courts of equity, is also regulated now by the same statute, 6 & 7 V., c. 73, s. 20, power of selection should not be limited to see Dig. Part III., tit. SOLICITORS.
TIONS IN THE LAW.
The granting certificates to attornies and solicitors is regulated now by the 25 G. 3, c. NEW STATUTES EFFECTING ALTERA80; 37 G. 3, c. 90; and 6 & 7 V., c. 73, ss. 21-25, except that ss. 27, 31, of the latter Act, (for which see Dig. Part II., ATTORNIES, &c., tit. Certificate,) are repealed by the 6 & 7 V., c. 73, and other provisions substituted, ib. Part III., tit. SOLICITORS. By this last Act reenacting the provisions of former acts, persons practising without certificate cannot recover fees.
"The provisions in the 18 H. 6. c. 9, as to filing warrants of attorney, in the 32 H. 8, c. 32, as to entering warrants of attorney, and the 18 El., c. 14, and 4 & 5 A., c. 16, as to filing warrants of attorney, are repealed by the 6 & 7 V., c. 73, Sched. I., Part II.; but warrants of attorney are provided for by the 3 G. 4, c. 39; 1 & 2 V., c. 110, ss. 9, 10; and 6 & 7 V., c. 66, see Dig. Part III., tit. WARRANTS.
"The Annual Indemnity Acts contained a provision that defects in the service, &c., of attornies should not disqualify persons who had served them, if otherwise entitled to be admitted; also that application for striking any attorney off the rolls on account of any defect in the articles of clerkship should be made within twelve months after admission and inrolment; but these provisions are now made perpetual in the general act, 6 & 7 V., c. 73, ss. 28, 29; and by the 7 & 8 V., c. 86, further protection is given to clerks against the ne
10 & 11 VICT. c. 66.
An act for extending the Provisions of the Law
1. 7 & 8 G. 4, c. 29; 9 G. 4, c. 55; 7 W. 4, and 1 Vict. c. 87.-Persons sending threatening letters, accusing others with certain crimes, with a view to extort money, guilty of felony. — Whereas it is expedient to extend the provisions of so much of the statute made and passed in the 7 & 8 G. 4, c. 29, intituled "An Act for consolidating and amending the Laws in England relative to Larceny and other Offences connected therewith," and of an act passed in the 9 G. 4, c. 55, intituled "An Act for consolidating and amending the Laws in Ireland relative to Larceny and other Offences connected therewith," as relates to the offences of sending Threatening Letters, and also so much of the statute made and passed in the 1 Vict. c. 87, intituled "An Act to amend the Laws relating to Robbery and Stealing from the Person," as relates to the Offence of accusing Persous of unnatural crimes, and to make further Provisions for the Punishment of such
New Statutes effecting Alterations in the Law.
Offences: Be it therefore enacted by the Queen's passed in the 5 G. 4, c. 84, intituled "An Act most excellent Majesty, by and with the advice for the Transportation of Offenders from Great and consent of the Lords spiritual, and temporal, Britain," it was enacted, that it should be lawand Commons, in this present parliament as- ful for his Majesty, by any order or orders in sembled, and by the authority of the same, That council, to declare his royal will and pleasure if any person shall knowingly send, or deliver, that male offenders convicted in Great Britain, or utter to any other person, any letter or writ- and being under sentence or order of transing accusing or threatening to accuse either portation, should be kept to labour in any part the person to whom such letter or writing shall of his Majesty's dominions out of England to be sent or delivered, or any other person, of be named in such order or orders in council: any crime punishable by law with death or And whereas it is expedient that it should be transportation, or of any assault with intent to made lawful to remove to the same places of commit any rape, or of any attempt or endea- confinement any male offender convicted in vour to commit any rape, or of any crime in Ireland who would have been removable thereand by the said first-mentioned act defined to unto if he had been convicted in Great Britain: be an infamous crime, with a view or intent to Be it enacted by the Queen's most excellent Maextort or gain, by means of such threatening jesty, by and with the advice and consent of letter or writing, any property, money, security, the Lords spiritual and temporal, and Comor other valuable thing, from any person what- mons, in this present parliament assembled, ever, or any letter or writing threatening to kill and by the authority of the same, That it shall or murder any other person, or to burn or de- be lawful for one of her Majesty's principal stroy any house, barn, or other building, or Secretaries of State to direct that any male any rick or stack of grain, hay, or straw, or offender convicted in Ireland, and being under other agricultural produce, or shall knowingly sentence or order of transportation, may be reprocure counsel, aid, or abet the commission of moved to and confined and kept to labour in the said offences or either of them, every such any such place of confinement out of England, offender shall be guilty of felony, and, being in like manner as if he had been convicted in convicted thereof, shall be liable, at the discre- Great Britain; and every offender who shall be tion of the court, to be transported beyond the so removed shall continue in custody, and shall seas for life, or for any term not less than seven be kept to labour in a place of confinement to years, or to be imprisoned, with or without be so provided, or any other place of confinehard labour, for any term not exceeding four ment to be from time to time provided by her years, and, if a male, to be once, twice, or Majesty out of England, until her Majesty thrice publicly or privately whipped (if the shall otherwise direct, or until the offender shall court shall so think fit), in addition to such be entitled to his liberty; and that all the imprisonment. enactments of the said act relating to the returns to be made concerning every person in custody in each of such places of confinement, and the powers and duties of the superintendent and overseer having the custody of any such offender, and to the treatment of such offenders while so confined, and the time during which they shall be so confined, shall, subject to the amendments made in the said act by an act passed in the last session of parliament, intituled "An Act for abolishing the Office of Superintendent of Convicts under Sentence of Transportation," apply to all such male offenders convicted in Ireland and removed under the authority of this act, as if they had been convicted in Great Britain and re-. moved under the authority of the first-recited act to such places of confinement.
2. Persons accusing others of crimes hereinbefore mentioned, with the view of extorting money, &c. guilty of felony.-That if any person shall accuse or threaten to accuse either the person to whom such accusation or threat shall be made or any other person of any of the crimes herein-before specified, with the view or intent of any of the cases last aforesaid to extort or gain from such person so accused or threatened to be accused, or from any other person whatever, any property, money, security, or other valuable thing, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.
CUSTODY OF OFFENDERS.
10 & 11 VICT. c. 67.
2. Offenders under sentence or order of transportation may be removed to any prison in Great Britain.-That it shall be lawful for her Majesty, by an order in writing, to be notified in writing by one of her Majesty's principal Secretaries of State, to direct that any persons under sentence or order of transportation within Great Britain shall be removed from the prisons in which they are severally confined to any other of her Majesty's prisons or peni1. 5 G. 4, c. 84.-So much of 5 G. 4, c. 84, as tentiaries in Great Britain, there to be confined enacts that male offenders sentenced to trans- for such time as her Majesty by any such order portation may be kept to hard labour out of notified as aforesaid shall direct, not exceeding England extended to offenders convicted in Ire-the time for which they might have been lawfully land. 9 & 10 Vict. c. 26.-Whereas, by an act confined in the prisons from which they shall
An Act to amend the Law as to the Custody of