Page images
PDF
EPUB

Defence of the Annual Certificate Duty.

think there are auctioneers, horse dealers, and others, to be added, all of whom have an equal right to be relieved, and who will not act with corresponding selfishness, if they do not take up the trade of agitation, until they also get a repeal, in which the attorneys will be bound to help them.

You say the barrister is not taxed,-nor in strictness is he paid; but if a bill were brought in to tax him, or compel the attornies to give lesser fees, it certainly ought to pass; the unwilling profession of the attorneys, on the one hand, and the expectations of the bar, on the other, requiring some check, the present honorary system being ruinous to the client. The new Chancellor of the Exchequer might do worse than adopt the hint here thrown out, the bar being "all honourable men."

of our manufacturing and commercial re-diffusion of knowledgeb is thus annually taxed" sources, but had an important influence on the-because, Sir, I cannot discover the connecprofession, by inducing those engaged in such tion between the selling of game, and the pursuits, to seek the improvement of the diffusion of knowledge; and secondly, because position of their sons, by making gentlemen, under the general head" licenses," I find there in other words, attorneys of them. To those is a revenue of 906,9221., not an eighth of individuals, the certificate and stamp duties which can be paid by the attorneys; consewere not worthy of consideration, when the quently the hawkers, the liquor-sellers, the rage for the profession commenced. pawnbrokers, and dealers in game, must either From such means, the profession has un-be very numerous, or heavily taxed; but I doubtedly shared in the vicissitudes of the times, and besides being considerably overstocked, it is to be feared, that an unprofessional competition has sprung up, which will require a more cutting remedy than the repeal of, what your Wolverhampton correspondent with true agitating fervour, calls a poll-tax, but which I will still continue to designate by the less-excitable name of the Certificate Duty. Looking at the vast interests which are committed to the profession, and charitably reviewing the professional corps, I heartily approve the regulations affecting the certificate, at the same time, admitting that the duty has long ceased to operate as a preventative of admission, and without entertaining any exaggerated notion of the emoluments of the profession, I consider them to be entitled to a high place in the scale of taxation. That the professional business of the country is immense, the official returns for stamps and other sources sufficiently prove; and although the interests of the public have led to material reductions in the charges, they still yield an ample recompence for the skill and labour employed, and of this opinion were the legal authorities who settled them; it is, however, unhappily too true, that some of the fixed fees are very frequently evaded, and as true, that every evasion is derogatory to the individual You also say, why should not the judge pay and to the profession. On this ground, alone,it? The answer is, because he is mostly a looser I humbly submit, that the duty is perfectly by the honour, and it would be derogatory to justifiable, and that its infliction furnishes no the profession to allow it, and even supposing respectable, and consequently no sufficient it did, the salary must be increased, and then ground for its repeal.

Again, you say that neither the architect nor the surveyor pay any thing-neither do the cooper, the butcher, and fifty others, and (in order to carry out the idea, which I fancy was floating in your mind when you penned the above) we must have a poll tax, which would be the precursor of Universal Suffrage, alias, Universal Confusion; but this is an offence against society, with which the attorneys have never yet been charged, nor do I expect they ever will.

cui bono?

66

I regret that in your late paper on this But you have adverted to an income tax. subject, you have adverted to the clergy, be- You say, are they then so very well paid? cause I do not consider their's as a parallel if we have an income tax, we should like to case. First, because their incomes are generally know, how many of them will say that they fixed; and secondly, because they are low, receive 1000/. a year?" And so should I. upwards of 4000 averaging under 807, and of 1000l. a year, seems to be your minimum of 1000 under 907., and their whole body averag-what an attorney's gains ought to be. ing under 300l. per annum,-incomes which would be scornfully rejected by the profession, and which certainly ought not to be annually reduced by such a duty as this.a

You certainly puzzle and surprize me, by the following: (Vol. 22, p. 419,)" Hawkers and pedlars pay for an annual license, so do vendors of liquors, and pawnbrokers do the like-game cannot be sold without a license, but we know of no other instance in which the

a We suppose the attorneys have no wish to see the clergy or the faculty taxed; they merely wish even-handed justice. We see that our able contemporary, the Law Magazine, is with us on this point. ED.

After all, Sir, agitate as we may, it can be productive of no other effect than the paltry embarassment of the government, which would be compelled to retaliate in defence of the public welfare, the means of which it has ample store for doing,-abolish our monopoly,--throw open the profession,-establish free trade, and then farewell to its respectability. Much, I admit, has been done of late years, to denude it of its profits, but the realization of this would be its death-blow, and I hope we shall not be guilty of the folly of meriting it. U. Z. L.

b The diffusion of legal knowledge was obviously meant. ED.

6

Equitable Mortgage by Deposit of Title Deeds.

EQUITABLE MORTGAGE BY DEPOSIT |title deeds, or of a lease, did of property of the

OF TITLE DEEDS.

THE practice of depositing the title deeds of real property, by a debtor, with his creditor, as a security for a pre-existing debt, or for an advance then made, accompanied or not by a written memorandum explaining the object of the deposit, instead of having recourse to the more expensive, though safer method of a mortgage deed, appears, in some places, to form almost as usual a plan of effecting the intention of borrower and lender, at least in cases of small debts or loans, as the more comprehensive legal mortgage.

natures to which they are respectively applicable.

According to the practice of some manors, however, a deposit of copies of court roll seems to afford a greater degree of security to the creditor, than one of freehold or leasehold title deeds; since the steward, on production of a written memorandum signed by the debtor, will enter on the rolls of the manor, the fact of an equitable mortgage by way of deposit having been made of the property affected.

The consequence of this is, that, should a subsequent intended purchaser or mortgagee, in the absence of the copies of court roll, inThe prevalence of such a species of security spect (as he naturally would), the rolls of the arises, doubtless, on the one hand, from the court for information as to the title, he would anxiety of the debtor or borrower to avoid at once be affected with notice of the equitable expense, and to prevent the appearance of a mortgage; and the mischief consequent to the mortgage and re-conveyance on the face of his creditor, had a subsequent sale or mortgage title, at a subsequent period; and on the other, been effected without notice, would be avoided. from the supposition of the creditor or lender And even if the intended purchaser or mortthat by a simple deposit of title deeds, the two gagee did not inspect the court rolls, yet the parties can, without legal interference or ex-steward, on the instructions for surrender pense, effect a valid charge upon the property, coming before him, would, by referring to the not knowing that the debtor may, if dishonestly rolls (an invariable practice in the manors inclined, dispose of the property (securely alluded to) perceive the prior equitable mortmortgaged as the creditor imagines) the very gage, and give notice, both to the intended next day, to an innocent purchaser or mort-purchaser or mortgagee, and to the equitable gagee, who gives valuable consideration, and incumbrancer, which would, of course, prevent has no notice of the existing incumbrance. any injury to the latter. And such purchaser, if the property be desirable, and there are other inducements to the purchase, may be found, and imposed upon by the vendor's specious assertion, that the title deeds have been, unfortunately, lost or destroyed.

To this danger (and it is not trivial), every one who advances money on a bare deposit of title deeds, exposes himself; and much of his security exists in the honesty of the debtor, and the chances against a third party purchasing, or advancing money on, the property, without production and delivery of the title deeds, or without acquiring notice of the prior charge.

As before mentioned, a deposit of this nature is equally effectual, whether the intention of the parties be expressed in writing or orally, or even without any expression of intention, the mere delivery of his title deeds by the debtor to the creditor, being prima facie evidence of intention on the part of the former to charge the property to which they relate. It need scarcely be pointed out, however, that a written memorandum accompanying the deposit, is highly desirable, as it not only prevents all question as to the purpose of the parties, but it may, and should, contain a clause expressive of an intention to charge the property, not merely with the advance then or theretoThe principle that a mere deposit of this fore made, but also with all subsequent adnature, whether intended to secure a debt pre-vances; for in the absence of such a clause, viously due, or an advance made at the time of the transaction, and whether accompanied or not by a written memorandum, expressive of its object, gives to the depositary not merely a lien on the title deeds until the debt is paid, but an actual equitable interest in the land itself, has long been recognised; and although, it being in direct contravention of the Statute of Frauds, the Courts of Equity have from time to time endeavoured to confine its application within as narrow limits as possible, it appears to have acquired considerable latitude, during the latter part of the last, and this century.

In the earlier cases, the principle seems only to have been applied to deposits of title deeds relating to freehold and leasehold property; and it was not until a comparatively late period that a deposit of copies of court roll was held to constitute as valid an equitable mortgage of copyholds, as a deposit of freehold

for on the want of evidence to shew that a security for future advances was contemplated, the deposit will be construed as a security only for the debt due or the money advanced at the time of the transaction.

Another point connected with the last, and equally important to be observed, is, that in case the deposit be made to cover future ad vances by à firm, the memorandum should clearly express an intention that the deposit shall operate as a security for all advances which may thereafter be made by the future members, or members for the time being, of the firm. For silence on this head may cause the transaction to be held as a security for advances made only by the immediate parties to the deposit; and should the firm with whom the deeds are pledged take in another partner, or should one of the partners die, and subsequent advances be made on the faith of the existing security, it is, to say the least, very

Equitable Mortgage by Deposit of Title Deeds.-Legal Examination Distinctions.

questionable whether the deposit would he considered as extending to those future advances. Much litigation has taken place on this point, and the leaning of the Courts seems to be against the extension of the security to such last mentioned advances, in the absence of evidence to the contrary.

7

It appears that a deposit by a debtor of his lease, is not a breach of a covenant against assignment, unless expressly prohibited; and a creditor with whom such a deposit is made, is not liable (according to the latest decisions,) to the rent and covenants, unless he enter into possession, or do some other act which may induce a Court of Equity, at the suit of the lessor, to compel him to take a legal assignment, when, of course, he would be liable at law to pay the rent and perform the covenants.

An equitable mortgagee may, through the medium of the Court of Chancery, obtain either an absolute conveyance and foreclosure, or a sale of the property. If the latter alter. native be adopted, and the estate should not realize the amount secured upon it, the mortgagee will then be regarded in the light of a In addition to these and other evident ad-general creditor, as respects the balance due vantages of reducing the intention of the par- to him. ties to writing, may be mentioned the fact that in case the mortgagor becomes bankrupt, and the mortgagee applies in the usual manner, by petition to the Court of Bankruptcy, for a sale of the property, and payment of his debt out of the produce, he is, if the circumstance of the deposit be evidenced by writing under the hand of the mortgagor, entitled to the costs of his application to the Court, but not otherwise. And it seems that any writing, however informal, will satisfy the Court in this instance. Although, as has been stated, a mere deposit of title deeds (for the purpose) gives to the A deposit of title deeds ranks itself under mortgagee an equitable estate in the land the 4th class of bailments, enumerated by Lord itself, yet it must have been made with that Holt in his elaborate judgment in Coggs v. intention; and evidence will be received that Bernard, Lord Raym. 909, viz., "Vadium;" the deeds were left with the creditor for some and the depositary is bound only to use ordiother purpose than that of giving him a secu-nary care and diligence in the keeping of rity for his debt, or of covering an advance. the deposit, he still having recourse to the There are conflicting decisions as to the effect depositor for his debt, though the subject of produced by a deposit of title deeds, with a the deposit, the title deeds, be lost.

view to their assisting in the preparation of a legal mortgage, some of the judges having held that no equitable interest passes by such

E. C.

To the Editor of the Legal Observer. Sir,

a deposit, and others, amongst whom was LEGAL EXAMINATION DISTINCTIONS. Lord Eldon, having considered such a circumstance as the strongest evidence of an intention to charge the property, and ruled accordingly. And it appears most probable, that, notwith standing the avowed disfavour with which these securities are looked upon by the law, the next judgment on the point will decide that a deposit for such a purpose has the same effect as one where no further security is intended to be given.

Lord Eldon's reasoning, in the case alluded to (Ex parte Bruce, 1 Rose, 374), certainly seems most consistent with the common sense view of the subject, viz., that as the principle of equitable mortgages is, that the deposit of the deeds is evidence of the agreement, a deposit for the express purpose of preparing a legal mortgage is yet stronger evidence of the intention.

As one who looks forward to passing the exa mination a year or two hence, but who feels almost disheartened at a view of the immense stores of knowledge, throughout all the branches of the law, required by an attorney in the present day, I venture to solicit that the subject heading this letter be not overlooked. Surely there are many who would redouble their efforts in legal study, dry as it often is, were their ardent (and sometimes heedless) spirits cheered and gladdened by a prospect of reaping honour as well as money, by their toil.

In connexion with the annual certificate you have shewn that even respectable young men ought not to be sanguine in their hopes of In limiting the boundary of these equitable profit: surely then the reward of a well-earned securities, the Courts have held that an agree- praise ought to be held out to the view of the ment to deposit deeds, without an actual de-industrious. Might not the Incorporated Law posit, confers no lien (Ex parte Combe, 4 Mad. 249). So of a written charge upon lands, if retained by the debtor (Ex parte Coming, 9 Ves. 115). And in Kerrison v. Dorrien, 9 Bing. 76, an action of trover to recover title deeds, it was decided that a deposit of title deeds by a settlor, subsequently to a voluntary settlement, will not prevail at law against the settlement, the Court pointing out the distinction between a purchaser protected by 30 Eliz. c. 18, and a depositary who has merely a right to go into a Court of Equity for a legal conveyance.

Society be induced, for the good of the profession, to arrange with the Examiners for giving some rewards, consisting of medals, certificates of honour, &e., to such as are recommended for their superior proficiency? Sincerely thanking you for your former permission to different correspondents to discuss the question in your columns, I beg to submit this suggestion, with an earnest hope (in which hundreds would unite) that you would advocate at least a trial.

Let it be now promised that next October, or next October twelve months, the Law Society

8 First Day of Term.-Admissions, &c. M. T. 1841.—Q. B. Order of Business.

would place various rewards, say half a dozen,
of different degrees in point of honour, at the
disposal and for the bestowment of the Exami-
ners, and I am convinced such examinations
would turn out to be the best ever had in point
of satisfaction. "I, for one, would try to be
· one of the six.'"
SUB ARTICULIS.

THE FIRST DAY OF TERM.

[ocr errors]

Knight Bruce, and Vice Chancellor Wigram, a thing never before seen. Well might the suitor rejoice on that day, that Equity hath now five ears wherewith to hear all manner of complaints. As they proceeded, it was observed that the sun, which had for many weeks been obscured by a continual mist and rain, shone forth with a brightness which cheered the hearts of many who had for years given themselves over to dispair."

Court of Queen's Bench.

2d Nov. 1841.

"On the first day of Michaelmas Term, 1841," to speak after the manner of Sir Robert Baker, might be seen a sight worthy to behold. There might be seen in procession to Westminster Hall, the right honourable and right renowned Lord Lyndhurst, three times Lord Chancellor of England, of which there is no remembrance that any man was before him; near to him The Crown and Special Paper on the usual all the Common Law Judges, the Master days, and every other day throughout the of the Rolls, the Vice Chancellor of Eng-Term, Motions first, and then the New Trial land, and furthermore, Vice Chancellor Paper.

The Court will, during the first four days of the Term, take New Trials Nisi and Motions, and on any of those days, when they fail, will proceed with the New Trial Paper.

ATTORNEYS TO BE ADMITTED the last day of Michaelmas Term.

QUEEN'S BENCH.

Pursuant to Judge's Order and Rule of Court.

Clerks' Name and Residence.
Dalton, George Wilkinson, Brown Candover,
Hants; and Duke Street, Saint James's.

Edwards, Thomas Gold, Denbigh.

To whom articled, assigned, &c. Octavius Robert Wilkinson, St. Neots; assigned to Samuel White Sweet, Basinghall Street.

Edward Hugh Edwards, Bedford Row; assigned to Thomas Evans, Denbigh.

APPLICATIONS FOR RE-ADMISSION the last day of Michaelmas Term, 1841.

Balmont, William, Southmolton.
Bright, William Oliver, Brussells.
Batley, Henry, Highgate.

QUEEN'S BENCH.

Bowditch, James, Bell's Buildings, Fleet St.
Crookall, John, Manchester.

Cocker, George Henry, 11, Lloyd Square.
Fothergill, Francis Frankland, 18, Cambridge
Street.

Fairbanks, William, Frome Selwood.

Gates, William Caster, 38, New Compton St.;
2, Hoxton Sq.

Gabriel, William Wallace, 5, Upper Porchester
Street.

Hodgson, Joseph, Gisburn.

Harding, Samuel Tuffley, Manchester.
Hiley, William, Parkstone.

Johnson, John F., 36, Roupell St.; Billericay ;
Downe's Buildings.

Maskell, John, 9, Gastigny Place, City Road;

Aston Place; Steyman's Row; George's
Row; Lizard Street: and Whitecross Street
Prison

Roberts, Gregory, 16, Martha Street, Shore-
ditch.

Ridout, Charles Vie, 31, Upper Charlotte St.,
Regent Street.

Redward, Charles Benjamin, Portsea. Tanner, Wm. Budd, Shopdon and Leominster. Haynes, Thomas William, 43, Arlington St.; Wallace, George King, 5, Paradise Row,

and 15, Mornington Place.

Chelsea.

Ordered by the Judges to be added to the List.

Bradshaw George, Blackburn.
Harding, John, Sharington-cum-Gresly.
Moore, Frederick Harry, Blandford Forum.
Smallwood, Thomas, the younger, Wellington.

Hutchinson, Julius, Debtors' Prison for London and Midddlesex; 3, Garden Place, Lincoln's Inn Fields; Herne Bay; and Featherstone Buildings.

The List of Admissions for Hilary Term, will be given in an early Number,]

Notes of the Week.-Chancery Courts selected by Queen's Counsel.-Superior Courts. 9

NOTES OF THE WEEK.

THE NEW VICE CHANCELLOR'S COURT
ROOMS AT WESTMINSTER.

Before the Vice Chancellor of England.

Sir C. Wetherell

Mr. Twiss

Mr. Wakefield

Mr. Miller

Mr. Girdlestone

Mr. Richards

Mr. Stuart

Mr. Bethell

Before Vice Chancellor Knight Bruce.

Sir C. Wetherell
Mr. Twiss

Mr. Boteler
Mr. Simpkinson
Mr. Swanston

OUR readers are no doubt generally aware Mr. Whitmarsh
that Vice Chancellor Knight Bruce sits in
No. 2 of the Committee Rooms of the
House of Commons, and Vice Chancellor
Wigram in No. 1. It is well to record the
fact, as part of the history of the ill-con-
struction and inconvenience of the Courts
at Westminster. We presume that the
new Courts in the Old Square of Lincoln's
Inn, will be ready by the ensuing vacation.
These unsightly out-houses, which darken
and disfigure the Old Hall of Lincoln's Inn,
can of course only be temporary.

NEW QUEEN'S COUNSEL. Alexander James E. Cockburn, Esq., of the Middle Temple, Recorder of Southampton, of the Western Circuit, who was called to the Bar 6th Feb. 1829.

EXAMINATION OF ARTICLED CLERKS.

The Examiners have appointed Wednesday, the 17th instant, to take the examination, at the Hall of the Incorporated Law Society, at half-past nine o'clock. The preliminary papers must be left at the Society's Office on Tuesday, the 9th.

CHANCERY COURTS SELECTED BY
QUEEN'S COUNSEL.

Sir Charles Wetherell All the Courts.

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

- All the Courts.

[ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

L. C. and Rolls.
Master of the Rolls.
Bruce & Wigram, V. C.
Bruce, V. C.

L. C. & Bruce, V. C.

Shadwell, V. C.

Wigrum, V. C.

Wigram, V. C.

Wigram, V. C.

All the Courts.

L. C. & Bruce, V. C.
Master of the Rolls.
All the Courts.
Bruce, V. C.

L. C. & Shadwell, V. C.

L. C. & Shadwell, V. C.
L. C. & Shadwell, V. C.
Shadwell, V. C.

Lord Chancellor & Rolls.
Wigram, V. C.

Mr. Sharpe -
Arranging the names according to the rank of
the Judge of each Court, they are as follows:-
:-
Before The Lord Chancellor.

[blocks in formation]

Mr. Miller

Mr. Spence

Mr. Whitmarsh

Mr. Cooper

Before Vice Chancellor Wigram.

Sir C. Wetherell
Mr. Twiss
Mr. Boteler
Mr. Burge
Mr. Skirrow

Mr. Temple

Mr. Miller

Mr. Whitmarsh

Mr. Sharpe

SUPERIOR COURTS.

Queen's Bench.

[Before the four Judges.]

PRACTICE.-ARREST.

Where there has been an arrest in one Court upon a capias issued under the authority of the 18th section of 1 & 2 Vict. c. 110, and where there have been detainers on writs issued by other courts, the defendant must, if he thinks such arrest illegal, apply in the first instance to the Court out of which the writ whereby he was arrested issued. This Court will not, in a proceeding on one of the detainers, entertain the question of the legality of the first writ.

Mr. Pearson moved for a rule to shew cause why the defendant in this action should not be discharged out of the custody of the marshal. He founded his motion on an affidavit which stated that on the 2d of September the defendant was arrested on a capias issuing out of the Court of Common Pleas, which writ was founded on a decree or order of the Court of Chancery, made for the payment by the defendant of certain costs therein declared to be due from him. When the defendant was arrested on this capias, which purported to be issued under the authority of the 1 & 2 Vict., c. 110, s. 18, it was found that there were other writs on which he might be detained, and he was accordingly detained upon them. One of them was a writ from this Court issued in this action. The arrest had been illegal, and therefore the detainer under the writ in this case could not be supported. The statute of 1 & 2 Vict. c. 110, s. 18, did not apply to a case of this sort. He was stopped by the Court.

Lord Denman, C. J.-We are all of opinion that before we are called on to set aside the detainer on our own writ, the Court of Common Pleas should be asked to determine whe ther the writ issued out of that Court can be supported. The original arrest was on a writ from that Court, and we cannot determine the validity of that writ in the first instance. You must apply to the Court of Common Pleas.

Per Cur.-Rule refused.-Wright y. Standford, M. T. 1841. Q. B. F. J.

« PreviousContinue »