26 On Mortgage Stamps-Readmission of Attorneys. from one to five guineas, and making the total donations received since the establishment of the Society, 481/. 2s. 6d." Such being the state and prospects of the society, it may be safely considered as permanently established, and well entitled to the confidence of the clerks of the profession in general, whom we recommend without further delay, to become enrolled amongst its members, as well for their individual benefit as for the welfare of the class to which they belong. ON MORTGAGE STAMPS. To the Editor of the Legal Obsever. I am not disposed to agree with "G" in the opinion he entertains in page 471, vol. 10, of your work on the contrary, I consider that the decision in Doe d. Bartley v. Gray, does vitally touch the point which has been vexata questio with the profession for so long a period. It is a great misfortune that some persons can never" let well alone"; here is a case which is really and truly a transfer of a mortgage," with a "further sum added," and the Court of King's Bench has decided, that the deed effecting it is properly stamped. ready paid, namely, upon the 1507. secured to Rowland. The 358. stamp impressed upon Worsley's mortgage, was in my opinion wholly unnecessary; but it was impressed out of deference to the opinion of my friend, the lessor of the Denman properly decides, was 21. for the plaintiff; for the only duty requisite, as Lord 2007, the additional sum lent, and 17. for each follower. If the legislature are obscure in the language of the laws which they pass for taxing the subject, let the revenue bear the loss; the stamp laws are to be construed liberally, and for the benefit of the public (per Lord Ellenborough, in Warrington v. Parker, 8 East); but by an unaccountable timidity on the part of the profession, the revenue have, I believe, been greater gainers on this point than on any other point which has arisen on the stamp acts. The form of the deed, (except so far as it shews that an old mortgage is paid off by a new one) has nothing to do with the stamps to be impressed upon the deed. On original mortgage transactions the duty is to be paid on the sum secured; it is not regulated by the form of the deed, for that may be by demiseand with or without trusts for sale; or it may be by a grant and release of the fee, also with or without trusts for sale; and on transfers, if no further sum be lent, there must be a common deed stamp of 35s. and followers of 25s. each; " but if any further sum of money shall be added to the principal money already secured" (viz. the 150. to Rowland)," then the ad valorem on mortgages payable under the 55 Geo. 3. c. 184, shall be charged only in respect of such further money." have heard it argued, that the words lorem" specify upon what sum the ad valorem duty shall be paid, leaving untouched the question as to what other duty must be impressed for concurring parties. Now I always │understood, that when the ad valorem duty was impressed upon a deel, any number of persons might concur therein, and release or transfer their interest without any additional duty being paid in respect thereof; witness the cases where the title is perfected by the concurrence of the heir at law, of a dowress, The 3 Geo. 4, c. 117, was made for the of an annuitant, of legatees, &c.; and whopurpose of relieving persons in Carter's situa-ever heard that an additional duty was requisite tion from paying duty on the same sum, upon for any of these purposes? I see no difference which the ad valorem duty had been once al- 'between the cases. Jt is a "transfer of a mortgage," because Rowland having 150. on the premises, and being paid off, transfers his estate and interest to or for the benefit of a new mortgagee. When Rowland lent the money to Carter, the ad valorem duty on 150l. was paid; and when Worsley paid off Rowland, there was no necessity to repay the ad valorem duty on that sum, neither was any duty requisite for the assignment of the term to Bartley, because a further sum was lent to Carter by Worsley, who having paid an ad valorem duty on the 2007., was entitled to have a conveyance of the estates of all the parties interested, as well Rowland, as Carter, without any additional duty being impressed on that account. I "ad va I. C. G. RE-ADMISSION OF ATTORNEYS, Last Day of Michaelmas Term, 1835. KING'S BENCH. Alfred, William, late of Chelmsford; now of Carruthers, John, formerly of Clement's Inn; No. 12, Southampton Buildings. Becket, John, now of No. 5, Buxton Street, Bozon, Frederick, formerly of Pinner's Hall, now of Lincoln's Inn Fields. Charnock, Richard, late of No. 1, Raymond Crosse, William Godsalve, No. 66, Leman Davis, Henry, No. 1, York Place, Clifton, Re-admission of Attorneys in Michaelmas Term. of Cambridge. 27 Downs, Peter Joseph, late of No. 6, South | Milne, Thomas, formerly of Manchester; now Grater, Robert, Southmolton, Devon. Guardner, Richard, late of Birmingham; now Hampson, William, Bolton-le-Moors, Lancas ter. Hawkins, Matthew Gravett, No. 9, Union Highmoor, James R., late of Ludlow, Salop; Hubbersty, Zachary, Rye Lane, Peckham, Surrey; late of No. 25, Burton Street, Burton Crescent. Jackson, Richard, Lancaster. Jones, Joseph, No. 15, Claremont Place, Leeman, Joseph, formerly of Louth; since of Barton-upon-Humber; now of Wisbech, Isle of Ely. Newport, William Charles, formerly of Bognor, Sussex; at present of Brighton. Okey, Thomas King, late of No. 9, Westgate Buildings, Bath; now of Hope Cottage, St. Jacob and St. Philip, near Bristol. Owen, William, the Younger, Wem, County of Salop. Parfitt, Edward, Wells, Somerset. Price, Erasmus Barnsley, late of the Town of Rickett, Charles, of Leeds. Smith, Henry, late of Brighthelmstone, and of Waldron, Francis, No. 23, Queen's Row, Pentonville. Welch, John Gregory, Cheltenham, Gloucester. Wilson, William Henry, late of George's Grove, Holloway; now of No. 11, Aldenham Terrace, Somers Town. Wragg, Thomas, No. 7, Hall Place, Kennington Lane. COUNTRY. Welby, Charles Augustus, Uppingham, Rut- Charles Hall, same place. landshire. If any reason is known to exist why any of the above-named persons should not be admitted, we understand that information may be communicated to the Secretary of the " Incorporated Law Society." 28 Superior Courts: Lords Commissioners; K. B. Practice Court. SUPERIOR COURTS. Lords Commissioners' Court. TRUST.-PURCHASE BY TRUSTEE. decree, while they had at the same time rendered it still more difficult for the plaintiff to ascertain what was the real value of the buildings, stock in trade, and good will at the time the property was purchased under a fictitious valuation. Substantial justice could not be done that decree of the Master of the Rolls, which now in any other manner than by confirming annulled the sale and gave to each party their share of the profits of the trade. This was in affirmance of the decree of the Court below, when applied to the case of trustees; and noconsonant with the principles of the Court, that the purchase by the trustee was con- thing had been stated to make the defendant's trary to the principles of the Court applica-case an exemption to the rule. One of two trustees and executors having an option from the testator to purchase the trust property at a fair valuation, purchased the property at a valuation made without Held, communication with the co-trustee. ble to trusts. Sir C. C. Pepys, having stated the facts of This was a petition of appeal from a decision the case, said, the decree pronounced in 1830, of the late Master of the Rolls. The plaintiff directed accounts of the profits of the brewery is the son of J. J. Stocken, who in 1818 made to be taken, from the death of John Stocken a will bequeathing his moiety of a brewery up to the death of William, and from William's at Waltham Green, to his brother, W. Stocken death downwards; and also of what come into and a Mr. Dawson, in trust to pay an annuity the hands of Dawson. The petition of appeal of 150. to his widow, and carry on the busi- from that decree was presented in 1834, and it ness during the minority of his son and complained of that part of the decree which daughter; but with an option that his brother set aside the sale, and directed the mode of William, who was owner of the other moiety, taking the accounts, but it did not complain might, if he thought fit, purchase his moiety of that part of the decree which appeared to at a fair valuation. W. Stocken and Dawson this Court to be erroneous, subjecting W. were also appointed executors of the will. Stocken's own moiety to the common account. The testator died in 1820, and shortly after- The petitioners said that W. Stocken gave full wards W. Stocken, having elected to purchase, value for the share of the concern; but it was procured a valuation to be made of the pro- objected to him, that he, being a trustee, could perty, and having applied a portion of the al- not, by the rules of this Court applicable to leged valuation to the payment of debts and trustees, be a purchaser of the trust property. legacies, and invested the remainder in a mort- The Master of the Rolls said, that under the gage, continued to carry on the business on circumstances laid before him, he thought W. his own account. William died in 1824. The Stocken should put himself in the situation of nephew, by his bill filed in 1826 against W. a stranger to the trust property. The pro Stocken's representative, charged that the va-perty was valued, it appeared, under the eye luation was collusive and fraudulent, and of W. Stocken, without any communication prayed that the sale might be set aside. The with Dawson, the other executor. Master of the Rolls, on the hearing of the case, proper steps were not taken in the contract expressed a strong opinion of the impropriety of of purchase. The Master of the Rolls seemed trustees becoming purchasers, declared that by his decision to have seized on the main points the sale could not be supported, and decreed of the case. The whole matter will come bethat no contract for a sale had taken effect, fore the Court again upon the Master's reand that an account must be taken of all the port, and then the Court will do what may profits that had been made since the death of appear right. The opinion of the Court is, the testator, J. J. Stocken. that no alteration can be made in the decree as far as it directs accounts of the profits; but the decree is erroneous in directing the defendants (the appellants) to pay to the estate of John J. Stocken all the profits that the Master should find. The decree below therefore is to be varied in that respect, but as the appellants appealed from the whole decree, they are to pay the whole costs. Mr. Jacob and Mr. Bethell, in support of the appeal, contended that this decree was an improper straining of the principle that governed the Court with reference to trustees, and that the decree was in other respects unjust and incapable of being carried into effect, because it required an account of the profits after the purchaser had much improved the trade and brought new capital into the business, and because it took no notice of the care and attention bestowed on that business, but directed that the plaintiff should have a moiety of all the profits from whatever source they might be derived. Mr. Wigram, Mr. Kindersley, and Mr. Duckworth for the respondents, in support of the decree of the Court below, argued that the appellants, in allowing more than four years to elapse before they entered their appeal, had in some measure precluded themselves from effectually complaining of the hardship of the The Superior Courts: K. B. Practice Court. as a consideration for withdrawing an opposition to his discharge. A rule having been obtained for delivering up the bail bond to be cancelled, on the defendant's entering a common appearance, on the ground that he had been freed by the Insolvent Debtors' Act from the debt which was the cause of action. 29 charge, if the same shall have been accepted | been frequently held that an insolvent, after his discharge, was at liberty to renew his former liability. The first case was similar to one where the defendant being arrested for debt, although he could not be regularly arrested for the same sum again, yet if he subsequently gave a fresh bill, he would be again liable to the same consequences. Here, the bill was given after the defendant's discharge, and he had therefore incurred a fresh liability. In cases which had been before decided, a degree of duress had been used; but in the present case no such means had been employed, and it was sworn by the plaintiff's agent, that the defendant came voluntarily and gave him the bills. No action would lie on the agreement, as it must be admitted that that was void; and the bills having been voluntarily given, the Court ought not to interfere. If there was any fraud the defendant participated in it. The Court, without hearing the agreements It appeared from the facts shewn upon the affidavits, that the plaintiff, who was a clergy. man, had given to the defendant a bill of exchange for 330l. to be discounted. He ob tained cash for the bill, but appropriated the proceeds to his own use, and the plaintiff was compelled to pay the bill on its becoming due. The defendant was subsequently ascertained to be in custody for debt by the plaintiff, who then lodged a detainer against him for the amount of the bill; but a compromise was afterwards effected by the defendant giving his cognovit for the debt and interest, which then amounted to 4231. 28. The defendant subse-contrà, said, that the rule must be absolute. quently obtained his discharge through the The opposition to the defendant's discharge Insolvent Court, when the plaintiff's debt was being withdrawn upon the agreement, and the put into the schedule, to the amount, however, defendant having complied with the terms of of 2087. only. Notice of opposition was given that agreement immediately on his discharge, the by the plaintiff before the defendant's discharge, natural conclusion was that the bills were but it was not followed up, on the latter given in consideration of the opposition being giving a promise that he would give bills im-withdrawn. From a perusal of the cases bemediately after his discharge, for the full amount of the debt due, and his son giving an undertaking that he should accept them, or that he (the son,) would become answerable. A few days after the discharge of the defendant he went to the agent of the plaintiff, and gave two bills, at six and twelve months' date respectively, of the amount of 106/., and 1227. The first of these was duly honored, but the second was not paid, and in consequence the present action was commenced, and the defendant arrested. In support of the motion, it was sworn that the debt amounted to 2081. only; while on the other side, affidavits were made that 423/. was the real amount due on the defendant's discharge. A similar application to the present had been made at chambers, but dismissed, on the ground that the affidavits did not state that the bill was given in respect to the debt mentioned in the defendant's schedule; but that fact was now supplied. Cause was now shewn, when the affidavits of the plaintiff's agent were put in, in which it was positively denied that the bills were given in respect of the 208/. in the defendant's schedule, but of the whole debt of 423/., and it was contended, that even admitting the bill to be void, as contrary to the principle of the Insolvent Act, as it had been given to compromise an opposition, yet except as regarded the 2087. the defendant was not discharged, and that he was therefore still liable for the difference between that, and 423. But it was also submitted, that the giving the bills by the defendant was a voluntary act, (supposing both the agreement with the agent, and the son's undertaking, to be void for want of a consideration,) and was therefore good in law, as it had fore decided it would appear, that the principle of the law was, that an opposition being withdrawn on the receipt of a security, was a proceeding directly contrary to the provisions of the act, such a step being hurtful to the interests of the rest of the creditors. Under these circumstances the bail bond must be delivered up to be cancelled. Rule absolute, with costs.-Gould, clerk, v. Williams, T. T. 1835. K. B. P. C. OF BILL OF COSTS.-REVIEWAL OF TAXATION.- The Court will not entertain an objection to a An attorney may introduce disbursements into his bill of costs, even though he has no discretion over their amount, if he has received no specific instructions from his client as to the appropriation of the money. A rule nisi had been obtained, calling upon the defendant's late attorney to shew cause why certain sums should not be expunged from his bill of costs, which he had delivered to the defendant, and included in a cash account, also delivered, and why he should not pay to the said defendant the costs of taxation of the said bill and of the application. It appeared froin the facts shewn upon the affidavits, that bills to the amount of 491/.18s.4d. were delivered to the defendant, which on tax 30 Superior Courts: K. B. Practice Court; Exchequer. ation were reduced by the sum of 801. 16s. 34. A rule to review this taxation was obtained, but discharged with costs; and a Judge's order was then made for granting the costs of the taxation to the attorney; which having been done, an attachment for their payment was issued. The present rule was next moved for, the object of which was, by removing the sums in question from the bill, to reduce its amount more than one-sixth, which would have the effect of entitling the defendant to the costs of taxation, and of staying the attachment. The two sums sought to be removed from the bill, it appeared, were introduced as disbursements, while from the cash account annexed it appeared that a sum of money exceeding their amount had been received from the defendant. It was now submitted on these facts, that there was nothing objectionable in the introduction of the items in question into the bill. If the money spoken of had been given to the attorney for the specific purposes to which the sums had been applied, their introduction might be considered to be improper; but no such purpose was shewn. In a case pointed out, where an attorney had introduced the amount of debt and costs paid to him by the defendant for the purpose of satisfying the plaintiff in his bill, for the purpose of increasing its amount, the Court had held it to be improper; but that case was not at all like the present. A case was also now cited, where the Court had held, that an attorney was entitled to insert in his bill of costs the amount paid to a proctor employed for his client, and that in considering whether more than one-sixth had been struck off the bill, the sum so paid must be taken in the amount of the bill. So in another case, the Court had refused to permit an attorney to increase the amount of his bill after more than one-sixth had been taxed off, by adding a sum received from his client to pay into Court, to both sides of his account. The Court having prevented an attorney from protecting himself from paying costs of taxation, by introducing items in his bill which he was not entitled to do; so also, they would prevent the defendant in this case from profiting in like manner by striking items out of his attorney's bill which were properly charged therein. Besides, the whole matter having been referred to the master, any objection should have been then taken, or subsequently on the discussion of the rule sought to be obtained for reviewing the taxation. The present case had in point of fact been decided, and this application was merely an attempt to obtain a reviewal of the taxation. The rule ought therefore to be discharged. to that first alluded to, where the attorney ha introduced into his bill the amount of debt and costs given to him by the client to satisfy a particular claim. There the attorney could exercise no discretion as to the amount which he was to pay, and the Court therefore held, that he had no right to introduce the sum into his bill of costs. The principle to be drawn from the other cases cited, was, that where no opinion or judgment could be exercised by the attorney in the payment of money, the items could not be properly introduced into the bill. The sums in the present case were of that nature, and should not therefore have been set down in the attorney's bill. The Court was of opinion that the case might have been fully answered by the objection taken; that the matter in dispute had been heard and decided before; because the parties, when arguing the case upon the rule, should have introduced every question on which they could raise an objection. With regard to the other point, if the money paid to the attorney by the defendant, had been shewn to have been given for the specific purpose of paying the demands to which the items in the bill had reference, they would then have been improperly introduced; but that was not shown to be the case, although the money given to the attorney by his client, was given generally for the purpose of paying certain demands, over the amount of which the attorney had no discretion: such payments would be disbursements, and might be properly introduced into the bill. The present rule must be discharged, and with costs. Rule discharged with costs.-Harrison v. Ward, T. T. 1835. K. B. P. C. EJECTMENT.-SERVICE OF DECLARATION. ABSENCE OF TENANT. In ejectment, a service of the declaration, by affixing the same to the door of the house, no person being therein, is insufficient for judgment against the casual ejector. A motion was made for a rule for judgment against the casual ejector. It happened that the service of the declaration was effected by fixing a copy to the door of the house, no person being therein. The Court decided this was a proper service. Proceedings should be taken as in a vacant possession. Rule refused-Doe v. Roe, T. T. 1835. K. B. P. C. DEFENDANT Exchequer af Pleas. IN CUSTODY OF MARSHAL.· CHARGING WITH ATTACHMENT. To charge a defendunt in custody of the mar In support of the rule, it was contended, that the question had not been decided in any way. On the rule for the reviewal of the taxation, the point argued was as to the gross amount allowed. The subsequent application for the attachment, and its issuing, compelled the defendant to come to the Court to consider whether the introduction of the items alluded to in the bill of costs was authorized. The case, it was contended, was precisely similar | payment of costs. shal with an attachment for non-payment of costs, it should be lodged with the sheriff. Permission was applied for to charge a defendant, in custody of the marshal, but now before the Court, with an attachment for non |