198

:

Kingston-upon-Hull Sessions.-Equitable Defences to Actions at Law.

cality. It sits throughout the year; the grand jury, in their sworn judgment, believed deputy Judge is your able and experienced town clerk, whose decisions I have never once hitherto had occasion to overrule. There is as free audience for attorneys and solicitors as for the Bar and I have seen gentlemen in both departments of the Profession discharge the duties of advocates in this Court in the most able and satisfactory manner, and in cases of no little difficulty and importance. And I never saw jurymen discharge their duties better.

:

"Having adverted to jurymen, allow me to say that their duties, alike in criminal and civil cases, are equally important and honourable. Nay, they are very elevating for they train the mind to grave, patient, dispassionate inquiry-teaching the noble lesson of keeping the judgment suspended, uninfluenced by mere assertion, by sophistry, by prejudice, by prepossession; and while doing this, becoming also familiar with the system of judicial investigation and the great leading principles of our civil and criminal law. No juryman who forma a proper estimate of his position-one which trains and prepares him admirably to fill municipal office-will feel impatient while called on by his country to exercise such interesting and momentous public functions."

that there had been a felony, the value of the goods had nothing to do with it. Property was necessarily exposed on wharves, railroads, &c., and if only a single apple, or orange, or piece of rope was stolen, the value of it was not for consideration. Alluding to a case of rope stealing, where the rope had not been removed wholly from the premises, the recorder pointed out the law, that if with a felonious intent property was only removed a hair's breadth, that constituted a stealing.

Immediately previous to their being discharged, on Saturday afternoon, the foreman of the grand jury (Charles Liddell, Esq., Banker), read in open Court the following important presentment :—

"The grand jury beg, before separating, to express to you, sir, as the recorder of this borough, their sincere thanks for having so ably and so forcibly, in your charge, called their attention to the important subject of reformatory schools. In all that you have advanced respecting the treatment of juvenile criminals they entirely concur. Thay feel convinced that a considerable number of the juvenile offenders that now repeatedly are brought before you at borough sessions, can be efficaciously dealt with only by judiciously removing them early from the evil influences by which they are surrounded, and by placing which they may be trained as to enable them them in some reformatory institution, in and thus become useful members of society. to earn for themselves an honest livelihood, The grand jury, therefore, trust that the recent Act of Parliament, giving the people power to establish reformatory schools, and enabling the for their maintenance, may early receive the Home Secretary to provide entirely or in part council of this borough, and they ardently hope careful attention of the magistrates and town that at no distant period means will be adopted to carry into effect a recommendation which, in its operation, must prove an immense benefit to the whole community.

"CHARLES LIDDELL, Foreman.””

The learned recorder then proceeded to say that he regretted to find that, although little more than two months had elapsed since the last session, there were not less than 46 or 47 distinct cases for trial, involving at least 49 prisoners. And he was sorry to find that among these cases were some which he had hoped would have been decreased by the wholesome severity which he had felt it his duty to exercise. There were no fewer than 10 cases of servants robbing their masters. That must be put down. He would venture to remind the grand jury that they had not to try cases, but simply to ascertain whether on the blush-on the first aspect of the casethere was enough of suspicion of guilt to warrant them sending the case into the Court for trial. There were one or two cases of felony, by youthful offenders, and it might occur to some of them that these might have been disposed of summarily by the excellent gentleman (Mr. Travis) who sat by him. But he (the recorder) presumed that the magistrate acted upon the principle of the Act of Parliament which enabled justices to deal summarily with juvenile delinquents. That Act did not apply to compound felonies, but in the express which, if judgment were obtained, would be terms of the Act to simple larcenies only. And entitled to relief on equitable grounds, may if a child unfortunately committed a compound plead the facts by way of defence to the felony as it was called, he (the recorder) and the jury alone could deal with it—as in the case where a child stole from the person-that took the matter out of the hands of the stipendiary magistrate and compelled him to send it there. There were one or two cases involving only a small amount of property. But the amount had nothing to do with the matter. If the

EQUITABLE DEFENCES TO ACTIONS
AT LAW.

By section 83 of the Common Law Procedure Act, 1854, the parties in a cause in

action.

The following annotation on this enactment is extracted from Mr. Malcolm Kerr's work :—

"One head under which Courts of Equity have constantly given relief, has been that of accident.' At law, an executor, having once

Equitable Defences to Actions at Law.

199

right, by ejecting, without compensation, the
person who has made such expenditure.
(Hunning v. Ferrers, Gilb. Eq. Rep. 456;
Stiles v. Cowper, 3 Atk. 83; Earl of Oxford's
Case, 1 Ch. Rep. 1; 2 Tudor's L. C. in Eq.
442; note, p. 456.) But in such cases the de-
fendant, it would seem, must still resort to a
Court of Equity, for how can such facts be
pleaded as an equitable defence to an action of
ejectment? Although the word 'cause' is
used in sec. 83, it can never have been con-
templated that the defendants in ejectment
should be enabled to plead to the writ. It is
clear that it is only in personal actions' that
an equitable defence may be set up by way of
plea.

66

received assets of his testator, cannot discharge owner's title, a Court of Equity will not allow himself under a plea of plenè administravit, him to proceed to take advantage of his legal against a creditor seeking satisfaction out of the testator's assets, either on the score of inevitable accident, as destruction by fire, loss by robbery or the like, or reasonable confidence disappointed, or loss by any of the various means, which afford excuse to ordinary agents and bailees, in cases of loss without any negligence on their part. (7 East. 258.) Thus in a case where an executor having received assets, and paid them over to a co-executor for the purpose of satisfying a bond-creditor, who had demanded payment from such co-executor, upon the latter applying it in payment of his own simple contract debts, it was held that the executor, who had paid him the money, could not discharge himself by the plea of the plenè administravit to an action by the bond-creditor. Again, when a party has conveyed a reverIn equity, however, although an executor is sionary or expectant interest for an inadequate liable should he unnecessarily pay over assets value, he can set aside the transaction, in a to his co-executor whereby they are embezzled Court of Equity, upon the ground that undue or lost. (Townsend v. Barker, 1 Dick. 356; advantage has been taken of his position. Langford v. Gascoigne, 11 Ves. 333), yet if the (Gowland v .De Faria, 17 Ves. 20; Bawtree v. payment were in discharge of a necessary duty, Watson, 3 My. & K. 339; Edwards v. Browne, as for the purpose of satisfying creditors re- 2 Coll. 100; Davies v. Cooper, 5 My. & Cr. siding at a distance from the executor remitting 270.) In an action against the vendor by the such assets, he would not be liable for their purchaser, for the amount agreed to be paid, loss. (Bacon v. Bacon, 5 Ves. 331; 2 Tudor's the defendant may plead, that it was the sale Leading Cases in Equity: 659, 660.) Again, of a reversionary interest at an undervalue. in equity, an executor has been held not liable "In these cases, in equity, the onus of provfor the loss of assets occasioned by fire (Lady Croft v. Lyndsey, Freem. Ch. Rep. 1) or robbery (Holt v. Holt, 1 Ch. Ca. 191, Jones v. Lewis, 2 Ves. 240). In these cases an executor might have proceedings against him at law restrained; he may now plead in bar of an action the same circumstances which would have entitled him to this relief in equity. On the other hand, the plaintiff may, by way of replication, insist upon any of those circumstances, which in equity would have rendered the executor liable, as for instance, that the payment to the executor was unnecessarily made.

"The Courts of Equity also give relief against mistakes. Although relief will not be afforded against the legal consequences of anything done in ignorance of the law (Marshall v. Collett, 1 Y. & C. Exch. Ca. 238; Great Western Railway Company v. Cripps, 5 Hare, 91; Drew. Inj. 62), a Court of Equity will frequently give relief against the legal consequences of mistakes of fucts. Where, for instance, a person executed a deed, in which he, by mistake, covenanted to pay a sum of money to another, who commenced an action against him, a Court of Equity granted an injunction to restrain the action. (Ball v. Storie, 1 S. & S. 210, see also Drew. on Injunct. 62.)

ing the adequacy of the price lies upon the person dealing with the reversionary (Gowland v. De Faria, 17 Ves. 20). Quære, whether it will be so at law. Where, however, the dealing with a reversionary interest is in the nature of a family arrangement (Tweddell v. Tweddell, J. & R. 13; Heron v. Heron, 2 Atk. 160; Wallace v. Wallace, 2 D. & W. 452), or the party having a prior interest joins in the sale (Wood v. Abny, 3 Madd. 422; Wardle v. Carter, 7 Sim. 490), and, according to Lord Brougham, where the transaction was known to the father of the reversioner, or the person from whom the spes successionis was entertained (King v. Hamlet, 2 My. & K.), or if the transaction had been so acted upon as to alter the situation of the other party in his property (Ib. sed vide Sug. V. & P. 316, 11 Ed.) a Court of Equity will not afford relief; and where a sale of a reversionary or expectant interest has taken place by auction, the purchaser is presumed to have given an adequate price for it (Shelly v. Nash, 3 Mad. 232), unless it appears that by the conditions of the sale or mode of conducting it, the interests of the reversioner were not properly attended to. (Fox v. Wright, 6 Madd. 111.) Quare, whether such facts can be set up as avoiding a plea (s. 85) to the effect above stated.

"Another very important head under which "Where an expectant or reversioner borrows equity gives relief is that of fraud, both actual money upon a post-obit bond, a Court of and constructive. There are many cases where Equity will set it aside if unreasonable, or if a Court of Law does not take cognizance of the price be inadequate (Curwyn v. Milner, 3 what is considered fraud in a Court of Equity. P. Wms. 293, note; Peacock v. Evans, 16 Where, for instance, the owner of an estate Ves. 512, and see 1 Tudor's L. C. 394). Such stands by and permits another person to ex- inadequacy of price may, it would seem, be pend money upon it, in ignorance of the pleaded in bar to an action upon the bond.

200

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

perty. Where, for instance, a tenant has contracted to purchase from his landlord the property of which he is in the occupation, if the landlord take proceedings in ejectment, the tenant must still resort to the Court of Chancery, for his injunction to stay proceedings."

"Upon the same principle equity will give what is termed, an equitable interest in prorelief against proceedings at law, upon instruments obtained by undue influence, from persons standing in some fiduciary relation to the holder, as that of trustee and cestui que trust, guardian and ward, or any other relation in which dominion may be exercised by one person over another. (Huguenin v. Basely, 1 Tudor's L. C. and note Cooke v. Jamotte, 15 Bea. 234, Espe v. Lake, 10 Hare, 860). It is presumed that such relation, and the consequences which follow from it, may be urged in WHERE CONCURRENT JURISDICTION UNDER a Court of Law on proceedings being now instituted upon such instruments.

LAW OF COSTS.

COUNTY COURT ACT.

THE plaintiff in an action of trespass ob"With regard to relief against forfeitures, tained a verdict with 57. damages, and a when a forfeiture is sought, a plea may now be put in, which formerly was only available in Judge's order was made under the 15 & 16 equity, as a ground for staying proceedings at Vict. c. 54, s. 4, to give him his costs of the law. Thus where a lessee convenants to do or trial. On a rule being obtained to rescind not to do certain acts, with a clause of re-entry this order, upon the ground that the case was for breach of the convenant, and then commits

such breach, equity will, under some circum- not within the 9 & 10 Vict. c. 95, s. 128, stances, relieve against the strict legal conse- Maule, J., said,—“The plaintiff having sued quences of breach of the obligation by the the defendant in the Superior Court, seeks to party bound. So, in some cases, when the recover costs, on the ground that the case is thing to be done, the not doing of which has ! one in which there is concurrent jurisdiction, worked the forfeiture at law, can be specifically done, so as to put the party bona fide and en- because the defendant does not reside or carry tirely in statu quo-or the injury can be com- on business within the district assigned to the pensated by a sum certain, or by damages ca- Southwark County Court. To make out that pable of being estimated by some certain rule of the Court-then equity will relieve, and proposition, the plaintiff states in his affidavit there the facts may now be pleaded. (Drewry so much, I think, as he could reasonably be on Injunctions, p. 88.) The jurisdiction, which expected to say upon the subject. I think the Courts of Equity assumed, to relieve a tenant defendant was called upon clearly to show, if from a forfeiture incurred by non-payment of the fact were so, that he really did carry on rent, upon a bill filed after an indefinite period, by payment of the rent due interest and costs, business at the place indicated. This might was limited by the Legislature (4 Geo. 2, c. 28) have been done by some clerk or foreman. to cases where payment was made, on the bill But nothing of the kind is done. There is, it being filed, within six months after judgment is true, an affidavit by his bailiff, which is had and recovered in ejectment and execution executed thereon. Courts of Law were, how evidently intended to give a sort of colour that ever, in the habit of relieving the lessee, by business of some sort is carried on by the destaying proceedings in ejectment, at any time fendant at the place referred to. But I think before execution executed, on payment of ar- there was amply sufficient to call upon the rears and costs, and in some cases giving se- defendant clearly and distinctly to show where curity for future payments. (2 Platt on Leases, 475.) he carried on his business; and this he has not done." The rule was discharged, but, under the circumstances, without costs. Stokes v. Grissell, 14 Com. B..678.

POINTS IN EQUITY PRACTICE.

"With regard to the relation of principal and surety, Courts of Equity frequently give relief against proceedings at law. Where, for instance, parties appear on the face of an instrument to be bound jointly and severally, as upon a bond, if one of them only in fact joined as surety, he can in equity plead that he was only a surety; so that if the principal creditor had given time to the debtor, he would be discharged in equity, although held bound at law. (Craythorne v. Swinburne, 4 Ves. 160, 170; Clinton v. Hooper, 1 Ves. jun. 173, 3 Bro. C. C. 201.) It is presumed, that now such person may, in an action against him by land v. Sutherland, 17 Beav. 209. the creditor, plead that he was only a surety, and that time was given to the principal debtor.

SETTING OUT DOCUMENTS IN ANSWER.

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

Held, that a defendant is not bound to set forth in his answer a list of documents in his possession relating to his own title. Suther

REFERENCE TO WIND UP COMPANY AT

CHAMBERS.

On a petition by a contributory to have a

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

201

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

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

470.

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

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

NUMBER OF CANDIDATES EXAMINED,

1836-1854.

184:

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

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

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

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

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

of it is understood to be still in force.

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

202

Proposed Consolidation of the Stamp Laws.

which bills of exchange and notes were first portant transactions between merchants residcharged with stamp duty; and it may be ing at a distance from each other would be mentioned, the amount of duty at that time rendered absolutely nugatory for want of a was very moderate, being for all bills under stamp. It is easy to see how this might be 50l., threepence; and for all such documents the case now, and more easy to see how it given for larger amounts, sixpence. But it might have been the case upwards of 50 years should be remembered that the increase in this ago, when the 23 Geo. 3 was passed. The item of the stamp duties will bear no com- exemption provided by the 32 Geo. 3 does not parison to that in many others. The 23 Geo. 3, extend to parties not residing at the time of c. 49, had the effect of increasing most of the writing the letters at the distance of 50 miles stamp duties, and was the first Statute which from each other. With regard to corresponcharged them upon agreements. With regard dence constituting agreements requiring to be to agreements, they afford the example of stamped, it may be observed, that where practical and important relief to the community' divers' letters shall be offered in evidence to being afforded by recent legislation on the Stamp Laws. By the Act just mentioned a stamp duty of 16s. was charged upon every agreement the matter whereof should exceed the value of 20%., with one or two trifling ex-with a stamp of 11. 15s.' Here, however, in ceptions. By the 44 Geo. 3, such agreements, with the alteration that the matter of them need not exceed but only amount to the value of 201., were charged with a duty of 168.; and by the 48 Geo. 3, the same duty of 16s. was continued.

The duty on the same instruments, however, was subsequently augmented to 17., and continued to be of that amount until the great boon conferred on the public by the passing of the Act, 7 Vict. c. 21, by which the duty on agreements, previously charged with 11., was reduced to two shillings and sixpence. By this Statute immense relief is afforded to all the industrious classes. To use an expression which, were it not unfortunately so seldom required, might be stereotyped, the measure is a step in the right direction.'

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

prove any agreement, the stamp required is 1l. 15s. The Act states, Where several letters constitute an agreement, it shall be sufficient if any one of such letters be stamped

steps the Common Law, and, besides innumerable other decisions on the subject, determines that if one instrument (that is, one letter) be distinct, and does not refer to the others, though they may constitute one transaction, several stamps are necessary. From this se. vere law there is no relief, for the very acceptable Statute, 7 Vict. c. 21, only applies to agreements charged by the Stamp Act with a duty of one pound; therefore, by the rules of construction of Statutes known to lawyers, all agreements charged with a duty other than one pound are excluded from the operation of the Act.'

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

We come next to the 55 Geo. 3, c. 184, enThe 32 Geo. 3, c. 51, is entitled 'An Act titled an Act for repealing the stamp duties to exempt certain letters passing between mer-on deeds, law proceedings, and other written chants or persons carrying on trade or com- or printed instruments, and the duties on merce in the kingdom containing agreements fire insurances, and on legacies, and succeswith respect to merchandise, notes, or bills of sions to personal estate upon intestacies now exchange, from the stamp duty now imposed payable in Great Britain; and for granting on written agreements.' This statute is de- other duties in lieu thereof.' serving of a few passing remarks, as it affords an example of the wide-spread injury occa-berlain proceeded in his publication to state After this historical review, Mr. Chamsioned by the injudicious imposition of stamp duties. The Act recites, that doubts had the numerous objections which existed been entertained respecting its operation upon against the oppressive and impolitic exaccorrespondence between merchants resident in tions which were contained in or created different parts of the kingdom, which, if sub- by the Act of July 10th, 1815. Many of ject to the effect of the said Act, and not within these objections have been removed, but the provisions by way of exception thereto, several still remain. would be attended with many evils to the commerce of the country. In plain language, it was supposed that the 23 Geo. 3, c. 58, would Such is Mr. Chamberlain's view of the render inadmissible in evidence on trials of effect of the Stamp Acts relating to agreements causes, letters between merchants containing contained in the correspondence of parties to anything which could, by the ingenuity of alleged contracts. It should also be recollectlawyers, be strained into agreements, unless ed that the 17 & 18 Vic. c. 83, s. 13, repeals such letters were stamped; and as the Act pro- the former enactments which exempted letters vided that no agreement could be stamped ex- by the general post acknowledging the safe cept within 21 days after it was made, it is arrival of bills of exchange, &c., from the revery easy to understand that many most im-ceipt stamp.-ED. L. O.