statute; that he had no preconceived plan to article the applicant speculatively, but had articled him solely with the intention of ultimately stamping and enrolling the articles, and had been prevented from so doing for the reasons before mentioned, and for no other; and that he joined the applicant in borrowing the sum of 130l. to stamp the articles and pay the penalty, which he did on the 21st December instant. Cook Evans, in support of the application.-Ex parte Bishop (a) is an authority for granting this application. In that case Erle C. J. said, "If the non-payment of the duty was the result of some unforeseen emergency, something over which the party had no control, I should be disposed to assist him; but if the omission was intentional, and part of a scheme to make use of the service under the articles in the event of its proving a promising speculation, I should decline to grant the application." But the application in that case was granted, though there was no "unforeseen emergency;" and the facts were the same as in this case. [Crompton J. Erle C. J., when in this Court, always expressed a strong opinion against relaxing the rule as to payment of the stamp duty at the time of the execution of the articles; he laid it down that applications for that purpose ought not to be granted unless there was some mistake or inadvertence in the non-payment of the stamp duty (b). Wightman J. Stat. 19 & 20 Vict. c. 81. s. 3. provides a scale of penalties to be paid according to the time within (a) 9 C. B. N. S. 150. (b) See Ex parte Williams, coram Erle J. in Bail Court, 3 Jur. N. S. 160. 1862. Ex parte HERBERT. 1862. Ex parte HERBERT. which the articles are brought to be stamped: in that provision the Legislature seems to contemplate that there may be a holding over of the payment of the duty.] COCKBURN C. J. I think that this application should be acceded to. Stat. 19 & 20 Vict. c. 81. s. 3. has altered the law relating to the stamping of articles of clerkship to attorneys. Before the passing of that statute, if the stamp on articles of clerkship had not been affixed within six months from their date, the Commissioners of Stamps were prohibited from afterwards stamping them, even on the payment of a penalty (a). That law is no longer in force; for by sect. 3 of stat. 19 & 20 Vict. c. 81. the Commissioners of Inland Revenue, in any case where they shall be directed so to do by the Lords of the Treasury, may stamp the articles upon payment of the duty and of a penalty, according to a graduated scale. In this case the applicant has served the required five years, and the only defect in the articles is the non-payment of the stamp duty at the time of the execution of the articles. The Court has always considered it a duty to protect the revenue; but under stat. 19 & 20 Vict. c. 81. the Lords of the Treasury, who are the guardians of the revenue, and we must assume that they are the best judges of the circumstances, have thought fit to allow these articles to be stamped. That statute makes all the difference between this and many previous cases. Besides this case is on all fours with Ex parte Bishop (b), and, I think, within the principle which governed the decision in that case. (a) See stat. 7 G. 4. c. 44. s. 4. (b) 9 C. B. N. S. 150. WIGHTMAN J. I am of the same opinion. The only objection to such an application as this before stat. 19 & 20 Vict. c. 81. was that, the articles not being properly stamped, the Court, for the protection of the revenue, refused to interfere. That difficulty is obviated by the power which, under stat. 19 & 20 Vict. c. 81. s. 3., the Lords of the Treasury have of ordering the Commissioners of Inland Revenue to stamp articles on payment of a penalty according to a graduated scale, amounting, when four years have elapsed since the date of the articles, to the sum of 50l. If the Lords of the Treasury, who are the judges in the matter, are of opinion that loss to the revenue would be obviated by imposing a penalty of 50%, no harm is done to the revenue, and this Court will not interfere with the discretion of the Lords of the Treasury in the matter of revenue. Independently of any consideration arising on the statute, Ex parte Bishop (a) is a direct authority in favour of the application; and I rather prefer to decide the case upon that authority. CROMPTON J. I should be sorry to decide in favour of giving this indulgence under sect. 3 of stat. 19 & 20 Vict. c. 81., without further considering that enactment, together with sects. 8 and 9 of stat. 6 & 7 Vict. c. 73., the statute regulating the admission of attorneys, which is a matter within the jurisdiction of this Court, and sect. 2 of stat. 7 & 8 Vict. c. 86. It does not appear to me that the graduated scale of penalties removes the objection to the non-payment of the duty at the time of the execution of the articles. Because, if the articled clerk were to die or give up his intention of following the (a) 9 C. B. N. S. 150. 1862. Ex parte HERBERT. 1862. Ex parte HERBERT. profession of an attorney, the revenue would lose the amount of the stamp duty. I should wish to see whether the jurisdiction over this matter is in this Court or in the Lords of the Treasury; and I fear that we are opening a side door for parties to enter into articles upon the speculation that this indulgence will be granted. But I am not sorry for the decision to which the majority of the Court have come, especially after the decision in Ex parte Bishop (a), in which the application was granted notwithstanding there was no unforeseen emergency, though I think that the ratio decidendi does not apply to this case: Erle C. J. points to the distinction between cases in which a sudden emergency has prevented the money from being forthcoming for payment of the stamp duty and cases in which there has been a continued non-payment from other causes. This case looks more like the latter class. The applicant indeed says that he did not know that the articles were not stamped; but the father and son are so intimately connected, that I do not think that is a sufficient excuse. There ought to be an intention in the mind of one of the parties to the articles to pay the stamp duty. MELLOR J. concurred with COCKBURN C. J. and WIGHTMAN J. Application granted. (a) 9 C. B. N. S. 150. 1862. LAMB against ATTENBOROUGH. 1. The Factors' Acts, 6 G. 4. c. 94. and 5 & 6 Vict. c. 39., do not apply to the case of master and servant, and therefore 2. Where a wine merchant gave authority to his clerk to sign delivery orders in his master's name, and receive dock warrants in his own, which he likewise authorized him to pledge for the purposes of the master's business, the clerk having fraudulently deposited some of these dock warrants with a pawnbroker as a security for money bona fide lent to him: held, that the clerk was not an agent within the Factors' Acts, 6 G. 4. c. 94. and 5 & 6 Vict. c. 39., and consequently, that the merchant was entitled to recover the dock warrants from the pawnbroker. THE first count was for the conversion of five dock warrants, three being of the St. Katherine's, and two of the Victoria Docks. The second count was in detinue for the same. To both counts the defendant pleaded the general issue, and a traverse of the plaintiff's property in the dock warrants and to the second count he also pleaded that, before the alleged detention, and after the passing of stat. 5 & 6 Vict. c. 39., one Alexander Bryant was an agent within the meaning of that statute, and was entrusted with the possession of the dock warrants, the same then being documents of title to goods within the meaning of that statute; and, being so entrusted as such agent as aforesaid, then bonâ fide deposited the same in three several lots with the defendant, to be by him kept as pledges and securities for the repayment to the defendant by Alexander Bryant, of three several sums of 607., 1007., and 447., then bonâ fide lent and advanced by the defendant to Alexander Bryant, upon the security of the dock warrants, and also for interest payable by Alexander Bryant to the defendant upon the Thursday, January 16th. Factors' Acts, 6 G. 4. c. 94 and 5&6 Vict. c. 39. Merchant's clerk. Dock warrants. |