To improve the Practice and extend the Juris- been proposed by persons of authority and

The Legal Observer.

SATURDAY, MARCH 19, 1842.

"Quod magis ad NOS
Pertinet, et nescire malum est, agitamus.

402 The Income Tax, so far as it concerns the Profession.-The Property Lawyer.

neys in practice, is an income tax of the most practice of conveyancers, and I am not odious kind, and if it is to be continued, sorry to have this opportunity of stating this tax should be considered in part pay- my opinion, that great weight should be ment of any fresh duty. We would, how-given to that practice." Howard v. Ducane, ever, respectfully suggest that this is the IT. R. proper time for abolishing the certificate duty. In carrying through a great measure of this nature, the present amount of this duty is a mere trifle; and we think it highly unjust that any fresh tax on professional income should be imposed without considering existing burthens. We may strive in vain, but we will not the less cease to protest against a tax so unfair and arbitrary as the certificate duty.

This only affects a part of the profession, but with respect to all classes we have to say, that unless the distinction we contend for is made, great injustice will be done. It is easy for the man of property to retrench, to cut off this superfluity, or go without some passing enjoyment. But the professional man, how difficult is it for him to make any retrenchment? How often does his income depend upon his good name and fame! How transient a thing is professional reputation; how fickle is public favour! Now we do not mean to say that if a professional man makes any alteration in his expenditure, he will necessarily be injured; but we always find that he is very desirous not to do so, and this quite as much for the sake of appearance as for any other reason. Certain it is, that there are enough of ill-natured rivals in the crowded walks of professional life all over the country, ready to put the worst construction on every action. This state of things is no reason for exemption, but we think it is a reason for placing the tax as lightly as possible on professional incomes. We make these observations in no spirit of hostility to the proposed measure. We believe that there is a sincere desire to do what is right on the part of the government, and we have thought it proper to state opinions which we believe to be generally entertained on this subject.

THE PROPERTY LAWYER.

COVENANT TO PRODUCE.

"WHATEVER other people say on the subject," said Lord Eldon, C., "I think that the practice of conveyancers has settled a great deal of law. I put this case on the

a We believe that the average clear income of the attorneys and solicitors of England and Wales does not exceed 300/. a-year each. The town certificate is, therefore, a tax of three, and the country, of two per cent.

The

Among other rules well established by this practice is one, that a purchaser is entitled, either to the deeds themselves, or a covenant to produce them; but there has never been any decision that this rule extends to copies of deeds enrolled; and the case of Campbell v. Campbell, 2 Sug. V. & P. 119, is rather the other way. The point has, however, been decided by Sir L. Shadwell, V. C. The vendor of a piece of copyhold land, enfranchised in 1799, delivered to the purchaser two abstracts commencing in 1836, one of the title to the land, and the other of the title to the manor. deed of 1799, which was forty years old, recited that the then lord, and the then owner of the land were respectively seised in fee, and several of the deeds relating to the lord's title, were bargains and sales enrolled, and therefore copies of them, as well as of surrenders and admittances, might be procured at any time. The vendor was unable to deliver to the purchaser the deed of 1799, or any of the prior instruments, but was willing to covenant to produce that deed. Sir L. Shadwell, V. C., said "The general rule is, that when the purchaser cannot have the title-deeds, and there is no stipulation in the contract for the purchase regarding them, the purchaser is entitled to have, from the vendor or other holder of deeds, a covenant to produce them. I see nothing whatever in the present case which shows that the purchaser ought not to have a covenant for the production of all the instruments mentioned in the exception. The vendor has plainly shewn that he considered that, in order to make out his title, it was necessary that all those instruments should be abstracted, which are found in the abstract, and according to what I understand to be the practice of conveyancing, the purchaser is entitled to have a covenant for the production of them. In my opinion, the purchaser is entitled to have a covenant for the production of all the title-deeds and documents mentioned in the exception." Cooper v. Emery, 10 Sim. 609.

PRACTICAL POINTS OF GENERAL

INTEREST.

DESERTED CHILD.

If a man does an act of which the probable consequence may be, and eventually is death; such killing may be murder, although no stroke

Practical Points of General Interest.—Notices of New Books.

403

by some one else and preserved. Suppose a person leaves a child at the door of a gentleman, where it is likely to be taken into the house almost immediately, it would be too much to say that if death ensued, it would be murder; the probability there would be so great, almost amounting to a certainty, that the child would be found and taken care of. If, on the other hand, it were left on an unfrequented place, a barren heath for instance, what inference could be drawn, but that the

This is a sort of intermediate case, because the child is exposed on a public road, where persons not only might pass, but were passing at the time; and you will therefore consider, whether the prisoner had reasonable ground for believing that the child would be found and preserved." Verdict, guilty of manslaugh✩ ter.

Reg v. Walters, 1 Car. & M. 164.

NOTICES OF NEW BOOKS.

An Essay on the present State of the Law respecting Equitable Mortgages by Deposit of Deeds, with Remarks on the recent Dictum of Lord Cottenham in the Case of Whitworth v. Gaugain. By Samuel Miller, Esq., Barrister at Law. H. Butterworth, 1842.

be struck by himself, and no killing may be left in such a situation that there was a reaprimarily intended; as was the case of the un-sonable expectation that it would be taken up natural son who exposed his sick father to the air against his will, by reason whereof he died; of the harlot who laid her child under leaves in an orchard, where a kite struck it and killed it. And of the parish officers, who shifted a child from parish to parish till it died for want of care and sustenance, 4 Bla. Com. (by Stewart) 220; Russell on Crimes, book 3, c. 1. In a late case it appeared, that an unmarried woman had taken a place to go by a stage waggon, and that she started from Worcester in the evening, and was in the wag-party left it there in order that it might die. gon at about 10 o'clock on that night at the Wellington Inn, on the Malven hills, and that she must have left the waggon after that time, as she overtook the waggon at Ledbury. It further appeared, that she was delivered of this child at the roadside, between the Wellington Inn and Ledbury, and that after the child was born, she had carried it a distance of about a mile, to the place at which the child was found dead, which was also on the roadside. It further appeared, that this was a much frequented road, and that two waggon teams and several persons were on it about the time at which the child was left; and that a waggoner named Weaver, who was passing along the road heard the child cry, but instead of rendering assistance, he went on and told some other person, who went to the place where the child lay, and there found it dead from cold and exhaustion. The body of the child was quite naked. It further appeared, that the woman had arranged with a woman named Thomas to be confined at her house, and that she should be paid 3s. 6d. a week to take care of the child. Mr Justice Coltman said, "if a party do any act with regard to a human being, helpless and unable to provide for itself, which must necessarily lead to its death, the crime amounts to murder, (see the case of Rex v. Smith, 2 C. & P. 449; Rex v. Saunders, 7 C. & P. 277; and Reg v. Edwards, 8 C. & P. 611.) But if the circumstances are not such, that the party must have been aware that the result would be death, that would reduce the offence to the crime of manslaughter, provided the death was occasioned by an unlawful act, but not such as to imply a malicious mind. There have been cases where it has been held, that persons leaving a child exposed and without any assistance, and under circumstances where no assistance was likely to be rendered, and thereby causing the death of the child, were guilty of murder. It will be for you, in the present case, to consider, whether the prisoner left the child in such a situation that, to all reasonable apprehension, she must have heen aware the child must die, or whether there were circumstances that would make it likely that the child would be found by some one else, and its life preserved, because then the offence of the prisoner would be manslaughter only. It is impossible to say that the offence of the prisoner can be less than manslaughter. It is for you to consider, whether under all the circumstances, this child was

THIS is a well-timed Essay on an important subject. Our readers are aware, from several notices we have given of the case of Whitworth v. Gaugain, and particularly at p. 100, ante, that much alarm has been excited in the minds of equitable mortgagees by the dictum of Lord Chancellor Cottenham. The facts were briefly these: Mr. Cooke, a solicitor, owed his bankers a large sum, and deposited his title deeds to an estate, with a memorandum in writing, as a security. Subsequently judgments were obtained by other creditors against Mr. Cooke, and elegits were issued under the 1 & 2 Vict. c. 110: these operated as a legal charge upon the estate. In the suit instituted by the equitable mortgagees, fraud was charged between the defendant and the judgment creditors. The Lord Chancellor decided that the fraud was not established; but the plaintiff's counsel contended that the equitable mortgagee had priority. Lord Cottenham, in his judgment, said

According to the case made, the bill praying, not that the plaintiffs might be declared to be entitled in equity in preference to the elegits, but that the elegits might be de clared fraudulent and void, as well as the pro 2 E 2

404

Notices of New Books.-The Local Court Scheme.

deeds of the estate in which they may be interested, but these will be mere inatters of detail.

"One other provision, however, it is submitted, will be indispensable, and cannot be objected to by the holders of equitable mortgages for the great boon they will obtain in having their securities rendered indisputable, and that is to render the memorandum of deposit liable to the same stamp as is now imposed upon a legal mortgage; but as many cases may occur where equitable mortgages may be created for the sole purposes of commerce, and to exist for very short periods, the same regulations, it is submitted, should be made with regard to stamping these memoranda as are in force in relation to agreements. viz., that it should not be compulsory upon the holders to stamp them immediately, but that no equitable mortgage should be put in force, or be receivable in evidence, without the memorandum of deposit being stamped; and that if not stamped within twenty-one days, after its being signed, the stamp should only then be affixed on payment of a certain penalty.

ceedings which led to those elegits, he was sequent incumbrances, whether legal or otherbound to say that upon the evidence as it then wise. It may, perhaps, be desirable to deter stood there was no case made out to interfere mine by enactment, how far the deposit of a with the defendant's title. At the bar, how-portion only of the title deeds shall be deemed ever, in the argument a totally different turn sufficient, and to carry out the suggestion of was given, or attempted to be given, to the Lord Eldon in the case of Evans v. Bicknell, 6 plaintiff's case. It was attempted to be said Ves. 190, by making an exception in favour of ihat at law, independently of the question of joint tenants, tenants in common, and other perfraud-that by law the plaintiffs had a prefer-sons who cannot possess themselves of the title able title to the defendants. Now if that were so, it was quite immaterial to the plaintiffs whether the elegits were fraudulent or not; in short, it would be a hopeless piece of fraud to manufacture that which, when manufactured, would have no effect against the plaintiffs' equity. It was clear, therefore, that was not the ground on which the bill was filed. The bill prayed that those judgments and elegits might be set aside as fraudulent and void as against the plaintiffs, with which the plaintiffs had nothing whatever to do, if they stood in the situation in which they had a preferable equity-an equity which would give them a preferable title as against the title claimed by the defendants. It was quite sufficient for the present purpose to say, that was not the case made it was on totally different grounds. It was not made in the pleadings-it was not made in argument before the Vice-Chancellor, and it was only suggested, added his Lordship, when it came to be argued before him. He therefore abstained from going further into that case than to say, that if such a point had been made-if the bill had been framed for that purpose, and the claim of the plaintiffs founded on that supposed equity, he should have required a great deal more to satisfy him of the validity of that equity before he could interpose by interlocutory order; because he found these defendants in possession of a legal title, although not to all intents and purposes an estate, yet a right and interest in the land, which under the authority of an act of parliament they had a right to hold, the elegit being the creature of an act of parliament, and therefore they had a parliamentary title to hold the land as against all persons, unless a case of equity should be made to induce the Court to interfere."

Mr. Miller has, with much care and ability gone over all the cases bearing on the subject, and arrives at the conclusion that Lord Cottenham's dictum appears to be supported by the authorities. To remedy the evils, Mr. Miller suggests an act of parliament to render equitable securities effectual.

"With the simple provisions above suggested, it is humbly conceived, the objections against equitable mortgages, so long urged on judicial authority, would be effectually removed, while merchants and capitalists would obtain all the advantages to be derived from them, and a considerable benefit would accrue to the revenue."

We cannot agree in the necessity of having these agreements stamped with the mortgage duty. The Stamp Act ought rather to be revised, and many of the duties reduced.

THE LOCAL COURT SCHEME.

THE observation has been frequently repeated that this is the only country which has not had the benefit of local jurisdictions to any extent; but it is neither correct in fact, nor is the inference attempted "The enactments (he says) necessary for this to be drawn from it a sound one. The purpose will, it is conceived, be very simple, be- Welsh judicature, now abolished, was of ing almost confined to a declaration, that for the this description, and the provincial Ecclefuture no equitable mortgage by deposit of siastical Courts, whose jurisdiction in matdeeds, should be deemed valid, unless a meters of contentious litigation is about to be morandum in writing be signed by the mortgagor, expressing the purpose for which the taken away, are more particularly so. It deposit is made, and the extent of the security, will be readily admitted, that it is the duty but that every equitable mortgage with such a of the legislature to provide for the admemorandum should be good against all sub-ministration of the greatest practical amount