220 Review: Shelford's Succession Duties. [LEGAL OBSERVER, spect of any sum or sums of money due and whole, or such part thereof as shall be so susowing to her Majesty by virtue of any vote of pended, shall not be binding and obligatory on Parliament for the service of the Crown, or of the said Courts, or on any other Court of Comany Act of Parliament relating to the public mon Law or Court of Error. revenue, her Majesty's Attorney-General shall be entitled to recover costs for and on behalf of her Majesty, where judgment shall be given for the Crown, in the same manner, and under the same rules, regulations, and provisions, as are or may be in force touching the payment or receipt of costs in proceedings between subject and subject, and such costs shall be paid into the Consolidated Fund. 2. If in any such information, action, suit, or other proceeding, judgment shall be given against the Crown, the defendant shall be entitled to his costs, in like manner, and subject to the same rules and provisions, as though proceedings had been had between subject and subject; and it shall be lawful for the Commissioners of her Majesty's Treasury and they are hereby required to pay such costs out of any moneys which may be hereafter voted by Parliament for that purpose. 3. Reciting, that the procedure and practice in informations, suits, and other proceedings instituted by or on behalf of the Crown in her Majesty's Court of Exchequer is dilatory, and requires amendment, and it is desirable that the same should be assimilated as nearly as may be to the course of practice and procedure now in force in actions and suits between subject and subject: It is therefore proposed to enact, That it shall be lawful for the Barons of her Majesty's Court of Exchequer, or any three of them, to make all such general rules and orders for the regulation of the pleading and practice in such informations, suits, and other proceedings, and to frame such writs and forms of proceedings, as to them may seem expedient for the purpose aforesaid; and all such rules, orders, or regulations shall be laid before both Houses of Parliament, if Parliament be then sitting, immediately upon the making of the same, or if Parliament be not sitting, then within five days after the next meeting thereof; and no such rule, order, or regulation shall have effect until three months after the same shall have been so laid before both Houses of Parliament; and any rule, order, or regulation so made shall, from and after such time aforesaid, be binding and obligatory on the said Court, and on all Courts of Error into which any judgment of the said Court shall be carried by any writ of error, and be of the like force and effect, as if the provisions contained therein had been expressly enacted by Parliament: Provided always, that it shall be lawful for the Queen's most excellent Majesty, by any proclamation inserted in the London Guzette, or for either of the Houses of Parliament, by any resolution passed at any time within three months next after such rules, orders, and regulations shall have been laid before Parliament, to suspend the whole or any part of such rules, orders, or regulations, and in such case the NOTICES OF NEW BOOKS. The Law relating to the Probate, Legacy, and Succession Duties; including all the Statutes, and the Decisions on those Subjects: with Forms and Practical Directions. By LEONARD SHELFORD, Esq., of the Middle Temple, Barrister-at-Law. London: Butterworths, 1855. Pp. 408. THIS work treats-1st. Of the Stamp Duties on Probates and Letters of Administration; 2nd. Of the Legacy Duty Acts; 3rd. Of the Construction of the Legacy Duty Acts; 4th. Of the Succession Duty. The Appendix contains the Succession Duty Act of 1853; the Rules for determining the amount of the Duty; Directions as to the Payment of the Duties, with Forms to be filled up. Mr. Shelford's object has been to present methodical arrangement of this branch of the Stamp Laws, including the statutory provisions and the decisions thereon. He observes that "The Succession Duty Act, 1853, having altered in some important particulars the Legacy Duty Acts, and applied some of its provisions to the former Act, it occurred to the author that a methodical arrangement of the several provisions of those Acts would form a useful manual of reference for the use of the practitioner. The Statute has not yet been in operation a sufficient length of time to be the subject of many decisions, and it is understood that there is only one petition of appeal presented to the Court of Exchequer against the assessment of the Commissioners of Inland Revenue, in the case of Succession Duty, whence it may be inferred that their decisions hitherto have been satisfactory to the parties concerned. "The Stamp Laws still remain in such a complicated state as to render the application of them in the daily transactions of life a matter of great difficulty and uncertainty. A more equitable scale of Stamp Duties has been adopted in reference to some subjects, and some provisions in the Common Law Procedure Act, 1854, will obviate difficulties which formerly occurred as to the want of proper stamps on documents produced at trials, which come within the provisions of the latter Act. "It appears to the author that the Commissioners appointed for the consolidation of the Statute Law would have conferred a substantial benefit on the public if their labours had been directed towards this subject. "Since the introduction, in the year 1836, of the Bill to consolidate and amend the laws relating to Stamp Duties, this branch of the JULY 21, 1855.] Review: Shelford's Succession Duties. 221 law has become so much more complicated mitted to the Testamentary Court at Doctors' and multifarious as to render it inexpedient to Commons. The Prerogative Court already include in one Bill the whole subject matter; possesses many of the necessary officers and but it certainly appears to the author that the offices for transacting a large portion of this Stamp Laws on matters affecting such subjects branch of business. And, if the establishas are of daily occurrence in the practice of ment at Doctors' Commons is not already barristers, solicitors, and others, might with sufficiently large, there is ample room and great advantage, be consolidated and arranged, space enough in that locality for enlarging or without rendering it necessary to include Pro-increasing the buildings required for the safe bate, Legacy, and Succession Duties." We agree in opinion with the learned author, that the Stamp Acts should be consolidated, and, moreover, that they should be properly arranged according to the several fiscal departments to which they appertain :-Wills and Administrations; Legacy and Succession Duties; Deeds and other Legal Instruments; Bills, Notes, and Receipts, &c., with the Rules and Regulations applicable to each distinct Class of Duties. On the subject of the Probate of Wills and Letters of Administration, and the Reforms proposed in regard to the Ecclesiastical Courts, Mr. Shelford remarks that "Although Doctors' Commons appears to be in a state of transition into the all-absorbing powers of the Court of Chancery, the author has devoted a few pages, showing the course to be pursued for obtaining probate of wills and letters of administration in cases of ordinary occurrence. Even if that measure should be sanctioned by the Legislature, which appears to be extremely doubtful, as it has been already postponed until after the Whitsuntide holidays, the small portion of this work devoted to that subject will not be without its use. A few pages, added by way of introduction or supplement, will be sufficient to explain the alterations which are proposed to be made in the mode of proving wills and taking out letters of administration. custody of the necessary documents. The danger arising from so many wills being deposited in one place of safe custody may be obviated by making printed copies of the wills proved, and the letters of administration granted, legal evidence, in which case there would be little danger to be apprehended from the destruction of the original documents. "The author, however, concurs in the opisioners, that, in cases of small properties, the nion expressed by the Chancery Commistransaction in London of the business of obtaining probates and granting letters of administration may reasonably be dispensed with, and in their recommendation that district offices, through which probates or administrations, in cases of small properties, may be taken out, should be established in different parts of the country as branches of the Court of Probate, each of such districts to comprise a county or counties or some known division of a county or counties. If it be objected that a certain amount of property is not the proper test for deciding a principle of legislation, it may be answered that all wills of testators not having any property in the public funds or other similar securities, as railways, out of the known division where they resided and died, may be allowed to be proved in such division. "Another important objection to the proposed Testamentary Bill before the House is the heavy expense which will attend the measure in the shape of compensation to officers whose services might be usefully engaged in the proposed Testamentary Court, without the necessity of any compensation from the public revenue. "The author's opinion is, that it would be more advantageous to the public to convert the establishment at Doctors' Commons into The work comprises some valuable praca Testamentary Court, having jurisdiction over tical directions regarding the payment of England and Wales, rather than to transfer the Succession Duties, and the filling up the jurisdiction to the Court of Chancery, al- of the Forms issued by the Commissioners ready sinking under the pressure of more busi- of Inland Revenue. The following are ness than it can satisfactorily dispose of. The the directions as to the payment of the great evils of the present system of proving duties:wills and granting letters of administration arise from the number of peculiar jurisdictions "The Commissioners of Inland Revenue, and the doctrine of bona notabilia. The ex- under the powers confided to them for the colpenses of Commissions issued by the Preroga-lection of the probate, legacy, and succession tive Courts for the proof of wills and swear- duties, possess the means (although it is not ing parties taking out letters of administration obligatory upon them to do so) of apprising is another abuse, which ought to be rectified. executors, administrators and successors, of If the Legislature should establish such a the duties for which they are liable to account, Testamentary Court, fees on Commissions and of protecting them from incurring penalmay be abolished, and the Commissioners ties through ignorance. The principal feature to administer oaths in Chancery in England' of the system, so far as relates to wills and may take the necessary proofs now required letters of administration, and successions under in the case of proving wills and granting let- wills, is, that the office is regularly supplied by ters of administration, such proofs to be trans- the several Testamentary Courts with copies 222 Review: Shelford's Succession Duties. [LEGAL OBSERVER, "Executors resident in Great Britain, be of all wills proved, and certain particulars of | Duty Office, Somerset House, for the purpose all letters of administration granted in such of passing his accounts and paying the duty. Courts. By these means the Commissioners In the case of a simple pecuniary legacy to an obtain prima facie evidence of the amount of adult, the executor before payment of the leduties to become due on the property of every gacy should take the printed form No. (1) and deceased person whose will is proved, or in fill up the blanks in accordance with the facts respect of whose estate letters of administra- of the case. tion are granted. On the registration of the copies of wills and abstracts of letters of ad-yond the limits above-mentioned, may pay the ministration, circular letters are written to the executors or administrators, apprising them of the circumstances, and giving them a succinct statement of the different duties payable on legacies, and the manner in which they are to be accounted for. The Commissioners do not possess the same means of ascertaining succession duty under deeds, but it is to be observed that the copies of the registered wills will give them the necessary information for inquiring after succession duty. "Although the Commissioners of Inland Revenue do not possess the same means by reference to an index of deeds of the existence of settlements, yet the change of the ownership of real estates is generally a matter of notoriety, and the revenue officers employed in the country districts, will, no doubt, be directed to give notice where the ownership of land has changed. "The Acts of Parliament do not render it obligatory upon the Commissioners of Inland Revenue to write the letters before-mentioned, and therefore parties who are aware that they are liable to account for legacy or succession duties, if well advised, will offer payment, although they have not received any letter from the Commissioners. "At the expiration of twelve months from the date of the circular letter, if the duties in the meantime have not been accounted for, another letter requiring payment of all unsettled duties is addressed to the executors or administrators, or other party liable to account. If the residuary personal estate is bequeathed to or devolves upon parties chargeable with duty, another letter is addressed to the executor or administrator, calling for a full account of the estate of the deceased, and of the manner in which it has been disposed of. If attention be not paid to this letter within a short time, and the duties remain unaccounted for, other and more urgent letters are written, until the payment of the duty shall be obtained, or it be shown to the satisfaction of the officer that none are payable. If the applications be attended by neither of the above results, the case is handed over to the Solicitor of the In land Revenue, with directions to institute legal proceedings against the parties liable to account to render their accounts." duties to a stamp distributor of stamps, or his deputy, in the country. The necessary documents, as the legacy discharge, &c., must be deposited with the distributor, who will receive the duty, and give an acknowledgment on a printed form for the duty paid. The documents have to be transmitted to the head office in London for examination previously to their being registered and stamped. The legacy papers deposited with the stamp distributors are transmitted monthly to the head office, and a period of a few weeks must elapse before they are returned to the distributors from whom the parties may learn when the papers ought to be returned. If any material expla nation should be required by the office in London before the documents are stamped, the executor should make a written statement, to be attached to the papers to be sent to the office in London by the stamp distributor." The Forms to be filled up under the Legacy and Succession Duty Acts, may be obtained at the Commissioners' office, Somerset House, or of the distributors of stamps in the country. They are as follows, with the directions applicable to each :— "Form No. 1 is a Legacy Receipt or Dis- "Form No. 2 is a receipt for an Annuity. "1. Executors and administrators, before the retainer of any part of the property to their own use, are to deliver the particulars thereof at the Legacy Duty Office, in London, or to the distributor in whose district they reside, and pay the duty thereon within fourteen days after, under the penalty of treble the value of the duty. "2. All rents, dividends, interest, and profits arising from the personal estate of the deceased or real estate directed to be sold, subsequent to the time of his or her death, and all accuThe modes of paying the duty, as well in mulations thereof, down to the time of deLondon as in the country, are thus delivering the account and offering to pay the scribed : "If an executor or administrator reside in London or within its suburbs, or in any part of the county of Middlesex, he must either attend in person or by an agent at the Legacy duty on the residue, must be considered as part of the estate, and be accounted for accordingly. "3. Any account transmitted by post, or left under cover at the office, will either be returned to the parties or thrown aside unnoticed. JULY 21, 1855.] Law of Attorneys and Solicitors.-Law of Evidence. "Form No. 4 is the form to be filled up in respect of Succession Duty for property not chargeable by way of annuity. "Personal property includes money charged on real property and money to arise from the sale of real property. "The party making the return is to state the title, whether under settlement, by survivorship or in any other manner, and if under a deed or document, the date thereof and the names of the parties thereto. "State whether trustee, &c. or successor. "Form No. 5 is for Succession Duty for an annuity or life interest in Personal Pro perty. "The party making the return is required to state in the title, whether under settlement, by survivorship, or in any other manner, and if under a deed or document, the date thereof and the names of the parties thereto. 223 that it is the duty of a solicitor to deliver up his client's papers in a reasonable state of order. He has no right to mix them all together, and then deliver them so mixed up to his client. The question, whether the defendant in this case did deliver the and condition was for the jury. That quespapers, when required, in a reasonable state tion was left to them, and they found that he had not; but at the same time, they appear to have thought that no damages had been sustained, or that the objection to the mode in which the papers were delivered was a captious one, by finding a verdict for the plaintiffs, with nominal damages only." Parke, B., said :-"The learned Judge's view was correct. If the person to whom papers are entrusted is not bound to keep "The party making the return has to state them in such order as is convenient for rein what character it is made, whether as suc-ference, at all events he is bound to deliver cessor or as trustee, executor, administrator, or guardian, &c. "Form No. 6 is for the Succession Duty on Real Property, which includes all freehold, copyhold, customary, leasehold and other hereditaments, whether corporeal or incorporeal. [This account to be delivered in duplicate.] "The party making the return is to state the title, whether under settlement, will, intestacy, or by descent, and if under any deed or other document, the date thereof and the names of the parties thereto; and also whether trustees, &c., or successor.' them up in a reasonable and fit condition for use, when called upon to do so by competent authority. That is the obligation alleged in the declaration, and it is an obligation cast upon the defendant by law. Whether the defendant violated that obligation is a question for the jury, and they have found that he has; but they awarded nominal damages only, on the ground, as it would seem, that there had been great delay in bringing this action." Martin, B., said:" I think that the law imposes the duty upon an attorney, as it does upon every person who has the custody of another person's property, to deLAW OF ATTORNEYS AND SO- liver it up in a reasonable state. The LICITORS. steward of a manor, for instance, is bound, when called upon, to deliver up the papers DUTY TO DELIVER UP CLIENT'S PAPERS of which he has the charge in a proper IN REASONABLE CONDITION. LAW OF EVIDENCE. EXAMINATION OF WITNESSES. condition." The rule was accordingly reIr appeared that the defendant had acted fused. North Western Railway Company for several years as the solicitor to a railway v. Sharp, 10 Exch. R. 451. company, who, on their having retained another solicitor in his stead to transact their business, required the defendant to deliver up the papers and documents relating to their business and which he had in his possession. The papers, &c., were accordingly delivered up, but the company had incurred some expense in having them arranged and put into proper state and order, whereupon this action was brought, and on the trial before Crowder, J., the question was left to the jury, who found for the plaintiffs, with 18. damages, with leave to the defendant to move to set aside the verdict and to enter a verdict for him. special examiner, a defendant called a Mrs. Ahmuchty, whom the plaintiff had previously examined in chief, in a previous suit of Cochrane v. Cochrane, but alleged to be connected with the present, and the plaintiff then crossexamined the witness at large. The Vice-Chancellor Kindersley held, that assuming the two cases to be between the same On the motion being made, Pollock, parties and touching the same question, the L.C.B., said :-"There can be no doubt plaintiff had the right he claimed to cross 224 Law of Evidence.-Hull Borough Sessions. examine Mrs. Ahmuchty when called by the defendant, although he had himself previously called her as his witness. A question was also raised, whether, if a defendant called a witness and examined him in chief, a co-defendant might cross-examine him. The Vice-Chancellor said, "as the question is a new one, arising out of the practice recently introduced, I thought it better not to decide the case according to my opinion alone; but to take the opinion of the other Judges of the Court, in order to obtain uniformity of practice. If I could have found what is the practice at law clearly laid down, I should have felt it expedient to follow that practice; but it is singular that for a case of this kind, so far as it appears by the authorities cited,' and so far as I have been able to search for authority, there does not seem to be any clear and explicit rule laid down. There is this also to be observed, that whereas at law, witnesses when examined and cross-examined, are so before a judge who can regulate the course of examination; that is not so before an examiner of this Court. The only cases at law which I can find are criminal cases; and one readily sees that some different rule might be applied in criminal cases, where, if a witness is called by one prisoner, his evidence may affect another prisoner. In criminal cases, it appears that if one prisoner calls a witness, and if the evidence of that witness can affect another prisoner, that other prisoner can cross-examine the witness; but I find no single case of a civil action where there is any express authority on this point. Now, there is no doubt that in this Court the theory is that, properly speaking, there is no issue as between co-defendants; so much so, that in theory one defendant was not supposed to know the con And tents of another defendant's answer. under the old practice, no part of the evidence was known to any party until the whole was complete. Under the present practice, when witnesses are examined before the examiner, all parties are or at least may be questioned, and all parties know what the depositions of the witnesses are, as they are given. Now one may easily conceive, that a case might arise in which, intentionally and unfairly, where codefendants conceive themselves to have prima facie a common case against the plaintiff, it might happen that one defendant might call a witness, and ask some indifferent question in order that the co-defendant might cross-examine him; and so possibly that defendant might get an advantage against the plaintiff which he ought not to have. On the other hand, it might be that one defendant is in the same interest with the plaintiff, and he might call a witness and affect by the evidence of that witness the case of another defendant; in that case there would be prejudice to that co 'Barnard v. Papineau, 3 De G. & S. 498; Regina v. Burdett, 24 Law J., Mag. Cas., 63. [LEGAL OBSERVER, defendant if he could not cross-examine the witness. "On the whole the Judges are of opinion, that justice will be best worked out, if the examination is open as if all parties had separate interests. In the case now before me, it is to be observed, that you cannot decide the case of the plaintiff, without indirectly deciding in some measure as between co-defendants. Here the case is, what was the domicil of the testator? Now, supposing the plaintiff to insist on English domicil, defendant A. on Scotch, and defendant B. on French domicil— I do not say that that is exactly the contention, but it might be so-it is quite obvious that you cannot decide whether the domicil is or is not English without deciding a matter which may decide as between co-defendants. The opinion of the Judges is, then, that if a defendant examines a witness, either the plaintiff or a co-defendant may cross-examine him. If he examines him before the plaintiff has done so, and the plaintiff wishes to use that examination as against another defendant, he must have the option of doing so. And if a defendant cross-examines, it is not necessary that the plaintiff should go through the form of again cross-examining the witness; if he is satisfied with the cross-examination, he may use it. The opinion, then, of the whole of the Judges is, that a defendant may cross-examine a co-defendant's witness. When the evidence is taken, whether it be examination in chief or on cross-examination, the whole is common to all parties."-Lord v. Colvin, 3 Drewry, 222. HULL BOROUGH SESSIONS. THE Midsummer General Quarter Sessions of the Peace for the Borough and County of the Town of Kingston-upon-Hull, were opened on Friday morning the 6th instant, before Samuel Warren, Esq., D.C.L., Q.C., Recorder. The learned gentleman proceeded to charge the Grand Jury, as follows: Gentlemen of the Grand Jury,--Measures are pending in Parliament which, if passed into laws, will effect important changes in the administration of criminal justice in this place, and throughout England. As far as concerns myself, one of those measures, if carried in the form in which it was proposed to, and is now before, the Legislature, may sever the connection between myself and this borough; for I really do not see how any one, in my position, can, under existing circumstances, continue Recorder of Hull, if, living in London, he is henceforth, for instance, to travel to Hull eight times a year. The first of the measures in question, then, to which I shall draw your attention, is a Bill entitled "An Act for the more frequently holding of Assizes and Sessions of the Peace," presented to the House of Lords by the Lord Chancellor, and which has nearly arrived at the third reading, after having undergone alterations in Committee, |