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THE BIRMINGHAM LAW STUDENTS' SOCIETY. October 28, 1857.-Moot Point, No. 234. Can a purchaser of an equity of redemption, paying off a first incumbrancer, keep the charge alive for his own benefit as a protection against subsequent incumbrances.

The principle involved in this point is of very extensive application, not only with regard to persons possessing limited interests in estates, but particularly as it affects the privities of different incumbrancers by way of mortgage. As the doctrine of merger is intimately blended with the question discussed, we may as well note its function in this instance, and nothing can be clearer than this-that when the purchaser of an estate discharges an incumbrance, the legal estate by which such charge is supported, becomes, in legal language, drowned in the absolute fee of the owner. This I take to beca leading element in the case: very well; then, what are the facts and cases viewed in connection with the moot point. In Toulmin v. Steere (3 Mer. 210), I find, where a purchaser of an equity of redemption pays off the first mortgage, and takes a reconveyance, that the debt so discharged will merge as against other incumbrances. So in Parry v. Wright (5 Russ. 142), where a third incumbrancer, having notice of the second mortgage, bought the estate, and the first mortgagee reconveyed to a trustee for the purchaser in fee, the second mortgagee was held to become the first incumbrancer. In the case of Mocati v. Murgatroyd (1 P. Wms. 392) the mortgagee of a ship had returned the bill of sale to the mortgagor, who was thereby enabled to re-mortgage different parts of the ship to other persons, and the first mortgagee acquiesced therein. He afterwards took a release of the equity of redemption. It was held that the subsequent mortgages should be preferred to his. See also Grenvold v. Marsham (2 Cha. Ca. 170); Squire v. Ford (9 Hare 47); Otter v. Vaux (25 L. J. R., C., 734); on appeal, 26 L. J. R., C., 128; and Spence's Equity, vol. 2.

These cases are direct authorities for showing that, where one purchases an equity of redemption, he cannot set up a prior mortgage of his own, nor, consequently, a mortgage which he has got in against subsequent incumbrances of which he has notice. The affirmative of the question was very ably argued and spoken to by several of the members with considerable ability, relying much on the apparent hardship it would inflict on an innocent purchaser if not allowed the benefit of keeping alive any charge he might choose to get rid of. Many cases were quoted, but they certainly did not reach the principle contended for by the affirmative. It

was held in one case, Watt v. Symes (21 L. J. R. C. 713), that a purchaser of an equity of redemption, who paid off first mortgage out of the purchasemoney, might, having shown an intention of doing so (by a contract for that purpose), stand in the first mortgagee's place against the next incumbrancer; and the case of Forbes v. Moffatt (Tudor's Leading Cases, 763) was relied on. At any rate, the case now stands in dubio, and is open to a positive decision on the subject. The negative speakers argued thus there is no hardship in the case, as the purchaser buys with his eyes open, with a knowledge of incumbrances; and if he discharges one, he must be presumed to know that he is clearing the estate, and making way for the next incumbrancer, who instantly becomes the first mortgagee. Again, whatever view equity may take as to the mortgage-money so paid off remaining a charge for the benefit of the purchaser, it is quite clear that at law the legal estate of the mortgagee is merged in the purchaserergo, how is the charge to be supported? And, again, it is well settled, that when a purchaser takes an estate, he accepts it subject to all the equities and conditions affecting such estate when in the hands of the vendor; and, in conclusion, that if the affirmative is correct, the owner of an estate might become his own mortgagee, which is a condition of things at variance with the common principles of reason, law, or equity.

The meeting decided in the negative.

November 11, 1857.-Moot Point, No. 235. A mortgage deed contains an attornment of tenancy by the mortgagor to the mortgagee. Does this render the deed liable to a lease stamp?

When we consider the numerous instances of an attornment of the above nature, and the question as to the necessity of a lease stamp having been more than once raised, we are naturally led to investigate the reasons in favour of and against the proposition, in order, if possible, to extinguish our doubts on the subject. The first point that suggests itself to the mind is, whether a mortgage deed, containing an attornment of tenancy, is subservient or ancillary to the general intent and object of the deed; or whether, in the next place, the subject-matter of the attornment is distinct from, and inconsistent with, te main intention; but before we notice the arguments, let us take the rule upon this subject as laid down in Phillips on Evidence, p. 445: "If the interest of the parties relates to one thing which is the subject-matter of the instrument, or, in other words, if the instrument affects the separate interests of several, and there is a community of the same subjectmatter as to all parties, there a single stamp will be sufficient; but where the parties have separate in

terests in the subject-matters, there ought to be a separate stamp for each party."

For the affirmative it was argued, that the mortgagor being in contemplation of law tenant to the mortgagee, there is an absurdity in constituting the relation of landlord and tenant by an express clause to that effect; that the deed in such case has a double object, for it not only proposes to the mortgagee the repayment of his principal and interest, but it also creates a rent; that the attornment is in itself a re-demise to the mortgagor, and as a new estate at law, and springing from the mortgagee, requires a second stamp. It was also submitted, that where the object is ancillary to the general intent of the deed, that a second stamp is unnecessary. The case of Walker v. Giles and Tort, 18 L. J. R., C. P., 323, was discussed. In that case it was treated as doubtful, whether an agreement in the mortgage deed, that the mortgagor should be tenant at will to the mortgagee at a certain rent, with power of re-entry by the mortgagee, rendered a lease stamp requisite. It was not necessary to decide the question, as the deed was, as a mortgage, exempt from stamp duty under the Building Societies Act, and bore a £5 unappropriated stamp; but Maule, J., seemed to think, that the re-demise would only be a part of the security; and see Doe v. Croft and Another v. Tidbury, 23 L. J. R., C. P.,


In the negative it was contended, that the usual clause in a mortgage, giving to the mortgagor a power to hold possession until default in payment at the period stipulated, operates as a re-demise, and would, therefore, if the reasoning of the affirmative is correct, require a lease stamp as much as an attornment; indeed, more so, for if the mortgagor makes default, then he becomes a tenant at will, notwithstanding the attornment, and is liable to ejectment at any time-a state of things not very consistent with the nature of a lease, which involves a term certain, ascertained, and known. Again, the rent fixed by the attornment clause is intended as an additional guarantee for the due payment of the interest, the mortgagee then being, of course, in a position to distrain on non-payment thereof; and, by parity of reason, that the claim to a double stamp is about as logical as it would be to apply the same argament to the covenant to pay the principal and interest, or to contend that the receipt on the back of the mortgage requires a stamp. The scope and aim of the parties is the great consideration, and that is the security of the mortgagee; and the attornment clause is simply incidental to, and a portion of, that security. A deed of assignment of an attendant term for the mortgagee requires, of course, only a deed stamp, and no additional duty will be

payable if the assignment is contained in the mortgage deed; and here, it may be as well to observe, that if, on the sale of an estate, part or the whole of the purchase money is raised by loan, and the estate is conveyed to the lender subject to redemption by the purchaser, the ad valorem duty on sales to the full amount of the purchase money, and the ad valorem duty on mortgage to the amount of the sum borrowed, will be both payable; and Lord Denman, in Hartwright v. Fereday, 12 Ad. and E. 796, where a deed containing a transfer of stock and a release of lands was held not to require two stamps, observes, "We find no provision in the Act (speaking of the 55 Geo. 3), except in conveyances by way of sale, that when a deed operates on several subject-matters in several ways, it shall have several stamps; and, in the absence of any such provision, we think that one stamp is sufficient."

With the exception of Walker v. Giles, we have no direct case on the subject, and therefore the decision (which was in the affirmative) still leaves the question open for further discussion.

A. FEREDAY, Corresponding Secretary.


PUBLIC COMPANY.-Agreement by [ante, p. 129-Vendor and purchaser-Specific performanceRepresentations by agents of a public company-Duty of solicitors dealing with companies.-The following propositions merit the serious attention of every practitioner who may have any transactions with public companies. The facts appear ante, p. 129. Semble, it is a breach of duty in a solicitor, for which he may justly be blamed, if in dealing with a public company he places the smallest reliance, on any representation of any agent of the company as to its future acts. A solicitor, dealing with a public company, ought never to be satisfied with anything than the most solemnly executed agreement of the company. The court cannot, when called on to decree specific performance of any agreement, direct any act to be done whereby the agreement itself, if not already legally binding, can be made so. Therefore, in a shockingly dishonest case, where an agreement had clearly been come to by a public company, but was not made out and executed in the statutory form (there being no agreement, signed by two directors, ante, p. 129), the court could not make the directors sign it, and dismissed the bill; although, if they had signed the agreement, specific performance would have been decreed. The Leominster Canal Company v. The Shrewsbury and Hereford Railway Company, 3 Jur. N. S. 1.


If we may judge from the number of letters we have received, the intimation that the Council of the Incorporated Law Society have presented a memorial to the judges for the institution of an examination in languages, history, geography, arithmetic, and bookkeeping, has created quite a ferment among articled clerks-most unnecessarily, we think, as the supposition entertained that this will be extended to the clerks now under articles is groundless. Such an injustice is not likely to be perpetrated, and we, therefore, think it unnecessary to publish the-communications we have received. Putting aside this groundless fear, what do the articled clerks say to the proposition? To us, it appears to be intended as a measure of exclusion, and one, therefore, which must needs be beneficial to those who have been so fortunate as to be articled prior to the institution of the examination. Is it, however, desirable to have a measure which will act as one of exclusion? Is it or not opposed to the spirit of the day, so far as regards throwing open employments to all ranks? or is it to be considered as a proper measure by which the status of the profession is to be raised in public estimation, and as in accordance with the cry of the day for competitive examinations? These and many other questions which the proposition gives rise to, will have hereafter to be considered. Another one of great importance will be the effect on the other branch of the profession-the barristers. Will not the distinctions now existing between the two branches of the profession gradually disappear, as solicitors are raised in intellectual position, and in the estimation of the world? The effect of the institution of the examinations has been very wonderful; the solicitors as a body are now very much superior to what they were twenty years ago, and will not the new measure have the effect of raising them still more? And will not that render the distinction between the barrister and the solicitor unnecessary; and is that a desirable consummation for either barrister or solicitor?

Putting aside, however, for the present the ulterior effects of the proposed plan, let us see what it is the Council of the Incorporated Law Society propose. The language of their report is as follows: "The Council some time ago received suggestions for extending the requirements at the examination of candidates for admission on the roll; and in their previous reports they stated the conclusions at which they had arrived--namely, to recommend to the judges to authorise an examination either before or during the articles of clerkship, or before admission, for the purpose of ascertaining that the candidates possessed an adequate knowledge of the Latin and


French languages, and of English history, geography, arithmetic, and book-keeping. A memorial to this effect has been prepared." The subject has been noticed by our contemporaries-the Law Times and the Solicitors' Journal-and we propose to state some of their views. One important point is, when should the intended examination take place: before or after the articles are executed? We have no hesitation in saying that it should be before the party is allowed to enter into the articles. The writer in the Law Times agrees in this, saying:-"We are wholly, and without reserve, as without misgiving, for an educational test, and that of a very stringent kind, for all who contemplate practising as attorneys and solicitors. But we deny that any such test, except of a very inзufficient nature, can be employed properly except before service under articles begins to run. that date, and up to the days of final professional examination and admission, the articled clerk ought to give all the time that can be spared from necessary and reasonable relaxation to the exclusive study of the different branches of the profession which he proposes to practise. It would be monstrous and absurd-as a correspondent in our last week's impression (Law Times, p. 45) very sensibly showsthat, when a young man may fairly suppose that he has done with school and school studies, and when. he has been devoting himself manfully for several years to far more arduous and pressing pursuits, he should be called on for the exhibition of accomplishments which the lapse of time, and a totally different course of discipline, must necessarily have clouded and lessened. Such a proposition is not only opposed to common sense, but to the latest philosophy of education as adopted at the universities, where, for several years, the principle has been recognised and practised that there are certain cycles of study, which are naturally consecutive and graduating upwards, but which, although strictly related to each other, are not to be treated as contemporaneous. Thus, at Oxford, under the new system, classics occupy an undergraduate in his first phase; histories in his second; science and divinity in his latest and consummate phase. Formerly all were mingled; and, at the end of three or four years, the strongest head, and the best memoria technica-which by no means included necessarily the subtlest or most versatile minds-gained the palm. It is this system, which our first universities have discarded on mature reflection, which we fear that the Incorporated Lav Society seeks to introduce into the schools of the profession; and it is against this system that we feel bound to enter our protest.

"It must, therefore, be assumed, and held firmly, that a general education test can be applied properly and fairly only before the commencement of the law

students' articles. Let us start, therefore, with the assumption that there is, as undoubtedly there ought to be, a matriculation examination for articled clerks, according to the analogy of that which is undergone by undergraduates at the best colleges of our universities, before their names can be entered on the college books. The next practical question is, what is to be the substance and style of such an examination ?"

Then comes the question, are those persons who have not been blessed with a "classical" or even a good "commercial" education to be excluded from becoming solicitors? This is a point of some difficulty; but we rather incline to the opinion that if a test be imposed, all candidates should be subjected to it. The only real point with us is, should such an examination be instituted at all? if so, then, for the sake of the whole profession, let it be universal. The non-examined members would throw a taint on the whole, because it is impossible for the public to know whether or not any particular individual has undergone an examination. We find, however, that our views are not shared by others; thus the writer in the Law Times says:-" But we have to do with a second class, not less meritorious, and certainly not less able, although less favoured by early circumstances. This is that strong, sensible, energetic, and often consummately distinguished body who either. enter the profession early in life without the advantages of 'regular' education, or work their way upwards into it late in life, sometimes-let it be spoken with all respect, honour, and admiration for them from the desk of the copying clerk, or even from the lower drudgery of the office, to the point whence the favoured aristocracy of the profession starts. These are the privates and non-commissioned officers of the profession who claim to take rank and fight still upwards by the side of commissioned subalterns: and Heaven forbid that their claim should be either wholly denied or granted, except under proper conditions. The investigation in this case is one of a very delicate, and must, at times, be of a very painful kind. But the duty of the Incorporated Law Society is marked out clearly by the general sense of the profession. It is the chief and strict duty of the society to admit none, even to the probationary grade, unless he give satisfactory certificates that he possesses the essentials of ability, edu-. cation, gentlemanly feeling, and character.

"In this case it is clear that it would be unjust and cruel to think of applying the test which has been recommended for the first class. What does the sharp copying clerk, who wins his articles by the respect and gratitude of his principal, know of 'Latin or French,' or even of English history and geography?' In 'arithmetic and book-keeping' he

would probably shoot far ahead of his aristocratic competitors at the matriculation examination: but unless he were to spend months, or even years, of the spare evenings of his adult life to pick up schoolboy knowledge, he would be plucked to a dead certainty by a board of examiners. Yet already he is probably familiar with the practice of the courts; already he has dipped into text-books of principles; and perhaps for years he has worthily sustained, as managing clerk, the chief burdet. in his principal's office. Is he to be shut out from the higher walks of the profession for such flimsy deficiencies? Forbid it every power and principle of common sense; of common right and public interest. If such a principle were sound, it is probable that a good third of the most efficient and respectable members of the profession ought to be struck off the rolls at once for incompetency.

"What, then, is the education test in this case? Look at the class, and study the qualities which make it respectable and useful. Their principles and manners are often those of gentlemen: there is essential No. 1. Their intelligence, quickness, adaptability to all classes of business, and actual knowledge of law and practice, place their fitness for the higher branches of the profession beyond dispute. The prominence of these qualities is the index of the test sought. Analyse them, and they will be found to include, as actual acquirements, in addition to those already named-considerable knowledge of things, often of a scientific kind-of recent history, and actual political and social questions, with much fluency of speech-no small merit in every lawyerand a very sufficient grammatical facility of composition.

"On all these matters, with arithmetic ad libitum, these gentlemen must be fully and strictly examined before they can be properly admitted to their articles. Mere hook-knowledge, extrinsic to that of a professional kind, must not be expected from them; but a far more sufficient and comprehensive test may be fitly and stringently applied. This is the English essay, which, after all, we affirm to be the best and fundamental test of general fitness in every case, and in both classes. We affirm confidently, and without reserve, that a man who can write a grammatical, sensible, clear, and concise essay of his own genuine and original composition, on any ordinary subject of political, philosophical, literary, or legal interest, in a fluent and legible hand, may be passed safely through the foremost barrier of the profession as sufficiently educated;' although he do not know the Greek characters, and cannot construe a sentence in a Latin delectus or in a French primer; although his knowledge of history be confined to the general events of the reign of Queen Victoria; and his views

of geography be limited to obscure impressions that the face of the earth has been divided, rather arbitraily, into four quarters. His future clients may laugh at his ignorance, but will not be worse served for it."

In a subsequent article, it is said :-"But there still remains a question on which we cannot come to so clear and decided an opinion: indeed, we are in doubt how to deal with it. There is a class of men who have by long years of industry qualified themselves for the profession, save by the possession of the preliminary knowledge to be required. They have otherwise given the pledges of character, which that preliminary test was designed to secure. It is hard, almost to injustice, that they should be forbidden the prizes they have won. We admit that

these are exceptional cases. The majority of those who so enter the profession have not obtained it by any other merit than working gratuitously for a master too poor or too avaricious to pay them cash, and who so supports his office at the cost of his profession. An indiscriminate admission would be worse than an indiscriminate rejection.

"But may not such meritorious cases be treated as exceptions? Why should not a power be vested in some authority-the judges, or the Incorporated Law Society-to dispense with the preliminary examination, on being satisfied that in all other respects, especially in character for honour and honesty, the candidate is unimpeachable? Let not this be a matter of course, but a great favour conferred only after rigid inquiry and upon the best evidence."

The Solicitors' Journal considers the subject of legal education in a much wider view than the mere examination in classics and history, &c. It boldly urges a competition on the part of articled clerks with the bar in legal knowledge, suggesting an education in common for the two branches of the profession, by permitting clerks passing a certain voluntary examination to attend the lectures given in the inns of court. Is this desirable? If the object be to amalgamate the two bodies, it is a step in the right direction; but is such an object expedient? The writer says: "Undoubtedly, considered in itself, it is a matter of very slight importance that a certain number of young men should receive instruction in the hall of an inn of court, instead of in the building of the Incorporated Law Society. But surrounding circumstances can give an importance to even less things than this. The attendance of students from both branches of the profession at the same lecture might mean nothing; but at the present time, and in the present crisis of the relation between the two branches, it would be indicative of a good deal. We are exactly in that position now when small things tell-when, to use

a homely saying, a straw will show which way the wind blows. That some change in the relation between the two branches of the profession will come, is quite evident; but no one can say what the change will be. We are not prepared to express an opinion in what exact direction the change ought to be made. In a country like England we cannot discuss the balance of expediency without reference to the traditions, the usages, and even the prejudices of large portions of society. But one thing is evident if the two branches of the profession are to be placed on a footing of greater equality, what will effect this will be that common opinion places the representatives of the lower, as men of thought, learning, and general education, on a level with the representatives of the higher. What persons who wish to effect a change require is, a safe ascertained instance to which they can confidently refer. Now, it would be an argument of real weight, and, what is exceedingly important, of a weight easily appreciated by every one, if it were in the power of a solicitor to point to the fact, that there were, at any rate, some of his own body who received exactly as wide and as high a legal education as the first men at the bar. Socially, also, it would not fail to raise the status of solicitors if it were known that it was always open to them to be classed with the bar during the period of study. On the other hand, the bar could not fail to reap some advantage from the introduction of their new associates. The students intending to practise as solicitors would generally be men who would afterwards hold a prominent place in their own profession; and if anything could diminish the suspicion and reality of undue nepotism, it would be that the most eminent solicitors, by receiving their higher education in common with cotemporary barristers, should have learned not only where merit lics, but in what merit consists.

"It is possible that apprehensions might be entertained lest the institution of such a scheme should introduce a division into the lower branch itself. Solicitors might regret that there should be any arbitrary division drawn between members of their own ranks, and countenance given to the supposition that some portion of the body was higher and better educated than the rest. It is impossible to deny that those who chose to put themselves through the course we have suggested, would show that they were willing to submit to more trouble, and undergo a more solid preparation for their future duties, than those who refused or were not able to do so. And snetimes there might be some sort of injustice done to individuals in this way; and persons who were anxious and abie to go through the course might be prevented by circumstances from doing so, and have an inferiority imputed to them which was quite

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