Imagens das páginas
PDF
ePub

amount. Assuming that the jury would give exactly such a sum as if immediately recovered and converted into stock, would place the plaintiff in the same situation as if the stock had been transferred according to the agreement, no one surely requires to be reminded that some time must elapse between the fixing of the damages and the actual recovery of them under the judgment; and that in stock transactions time is a matter of extreme importance. In Doloret v. Rothschild, Sir John Leach, adverting to the doctrine which had been referred to in many cases, equity holds that time is not of the essence of the contract, justly observed: "that principle can have no application to a case like the present; where, from the nature of the subject, the value is exposed to daily variation, and a contract, which was disadvantageous to the plaintiff on the 1st February, and would therefore be declared by him, might be highly advantageous to him on the 2d February." It is therefore in the highest degree probable that the money recovered in damages will not buy the quantity of stock agreed to be transferred. It will buy more or less: if more, the increase in quantity is merely proportionate to the decrease in value, and nothing is gained: if less, the plaintiff has failed in obtaining adequate compensation.

We have cited above a dictum of Lord Eldon in the judgment in Nutbrown v. Thornton, which (assuming that it is correctly reported, and refers to stock in the public funds,) certainly treats the doctrine as settled, that a specific performance of contracts of this nature will not be decreed in equity. Lord Eldon (then Sir John Scott) was attorney-general in March 1799, when Forrest v. Elwes1 was decided. In this case one question was, what was due from the estate of Commodore Forrest to that of Mr. Elwes, upon a bond given upon the loan of £8000 Old South Sea Annuities, conditioned for the retransf'er of the same sum in that stock six months afterwards, with lawful interest on the value of the stock (£7170) on the day of the loan. The bond was given in 1766, since which period the stock had become much depreciated. The question whether a suit for a specific performance could have been maintained did not call for determination, but it is worthy of remark that not only no doubt of the affirmative of

1 4 Ves. 492. this question appears to have been started, but both in the argument of the Attorney-General against the representatives of Elwes, and in the judgment of the Master of the Rolls, (Sir R. P. Arden,) in favour of those parties, it is clearly assumed that Elwes might at the expiration of the six months have come into equity for a specific performance. The Attorney-General had to contend that the representatives of Elwes were entitled only to have the £8000 stock replaced, and to receive interest on the £7170 from the date of the bond; and he chose this ground, the contraiy of which therefore this great lawyer could not then have considered to be perfectly settled. "If the stock had risen above par in the course of the six months Mr. Elwes could ha ve filed a bill at the end of that period, insisting upon a retransfer, which would have put the rise in his pocket. If that is so, the converse follows: and if the stock falls he must bear the loss." The Master of the Rolls deduced a different conclusion from the same premises. "Had not Mr. Elwes a right to take it into a court of equity if he thought fit. Is there any thing unreasonable in it?" He pointed out the just consequence thus: "The distinct question is, what is the fair measure of the damage. Should I do justice in giving the same annuities, which were then worth more than eighty-nine per cent., and are now much depreciated? It would be ridiculous to state that as a compensation. Suppose a trustee sells out stock: what is the habit of the court as to compensation? The cestuy que trust has an option to have either the stock or the money produced by it, with interest. Why shall not the same option be given to the obligee in this bond, who has suffered by the breach of this agreement?"

That specific performance of an agreement for the purchase of an annuity, payable out of dividends of a fund in court, will be enforced in equity, on behalf either of vendor or purchaser, was decided by Sir John Leach in Whithy v. Cottle.1 It was contended, in support of a general demurrer to the bill, that this case " was not within any of the exceptions to the general rule that the court will not entertain a bill for the specific performance of a contract for the purchase of a chattel." The Vice-Chancellor held the question of jurisdiction

1 1 Sim. & Stu. 174.

to be quite clear. "There can be no doubt that the defendant, who is the purchaser of this annuity, might have filed a bill for the specific performance of the agreement for sale to him; because a court of law could not give him the subject of his contract, and the remedy here must be mutual for purchaser and vendor."1

In Wright v. Bell,2 the contract was with assignees of a bankrupt for the purchase of a debt due to the estate of the bankrupt and to another person on the balance of an account. Lord Chief Baron Richards decreed a specific performance. "The only question," said his lordship, "is whether the court will entertain a suit for a purpose of this description or not. This contract is not for the payment of money, but to do that which will enable the defendant to recover the money; and this, I think, brings the case within the exceptions which have been pointed out. It is a contract which was to be made complete by some subsequent act." A similar question arose in Adderly v. Dixon,3 in which case the plaintiff having purchased and taken assignments of certain debts which had been proved under two commissions of bankrupt, agreed to sell them to the defendant for 2s. 6d. in the pound. Sir John Leach, Vice-Chancellor, held that this being a contract for the sale of the uncertain dividends which might become payable from the estates of the bankrupts, a court of equity would decree a specific performance, because damages at law could not accurately represent the value of the future dividends; and to compel the purchaser to take such damages, would be to compel him to sell these dividends at a conjectural price.

Upon the whole we believe that the conclusion to be deduced from a review of the cases bearing upon this subject, cannot be better expressed than in the language of the learned judge last mentioned. "Courts of equity decree the specific performance of contracts not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy." Z.

1 See generally on the subject of the performance of agreements for the grant of annuities Nield v. Smith, 14 Ves. 491; Pritchard v. Ovey, 1 J. & W. 396; Kail v. Coggs, 1 Bro. P. C. 140.

s Daniel, 95; 5 Price, 325. » 1 Sim. & Stu. 607.

ART. IV.—THE STAMP LAWS.

The general object of taxation is revenue. Protection, by means of exemption, is often its particular object. Thus it is intended to protect the growth or manufacture of one place by exemption from taxes levied on the growth or manufacture of other places; and, by parity of reasoning, all foreigners are protected in their competition with us by the excess of our taxation above theirs.

But experience teaches us that the effect of a tax may be something very different from the object of it. What was meant for protection may resolve itself into destruction, and even increase of revenue is not always accomplished by accumulated taxation. A trade may be destroyed because people cannot buy from those who are highly taxed, and will not buy from those who are high-priced, though exempt from taxation. And, to approach the subject of the present article, parties will sometimes leave their rights without the security of a stamped instrument, if the amount of the stamp be in their opinion too high a rate of insurance.

Though at first glance appearing easy enough, yet is it a matter of extreme difficulty to determine the precise amount of tax on any particular article which will produce the largest revenue. We venture, however, to think, and will endeavour to show, that there are in the existing Schedule of Stamps a few instances in which the stamp is so high as to produce little, because few will use it.

In addition to the principle of ever meting out taxation so as to make the evil of it less than the calculated risk of evasion, we shall also have occasion to apply the principle of proportion, i. e. that the scale of Stamps, as well as the scheme of every other branch of taxation, shall be so graduated as to obtain from every one a sum bearing some just proportion to his relative means of payment. It will be in the recollection of most of our readers, that rather better than a year ago Mr. Cobbett and Mr. Spring Rice encountered each other "breast to breast" on this subject, and, as must ever be the case when parties intend rather to measure their strength than to do any good, one said all that he could against, and the other as much as he could in defence of, these taxes, leaving parliament to determine impartially after hearing counsel on either side. Mr. Rice did, however, admit some imperfections and promise some corresponding remedies. Government having since been so occupied with a multiplicity of important affairs as to delay the forthcoming of this remedial measure, we may endeavour to shorten the period of its gestation by indicating the different reductions and changes which we think might be effected in some parts of the Stamp Laws with convenience to the public and without detriment to the revenue.

Though the rate at which the cottager and the capitalist should respectively be taxed has long been a moot point with political economists, no one has advanced the position that it would be just and proper to levy 10/. per cent, from an income of 2001. a-year, and 5/. per cent, from an income of 2,000/. a-year. This direct proposal would be deemed as outrageous as a new scheme of Poor Laws requiring overseers to dispense ample relief to all able-bodied applicants, and to set to work "the lame, impotent, old, and blind." If then the present stamps and duties produce such a consequence, some part of them must be quite as unjust, though perhaps not quite so obviously absurd. Let us inquire according to what rule or different rules of proportion (if any) the scale of stamps is graduated. If in doing this, the details through which we shall have to carry the reader be dry and minute, their result is important.

From the stamps an annual net income of about seven millions is received, and we do not therefore know any popular theme of political discussion in which every purseholder cah be more deeply interested than in the right arrangement of these charges. We would indeed take the opportunity of urging the public at this period to the general consideration of legal topics. Many changes in law, as in all other sections of social economy, are now brewing in the close atmosphere that is wrapped around us, and though the air may be purified when the storm has passed away, some instances of ravage and ruin may mark its passage if the judgment of an enlightened public do not act as a steady conductor. Though the members of the profession are manifesting a zeal for its im

« AnteriorContinuar »