200 mons. Davis's County Courts.-Remuneration of Solicitors. [LEGAL OBSERVER, equitable, if not legal, that their rate of remuneration for any given quantity of actual work should be maintained through the varied forms into which successive changes of practice, made for the benefit of the suitor may shape it?" part of the work, at least must be chiefly used by practitioners in the Courts, who will consult it with a view to ascertain the nature of the claim or defence they may represent, and the proper tribunal and mode of proceeding in order to establish it, and who are comparatively indifferent to the original constitution of the Court or the nature of the appointment The Solicitors do not claim the mainteof its officers, the Author has arranged the nance of their old rate of payment for acproceedings, as far as possible, with reference tual work, on the ground of the public into the steps to be taken by plaintiffs and de- terest alone, in keeping up the character and fendants in the prosecution of their rights. social position of the Profession. That may Commencing with the jurisdiction of the County be, and we believe is, a reason important Courts and showing when a plaintiff ought to sue in these Courts, and when he has the op- enough for the public to act upon. So long tion, without risk as to costs, of suing in the as it is deemed advisable for the public to Superior Courts, the steps to be taken to sue apply to the remuneration of solicitors the out a summons are next considered. This is principle, now abandoned as to every other followed by a statement of the powers and occupation, of a legislative tariff of charges, duty of a defendant on service of the sum- the public must keep this point in consiThe subsequent steps immediately be- deration; but they claim it as officers of fore and at the trial, down to judgment and the Court, bound to perform its requireexecution, are stated, as well as the incidental proceedings on an application for a new trial ments, debarred by the rules of the Court and on appeal. from availing themselves of the ordinary rights of the employed, and placed as to their remuneration in precisely the same position in which all its other officers, including the Judges themselves, were formerly placed. The Judges and all the other officers, as well as solicitors, until the recent changes, which began on the Report of the Committee of the House of Commons in August, 1833, were paid by fees taken on each of the steps and processes of the cause. That system has been abrogated by the Legislature as to one class of officers after another; and lastly, as to the Judges, on the ground that to give an interest in multiplying steps and processes was a very false principle, and highly detrimental to the suitor a reason even more cogent with reference to the mode of remunerating solicitors, than with reference to the mode of remunerating any other officer of the Court whatever. "While these pages have been passing through the press, the First Report of the County Courts Commissioners has appeared. It is almost needless to say, that should the suggestions of the Commissioners be carried into effect at some future period, they will affect the present work in a very trifling degree, for while the only new actions which the Commissioners recommend to be placed within the jurisdiction of the County Courts are actions for malicious prosecution, the present general jurisdiction of the Courts in regard to the amount, cause of action, and situation of the parties, are left untouched." The First Part of the volume comprises the proceedings and practice of Plaintiffs and Defendants in actions in the County Courts. The Second Part treats of the general rules of Evidence of Actions in those Courts. The Third Part is devoted to Evidence in Actions on Contracts. The Fourth, to Evidence in Actions for Torts. The Fifth relates to Actions of Replevin, recovering possession of Small Tenements, and Interpleader Claims. The Appendix contains the Statutes and Orders of Court. REMUNERATION OF SOLICITORS. WE have received some suggestions from a Correspondent on the pressing and important subjects of Solicitors' Costs, from which we select the following passages for the consideration of our readers, and especially of those who are engaged in Chancery practice. The first question which arises on the subject under consideration is, "Have the Solicitors any, and what, right, moral or On abolishing the fee-remuneration of other officers, the Legislature has always acknowledged the right of the officer not only to be fairly remunerated for the duties performed by him under the changed form into which those duties were thrown, but, also, to compensation for the loss of previous emolument, for which he did not, after such changes, perform any duties whatever. The reasons are obvious enough. The officer had attached himself for life to the Court, and it was for the interest of the suitor that he should do so, and by the length of time required to qualify himself for his office, he was quite debarred from going into any other class of employment. The solicitors conceive that they have JULY 14, 1855.] Remuneration of Solicitors. 201 Assuming a right to maintain a fair rate "Have the late changes in practice and orders of the Court (either or both) impaired the solicitor's remuneration for actual work, and if so, to what extent?" Accounts, which have been carefully prepared, show that the effect of the recent alterations has been to reduce the profits of solicitors about two-fifths, without making any allowance for dead-weight charges of interest on the capital embarked in the business, or the necessary deduction for bad debts, those dead-weight charges remaining very much as they were before. just the same right to be paid for services actually performed :—and that the great ex- of remuneration for actual work, based upon pense of their education, the Court exami- the previous emoluments of solicitors, they nations and regulations they have submitted next ask— to, the number of years they have necessarily waited to begin to derive any remuneration, the outlay many of them have made in purchasing their businesses, are specialties in their case entitling them to full as much consideration with reference to maintaining the scale or rate of remuneration for actual work done as any other of ficer of the Court whatever; more especially as they do not ask for compensation for the decrease of their emoluments, caused by changes made for the benefit of the public. It would seem, indeed, quite obvious, that if a scale of remuneration were framed with reference to a particular mode of conducting business, the solicitor, who cannot adapt his own rate of remuneration to a changed mode, but is bound to take such sums for his labour as may be fixed by the rules of the Court, is entitled to have that scale altered, so as at least to keep him on the same footing as before. It is only because they are officers of the Court that the Court has any power on this subject; and because they are its officers, it has, and exercises, a power so absolute as materially to have affected their very means of life. The responsibility for the due exercise of this power, is, of course, correspondent with its extent. Beyond these grounds, which lie between the Court and the solicitors; there are peculiar ones between the State and the solicitors. The large Government taxes (on articles and admission) they have paid, create a special reason. For the public to sell the appointment in this way, and then afterwards to cut down the emoluments for actual work to two-thirds or one-half of the old rate, concurrently with increasing the share of the work to be done, can hardly be justified by any desire to give the suitor cheap justice. The late Act of Parliament, in directing the Lord Chancellor, with the assistance of the Master of the Rolls, and two ViceChancellors, to assign changed fees to the solicitors to meet the changed forms in which their old work was in future to be done, must be taken to have legislatively declared the existence of the right now urged. It cannot be imagined that to assign any fees merely titular and illusory, or to assign such as would materially affect the position of a solicitor, would be to perform the duty imposed by the Legislature in the way it intended. Then, "Assuming that solicitors have suffered a diminution of two-fifths of their remuneration for actual work done in the Court of Chancery, what is the wisest mode of repairing the injury?" The present inadequate remuneration results by no means exclusively from the last alterations, but in a considerable degree from all the changes which have been introduced since the year 1845; and business paid for upon the scale now proposed would not yield larger emoluments than were obtained for an equal amount of work ten years ago.1 With reference to the very important subject of adopting, if possible, in the case of legal agency, the ad valorem, or per centage principle, which the wisdom and experience of the world, where unrestrained, has almost invariably in every other class of agency introduced, in this and every other country, and as to legal agency has intro duced it in every other country except this, it may be observed that the introduction of such a principle would only be extending the principle on which pauper suits are required to be conducted :-and thus permit ting the small business of the Court, which involves a minor degree of risk and responsibility, and which is undertaken for parties less able to bear the charge, and results in decrees of less pecuniary value, to be conducted for a rate of remuneration which would be entirely inadequate in large and heavy matters. This view of itself would require (were there no other consideration), that to a certain extent business ought to be charged for in proportion to the value of the property affected. But when to this consideration is added the further one, that See the revised summary of alterations suggested by the Council of the Incorporated Law Society, p. 202, post. 202 Revised Summary of Alterations in Solicitors' Costs. [LEGAL OBSERVER, thus only can an identity of interest be- solicitor's remuneration shall have regard to tween the employer and the employed be the actual skill and labour employed and reeffectually secured, the subject becomes of sponsibility incurred, and not merely to the the highest importance. We believe (in length or multiplicity of the written forms of common, we think, with the bulk of our solicitor as his services fairly deserve, although proceeding, and make such allowances to the branch of the Profession) that a bold appli- no specific fee applicable to such services cation of this almost universal principle of may be stated in the scale. See 8 & 9 Vict. c. remuneration to legal affairs, so far as 124.1 agency and administration goes, would be one of the wisest and largest improvements in the general working of the law which could be devised. There can, on the ground of right and wrong towards the suitor, be no difference between an ad valorem system of pay to solicitors for administration business, and an ad valorem system of tax on the suitors for raising the income of the Court. But the propriety in point of right and wrong of such a system of Court taxation is admitted. For many years half the lunacy fees were so raised. It has answered so well that all are now so raised. The per centage fee on taxation was adopted with the same view, and the Select Committee of the House of Commons on fees propose, That the fees should be levied with as little inconvenience to the suitor as possible, and should, as nearly as may be, represent the amount of benefit derived by him. "That the amount required for the maintenance of the Court of Chancery, when the income arising from the Suitors' Fund is insufficient to pay, should be raised in the following manner; viz.— "Ist. That a poundage of one-half per cent. should be paid on the investment of all sums of money paid into Court, and onehalf per cent. on the amount of all dividends, and one-half per cent. on the passing of the accounts of all receivers. "2nd. That a fee of sufficient amount to make the rest of the income required up. should be paid on every order pronounced by the Court." REVISED SUMMARY OF ALTERA- 3. That in carrying out the second direction, necessary attendances and correspondence in the progress of a cause or matter, including, in country cases, letters between the country client and town agent, be allowed. 4. That a fee on ending be allowed for the term in which a cause or matter should be brought to a conclusion, the amount to be in the discretion of the proper officer, who shall have regard to the importance of the case, the amount of property involved, and the skill and diligence exerted by the solicitor. 5. That interest be allowed to the solicitor in which the same shall have been made, and on all disbursements from the end of the year on all bills from the time they shall have been delivered, or if taxed as against a fund, then from the end of each year in which the business shall have been transacted. 6. That (for avoiding frequent references for taxation, and in order that the officers before muneration), the chief clerks of the Judges whom business is done may fix the proper remay be authorised, as far as practicable, to fix the sum to be paid for costs in any matter transacted in the Judge's Chambers. 7. That in all proceedings for Administrations where the property involved shall not exceed 500l., the costs to be taxed upon the existing scale, and for proceedings involving a larger sum, to be taxed according to the improved scale. The scales, if thought proper, may be multiplied. 8. That a Commission be allowed on the This proposal to give greater discretionary powers to the Taxing-Masters is not new; and it will no doubt meet with their full con currence. for the office they hold, and its liberal salary, It was with this view that the qualification were fixed in the Statute of 1842, in consequence of representations made to the late Master of the Rolls by this society, founded on the report of a committee, of which some of the present Taxing-Masters were then members, to the effect, "That a far more discre SUGGESTED BY THE COUNCIL OF THE IN- tional system of remuneration was absolutely CORPORATED LAW SOCIETY. General Suggestions. 1. THAT consideration be given to any special agreement for remuneration which may have been entered into by competent parties. A recent decision of the Lords Justices, in re Moss (in the matter of Bainbrigge), seems to have sanctioned this principle, but it is proper that it should be adopted by a public and authoritative declaration. 2. That the officer taxing or ascertaining the required for the interest of the suitor, and to enable the necessary simplifications of procedure to be carried out; that such discretion could only be exercised satisfactorily to the Profession by officers chosen from its head, members, and that to induce solicitors in that position to leave their Profession, a high rate of salary would be required." The Masters of the Courts of Common Law have discretionary powers of a similar nature, which they find no difficulty in executing. Drawing and preparing Documents. That the fee for drawing documents, statements, pedigrees, and affidavits be 1s. per folio, exclusive of a fair copy. Perusing, &c. For perusing the answer of the defendant And if exceeding 30 folios, at the rate of 6s. 8d. for every additional 30 folios completed. £ s. d. . 0 13 4 For perusing documents and evidence of the opposite party, for every quantity exceeding one sheet and not exceeding three sheets 0 6 8 And at the same rate for every quantity exceeding three sheets. For examining or checking accounts not prepared by the solicitor, or for time necessarily occupied preparatory to attendance before a Judge, Chief clerk, or Master, not covered by the last item, 10s. per hour. That the proper officer shall have a discretionary power of increasing the fee now allowed for perusing the plaintiff's bill, and also the above items, in cases of importance and difficulty. Service of Process, Summonses, Orders, Notices, &c. The charge now allowed for service on the solicitor of summonses, to extend to all proper notices, such, for example, as the following:-Of filing answers, affidavits, and other proceedings; of reading previous evidence under order of October, 1852; of appointments before examiners; adjournments of summonses; of taxations; settling minutes, and passing orders, &c. Attendances. For attending the printer with bill or claim, and afterwards with revise. Attendances on settling answers and special affidavits Attending filing affidavits, and delivering copies. £ s. d. 0 13 4 203 For attending the vivá voce ex- £ s. d. amination of witnesses where no counsel employed (per day) . The like where counsel employed. For every additional hour after the first hour where counsel em- 2 20 . 0 13 4 0 10 0 Attending at Record Office to bespeak office copy of proceedings, and afterwards for the office copy. 0 6 8 For attending in Chambers, where 6s. 8d. now charged, the fee to be Attending to settle minutes and For attending the Record clerk for certificate, in order to set down THIS Bill, which has been introduced by the Marquis of Salisbury, for regulating the Powers of creating Charges on Land under Private Acts for Drainage and other Improvements, recites that under several Acts of Parliament, by which companies have been esta68blished or authorised to execute works of drainage and other works for the improvement of lands, or to provide money for the expenses of the execution of such works, the owners of 8 limited interests in land are empowered to charge or cause to be charged the inheritance thereof with the repayment of the principal money so expended or advanced, and interest thereon, or with equivalent rent-charges in respect thereof: and for the protection of other persons interested in lands which may be charged by the acts of such owners of limited interests, it is expedient that the exercise of .0 6 8 the powers conferred by such Acts should be 0 6 0 6 2 2 8 0 204 Law of Attorneys and Solicitors. regulated as after mentioned: it is therefore proposed to enact as follows: 1. No charge hereafter to be made on land by means of the powers conferred by any such Act as aforesaid, or by any Act (not being a public general Act) under which charges are authorised to be made on land in respect of works of improvement executed at the request of owners of limited interests therein, shall in anywise affect any estate or interest in such land, other than the estate or interest of the person by whom or upon or in consequence of whose application or request such charge shall have been made, unless the inclosure commissioners, by an order under their seal, certify that the sum specified in such order, and in respect of which such charge is made, has been expended in durable works for the improvement of such land, and that the inheritance of such land is benefited by the execution of such works to an amount equal to or exceeding the amount of moneys to be secured and made payable under such charge, nor unless the -duration of such charge be limited in manner hereinafter-mentioned. 2. Every such charge shall be by way of annuity or other periodical payment of equal sums in each year, and the duration of such annuity or periodical payment shall not exceed 25 years from the time of the completion of the works in respect of which the charge is made. 3. Every owner by whom or upon or in -consequence of whose application or request a charge shall after the passing of this Act have been made by means of any of the said powers, and every succeeding tenant for life, and other person having a limited interest in the land charged, shall, as between such person and the persons in remainder or reversion, be bound to pay the yearly or other periodical payments of such charge which become payable during the continuance of his interest, and, in case he be in the actual occupation of or entitled to an apportioned part of the rents and profits of such land up to the time of the termination of his interest, shall also be bound to pay an apportioned part of the yearly or other periodical payment of such charge which becomes due next after the termination of his interest, proportioned to the time which elapsed between the day for the previous payment and the day of such termination: Provided always, [LEGAL OBSERVER, LAW OF ATTORNEYS AND PERSONAL LIABILITY TO CLIENTS, AND Advising a breach of trust.—A solicitor, advising a loan unauthorised by the trust, for the purpose of deriving a benefit from it, as the payment of his debt, is liable for any loss consequent on the breach of trust. Fyler v. Fyler, 3 Beav. 550. Incorrect statement of deeds in case for counsel.—An attorney employed on behalf of the purchaser of an estate, laid the case before Mr. Preston, but instead of setting out certain deeds assumed that M. was tenant in fee, whereas C. had an estate for life. Bayley, J., said,-" Athough it may not be part of the duty of an attorney to know the legal operation of conveyances, yet it is his duty to take care not to draw wrong conclusions from the deeds laid before him, but to state the deeds to the counsel whom he consults, or he must draw conclusions at his peril. It therefore appears to us, that in omitting those deeds, and erroneously describing Malin as the tenant in fee, there was negligence in the defendant." The judgment of the Court was therefore given for the plaintiff in an action against the attorney for such negligence. Ireson v. Pearman, 3 B. & C. 799; 5 D. & R. 687. Misdescription in rental on sale.-A plaintiff's solicitor was held personally liable to the costs of a reference to the Master to inquire and report whether a purchaser was entitled to any and what compensation, by reason of a misdescription in the rental, caused by his neg lect in not examining the leases lodged in the Master's Office. Taylor v. Gorman, Fl. & K. 567; 4 Ir. Eq. Rep. 550. Acting imprudently in matter of voluntary settlement.-Where a solicitor, acting for both parties in the matter of a voluntary settlement, which was set aside for undue influence, had not acted in the matter with proper prudence, although the Court exonerated him from culpability, he was held liable to bear his own costs as a defendant to such suit. Harvey v. Mount, 8 Beav. 439. Non-appearance when cause called on.-The solicitor for a plaintiff, not appearing when the cause was called on, was ordered personally to pay the costs of all parties, although the defendant did not appear. Courtenay v. Stock, 1 Con. & Law. 366; 2 Dru. & War. 251. that any such person entitled in remainder or Teversion, and becoming entitled in possession, shall not be liable to pay nor shall his estate or interest be chargeable with any arrears of the charge remaining unpaid at the time of his estate or interest in remainder or reversion becoming an estate or interest in possession exceeding the amount of one year's payment of such charge: Provided also, that the amount paid by such person in respect of Absence of material witness.-Where an atsuch arrears, and any costs occasioned by non-torney for the plaintiff suffered the case to be payment thereof, shall be a debt from the person who in the first instance ought to have paid the same, or from his estate to the person who paid the same, and shall be recover able accordingly. called on without previously ascertaining whether a material witness, whom the plaintiff had undertaken to bring into Court, had arrived, in consequence of which the plaintiff was non |