source defrayed. Revising barristers, these things mean mischief.

THE announcement that Mr. JAMES BRYCE, M.P. proposes to resign the Professorship of Public Law at Oxford has produced something like consternation in that University. So for as actual teaching is concerned, Mr. BRYCE was condemned to do little or nothing, as all the Oxford professors are. But he represented the University on ceremonial occasions, and it was his duty to introduce with Latin orations the various recipients of the honorary D.C.L. degreee. As anyone who has heard him will remember, Mr. BRYCE performed this function admirably. With regard to the vacant chair, it should be borne in mind that the professorial duties are only secondary in the consideration of the authorities. For this reason, we think it unlikely that the appointment of Dr. HUNTER, M.P., whatever view may be taken of his work on Roman Law, would be popular in Oxford. Of local candidates, putting aside Mr. POSTE and Mr. SANDARS, there is Dr. ERWIN GRUEBER, a distinguished graduate of Munich, who has for some time filled the post of deputy-professor.

There

is also Mr. MOYLE, of New College, who some years ago published an admirable edition of Justinian, founded very largely upon German research. We imagine that the appointment will lie between these two.

THE city editor of the Westminster Gazette seems to have but a very vague idea of the scope of Leeman's Act. Referring to the fall in Bank of Ireland stock, in consequence of the introduction of the Home Rule Bill, our contemporary says: "We do not believe that the Act in question applies to the capital of the Bank of Ireland, which is in the form of stock and not of shares." This lack of belief indicates a lack of acquaintance with the text of the statute, which is sufficiently comprehensive and explicit. The Act applies to all contracts for the sale or transfer of any shares, stock, or other interest in any joint-stock banking company in the United Kingdom of Great Britain and Ireland, constituted under, or regulated by, Act of Parliament, Royal charter, or letters patent. The Dublin Stock Exchange may ignore the Act, just as the London Stock Exchange ignores it, but there it is.

SOLICITORS are sometimes disposed to think, and perhaps not without reason, that where their conduct becomes the subject of discussion in the courts, certain of the judges are apt to use language of undue severity. It is well to remember, however, that, though it is now and again necessary to condemn individuals, the judges invariably insist on the honourable characteristics of the Profession as a whole.

But when a solicitor, upon whom imputations of bad faith have been made, is acquitted of misconduct, it is certainly expedient that the acquittal should be complete and absolute. Doubtless, therefore, the Profession will have noted with satisfaction the terms in which Mr. Justice CHITTY, in a recent case which turned on questions of company law, disallowed the accusation which had been made against a City solicitor of many years' standing. The question was whether Mr. SLAUGHTER, the solicitor referred to, had penned in good faith a statement which appeared in the loan prospectus of the Kansas Waterworks and Irrigation Company-had he, or had he not, believed in the representations on the strength of which the passage in the prospectus was drafted? This is Mr. Justice CHITTY's view of the case: "I have no hesitation in saying that Mr. SLAUGHTER'S statement in the witness-box is a statement which I accept." Later on the learned judge, recognising the tendency of a censorious world, made the following observation: "It is right that I should express my opinion, particularly as Mr. SLAUGHTER is a professional gentleman, and there are some people in the world who may be disposed to think that there is a taint hanging over a man because Second Sheet.

somebody has levelled a charge of fraud against him." Solicitors as a body will certainly appreciate the generous feeling which led the learned judge to make the concluding remark.

CRIME of all kinds, except murder, has for many years been steadily decreasing. Such is the short effect of a remarkable article, crammed full of statistics, by Sir E. F. DU CANE, one of the directors of convict prisons, in the current number of the Nineteenth Century. The principal reasons for the decrease appear to be the preventive action of industrial schools, and the increased efficiency and strength of the police, especially of the detective part of the force. It should be stated, however, that the offence of begging is not reckoned by Sir EDMUND as a "crime," nor are the offences against the Highway Acts or the Education Act, or against bye-laws under local Acts. The most remarkable decrease is that of forgery and offences against the currency. Crimes under this head amounted to nearly 3000 in 1856-7, but in 1890-1 they do not reach 500. In the list of indictable offences generally there has been a fall of no less than 20,000 since 1867-8, while offences punishable summarily have fallen from 192,400 in 1873-4 to 159,534 in 1890-1. Sir EDMUND has, he tells us, been called an official optimist," but "calling names," says he, "proves nothing," whereas, if statistics can prove anything, he has proved his case, which curiously enough he brings forward in answer to an article in the same magazine on a supposed "increase of crime."

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THE demand for amendment of the law relating to building societies is imperative. It is questionable, however, whether the Bill for which Messrs. JACKSON and GERALD BALFOur claim support grapples adequately with the evils which, owing to recent financial scandals, cry aloud for remedy. When examined, it will be found that the proposed enactment as to the duties of auditors would constitute but a very fragile barrier against fraud. The authors of the Bill propose that every auditor, in attesting any annual account or statement, shall either certify the same to be correct, duly vouched, and in accordance with law, or shall specially report to the society. It is to be observed, however, that a statement may be correct in point of arithmetic, but utterly fallacious in regard to facts. As to accordance with law, the provision is valueless. The auditor is not a lawyer, and, even if he were, he could only give his individual opinion, which might be worth much or little, as to the fulfilment of legal requirements in respect of the accounts. Then, again, there is but a very shadowy safeguard in an assurance that the auditor has inspected the mortgage deeds, or in pledging him to state the number of documents produced for his examination. correct in point of form, but what then? numerous, but there is no safety in numbers. ing all the suggested rules for conducting an cern to which the audit relates may be hopelessly rotten and rickety. The report of an independent surveyor as to the value of the securities would afford the members of these societies a far more practical measure of protection. What is needed is the fact, not so much as the figure, in regard to the value of assets. It is true that the framers of the measure propose that, in certain events, the registrar may order an inspection of the society's affairs, but the conditions attached to this permission are such as to render it of small practical utility. What members of building societies need is some means of becoming wise before the event, and not merely after disaster has overtaken them.

The deeds may be

They may be Notwithstandaudit, the con

LICENSING reform is very much in the air. In addition to the well-known and rather short Bill of the Government for local control, elaborate measures have been brought forward by Sir HENRY ROSCOE and Mr. COURTNEY, each of them containing, amongst other clauses of a restrictive character,

provisions directed to the supervision of clubs. It is well known that in many places, especially in the larger Welsh towns since the passing of the Welsh Sunday Closing Acts, numerous clubs have sprung up which, from the ease with which every Tom, Jack, and Harry can become a member, are merely unlicensed public-houses. At one time the Inland Revenue authorities (acting quite outside the law) endeavoured to grapple with these evasions of the Revenue and Police Acts, and framed and issued certain (no doubt very excellent) rules and regulations for working-men's clubs, upon compliance with which by the managers of the clubs the Inland Revenue undertook not to proceed against them for sale without licence. This mode of control, however, has for some years been completely given up, and our many licensing reformers have naturally bethought themselves of some mode of regulating what cannot very well be prevented. Sir HENRY ROSCOE's Bill has five club " clauses. His main proposal is, that the prohibitions of sect. 3 of the Licensing Act 1872 as to sale without licence (which are very severe) shall extend to any club unless it is registered. The register is to contain the name of the secretary or other responsible officer, and registration, which is to be grantable by the licensing justices, is not to be granted unless the justices are satisfied that the club is being used, or is intended to be used, as a club for bona fide social purposes. "Any person," so runs the 19th clause, "alleging that a registered club has ceased to exist, or is not a bona fide club for social purposes, or that drunkenness is habitually permitted in the club premises, or that the club is used principally for the consumption of intoxicating liquors," may apply to the licensing justices for the removal of the name of the club from the register. There is to be a registration fee of ten pounds. We doubt whether a private member can properly handle so difficult a branch of the licensing question, as to the law of which see Graff v. Evans (46 L. T. Rep. N. S. 347); Newman v. Jones (55 L. T. Rep. N. S. 327); and the notes in the various editions of the Licensing Acts, on sect. 3 of the Licensing Act 1872.

On the second reading of the Liquor Traffic (Local Control) Bill Sir FREDERICK MILNER will move that no Bill will be satisfactory which does not provide for equitable compensation for those licence-holders deprived of their licences through no fault of their own. It is very material to point out that there is one very large class of licence-holders whose legal position in respect of this claim for compensation essentially differs from that of all others. We allude to the holders of beer and wine licences attached to houses licensed between 1830 and 1869 for the sale of wine or beer to be drunk on the premises where sold. It is expressly provided by sect. 19 of the Wine and Beerhouse Act 1869, as read with sect. 8, that renewals of licences in respect of these houses shall not be refused except on one of four specified grounds affecting more or less the character of the licenceholder of the house. The holders of other kinds of licences may or may not have an equitable claim to compensation if their licences are refused to them at the expiration of the current year of issue; but the holders of these licences have beyond all doubt a legal claim to compensation in a similar case. And, if such a claim should be disregarded by Parliament, we cannot see how any claim for compensation for the Parliamentary extinction of any vested right can ever be set up in future.

THE QUALITY OF MERCY IS NOT STRAINED. THIS beautiful sentiment is illustrated by the Barker prosecution. It droppeth like the gentle dew from heaven-likewise from the office of the Official Receiver and the Public Prosecutor, through the tender fingers and sympathetic affections of the Hon. Alfred Lyttelton, who not only dispenses absolution, but fur

nishes the Official Receiver with a testimonial, which we are sure is as satisfactory as it was deserved.

Come and take your victim," wrote one of the accused, who, as counsel for the Crown said, had passed judgment and executed punishment upon himself. That, however, was not the matter to be considered. What was to be done with the remaining accused? We can quite understand that the authorities were much concerned, but we fail to see what new light the suicide of the "dominant mind" threw upon the case of the servient mind. The facts upon which the prosecution was proceeding with a view to secure the conviction of William Barker were the same before and after the suicide of Hilton Barker. Either William had committed an offence or he had not. If he had not, why was he prosecuted? If he had, why was he released? If there was a doubt about it, why institute a prosecution against him? If he was only morally and not legally fraudulent, a criminal court was not the place for him. Finally, if the prosecution thought he deserved punishment, it is not for them to measure it. That is for the judge, after a conviction by a jury. To say that an accused has been sufficiently punished, and has suffered enough during a prosecution, is to assume a guilt which has not been proved. In short, the whole thing was

a sentimental blunder.

The right course in such a case is for the Crown to elect without explanation to offer no further evidence, and to allow the magistrate to do as he pleases. A more or less hysterical abandonment before the pale spectre of death is unbecoming the majesty of the law. Common people cannot understand it. We say nothing about the merits of the Barker business; but, taking an ordinary case of two brothers accused of picking pockets, the dominant mind is found with his hand on the prosecutor's watch; the servient mind stands by and plays a subordinate part. The dominant mind cuts its throat; the suffering of the servient mind must be acute. But why withdraw the prosecution? This is a fair illustration, and shows plainly what a mistaken course was pursued.

THE STATUS OF THE JUDGES.

RECENT discussions in both Houses of Parliament illustrate very forcibly the absolute independence of the judges. Lord Middleton in the Lords, and several gentlemen in the Commons, wished to know from whom Mr. Justice Mathew had received permission to desert his judicial duties in England for the purpose of presiding over the Evicted Tenants' Commission in Ireland. Although no direct answer was given to this question, the fact is undoubted that judges, as regards the performance of their judicial duties, are, with the exception of the Lord Chancellor, responsible to Parliament alone. The Lord Chancellor holds his place during pleasure. Under the provisions of the Act of Settlement (12 & 13 Will. 3, c. 2) the other judges are irremovable except by a joint address of both Houses of Parliament to the Crown. "This joint address," says Lord Brougham, which "only enables the Crown without compelling such act of removal, it like a statute requiring the concurrence of the whole three branches of the Legislature": (British Constitution, p. 273.) The power has never been exercised in the case of any English judge, and at the accession of George III. the judicial independence was rendered complete by providing that the office should not be vacated on the demise of the Crown.

Before the establishment of the independence of the judges misconduct in reference to their judicial duties was visited by dismissal if they displeased the Crown, their commissions being durante bene placito, or by impeachment if they displeased the people. Thus in 1640 Sir Robert Berkley, one of the justices of the King's Bench, who had been notorious for his subserviency to the prerogative, was impeached for his judgment in the Exchequer Chamber in favour of ship money: (State Trials, vol. 3, p. 1283.) The House sent the Usher of the Black Rod to the Court of King's Bench while the judges were sitting, who took Berkley away to prison, "which struck a great terror, says Whitelock, "in the rest of his brethren then sitting in Westminster Hall, and in all his profession." The impeachment against Berkley ended in his paying a fine of £10.000. "But," says Hallam, "what seems strange and unjustifiable is, that the Houses suffered him to sit for some time as a judge with this impeachment over his head. The only excuse for this is

that there were a great many vacancies on that bench :" (Constitutional History, vol. 2, p. 140, note.) Then again in 1680 the House of Commons resolved to impeach the notorious Sir Wm. Scroggs, Chief Justice of the King's Bench, for his judicial conduct. There was a debate on the articles of impeachment framed against him, and he was ordered to find bail for his appearance in the House of Lords. "But," says the editor of the State Trials, "the Parliament being soon after prorogued this affair was dropped; however, it was thought proper to remove Scroggs from being Chief Justice, which was done with all marks of favour and respect. He was allowed a pension for life" (State Trials, vol. 8, p. 216.)

In one case, indeed, the judicial conduct of a judge is punishable without recourse to an impeachment, which Sir J. F. Stephen says is "so cumbrous and unsatisfactory a mode of procedure that it is hardly probable that it will ever be resorted to again (History of the Criminal Law, vol. 1, p. 160), or without the institution of proceedings for his removal from the bench under the provisions of the Act of Settlement. The Habeas Corpus Act provides that a judge denying a habeas corpus when required under this statute is made liable to a penalty of £500 at the suit of the injured party: (31 Car. 2, c. 2, s. 10.)

There is, we believe, no instance of the exercise of the remedy thus provided, and its existence in the Statute-book is a subject rather of constitutional and antiquarian curiosity than of practical importance.

[NOTE. Since this article was written Sir Wm. Harcourt, in reply to a question put to him in the House of Commons on Feb. 27, stated that judges were responsible for the performance of their judicial duties to Parliament alone.]

SUSPENSORY BILLS.

THE Suspensory Bills proposed for the Welsh and the Scotch Churches introduce us to a new form of legislation. In the case of Wales the Bill simply proposes to enact that "a person appointed after the passing of this Act by either Her Majesty the Queen or the Lord Chancellor, or any archbishop, bishop, or ecclesiastical corporation as such, to any bishopric, ecclesiastical dignity, or preferment in Wales and Monmouthshire, or to any lay office in connection therewith, shall hold the emoluments of the bishopric, dignity, preferment, or office, subject to the pleasure of Parliament.' This, of course, means that no such appointment shall create a vested interest, and is a mere preliminary to further legislation, as is shown by the fact that the enactment is only to remain in force until the 1st Aug. 1894, or, if Parliament is then sitting, until the end of the session. So far as we are aware, there is absolutely no precedent for this kind of legislation. The precedent cited, of course, is the case of the Irish Church, but the Suspensory Bill for that Church never actually became law. After passing the House of Commons, it was thrown out on the second reading in the House of Lords by a majority of ninety-five, and was never reintroduced. Furthermore, the provisions of the Irish Bill were widely different from those now before Parliament. After reciting that Her Majesty had placed her interest in the temporalities of the Church of Ireland at the disposal of Parliament, and that it was expedient to prevent the creation of new personal interests, the Bill provided that, in the event of any vacancy occurring in any dignity or benefice, no successor should be appointed, and that the income should be held by the Ecclesiastical Commissioners to be disposed of as Parliament might direct. They were authorised to make temporary provision for vacant benefices. The Bill dealt with episcopal, capitular, and parochial appointments alone. It did not interfere with private patronage at all. There were, it is true, few cases of private patronage intthe Irish Church, but this makes the proposed interference with private rights in the Welsh Church all the more noteworthy. Still stronger is the case of the Scotch Church, a point which has generally escaped attention. Private patronage is absolutely non-existent in the Established Church of Scotland. By the Church Patronage (Scotland) Act 1874 (37 & 38 Vict. c. 82) appointments to vacant churches and parishes are vested in the congregations of such churches and parishes respectively. We thus find that not only is there no precedent for the legislation proposed, but that the lines of the suggested precedent are not

followed in the present case. In the Irish case no appointments were to be made; in the Welsh and Scottish the appointments may be made, but are not to create vested interests. How they will be made at all in the circumstances does not appear. Moreover in the case of the Scottish Church we have this disqualification attached to an appointment made by popular election—much as if a coroner in the old days had been declared by Parliament to have no right to his salary. For this, so far as we know, there is absolutely no precedent in any civilised legislation.

LEGAL AID AT MILITARY COURTS-MARTIAL. As a fitting corollary to what has already been said in this journal on the subject of Naval Courts-Martial, it is now proposed to explain the position occupied by a legal adviser if the tribunal is one of a military character. When the anomalies which have been noticed in a previous article are removed, it will certainly be expedient to correct at the same time some of the faults which still exist-though something has been already done by way of amendment-in connection with military courts. The employment of professional advisers for the defence, or for the prosecution, appears to have been for the first time formally recognised in 1865. At the trial connected with the Fenian conspiracy at Dublin in 1866 a clear recognition was afforded of the prisoner's right to have the assistance of counsel. Of course the employment of professional advisers is for the most part confined to general courts-martial, though non-commissioned officers and men not unfrequently employ solicitors practising in garrison towns when the charge is such as can be dealt with by minor courts-martial. The prosecution also may have legal assistance; but, as showing the curious notions of propriety which are sometimes exhibited at courts-martial, it may be mentioned that at one notable trial an officer appeared "with the deputy judge advocate-general" (i.e., the functionary whose duty it was to advise the court)" on the part of the prosecution."

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The regulations for many years jealously excluded lawyers from taking a really useful part in court-martial proceedings. Although," it was provided, a prisoner may have a professional adviser near him during the trial, to advise him on all points, and to suggest in writing the questions to be put to witnesses, such adviser is not to be permitted to address the court, or to examine witnesses orally." As to the defence, these courts have always been ready to allow a military friend, or even a civilian, to read the written answer to the charge, but nothing was insisted on more resolutely, for many years, than the refusal to permit the legal adviser to raise his voice on behalf of his client. That a lawyer should have been allowed to read the defence would have been looked upon as a rank breach of the Queen's regulations, while military martinets of the old school would have declared that the service must needs go to the dogs if counsel were permitted actually to address the court. occasion an officer, alive, doubtless, to the disastrous effect on argument and appeal of an uncultivated method of delivery, earnestly sought permission for his adviser-one of Her Majesty's Counsel-only to read the defence, but the court having been cleared for deliberation-curiously enough, military judges cannot deliberate unless every one is first turned out of court-decided that such a breach of precedent and rule could not in any circumstances be sanctioned.

On one

Everyone who is familiar with practice at assizes and quarter sessions must know how successfully a defence may be murdered by the clerk of the court. The unhappy prisoner has not been able to retain counsel. In the solitude of his cell he has laboriously compiled a written defence -generally faulty in logic, and in appreciation of facts and probabilities, and almost invariably lacking the grace of grammar. This defence is handed in, and the clerk of the court rises from his work over the indictments to spell it out to the jury as well as he is able. As well as he is able does not usually amount to much. The accused must writhe, or be convulsed inwardly with a sense of the grim humour of the situation, as he listens to the official delivery of the defence on which hang all his hopes. Pretty much the same feeling must have arisen in the breasts of military prisoners when amateur elocution has been exercised on their behalf at trials by courtmartial. On one occasion, in a very serious case, the president read the defence of a military prisoner, and in another it was read by a subordinate member of the court!

But, as already indicated, there has been some amelioration of the rules in this regard, though it only makes the position even more anomalous when it is pointed out that in military courts-martial counsel nowadays enjoy far greater freedom than could be claimed at the naval courtIt martial which has previously been cited by way of illustration. would be difficult, indeed, to convince any sensible person that what is reasonable in the case of a military prisoner is unreasonable if a man serves his country in the first line of defence. But nevertheless the distinction exists. Nowadays at military courts-martial counsel who appear either for the prisoner or the prosecution have the same rights as to addressing the court, examining witnesses, and generally, as the persons whom they represent.

But a marked distinction, and, as those solicitors who have had to act for military clients not unnaturally complain, an invidious one, is made between members of the two branches of the Profession. If the prisoner's "friend" is a solicitor" or any other person than a barrister or an officer subject to military law," he can only advise the prisoner and suggest questions to be put by the prisoner to the witnesses. An officer-friend, subject to military law, has the same rights and duties as counsel. The distinction thus drawn by the military authorities is open to strong condemnation. At a military trial of some importance counsel

appeared for the prosecution; a solicitor attended for the defence. Obviously the defence was unduly handicapped. It cannot be expected that as a rule military prisoners will be possessed of sufficient means to retain the services of counsel, and to admit the solicitor on any narrower conditions than those which regulate his right of audience in what are styled the inferior courts is really to take away with one hand nearly all that is given with the other. If a man who wears the Queen's uniform is sued in the County Court or summoned before the magistrates, he may be represented, as his means and his tastes dictate, either by counsel or solicitor. His advocate, to whichever branch of the Profession he belongs, may exercise the ordinary rights of advocacy. No more, no less. And if on the one side appears a solicitor and on the other a barrister, the latter will not, and ought not, to have any special privilege or advantage in conducting his client's case. So also ought it to be in every tribunal, civil or military, in which the solicitor is admitted to any sort of advocacy. The existing system in this particular is distinctly and emphatically unfair to military prisoners, offensive to solicitors, and discreditable to those who are responsible for court-martial regulations. It is not a glaring or a crying evil. Probably a great many members of the Profession, including the council of the chief law society, are unaware that it exists. But, none the less, in common with other defects of the court-martial system, the rule calls for amendment.

SUCCESSION DUTY AND REQUISITIONS ON TITLE. WE have received from three correspondents a challenge as to the correctness of the opinion which we expressed (p. 379) on the little relief at present given to purchasers and mortgagees by the 12th section of the Customs and Inland Revenue Act 1889. Omitting immaterial exemptions, the section runs : "Real property, or any estate or interest therein, shall not as against a purchaser for valuable consideration or a mortgagee, remain charged with any sum for succession duty

after the expiration of twelve years from the happening of the event (whether before or after the passing of this Act) which gave rise to an immediate claim to such duty, or if such period of twelve years expires within six years from the date of the passing of this Act, then after the expiration of six years from the last-mentioned date." The effect of this last clause is, that the twelve years' limit, if it falls "within six years from the 31st May 1889, is extended to the end of May 1895. The question at issue is the meaning of the word "within." Our correspon. dents in effect suggest that the period which it defines is from the passing of the Act to the 31st May 1895, so that, if the twelve years expired on the 30th May 1889, no requisition could be raised, as the land would be free; whereas, if the twelve years expired on the 1st June 1889, the land would not be free till the end of May 1895. This is a result that the Legislature can hardly have intended. For what conceivable reason can there be for the difference of six years in the periods fixed by the Act, when the events which gave rise to the claim for duty were only two days apart? Our contention is, that the word "within defines the period extending "from the happening of the event which gave rise to an immediate claim to such duty" to the expiration of six years from the passing of the Act. This avoids the strange result that we have pointed out above, and shows that the authorities at Somerset House are intended to have a period of six years within which to look up old claims, before these claims are barred. This view is sustained by the fact that the Real Property Limitation Act 1874, which was passed on the 7th August 1874, did not come into operation till the 1st Jan. 1879. The obvious reason for this postponement was to allow persons whose claims were to be barred by lapse of time to take the necessary steps for asserting their claims within that period of four years and a half. As the Customs and Inland Revenue Act 1889 dealt with other matters, and even this section related to other periods where delay was not wanted, the operation of the whole of the Act was not suspended, but only that of this particular exemption.

Still it does not do to be too critical in looking a gift horse in the mouth, and we learn that the official practice at Somerset House is to treat every claim for succession duty against purchasers and mortgagees as absolutely barred, if the event on which it immediately arose happened twelve years before the passing of the Act; but if it happened less than the twelve years, the land remains charged until the end of May 1895. The result is strange, but it saves many requisitions as to old claims to succession duty, and therefore it should be a welcome one.

PROFIT COSTS OF TRUSTEES AND MORTGAGEES. THOUGH the rights of trustees and those of mortgagees in respect of remuneration for their personal trouble have a certain resemblance to one another, the origin of the rules in each case is different, and their resemblance (except possibly where a mortgagee has become a trustee for his mortgagor) accidental. The rules which govern the case of a mortgagee have been explained and developed by the decision of Mr. Justice Stirling in Re Doody; Fisher v. Doody (67 L. T. Rep. N. S. 650; (1893) 1 Ch. 129). A trustee or executor, who is a solicitor and acts as such in connection with his trust, cannot, apart from any power to charge contained in the trust instrument, charge profit costs in respect of professional services (Broughton v. Broughton, 5 De G. M. & G. 160, 164; New v. Jones, 1 Mac. & G. 668, n.; Pollard v. Doyle, 1 Dr. & Sm. 319; Re Doody, sup., at 652); nor can a firm of which the trustee or executor-solicitor is a member charge profit costs: (Collins v. Carey, 2 Beav. 128; Burge v. Brutton, 12 L. J. N. S. 368, Ch.; Re Doody, sup.) The rule is not confined to cases of express trust (Pollard v. Doyle, sup.); and it makes

no difference that the business has been entirely transacted by a partner of the solicitor-trustee: (Christophers v. White, 10 Beav. 523.)

The rule governing the above case or the case of a trustee-auctioneer, surveyor, or other person engaged in business, is a branch of a more general rule that no one who has a duty to perform shall place himself in a situation to have his interests conflicting with that duty. It is one of the duties of a trustee to take care that no improper charges are made by the persons employed for the estate. The fact that there is a check afforded by the power of taxing the charges is not enough; but the creator of the trust has a right to have that and also the check of the trustee. If the trustee makes a profit of his fiduciary duties by employing himself he cannot perform one part of his trust, that of seeing that no improper charges are made: (Broughton v. Broughton, sup., at 164.)

An exception occurs where a trustee-solicitor, or a firm of which he is a member, is acting on behalf of himself and his co-trustees or cestuis que trust. Fraser v. Palmer (4 Y. & C. Ex. 515) broke in on the rule, and the exception became established and extended by the decision of Lord Cottenham in Cradock v. Piper (15 L. T. Rep. O. S. 61; 1 Mac. & G. 664). He thought that the rule did not extend beyond the case of a solicitor acting for himself only, that it was no part of the ordinary business and employment of a trustee to act as solicitor on behalf of his co-trustees or cestuis que trust, and he therefore allowed a trustee to charge profit costs if he himself had not added to the expense which would have been incurred if he or his firm had appeared only for others: (see Re Corsellis, 56 L. T. Rep. N. S. 411; 34 Ch. Div. 675.)

The exception established in 1850 by Cradock v. Piper is now settled law; it has been followed ever since (with reluctance and in some cases disapproval), but it will not be extended, and is always strictly construed: (see judgments of the Court of Appeal in Re Corsellis, sup.; Broughton v. Broughton, sup.; Lincoln v. Windsor, 9 Ha. 160.) It applies not only to a hostile action, but to friendly proceedings in chambers, such as an application for maintenance of an infant; it does not, however, apply to business done otherwise than in an action or suit, the distinction perhaps being that in an action, though the costs are not always hostilely taxed, there may be a taxation where parties other than the trusteesolicitor may appear and test the propriety of the costs, and the court can disallow altogether the costs of proceedings which may appear to be vexatious or improperly undertaken: (per Cotton, L.J. in Re Corsellis, sup., at 412; Lincoln v. Windsor, sup., at 158.)

The general rule is also subject to this qualification, that a solicitor. trustee may employ his firm to act for him, and pay the firm their usual charges, if there is an express agreement between the trustee-solicitor and his partners that he himself shall not participate in or derive any benefit from the charges; but nothing less will be sufficient to take the case out of the rule (Clark v. Carlon, 4 L. T. Rep. N. S. 361; sub nom. Clack v. Carlon, 30 L. J. 639, Ch.; 7 Jur. N. S. 441.) Several points which illustrate the general rule occurred in Re Corsellis. A sole surviving trustee of a will, a member of a firm of solicitors, was made a defendant to an administration action in which a receiver was appointed, and the firm acted for the receiver in respect of the passing of his accounts, and made profit costs. The Court held that the firm could not retain these costs, for they came out of the trust estate, and the case consequently fell within the rule that the duty and interest of the trustee must not conflict: (413.)

A stronger case was where the trustee's firm and he as a member of it made profit costs by preparing leases and agreements for leases of portions of the trust estate, the costs being paid by the lessees. Here the solicitors were ordered to account to the estate for the costs; they were not entitled to charge them, though paid by the tenants, because the employment was the employment of the landlord, and the costs were costs incurred on the employment of the landlord, in that case the trustee : (415.)

On the other hand, where trustees, one of whom was a solicitor, appointed the partner of the solicitor steward of a manor which formed part of a trust estate, and fees for manorial business were paid to the partner and brought into the partnership account, the trustees were not ordered to account for them, because they did not come out of the trust estate, and did not arise from any duty which the trustee had to discharge to the estate: (414-415.)

The principles which govern the case of a trustee-solicitor and his cestuis que trust are not necessarily applicable to the case of a mortgagee-solicitor. A mortgagee in his mere character of a mortgagee is not a trustee (Sclater v. Cottam, 29 L. T. Rep. O. S. 309; 3 Jur. N. S. 630); but if he enters into possession he puts himself in the situation of a trustee, and similarly if he has a power of sale and executes it he places himself in a fiduciary character because he sells upon trust that he will hold any surplus for the mortgagor, and will account to him for that: (Mathieson v. Clarke, 24 L. T. Rep. O. S. 105, 106; 3 Drew. 3.)

The rights of mortgagor and mortgagee inter se depend on the contract between them, but in the absence of any express agreement the right of mortgagees, whether solicitors or not, to charge profit costs for services rendered about the mortgage debt or security depends on the two follow. ing established principles: first, that a mortgagee is entitled as between himself and the mortgagor to have taken into account on a suit to redeem him any costs which he has incurred in protecting his title to the mort gaged property; and secondly, that a mortgagee, though he may be entitled to certain expenses properly incurred in relation to the mortgaged property, as the expenses of employing a collector, cannot himself charge for his own trouble: (per Kindersley, V.C., Sclater v. Cottam, sup.)

A mortgagee, therefore, who acts as a solicitor for himself, or for himself and a co-mortgagee in relation to the mortgaged property, is not entitled, as against a second mortgagee, to receive profit costs for his services, but only his costs out of pocket (Sclater v. Cottam, sup.); bat the rule is not limited to solicitors only. It applies to all mortgagees

who do work or render services in connection with the mortgage or the security, as e.g. to prevent him charging for surveyor's work done by him (Re Wallis, 62 L. T. Rep. N. S. 675; 25 Q. B. Div. 184.)

A solicitor who prepares a mortgage from a client to himself cannot claim profit costs against the client, for the costs are not mortgagor's costs but mortgagee's costs, which he would pay to his solicitor and charge to the mortgagor, and where there is no mortgagee who has to pay a solicitor, the costs, not having been incurred, cannot be charged (Re Roberts, 62 L. T. Rep. N. S. 34; 43 Ch. Div. 52); so generally if a mortgagee acts as his own solicitor or for himself and his co-mortgagees in proceedings relating to the mortgage debt or mortgage security, he cannot charge against the mortgagor anything beyond disbursements in the absence of express contract: (Re Wallis, sup.; Re Doody, sup., at 652.) It was in Re Donaldson (51 L. T. Rep. N. S. 622; 27 Ch. Div. 544) held by Bacon, V.C. that, where one of a body of mortgagees is a solicitor, and acts as such in enforcing the mortgage security, he is entitled to charge profit costs against the mortgagor. But this case appears to stand alone, and to be inconsistent with the judgments of the Court of Appeal in Re Wallis and with Re Doody.

It is not clear what express contract or agreement will take a case out of the rule, but it cannot be part of the original mortgage contract, for a mortgagee cannot contract for a profit to which he is not entitled-cannot contract to get more than his principal, interest, and costs. "A man shall not have interest for his money and a collateral advantage besides for the loan of it, or clog the redemption by any by-agreement" (Jennings v. Ward, 2 Vern. 520); and therefore, where an indenture of mortgage made between two mortgagors and two mortgagees (one of the latter being a solicitor, and the other an auctioneer and valuer) recited that the mortgagees took over the transfers of certain mortgages on the terms that they should be entitled to make the same charges and receive the same remuneration respectively for all business done by them respectively in or about those presents as they would have been entitled to make and receive if they had not been mortgagees, and the mortgagors covenanted with the mortgagees to pay the principal moneys advanced and "every other sum which may hereafter be advanced or paid by the mortgagees or either of them to, or become owing to them or him by the mortgagors or either of them with interest, and the mortgagors charged the mortgaged hereditaments with payment of these sums and interest; the Court disallowed a claim of the mortgagee-solicitor for remuneration paid by him to the auctioneer-mortgagee for valuing the property on the occasion of the mortgage: (Field v. Hopkins, 62 L. T. Rep. N. S. 102, 774; 59 L. J. N. S. 174, Ch.; Broad v. Selfe, 9 L. T. Rep. N. S. 43.)

An employment by the solicitor-mortgagee of another solicitor not his partner to sell the mortgaged property, with an agreement that the work shall be done on agency terms, will not entitle the solicitor-mortgagee to retain his share of the profit costs against the mortgagor. As he is not permitted to claim remuneration for his own trouble, à fortiori he cannot claim it for the trouble of someone else: (Re Taylor, 18 Beav. 165; Mathieson v. Clarke, sup.) But if he be a country solicitor, and employ a town agent, he will be allowed the agent's charges as costs out of pocket: (Burge v. Brutton, 12 L. J. N. S. 368, Ch.)

A distinction arises where the mortgagee does not act alone, but employs the firm of which he is a member to transact the business. Here the firm may not charge full profit costs, unless there is an agreement that the mortgagee partner is not to share in the profit arising from the transaction (Re Doody, sup., at 652, 653; Mathieson v. Clarke, sup.)

To this extent the rule is similar to that applicable to the case of a solicitor-trustee and his firm, but here the resemblance ceases, the disability of the mortgagee's firm (based on the principle that a mortgagee must not be rewarded for his trouble) offering no analogy to the rule in the case of a trustee's firm, which depends on the conflict of duty and interest in a trustee. The mortgagee's partners are not prevented from claiming some remuneration (though the mortgagee is) but the question has arisen what remuneration the partners can claim in the absence of an agreement such as is referred to in Re Wallis (sup.). In Re Doody a firm of solicitors had acted on behalf of certain mortgagees in the transfer of the mortgage, and a subsequent sale of the mortgaged property in pursuance of an order in an administration action, one of the mortgagees being a member of the firm. The mortgagee could charge only disbursements, and the firm could not have full profit costs, but Stirling, J. decided that there was nothing in principle to prevent his partner from receiving some remuneration. Three possible modes of settling the remuneration are suggested in the judgment: (1) To make the taxation depend on the taking of a partnership account and the indebtedness between the partners shown by it. This was rejected as introducing a rule unworkable in practice and pushing abstract principle to a point where it ceases to give results consistent with justice; (2) to allow the partner the whole of the costs, just as if an independent solicitor had been employed; but by this mode the mortgagor might be charged with a greater amount of costs than he ought to bear; (3) to allow the partner the same share of the profit costs in the specific matter as he is entitled to in the general profits of the partnership business. Though this alternative might give the mortgagee's partner less than his due, Stirling, J. adopted it as giving a nearer approximation to what would be required by a strict regard to principle, and therefore preferable.

His Lordship afterwards qualified the terms of his judgment so far as regarded the items relating to a sale out of court of the mortgage property, so as to leave it open to the taxing master to consider whether the mortgagees carried out the sale by the exercise of their powers of sale, and whether the decision of Kindersley, V.C. in Mathieson v. Clarke (sup.) was in point. If the taxing master found that the sale had been made under the power of sale, quaere whether the mortgagee's partner could, in accordance with Mathieson v. Clarke, have been entitled to receive any profit costs at all. The mortgagees would apparently have been selling

under a trust to account for the surplus of the proceeds and entitled to charge merely the common items for those expenses which a trustee is allowed.

NOTE ON RE BARING; JEUNE V. BARING. (a)
[COMMUNICATED.]

THE conclusion arrived at by Mr. Justice Kekewich in this case is somewhat startling, and the reasoning upon which the learned judge arrived at that conclusion does not seem satisfactory. Moreover the principle involved-or which was treated as being involved-in the case is of very great importance, and of sufficient interest to the Profession to justify some examination of the decision.

The facts are these:

A testator being possessed of a leasehold house-No. 1, Grafton-street -held by him for a term of sixty-one years, renewable every fourteen years, on fines for renewal, and under covenants to pay the rents (about £120), repair, and insure, bequeathed the house to trustees in trust for his widow for life, with remainder in trust for his son Godfrey for life, with remainders over; and he bequeathed his residuary estate to his trustees upon trust out of the income thereof to pay all the costs, charges, and expenses of carrying into execution the trusts of the will, then to pay an annuity to his wife during her life, and subject thereto to hold his residuary personal estate upon trust for his children, including the said Godfrey, in certain settled shares. The testator further directed that his trustees, other than his wife, might retain a commission of 1 per cent. on the net income of his residuary personal estate in each year after deducting all rates, taxes, insurances, and other outgoings and expenses payable by them under the trusts thereinbefore declared.

The testator died on the 2nd April 1891, leaving his wife and certain children-including his son Godfrey-surviving him.

Since the testator's death his widow had been in occupation of the house, and a question having arisen as to who was liable for the rents, repairs, and other outgoings, and the fines and other expenses of proposed renewals of the lease, an originating summons was taken out by the trustees and executors of the will against the testator's widow and his son Godfrey to have it determined (1) whether the annual rent payable in respect of the house and the expenses of repairing it and keeping it in repair, ought to be paid by the widow or by the trustees of the will, and if by the trustees, out of what part of the testator's estate; and (2) whether the trustees ought to renew the lease of the house, and if so, how, and out of what portion of the testator's estate ought the fines and other expenses of renewal to be paid or provided for. The testator had fully performed the covenants of the lease during his lifetime.

The Court held that neither the widow during her life tenancy, nor Godfrey the succeeding tenant for life, was under any obligation to pay the rent, repair, or insure, or to pay the fines or expenses of renewal; that the rent and the expenses of repair and insurance during the respective lives of the tenants for life were payable out of the income of the residuary personal estate, and that the fines and expenses of renewal were distributable among the successive beneficiaries of the house, according to their enjoyment, such enjoyment to be ascertained by actuarial valuation.

With so much of the decision as relates to the incidence as between the successive tenants for life and the remaindermen of the burden of renewing the leases from time to time there would seem to be no ground to quarrel.

With reference to the questions of the rent, repairs, and other outgoings, different considerations would seem to apply. In the first place, it will be noticed that the trusts of the residuary personal estate point clearly to an annual deduction being made from the income thereof in aid of house property, inasmuch as the testator provides for deductions for (inter alia) rates and insurances, which could not apply to any property not of a corporeal nature.

It would seem that the case might well have been decided upon the ground that upon the true construction of the will the burden of the rents, repairs, and other outgoings was expressly or by implication cast upon the residuary personalty. Had the case been decided upon this ground it would not have been of any special interest. The special importance attaching to the decision, however, lies in the very different grounds upon which the learned judge based his judgment; and here it may be noted in passing, that the special terms of the bequest of the residuary personal estate above referred to, do not even find a place in the head-note of the reports in the Law Reports.

Mr. Justice Kekewich considered that he was bound by the case of Re Courtier; Coles v. Courtier (34 Ch. Div. 136), and he apparently decided Re Baring solely in deference to that case. It is submitted that a broad distinction exists between Re Courtier and Re Baring, and that the former case did not govern the latter; nay further, that there is nothing in Re Courtier to warrant the decision given in Re Baring. It is necessary therefore to consider Re Courtier. In Re Courtier a testator gave leaseholds, some of which were held on short terms, to two trustees (the fact, as reported, that one of the trustees was the testator's wife may be disregarded as immaterial) upon trust for his wife for life, and after her death upon trust for sale and division between certain other persons. The leaseholds were in a bad state of repair at the death of the testator. The widow kept them up

in the same state of repair, but declined to do more than this. The remainderman applied for an order to oblige the widow to maintain the leaseholds in such a state of repair as to satisfy the covenants in the leases so as to avoid a forfeiture, and it was held by the Court of Appeal that there was no obligation on the widow, the tenant for life, to put the

(a) 67 L. T. Rep. N. S. 702; (1893) 1 Ch. 61.