CONTENTS OF VOLUME XLV.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, NOVEMBER 6, 1852.

COMMENCEMENT OF MICHAEL-
MAS TERM.

PROSPECTS OF THE PROFESSION.

construction of the new Acts, the tendency of recent legislation is, to give an almost unlimited discretion to the Judges in all matters of procedure, so that the labour and responsibility of those learned functionaries will be materially increased.

THE Term and the Legal Year commenced on Tuesday last, under circum- With respect to the effect of the new stances of novelty and peculiarity calculated Statutes and Rules upon the interests of to endow the event with remarkable interest. the Profession, as may be expected, a great The Judges, (with the single exception of variety of opinion exists; but we rejoice to Sir John Stuart, who has succeeded the perceive, that the prevailing feeling is not lamented Sir James Parker, as one of the that of despondency, and that a well Vice-Chancellors,) and the leading practi- founded confidence is entertained that, as tioners, are identically those with whom the no change of practice can impair the utility Public and the Profession have been previ- of the Profession in its relation to the ously familiar, but the system of procedure Public, its substantial interest as a whole under which the law is to be administered, cannot be permanently compromised, alboth in the Superior Courts of Law and though much individual inconvenience and Equity, is so much metamorphosed that its some degree of general depression may for oldest acquaintances may be excused if they the present be anticipated." fail readily to recognise it. In sober seri- It is much to be lamented that at such a ousness, the experiment that has now com- juncture anything should have occurred to menced, is one of equal magnitude and diminish the cordiality and good underimportance, and imposes on every man who standing that prevailed for so many years proposes to practise in the Courts, the between the two great branches of the Proobligation, amongst others, of acquiring a fession, to the manifest advantage of both. knowledge of much that is absolutely new, The question as to the expediency and proto say nothing of what he has hitherto been priety of barristers taking instructions diwholly, or but imperfectly, acquainted with. rectly from clients without the intervention The Common Law Procedure Act and of attorneys, has been somewhat inopporthe Nisi Prius Officers' Act at one side of tunely revived, by the publication of a letter the Hall, and the Masters' Abolition Act, from Lord Denman, which appeared in the the Suitors' Relief Act, and the Chancery first instance in the Law Review. With all Proceedings Amendment Act at the other due respect for the venerable writer, we are side, with the Rules and Orders already constrained to say, that Lord Denman's made, or about to be promulgated, in letter is altogether unsatisfactory. His accordance with the provisions of these lordship concludes, that as honourable men statutes, and for the purpose of carrying them better into effect, comprise a new code of procedure which it requires no ordinary amount of perseverance and industry

to master.

To say nothing of the numerous and important questions likely to arise upon the VOL. XLV. No. 1,287.

require no check, and unscrupulous men would find the means to evade any rules made for the government of the Profession, there should be no rule adopted in reference to the subject under consideration, but that the matter must be left altogether to the discretion of the barrister. A licence is

B

Commencement of Mich. Term-Prospects of the Profession.-Jurisdiction in Bankruptcy.

thus given which, it is to be feared, men | does not speedily become extinct, must newanting in delicacy and discretion will be cessarily conform themselves without delay found to exercise with little regard for the to the altered state of circumstances by rehonour and interests of the Profession, ducing their fees, which were never large, upon views based on the narrowest estimate to the most moderate scale. We differ of personal advantage. altogether from those who find in this The discussions which took place during movement of the Bar anything to dread or the last Session of Parliament, established complain of. It is a timely and judicious the fact, that in the opinion of the general concession to the feeling which prevails bepublic, the expenses of law proceedings were yond the pale of the Profession, and which enormous, and operated as a clog upon the regards the expenses attendant upon the administration of justice. The recent Law administration of justice as a great public Amendment Acts have been framed with a and social evil. Not only the fees paid to view to diminish the evil, and we have the Bar, but the outlay required upon every learned with satisfaction that a general dis- stage of the proceedings both in the Courts position exists, amongst all classes of the of Law and Equity must be materially diProfession, to give effect to those enact- minished, before the Profession is placed ments, and to meet the reasonable require- upon a satisfactory footing, and its capaments of the Public by adopting a scale of bilities fairly developed. fees proportioned to the wants and wishes of the community. In this spirit we are informed, that a body of barristers who had practised as special pleaders, waited upon the Attorney-General to obtain his sanction to an arrangement which would enable them to settle pleadings for half-a-guinea, instead of the minimum fee of one guinea, heretofore required by members of the Bar. It was truly stated, that as the guinea fee was paid for ths counsel's signature, as well REMUNERATION as his judgment in the settlement of the pleadings, and the fee hitherto allowed for the signature was now abolished by statute, the effect of maintaining the rule of guinea fees would be to drive the junior Bar from the field as pleaders, and to throw this branch of the practice altogether into the hands of gentlemen practising under the Bar.

We are pleased to observe that the Lord Chancellor, in deference to the wishes of the Profession, consented, on the first day of Term, that the Courts of Equity should sit, during the remainder of the Term, at Lincoln's Inn.

JURISDICTION IN BANKRUPTCY.

OF THE OFFICIAL ASSIGNEES.

THE mode in which the Official Assignees in Bankruptcy are remunerated, and the operation of the system in reference to particular estates, has for some time excited considerable dissatisfaction amongst the class of wholesale traders who are especially interested in the economical administration The Attorney-General, we are in- of the assets of persons becoming bankformed, with that good sense and deference rupts. Representations have been made to to the wishes of the Public, which might be the Lord Chancellor on the subject, supexpected from him, unhesitatingly declared, ported by facts, which have induced his that he could see nothing derogatory to the Lordship to direct his earnest attention to Profession, or injurious to the character of the matter, and we shall be disappointed if the Bar, in the juniors of that branch of some plan cannot be devised to remove the the Profession, if they thought fit, accepting half-guinea fees for settling pleadings where guinea fees had hitherto been required. In future, therefore, there can be no doubt, that the ordinary fee paid to a barrister for settling the simple pleadings required in a common law action, will not exceed half-aguinea! It is also understood that, many of the junior members of the Bar have intimated their intention of attending at the Judges' Chambers for a fee of one guinea, instead of the fee of two guineas, which has been hitherto expected where a barrister was required to attend. The gentlemen practising under the Bar as special pleaders, if the race

ground of complaint, and put the emoluments of those useful and respectable functionaries upon a footing more satisfactory to the suitors of the Court.

As our readers are aware, the Official Assignees are paid, not by fixed salaries, but by a per-centage receivable from the various estates to which they are appointed assignees. The Bankrupt Law Consolidation Act (sect. 44) provides, that "the Court may order and allow to be paid out of any bankrupt's estate, to the Official Assignee thereof, as a remuneration for his services, such sum as shall, upon consideration of the amount of the bankrupt's

Jurisdiction in Bankruptcy-Remuneration of the Official Assignees.

3

property and the nature of the duties per- not give effect to that branch of the section formed by such Official Assignee, appear to already cited (sect. 44), which directs him be just and reasonable." In pursuance of to consider "the nature of the duties perthe authority conferred by this section, the formed by the Official Assignee," and to Commissioners have been in the habit of apportion the remuneration accordingly. In ordering that the Official Assignee should this particular case, therefore, the allowance receive a per-centage on the sums passing to the Official Assignee was directed to be through his hands, which per-centage reduced, but this was an exceptional invaries according to certain regulations laid stance governed by its peculiar circumdown by the Commissioners individually in stances.

knowledged: It is admitted, too, that the services of such an officer should be liberally remunerated, but differences of opinion exist as to the scheme or plan upon which the amount of remuneration should be fixed. Some persons contend that the Official Assignees should be remunerated by fixed salaries in the same manner as the Commissioners and Registrars of the Court of Bankruptcy, whilst others who have had an extensive experience in this branch of judicial administration, consider the peculiar duties of the Official Assignee render it desirable that he should have a direct pecuniary interest in the successful realisation of a bankrupt's estate, and in seeing that the assets are administered with the least possible expense to the creditors. Both these views, we have reason to believe, have been submitted to the consideration of the Lord Chancellor.

the exercise of their discretion. It is to be The importance and value of a public regretted that, as regards the scale of al-officer, whose principal function it is to adlowance to the Official Assignees, as in minister assets, and who stands in a poother matters of equal or greater import- sition independent alike of the bankrupt and ance, the practice established in the Courts, the creditors, appears to be generally acof the several Commissioners has not heretofore been uniform. In fixing the scale of allowance in any particular case, the Commissioners properly considered that the duties of an Official Assignee obliged him to keep commodious offices in the neighbourhood of the Courts, and to employ several clerks. They could not fail, also, to recollect that the trouble, labour, and responsibility of the Official Assignee is in little or no degree proportioned to the amount of the bankrupt's property. Cases frequently occur in which a bankruptcy that produces no dividend to the creditors, and no profit to the Official Assignee, imposes a vast amount of labour on that officer, and subjects him to serious loss. On the other hand, in some instances, large estates are realised with little trouble and no risk to the Official As signee, and the per-centage recoverable by the Official Assignee in such cases is apparently extravagant. A case of the latter The Official Assignees and the suitors of class was brought by petition before the the Court are equally dissatisfied with the Lords Justices in the course of the present present plan of remuneration. The former year, upon appeal from the order of one of allege that the payment by a per-centage the learned Commissioners. In that case, upon the amount realised, when neither the the creditors, before resorting to the Court number nor the value of the estates comof Bankruptcy, appointed trustees by whom mitted to their charge can be calculated the assets of the insolvent trader were col- with any approach to certainty, subjects lected and lodged in a bank for distribution. their incomes to a constant fluctuation, It was speedily ascertained, however, that which not only diminishes the value of the the authority of the Court of Bankruptcy appointment, but renders it inexpedient to was necessary for the due administration of maintain the staff of assistants that upon the estate, upon which a petition for adju- particular emergencies become indispensably dication in bankruptcy was filed, and upon necessary. On the other hand, the suitors the appointment of the Official Assignee, the fund already collected, amounting to 2 By a circular addressed to the Commisseveral thousands, was transferred to his sioners of the Court of Bankruptcy by the name without more, and a dividend im- Lord Chancellor's secretary, in March, 1847, mediately declared. The Lords Justices it appeared, from certain returns made to his thought the Commissioner, in ordering that the Official Assignee in this case should retain the ordinary per-centage upon the sum thus transferred to his name, did

In re Ashlin. Easter Term, 1852.

Lordship, that the annual income derived by the Official Assignees, after allowing for all expenses, on the average of the three preceding years, had been 1,334., but it is believed that the income of the Official Assignees in the subquent years has been considerably reduced.

4

amount of 500l. or any less sum; 1 per cent. For property realised 24 per cent. on the first on the next amount of 500l. or any less sum; and per cent. on all further sums.

Jurisdiction in Bankruptcy--Remuneration of the Official Assignees.-New Orders. complain that, under the present system, sum; 11. per cent on the next amount of 500%. estates producing considerable assets are in- or any less sum; and per cent on all further directly made to pay for services rendered sums. to estates which produce little or nothing, and that the sums payable to the Official Assignee and to the Chief Registrar's accounts absorb so large a portion of the assets as to render it expedient to avoid resorting to the jurisdiction in many cases in which, but for the expense, the administration of an estate in Bankruptcy would be decidedly beneficial both to the creditors and the public.

On dividend 2 per cent. on the first amount of 1,000l., or any less sum actually divided, and 1 per cent. on all further sums. The percentage on mortgaged property to be calculated only on the residue payable to the bankrupt's estate.

For drawing every dividend warrant or renewed dividend warrant sixpence.

Although the Official Assignees are not selected from the members of the Legal A note is appended to the orders relating Profession, but by the express provisions of to the Official Assignees' allowance, intithe Statute 5 & 6 Vict. c. 122, s. 48, must mating that at the expiration of 12 months be "merchants, brokers, accountants, or after these orders come into operation, the persons who are or have been engaged in scale will be revised by the Commissioners, trade in the United Kingdom," the satis- subject to the approval of the Lord Chanfactory arrangement of the question now cellor, regard being had to the amount of under consideration, as to the scale and remuneration received by the Official Asmode of remunerating their services, cannot signees within the preceding twelvemonths. be considered as matter of indifference to By these orders, as we shall hereafter the Profession, and, it is assumed, justifies this notice of the subject.

Since the above was written, the long expected Rules and Orders, made in pursuance of "the Bankrupt Law Consolidation Act, 1849," and approved by the Lord Chancellor, have been published. They are to take effect from and after the 11th January, 1853.

The following is the scale of allowance to be made to the Official Assignees, subject to variation in any particular case, and for special cause to be assigned by the Commissioner in writing and filed with the proceedings.

SCALE.

That there be paid to each Official Assignee for the examination of the bankrupt's accounts such sum as the Commissioner shall think fit, not exceeding 201. for the accounts of one bankrupt, nor exceeding 201. for the joint estate of two or more bankrupts; and not exceeding 101. for each separate estate administered under the same adjudication.

For every debt collected 51. per cent. on the first amount of 1001. or any less sum; 24 per rent on the next amount of 400l. or any less

have occasion to show, the complaint of the commercial community is rather aggravated.

FURTHER ORDERS IN CHANCERY, (Under the Master's Office Abolition Act.)

FEES OF OFFICE AND SOLICITORS.

23rd October, 1852.

THE Right Hon. Edward Burtenshaw, Lord St. Leonards, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Hon. Sir John Romilly, Master of the Rolls, the Right Hon. the Vice-Chancellor Sir George James Turner, and the Hon. the doth hereby in pursuance of an Act of ParliaVice-Chancellor Sir Richard Torin Kindersley, ment passed in the 15 & 16 Vict. c. 80, intituled "An Act to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make provision for the more speedy and efficient despatch of business in the said Court," and in pursuance and execution of all other powers enabling him in that behalf, Order and Direct, as follows, videlicet:

I. The chief clerks of the Master of the Rolls and Vice Chancellors respectively, are directed to take the following fees:

1. For every original summons for the
purpose of proceedings originating
in chambers

3 By an order made by the Senior Commissioner and approved by the Lord Chancellor, 2. For every duplicate thereof under the authority of the Act 12 & 13 Vict. 3. For every other summons c. 106, s. 54, the Official Assignee is required to 4. For every advertisement pay to "the Chief Registrar's account" from the gross produce of every bankrupt's estate, 57. per cent. on the first 500l.; 31. per cent. on further moneys not exceeding 5,000l., and so on by a descending scale.

5. For every certificate or report

6.

£ s. d.

0 0

1 •

For every certificate upon the passing of a receiver's or consignee's account, a further fee in respect of each 100%. received of.

. 0 10 0