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CONTENTS OF VOLUME xlv.
References by Masters to conveyancing coun Relations of the two branches of the Profes-
sion - Restrictions of Inns of Court, 47
Special pleaders, 52
Hearing of causes attached to Vice-Chancellor Legal education, 151, 276, 279, 495
Rules for public examination, 495
tion of costs, 15
Re-admission after being struck off Roll, 111
Appointment of Master Extra., 34
Costs of Solicitor acting as Assignee, 188
Lien on trust deeds, 225 .
Privileged communication - Secondary evi.
dence-Notice to produce documents, 271
Taxation of costs after payment, 291, 476
319, 372, 392, 421, 436, 451, 470, 501, 520
Chancellor of the Exchequer's statement, 89
Income and Certificate Tases, 489
Common Law Procedure Act :
Answer to objection that tax excludes disre.
Nisi Prius Court fees, 66
Debates on the Budget, 392, 509, 518
Result of the votes in the new Parliament, 406
PROCEEDINGS OF LAW SOCIETIES.
NOTES ON RECENT CASES.
Law Amendment Society, 552
Liverpool Law Society, 31
Manchester Lar Association, 336, 378, 418
EXAMINATION OX ARTICLED CLERKS.
Information relating to, 54, 100, 154, 175, 190, P,
Candidates passed, 83, 278
New Regulation as to the Law of Property; 40
Kerr on the Common Law Procedure Act, 28
LAW APPOINTMENTS, 17, 34, 68, 85, 100, 134, the
Lists of Sheriffs, &c., 358
Masters Extra, in Chaucery, 68, 133
Warren's Practice of Election Committees, 433
133, 250, 421, 339, 519
The Legal Observer,
DIGEST, AND JOURNAL OF JURISPRUDENCE.
SATURDAY, NOVEMBER 6, 1852.
COMMENCEMENT OF MICHAEL- construction of the new Acts, the tendency MAS TERM.
of recent legislation is, to give an almost PROSPECTS OF THE PROFESSION.
unlimited discretion to the Judges in all matters of procedure, so that the labour
and responsibility of those learned funcThe Term and the Legal Year com- tionaries will be materially increased. menced 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 require no check, and unscrupulous men them better into effect, comprise a new would find the means to evade any rules code of procedure which it requires no ordi- made for the government of the Profession, nary amount of perseverance and industry there should be no rule adopted in reference to master.
to the subject under consideration, but that To say nothing of the numerous and the matter must be left altogether to the important questions likely to arise upon the discretion of the barrister. A licence is
Vol. xlv. No. 1,287.
2 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. We are pleased to observe that the Lord of the community. In this spirit we are Chancellor, in deference to the wishes of the informed, that a body of barristers who had Profession, consented, on the first day of practised as special pleaders, waited upon Term, that the Courts of Equity should sit, the Attorney-General to obtain his sanction during the remainder of the Term, at Linto an arrangement which would enable them coln's Inn. to settle pleadings for half-a-guinea, instead of the minimum fee of one guinea, hereto- JURISDICTION IN BANKRUPTCY. fore 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 OF THE OFFICIAL ASas his judgment in the settlement of the pleadings, and the fee hitherto allowed for The mode in which the Official Assigthe signature was now abolished by sta- nees in Bankruptcy are remunerated, and tute, the effect of maintaining the rule of the operation of the system in reference to guinea fees would be to drive the junior Bar particular estates, has for some time excited from the field as pleaders, and to throw this I considerable dissatisfaction amongst the branch of the practice altogether into the class of wholesale traders who are especially hands of gentlemen practising under the interested in the economical administration Bar. The Attorney-Gencral, 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 ground of complaint, and put the emoluhalf-guinea fees for settling pleadings where ments of those useful and respectable funcguinea fees had hitherto been required. Intionaries upon a footing more satisfactory future, therefore, there can be no doubt, to the suitors of the Court. that the ordinary fee paid to a barrister for As our readers are aware, the Official settling the simple pleadings required in a Assignees are paid, not by fixed salaries, common law action, will not exceed half-a- but by a per-centage receivable from the guinea! It is also understood that, many various estates to which they are appointed of the junior members of the Bar have in- assignees. The Bankrupt Law Consolidatimated their intention of attending at the tion Act (sect. 44) provides, that “the Judges' Chambers for a fee of one guinea, Court may order and allow to be paid out instead of the fee of two guineas, which has of any bankrupt's estate, to the Official been hitherto expected where a barrister was Assignee thereof, as a remuneration for liis required to attend. The gentlemen practising services, such sum as shall, upon consiunder the Bar as special pleaders, if the race deration of the amount of the bankrupt's
Jurisdiction in Bankruptcy-Remuneration of the Official Assignees.
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 instances. 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 here- knowledged: It is admitted, too, that the tofore been uniform. In fixing the scale of services of such an officer should be libeallowance in any particular case, the Com- rally remunerated, but differences of opinion missioners properly considered that the duties exist as to the scheme or plan upon which of an Official Assignee obliged him to keep the amount of remuneration should be fixed. commodious offices in the neighbourhood Some persons contend that the Official Asof the Courts, and to employ several clerks. signees should be remunerated by fixed They could not fail, also, to recollect that the salaries in the same manner as the Comtrouble, labour, and responsibility of the missioners and Registrars of the Court of Official Assignee is in little or no degree Bankruptcy, whilst others who have had an proportioned to the amount of the bank- extensive experience in this branch of judirupt's property. Cases frequently occur in cial administration, consider the peculiar which à bankruptcy that produces no divi- duties of the Official Assignee render it dedend to the creditors, and no profit to the sirable that he should have a direct pecuOfficial Assignee, imposes a vast amount of niary interest in the successful realisation labour on that officer, and subjects him to of a bankrupt's estate, and in seeing that serious loss. On the other hand, in some the assets are administered with the least instances, large estates are realised with possible expense to the creditors. Both little trouble and no risk to the Official As these views, we have reason to believe, signee, and the per-centage recoverable by have been submitted to the consideration of the Official Assignee in such cases is appa- the Lord Chancellor. rently 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 Bv 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 Lordship, that the annual income derived by that the Official Assignee in this case the Official Assignees, after allowing for all exshould retain the ordinary per-centage upon penses, on the average of the three preceding the sum thus transferred to his name, did
years, had been 1,3341., but it is believed that
the income of the Official Assignees in the sub"In re Ashlin, Easter Term, 1852. quent years has been considerably reduced.
Jurisdiction in Bankruptcy--Remuneration of the Official Assignees.- New Orders.
complain that, under the present system, sum; ll. per cent on the next amount of 500l. 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. For property realised 2 per cent. on the first and that the sums payable to the Official
& amount of 500l. or any less sum; 1 per cent.
on the next amount of 5001, or any less sum; Assignee and to the Chief Registrar's ac- and / per cent. on all further sums. counts absorb so large a portion of the On dividend 2 per cent. on the first amount assets as to render it expedient to avoid of 1,000l., or any less sum actually divided, resorting to the jurisdiction in many cases and 1 per cent. on all further sums. The perin which, but for the expense, the admini- centage on mortgaged property to be calcustration of an estate in Bankruptcy would lated only on the residue payable to the bankbe decidedly beneficial both to the creditors
"! and the public.
For drawing every dividend warrant or reAlthough the Official Assignees are not
newed dividend warrant sixpence. 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 have occasion to show, the complaint of this notice of the subject.
the commercial community is rather aggravated.
Since the above was written, the long! FURTHER ORDERS IN CHANCERY, expected Rules and Orders, made in pur
(Under the Master's Office Abolition Act.) suance of “the Bankrupt Law Consolidation Act, 1849,” and approved by the Lord · fees of OFFICE AND SOLICITORS. Chancellor, have been published. They are
23rd October, 1852. to take effect from and after the 11th Ja- THE Right Hon. Edward Burtenshaw. Lord nuary, 1853.
St. Leonards, Lord High Chancellor of Great The following is the scale of allowance to Britain, by and with the advice and assistance be made to the Official Assignees, subject to of the Right Hon. Sir John Romilly, Master of variation in any particular case, and for the Rolls, the Right Hon. the Vice-Chancellor special cause to be assigned by the Com- Sir George James Turner, and the Hon. the missioner in writing and Sled with the nro Vice-Chancellor Sir Richard Torin. Kindersley, ceedings.
doth hereby in pursuance of an Act of Parlia
ment passed in the 15 & 16 Vict. c. 80, inSCALE.
tituled “ An Act to abolish the Office of Master That there be paid to each Official Assignee in Ordinary of the High Court of Chancery, for the examination of the bankrupt's accounts and to make provision for the more speedy and such sum as the Commissioner shall think fit, efficient despatch of business in the said Court," not exceeding 201. for the accounts of one and in pursuance and execution of all other bankrupt, nor exceeding 201. for the joint powers enabling him in that behalf, Order and estate of two or more bankrupts; and not ex- Direct, as follows, videlicet :ceeding 101. for each separate estate admini- I. The chief clerks of the Master of the Rolls stered under the same adjudication.
and Vice Chancellors respectively, are directed For every debt collected 5l. per cent. on the to take the following fees : first amount of 1001. or any less sum ; 2; per
£ s. d. rent on the next amount of 400l. or any less 1. For every original summons for the
purpose of proceedings originating 3 By an order made by the Senior Commis in chambers
0 5 0 sioner and approved by the Lord Chancellor, 2. For every duplicate thereof 0 5 0 under the authority of the Act 12 & 13 Vict. 3. For every other summons . . 0 3 0 c. 106, s. 54, the Official Assignee is required to 4. For every advertisement . . 1 0 0 pay to “the Chief Registrar's account” from 5. For every certificate or report 1 0 the gross produce of every bankrupt's estate, 6. For every certificate upon the pass51. per cent. on the first 500l. ; 31. per cent. on ing of a receiver's or consignee's further moneys not exceeding 5,0001., and so account, a further fee in respect of on by a descending scale.
each 1001. received of . . . 0 10 0