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Remuneration of Attorneys.
concurrent jurisdiction with the High Court of Chancery, and pays for much of the work done in it, some thirty, or forty, or fifty per cent. more than Chancery pays for the same work and trouble. Bankruptcy Court is trying hard to get chancery jurisdiction. It got it last session, most absurdly I think, for the winding-up inter se of Limited Liability Companies, although there may not be a single creditor in the case; and though it is utterly unversed in partnership law. Scandal says (lying no doubt, but it might be true) that the official assignees, or some other dependents, keep up a fillibustering fund for these objects. That court assigns for an appeal before the Lords Justices just treble the fee the Court of Chancery assigns for an appeal before the same judges, though the latter work is certainly more onerous and important. When the tariffs emanate from rival judges, one can understand as well as lament this; but here the same indentical judges are the dictators of both tariffs. The fees assigned are bounties in fact for one court, and prohibitions for the other; so far, that is, as competition prevails between the courts. "The success of county and other local courts is materially affected by the same considerations. All great legislative experiments in the judiciary ·| are also more or less affected by these absurd tariffs. There is no getting for such experiments a fair trial, because of the distorting influences of these legal tariffs. As an instance, I may mention that in calculations I have had occasion to make, I have proved to demonstration that the fees now recently assigned in chancery for certain new branches of important work, not only give the solicitor nothing, but cannot even pay the rateable share, reckoned by time, of a low salary to the clerk who assists him. It is obvious that such a state of things must serionsly impede the working of those changes."
In the first part of his able paper, Mr. Field has discussed what he terms the "autocracy of the bar," the arbitrary regulations of the benchers, the monopolizing tendency of these "legal guilds," and he then proceeds to observe that the two subjects of legal guilds and legal tariffs are thus connected :
"The tariff is enacted, and its items fixed, by the judges, who are, after all, only exalted barristers; many remaining benchers. They desire, I can with all earnestness affirm, nothing but to do their duty in this matter to the public. But they have been bred up in bar views, and if such things exist, with bar prejudices; as benchers they have perhaps joined in the bar ordinances. They truly and sincerely believe in the expediency of all that of which I have questioned the expediency. As a body, they are, as far as I have been able to judge, less acquainted than almost any other educated class with the researches on which economical science depends. At any rate, they believe their own occupation the solitary exception to its otherwise universal rules. No uncommon state of mind this. We have seen it as to silk, corn, and ships; and why not as to law? The extravagant disproportion of the fees allowed on taxation to the bar to those allowed to the solicitor surely must be, to some extent, traced to a bar bias in the original devisers of the tariffs. Any instance will illustrate this. A day or so before the courts rose in August, I was agent for a friend, now listening to me in an appeal before the Lords Justices. The bill of costs, if taxed, would contain the following
allowances:-Paid counsel to argue the appeal, £136 10s.; paid counsel's clerks (I suppose to see their masters had their papers), £6 15s. For myself and two clerks preparing for and attending the hearing,-yes, and for watching and prompting counsel too, six shillings and eightpence only amongst us. Surely the solicitor and his clerks are as useful to the client as the barrister's clerk; but the tariff here gave the latter twenty, or, perhaps, more accurately sixty, times as much pay. We all know the fable of the Statue of the Lion and the Man. If the solicitors had had the making of the tariff (and the employed are, by nature's rules, the tariff makers), the solicitor would hardly appear so fearfully below the bar, and overtrodden by it, as in the example I have given; at any rate, not by the barrister's clerk. I have what is esteemed a large professional practice, but I do not doubt that there are barrister's clerks deriving from (if I may use the terms) their practice as large, or nearly as large, a professional income as (allowing for interest on my capital and other such deductions) I do from mine. The tariff very often indeed authorises them to levy from the suitor a passport fee larger than it would allow me to receive for my services.
"Whether there exist a bar bias or not, and if so, whether it has or not any bearing on the direction in which all the law changes go, one thing is certain; viz., that in these changes somehow the solicitors always go to the wall. During the last ten years the
Law List will show that the bar has increased in number eighty per cent., while the solicitors have been absolutely stationary in their numbers. Their articled clerks have diminished, during the same time, considerably in number. By the late chancery changes the work of the solicitors has been increased in quantity thirty per cent., and also in difficulty; and their emolument, at the same time, has been lessened between thirty and forty per cent; and yet, according to the returns of my own office, the whole chancery bar must have received for fees in the year ending Long Vacation, 1856, twenty per cent. more than ever they got before. Had the bar and solicitors been one body, as in America, the present tariff's certainly could not have existed.
"Independently, however, of all comparative results, and setting aside all reference to the undue proportions existing between the remuneration the legal tariffs assign to us and that which they assign to the bar and to the clerks of the barrister; the objections to the present system of pay are very fully felt throughout the whole of our branch of the profession. I know no one subject on which there is so marked a concurrence among us solicitors. Protectionist or Free-trader, Conservative or Progressionist, we one and all dislike being ordered to regulate our remuneration for actual solid effort, and thought, and work, by the number of words spun out, or by any results arising merely from the copying clerks' fingers. It is not fair to us; it is not honest to our clients. This concurrence, the association is aware, has been fully represented to the law authorities; but our views have by no means been acceded to. The great change in chancery, by which the master's offices were abolished, arose from a bill prepared by this Association for a more summary jurisdiction for the Equity Chamber work. That bill was referred to a large select Committee of the Lords, who gave it great attention. Many of our body, some now here present, were examined by the Lords who attended; and (as one of the most able, himself not a lawyer, told me after the inquiry was over) the members were
Remuneration of Attorneys-Notes of the Week.
all convinced the mode of pay was at the bottom of all the evils of the law. So, also, after an experience among the courts of nearly forty years, say I. Lord Brougham, the chairman of this committee, at the close of its proceedings, tendered himself as a witness before it. After speaking of the delays of the court, then arising from the master's offices, he went on as follows:- My opinion is as clear (with the whole of the evidence) that the other cause is the perfectly faulty mode of remunerating professional men, solicitors especially, but I do not except counsel. This opinion is the result of my whole professional experience and observation; and it is not confined to proceedings in equity. The subject is one of great difficulty, but it is of yet greater importance; and I feel assured that whatever other changes are effected to improve our system, whether of equity or common law, a large proportion of the evil will remain, unless this difficulty shall be grappled with and overcome.' "It is to be regretted that Lord Brougham has not followed up this evidence by bringing the subject before the Legislature. It was incidentally brought before the House of Lords by Lord Lyndhurst on March 26, 1855; and some of us, at Lord Lyndhurst's desire, waited on Lord Brougham to ask him to take part in the debate, and follow the matter up. This, however, he found himself unable to do. In the other House there exists, I fear, a permanent breadth of wet blanket ever ready and sufficient to stifle all discussion on the matter. There would appear to exist there, I fear, a belief so superstitious in the innate qualifications of barristers of seven years' standing, however briefless, and in the absolute disqualification for almost any office of those who do not possess that high merit, as to make any dispassionate consideration of these matters very improbable."
There are (says Mr. Field) on this point of pay, two questions which the public should ask itself:
1st. How far, if at all, should there be an imposed tariff of law prices and wages?
2nd. If there should, ought the tariff to be made by the lawyers themselves?
"It is now more than fifteen years since some published observations of mine on the system of pay, similar to those contained in this paper, attracted the attention of the late Master of the Rolls (Lord Langdale), and through him of the then Lord Chancellor (Lord Lyndhurst). Lord Langdale's communication with me, and through me with the Incorporated Law Society, ultimately led to the establishment of a board of taxing masters, with the avowed intention of abolishing the plan of paying us for what was not done,' these are nearly Lord Langdale's words, by way of compensating us for our not being allowed to be paid for what was done.' The act rendering conveyancing bills taxable was passed as a part of this most valuable project; but since that time nothing effective has been done: and, whatever may be done, as far as I can see, Lord Langdale's views no longer have that ardent enthusiastic support from the authorities of the law, from which alone, I believe, large amendments can spring.
"The questions I have argued, especially the latter, are mercantile questions, and eminently the client's questions. Were there no law, or were there no means of applying the law to our recurring needs, there could be no property; and the com
parative value and mercantibility of all property in one country and another; and the comparative honesty of countries in the conduct of the monetary affairs of life, much depend on the comparative perfectness of their respective legal arrangements; much more upon the comparative excellence of their legal machinery and legal workmen, than on that of their abstract law. The defects to which I have alluded the latter eminently-will be found to have penetrated every part of our legal machine, and to have carried more or less poison through the whole of onr social system. If chambers of commerce, and others watching commercial changes, and desirous of promoting true improvements, did but know how largely every client's interest is involved, these questions could not fail to excite that lay (or non-professional) attention which alone can bring about any really great amendment of the law. And I know no two questions of internal policy and arrangement, connected with the law, to the investigation and right adjustmeut of which any statesman could more usefully devote himself."
The new wing of the Law Institution is proceeding in a very satisfactory manner, under the superintendence of Mr. P. C. Hardwick, the architect. The system pursued in setting the stone work is by means of the "travelling crane," which is doing its work as usual with the greatest precision. The new building rests on a granite basement, and will in every respect harmonise with the old wing on the northern side of the present entrance of the old building.
The house, No. 113, belonging to the society, near to the new wing just alluded to, is now in process of demolition, and when Nos 114 and 115 are pulled down, and the whole block set back, a uniform and extra width of street will be obtained, extending to Fleet-street, which is so much needed in this crowded thoroughfare.
We regret to observe the great unsightly gap at the corner of Chancery-lane and Carey-street still remaining in statu quo. We should rejoice in connexion with this to see the block of dangerous-looking wooden houses opposite forthwith pulled down, set back, and rebuilt, so as to form a spacious opening from Chancery-lane to Lincoln's Inn-fields, to which we have adverted on a former occasion.
In this lane we shall soon have as much variety of architecture as any can well desire. In the first place, in the Law Institution we have the severe Greek of Sir Robert Smirke; then the Italio- Lombardic structure of Mr. Knowles, which forms part of Fleet-street; after that, and nearly opposite, the Renaissance tavern of Mr. Legge; and 1 stly the building of Mr. Penfold, an ornate specimen of Elizabethan;-all good to a very great extent in their different, although somewhat discordant, styles.Abridged from Building News.
Notes of the Week—Recent Decisions: Lord Chancellor; Vice-Chancellor Kindersley. 563
POST-OFFICE MARKS ON LETTERS.
In the recent sittings at Nisi Prius Lord Campbell stated that he had communicated with the Postmaster-General with respect to the Post-office marks on letters, which were really discreditable to that department of the Government. Continental letters always showed the places through which they passed, and the date of their postage. But the stamp on English letters was so blotched that no letter or figure could be distinguished. This produced serious inconvenience, not only to individuals, but in the administration of justice. He was sure the Postmaster-General was most earnestly desirous to do all in his power to remedy the evil. A case had been tried during the present sittings, in which a question arose as to the time when a letter was posted and delivered, and the marks were so indistinct that it required a person from the Post-office to make a conjecture as to what they indicated.
In consequence of what transpired in a case tried before Lord Campbell at Westminster, in which a question arose as to the fees payable by a clergyman on being instituted to a living, his lordship made a communication to the Archbishop of Canterbury with regard to the preparation of a new table of fees, under
a section of the Pluralities Act, which had never yet been acted upon, and he received a reply from which he had reason to believe that such a table of fees as would put an end to all disputes in future would shortly be published.
The Honourable S. V. Surtees, has been appointed Chief Judge of the Supreme Court, Mauritius. Mr. Surtees was called to the Bar by the Honourable Society of the Inner Temple, 10th June, 1831.
J. E. Remono, Esq., has been appointed puisne judge of the Supreme Court, Mauritius.
Giovanni Conti, Esq., has been appointed Judge at Malta.
The Chief Justice of Antigua is appointed a member of the Legislative Council of that island.Observer.
The Poor Law Board have appointed Mr. John Lambert, of Salisbury, solicitor, to be a Poor Law Inspector, in the room of Mr. Hall, resigned.
Thomas Donohoe, Esq., Barrister-at-Law, has been appointed Crown Prosecutor at the Commissions of Quarter Sessions for the County and City of Dublin, in the room of the Honourable John Plunket, Q.C., resigned. Mr. Donohoe was called to the Irish Bar n Easter Term, 1844.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Smith v. Spencer and others. Dec. 11, 1856.
WILL CONSTRUCTION-EXECUTORY DEVISE OVERDEATH WITHOUT ISSUE-LIMITED ESTATE IN FEE
A testatrix devised certain freehold estate to trustees in trust to receive the rents, and after providing for repairs, &c., to apply part towards her grandnephew's maintenance, and to let the residue accumulate until he should attain twenty-one, when the accumulations were to be paid to him, but on his death under that age, without leaving issue, the same were to be applied for such person and in like manner as the premises were limited, and when he attained twenty-one, the trustees were to stand possessed of the premises in trust for him in fee; but if he should not leave any issue, then upon trust for the testatrix's niece in fee; and if she should not leave any issue, then over as therein The grand-nephew attained twentyone, and married, but died intestate, without having had issue: Held, dismissing without costs, an appeal from Vice-Chancellor Stuart, that upon the grand-nephew's death without having issue, although he attained twenty-one, the niece was entitled to an equitable estate in fee simple, defeasible on her death without issue living at her de
THE testatrix by her will devised certain freehold premises near Birmingham to trustees in trust to receive the rents, and after providing for repairs, &c., to apply a portion thereof towards the maintenance of her grand-nephew, and to let the residuc accumulate until he should attain twenty-one, when she
directed the same to be paid to him. She also provided that, in case he should die under twenty-one without issue living at his death, the accumulations should be applied for the person to whom, and in like manner as, the premises were limited, and when he attained the age of twenty-one, the trustees were to stand possessed of the premises in trust for him in fee; but if he should not leave any issue living at his death, the trustees were to stand seised of the premises in trust for her niece in fee, and if she should not leave any issue at her death, then over as in her will directed. It appeared, on this special case as to the construction of the will, that the grand-nephew attained twenty-one, and married, but died without having ever had issue. The Vice-Chancellor Stuart having held that the niece thereupon took an equitable estate in fee simple, defeasible on her death without having issue, this appeal was presented.
Selwyn and T. H. Terrell, for the grand-nephew's heir-at-law, in support; Craig, S. Thomson, aud
The Lord Chancellor said that the will conferred an absolute gift on the grand-nephew, defeasible upon his dying at any time without leaving issue, and not merely upon his death under twenty-one. The appeal would be discharged, but without costs.
DISMISSAL OF BILL AGAINST CERTAIN DEFENDANTS
After a bill had been dismissed with costs against some of the defendants, a fund had been realised
Recent Decisions: V. C. Kindersley; V. C. Wood.
from other defendants which was paid into Court, and on which the plaintiff's solicitor claimed a lien for his costs of suit. The dismissed defendants had registered the order of dismissal, and now presented a petition for a stop order on the fund in respect of their costs: Held, that they had no lien on the fund, and the petition was dismissed.
THIS was a petition on behalf of certain defendants, against whom the bill had been dismissed with costs, and who had registered such order, asking for a stop order in respect of such costs on a fund which had subsequently been realised in proceedings against other defendants, and had been paid into court. The plaintiff's solicitor claimed a lien on the fund for his costs of suit.
Selwyn and Fischer for the plaintiff; Baily and Borton for the defendants; Shapter for the peti
The Vice-Chancellor said that although there might be a kind of natural equity that parties dismissed from a suit with costs should be paid such costs before the plaintiff recovered anything, yet such an equity, if recognized, would be constantly occurring, and similar questions would be always arising. The Court must, however, pause in the distribution of a fund until it was clear that the plaintiff had paid the costs. In the present case the parties who had been dismissed had nothing taken from them, and the Court was asked, in fact, not to prevent property being taken away, but to secure a lien on the fund in their favour. It must therefore be held that the solicitor, and not these defendants, had a lien on the fund.
In re Commissioners of Ryde, exparte Dashwood. Dec. 12, 1856.
LANDS CLAUSES ACT-LANDOWNERS' COSTSWILFUL REFUSAL.
An owner of land required by commissioners of a town under their act, disputed their power to take and refused to sell it accordingly, under same, the advice of counsel. He, however, afterwards executed the conveyance and received the money which had been paid into court: on the question of costs, held, that this was not a "wilful refusal" under the 8 & 9 Vict. c. 18, s. 80, as to disentitle the landowner to his costs.
Wilful refusal," under that section, means a refusal arising from the exercise of mere will or caprice. IT appeared that the petitioner, who was the owner of certain land required by the above commissioners, and which they had given notice they should require for the purposes of their act, had disputed their power te take the same, and refused to sell, under the advice of counsel. The commissioners tendered the purchase money and the conveyance for execution, and afterwards paid the purchase money into court. The petitioner, however, subsequently executed the conveyance, and obtained payment of the money out of court. The question was now raised whether he was entitled to his costs.
Eddis, for the petitioner, cited Exparte Bradshaw, 16 Sim, 174; In re Windsor, Staines, &c., Railway Company, 12 Beav. 522.
Karslake, for the commissioners, referred to the 8 & 9 Vict. c. 18, s. 80, which enacts that "in all cases of monies deposited in the bank under the provisions of this or the special act, or an act incorporated therewith, except where such monies shall have been so deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to
convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland to order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking; that is to say, the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such costs as are herein otherwise provided for, and the costs of the investment of such monies in government or real securities, and of the reinvestment thereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the payment of the dividends and interest of the securities upon which such monies shall be invested, and for the payment out of court of the principal of such monies, or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimant."
The Vice-Chancellor soid that if the case had not been governed on principle by the decisions cited, it was very doubtful whether he should have arrived at the same conclusion. In those cases, however, Lord Langdale, following the opinion of the Vice-Chancellor of England, held that a wilful refusal meant a refusal arising from the exercise of mere will or caprice, and not from the exercise of reason. Here the petitioner had taken counsel's opinion, and there was no reason to suppose it was not a sound and fair one. The petitioner was therefore entitled to have his costs paid by the commissioners.
Exparte Minister, &c., of St. John's, Fulham, In re Chelsea Waterworks Company. Dec. 13, 1356.
LANDS CLAUSES ACT-DAMAGE TO PARISH SCHOOLS -IMPROVEMENTS-COSTS.
A waterworks company, in laying down their pipes, had damaged certain parish schools, and the amount assessed by a jury, which had been summoned, was paid into court. On petition of the minister and churchwardens, under a resolution of the committee of management, the amount was ordered to be paid out, to be applied towards proposed improvements to the schools, upon an undertaking for its being so applied, under the 8 & 9 Vict. c. 18, s. 69, the costs to be paid by the company, under s. 80.
Ir appeared that the above company had, in laying down their pipes, done some damage to certain schools, the site for which had been granted by the Bishop of London, by deed of endowment, to the minister and churchwardens of St. John's, Fulham, and that such damages had been assessed by the jury summoned under the 8 & 9 Vict. c. 18, at £200, which had been paid into court. It also appeared, that the committee of management of the schools had passed a resolution concurring in proposed improvements to the schools, requiring a sum of £300, and had authorised the present petitioners to apply for payment out of court of the £200 towards such improvements.
By the 8 & 9 Vict. c. 18, s. 69, it is enacted that "if the purchase money or compensation which shall be payable in respect of any lands, or any interest therein, purchased or taken by the promoters of the undertaking from any corporation," &c., "the same shall be paid into the bank in the name and with
Analytical Digest of Cases: Chancery Appeals.
the privity of the Accountant-General of the Court of Chancery in England, if the same relate to lands in England and Wales;" "and such monies shall remain so deposited until the same be so applied to some one or more of the following purposes,- that is to say," &c. "If such money shall be paid in respect of any buildings taken under the authority of this or the special act, or injured by the proximity of the works in removing or replacing such buildings, or substituting others in their stead, in such manner as the Court of Chancery shall direct."
W. Hislop Clarke in support.
The Vice-Chancellor made the order as prayed, upon an undertaking by the petitioners to apply the fund as proposed, and directed the costs to be paid by the company, under s. 80.
Court of Bankruptcy.
(Before Mr. Commissioner GOULBURN.) In the matter of W. C. Currie, a bankrupt. December 12, 1856.
THIS was a private meeting for an investigation.
Counsel were instructed both for the party to be examined and for the assignees.
The counsel on each side sent to inform the solicitors that they were prevented from attending by being unexpectedly detained in another court.
An application was therefore made to adjourn the meeting, by consent of both parties.
The Commissioner declined to appoint another meeting until a memorandum was put upon the proceedings that none of the costs of the adjournment should be charged to the estate.
[We do not see why the solicitor to the bankruptcy should be deprived of his fair costs of summoning witnesses and attending, and of the charge he has to pay for the "house fee," because without any default upon his part an adjournment becomes necessary. The propriety of the allowance of the costs of an adjournment is properly within the province of the taxing master.-ED L. O.]
ANALYTICAL DIGEST OF CASES.
SELECTED AND CLASSIFIED.
Appeals in Chancery.
See Will, 2.
ACKNOWLEDGMENT BY AGENT.
See Vendor and Purchaser.
Specific performance.-Though the court may execute an agreement framed in general terms where the law will supply the details, yet if those details are to be supplied, in modes which cannot be adopted by the court, there is no concluded agreement which can be enforced in equity. The South Wales Railway Company v. Wythes, 5 De G. M'N. and G. 880.
See Costs; Mortgagees; Winding-up-Act, 1.
Power of revocation Will. An appointment expressed to be made in exercise of every power enabling the appointor, does not extend to property which the appointor cannot appoint without the exercise of a power of revocation if there be other property to which the appointment can apply.
Therefore, where the donee of a power under a settlement to be exercised by deed or will, partially exercised it by deed, reserving a power of revocation, and afterwards by her will, by virtue of every power contained in the settlement, or "otherwise howsoever," appointed all the real and personal estate which, under the settlement or otherwise, she had power to appoint: Held, that the will operated on the unappointed part only, and was not an exercise of the power of revocation and new
appointment. Pomfret v. Perring, 5 De G. Men. and G. 775.
ASSIGNMENT OF SHARES.
See Specific Performance.
Obligor of bond debt-Trustees-Release-Breach of trust.-Trustees of a bond debt, on the bankruptcy of the obligor, concurred with his other creditors in consenting to the fiat being annulled on the payment of a composition. On the transaction being impeached some years afterwards by the cestuis que trustent, who were under disabilities: Held (confirming the decision of Vice-Chancellor Kindersley, dubitante Lord Justice Turner), that the trustees were liable to make good the full amount of the debt; it being impossible to show that the bankrupt would have obtained his certificate, or that the debt might not have been recovered in full. Wiles v. Gresham, 5 De G. M'N. and G. 770.